Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Jack Morgan, Judge, Los Angeles County Super. Ct. No. TA076293
Andrew Reed Flier for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and David F. Glassman, Deputy Attorneys General, for Plaintiff and Respondent.
SUZUKAWA, J.
Defendant Antoine Davis was convicted by a jury of manufacturing cocaine base (Health & Saf. Code, § 11379.6, subd. (a), count 1); possession of cocaine base for sale (§ 11351.5, count 2); possession of marijuana for sale (§ 11359, count 3); possession of cocaine for sale (§ 11351, count 4); and possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1), count 5). The jury further found defendant was personally armed with a firearm while committing counts 2 and 4. (Pen. Code, § 12022, subd. (c).) Following a jury waiver, the court found that defendant had suffered two prior convictions within the meaning of section 11370.2, subdivision (a) and had served a prior prison term within the meaning of Penal Code section 667.5, subdivision (b). He was sentenced to 20 years in state prison. We affirm the judgment.
All further undesignated section references are to the Health & Safety Code.
Defendant’s first trial resulted in a mistrial because the jury was unable to reach a verdict.
FACTUAL AND PROCEDURAL BACKGROUND
On September 8, 2004, Los Angeles Sheriff’s Department detectives executed a search warrant at 125 North Santa Fe Avenue in Compton. Six or seven deputies forcibly entered the residence and swept the premises for suspects and contraband. Defendant, the only person found on the premises, was under a pillow in the laundry room and was taken into custody. In the living room, deputies recovered two packages of cocaine and nine bags of marijuana in a black bag, along with defendant’s wallet and several documents addressed to defendant at 125 North Santa Fe Avenue. Defendant admitted to the deputies that there was a “chicken” (half-kilo) of cocaine, a gun, and $4,000 in a bedroom safe. The deputies opened the safe and found it contained cocaine, cocaine base, a firearm, ammunition, $7,000, and paperwork with defendant’s name on it. In the kitchen, deputies found a glass beaker containing cocaine in a pot of boiling water on a lit burner; and, on the table, they found a digital scale, rock cocaine, and packaging materials. In addition, they found baking soda and cocaine hydrochloride, necessary ingredients for producing cocaine base.
At trial, the lead detective testified that approximately $71,000 worth of contraband had been collected from the house during the search. The search of the premises lasted approximately 45 minutes. A videotape of the search was shown to the jury.
Defendant did not testify. Tomecka Smith, defendant’s girlfriend (now wife), testified that she lived at 125 North Santa Fe Avenue with her four children. She further testified that defendant did not live in that house and that one of her sons, Arthur “Jimmy Ray” Gilliam, lived in the back house. Madeline Colbert-Weinhart testified that “Jimmy Ray,” her boyfriend, lived in the garage at the North Santa Fe address and sold narcotics from that location. She also testified that she and “Jimmy Ray” were hiding in the attic at the time of the search, and that all the drugs found in the main residence belonged to “Jimmy Ray.” The court refused to allow the testimony of Maurice Foster on the ground that his testimony was not relevant to the question of defendant’s guilt.
In rebutting this defense, the prosecution read into the record Cheilita Shelton-Lane’s testimony from the first trial. Shelton-Lane, a probation investigator, testified at the first trial that defendant’s mother had informed her that defendant had been living at a location on Santa Fe Avenue with his girlfriend for the past three years.
Shelton-Lane was deemed legally unavailable to testify at the time of the retrial, and defendant does not appeal that ruling.
On appeal, defendant contends the trial court erred: (1) in denying his motion to disclose the name of the confidential informant; (2) in excluding Maurice Foster’s testimony; and (3) in admitting Cheilita Sheldon-Lane’s testimony from the first trial. Additionally, defendant contends (4) he was provided with ineffective assistance of counsel.
DISCUSSION
I. The Motion to Disclose the Name of the Confidential Informant
Defendant contends that the trial court erroneously denied his motion to disclose the name of the confidential informant who had made the controlled buy at the residence a week or two prior to the search. We disagree.
The affidavit to the search warrant stated that the informant purchased cocaine from the residence between the dates of August 20, 2004, and August 30, 2004.
