Opinion
B225521
09-13-2011
THE PEOPLE, Plaintiff and Respondent, v. KENNETH GERMAIN, Defendant and Appellant.
Kevin Michele Finkelstein, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr. and Steven D. Matthews, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. MA044861)
APPEAL from a judgment of the Superior Court of Los Angeles County, Jared D. Moses, Judge. Affirmed.
Kevin Michele Finkelstein, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr. and Steven D. Matthews, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Kenneth Germain appeals from the judgment following his jury conviction of transportation of a controlled substance. Defendant asserts that the trial court erred in denying his motion to dismiss the case and in excluding him during readback of testimony. He contends further that the trial court abused its discretion in allowing his prior conviction for possession of rock cocaine for sale to be introduced at trial and in refusing to dismiss a prior strike allegation. We find no reversible error and affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
On February 11, 2009, Sheriff's Deputies Dieguez and Kim initiated a