If a confidential informant is a material witness in a criminal case, the prosecution must disclose the name of the informant or the prosecution must suffer the dismissal of the charges against the defendant. (People v. Lawley (2002) 27 Cal.4th 102, 159.) “An informant is a material witness if there appears, from the evidence presented, a reasonable possibility that he or she could give evidence on the issue of guilt that might exonerate the defendant. [Citation.]” (Ibid.) It is the defendant who bears the burden of producing “‘“some evidence” [citation]’” on this point. (People v. Gordon (1990) 50 Cal.3d 1223, 1246 (Gordon), quoting People v. Hardeman (1982) 137 Cal.App.3d 823, 828.)
Whether we apply a de novo or an abuse of discretion standard of review is a question that remains unsettled. (Gordon, supra, 50 Cal.3d at pp. 1245-1246.) Nevertheless, under either standard, we find the trial court’s determination was sound.
The materiality of the informant’s testimony depends on the charges brought against the defendant. (People v. Alderrou (1987) 191 Cal.App.3d 1074, 1081 (Alderrou).) In Alderrou, the court stated that, “[i]n analyzing the evidence actually used to convict appellant and the evidence the confidential informant might have supplied, it is important to bear in mind what offense appellant was found to have committed. He was charged and convicted of possessing [contraband for sale and manufacturing a controlled substance]. He was not convicted of selling [drugs,] transporting [them,] or giving [them] away. . . . [He] was not being charged nor was he convicted of the particular sale—or any sale—which he may have made to the confidential informant or which the confidential informant may have witnessed.” (Ibid.) Therefore, the informant’s testimony would not have helped in exonerating defendant because the “prosecution did not prove appellant possessed this [contraband] for sale by introducing evidence he actually sold some other [contraband] to the confidential informant on a previous occasion.” (Ibid.)
In this case, as in Alderrou, the prosecution did not prove defendant possessed the drugs for sale by introducing evidence that he had, on a prior occasion, sold drugs to the confidential informant. (Alderrou, supra, 191 Cal.App.3d at p. 1081.) To prove possession for sale, the prosecution relied on the sheer quantity of drugs found on the premises, in combination with the packaging materials, the scale, the $7,000 in the safe, the documents in defendant’s name, expert testimony on the issue, and defendant’s admission that there was a half-kilo of cocaine in the safe. Further, the prosecution produced evidence indicating that defendant resided at the Santa Fe Avenue location when the search warrant was served.
In addition, the prosecution relied on the fact that the police discovered a beaker containing cocaine base over an open flame to prove the charge of manufacturing a controlled substance. Testimony by the informant would have had no bearing on whether defendant, at the time of the arrest, was or was not manufacturing a controlled substance.
The trial court properly concluded there was no reasonable possibility the confidential informant could provide exonerating evidence with respect to the charges defendant faced. The court did not err in denying the disclosure motion.
II. The Exclusion of Defendant’s Witness
In an evidentiary hearing, outside the presence of the jury, the trial court heard Foster’s testimony that he had, on various occasions, purchased illicit drugs out of the garage at 125 North Santa Fe Avenue from “Jimmy Ray.” The court ruled that this testimony was irrelevant and did not allow it to be introduced to the jury.
Defendant claims the trial court’s evidentiary ruling did not permit him to exercise his constitutional right to present a defense. (U.S. Const., 6th Amend.) Defendant attempts to inflate a “garden-variety evidentiary question[] into [a] constitutional one[].” (People v. Boyette (2002) 29 Cal.4th 381, 427.) “As a general matter, the ‘[a]pplication of the ordinary rules of evidence . . . does not impermissibly infringe on a defendant’s right to present a defense.’ [Citations.] Although completely excluding evidence of an accused’s defense theoretically could rise to this level, excluding defense evidence on a minor or subsidiary point does not impair an accused’s due process right to present a defense. [Citation.] If the trial court misstepped, ‘[t]he trial court’s ruling was an error of law merely; there was no refusal to allow [defendant] to present a defense, but only a rejection of some evidence concerning the defense.’ [Citation.] Accordingly, the proper standard of review is that announced in People v. Watson (1956) 46 Cal.2d 818, 836, and not the stricter beyond-a-reasonable-doubt standard reserved for errors of constitutional dimension (Chapman v. California (1967) 386 U.S. 18, 24).” (People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103.)
In addition, the Attorney General correctly contends that defendant did not object on these grounds at trial. Thus, his Sixth Amendment constitutional claim has not been preserved for appeal. (People v. Catlin (2001) 26 Cal.4th 81, 138, fn. 14; People v. Waidla (2000) 22 Cal.4th 690, 726, fn. 8.)
The trial court’s decision to exclude Foster’s testimony concerning his illicit drug transactions with “Jimmy Ray” in the garage of the Santa Fe Avenue residence was proper. As the trial court aptly found, testimony by Foster that he purchased drugs from “Jimmy Ray” out of the garage at the Santa Fe Avenue residence was not relevant to the question whether defendant possessed narcotics inside the residence on the day in question. As we have stated, the prosecution relied on the totality of the evidence found during the search and defendant’s admission to persuade the jury that defendant was in possession of contraband for sale. The prosecution did not attempt to and did not need to prove that defendant had, in fact, sold the illicit substances in one-on-one transactions with buyers. Moreover, Foster testified that he had never been inside the house, and he had no personal knowledge concerning who lived at the residence. He did not know who supplied or manufactured the drugs he purchased. The fact that someone else had engaged in the sale of contraband in the vicinity (or even on the premises) of the residence at some time prior to the search did not have “any tendency in reason to prove or disprove any disputed fact that [was] of consequence to the determination of the action.” (Evid. Code, § 210.)
Even if we were to assume the trial court erred, given the strength of the prosecution’s case, it is not reasonably probable that the admission of Foster’s testimony would have altered the result. (See People v. Watson (1956) 46 Cal.2d 818, 836.)
III. Admission of Testimony From the First Trial
At the first trial, the prosecution relied on Shelton-Lane’s testimony to rebut defendant’s contention that he did not live at 125 North Santa Fe Avenue. Defendant contends Shelton-Lane’s prior testimony contained inadmissible hearsay because she was reading from her probation report while testifying. Defendant argues that because the prior testimony in the first trial contained inadmissible hearsay, it should have been excluded during the second trial. We disagree.
A witness may use a writing to refresh his or her recollection, subject to the right of the adverse party to inspect it and cross-examine the witness concerning it. (Evid. Code, § 771; 3 Witkin, Cal. Evidence (4th ed. 2000) Presentation at Trial, § 177, p. 240.) Generally, any kind of writing may be used for this purpose, regardless of when or by whom it was prepared. (People v. Hess (1970) 10 Cal.App.3d 1071, 1080-1081; 3 Witkin, Cal. Evidence, supra, § 178, p. 241.)
The record from the first trial does not support defendant’s contention that Shelton-Lane had read from her probation report while testifying. At most, the record from the prior trial shows that Shelton-Lane referred to the report to refresh her recollection. As a probation investigator, Shelton-Lane had conducted countless investigations and it was reasonable that she would need to refer back to the report when asked questions pertaining to specific details. She explained, “[w]e work on so many case[s,] it’s hard to memorize each case, and this was back in September.” Repeatedly, Shelton-Lane clearly stated she was only refreshing her recollection by reading the probation report she had written in September. The trial court did not err in permitting Shelton-Lane’s transcribed testimony to be read into the record.
IV. Ineffective Assistance of Counsel
Defendant contends his trial counsel was ineffective because counsel: (1) did not know the rules of evidence; (2) asked witnesses to engage in speculation; (3) did not know how to make an offer of proof; (4) could not ask witnesses relevant or intelligible questions; and (5) was late on the second day of trial.
In order to prove ineffective assistance of counsel, defendant has the burden to show first, that counsel’s representation fell “below an objective standard of reasonableness . . . under prevailing professional norms.” (Strickland v. Washington (1984) 466 U.S. 668, 687-688.) Second, defendant must show that the ineffective assistance was prejudicial. (Id. at pp. 691-692.) In determining if there was prejudice under the Strickland standard, we “[focus] on the question whether counsel’s deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair.” (Lockhart v. Fretwell (1993) 506 U.S. 364, 372.) In other words, “‘but for counsel’s failings, the result would have been more favorable to the [defendant]. [Citations.]’” (In re Jones (1996) 13 Cal.4th 552, 561.)
Defendant points to a series of five instances allegedly amounting to substandard assistance of counsel; but, fails to allege, much less establish, how he was prejudiced by any of counsel’s alleged missteps. For this reason, we also dismiss defendant’s claim that the cumulative effect of counsel’s errors resulted in prejudice. There is no evidence that but for counsel’s performance, the result of the trial would have been more favorable to defendant. His ineffective assistance claim fails.
DISPOSITION
The judgment is affirmed.
We concur: EPSTEIN, P. J., WILLHITE, J.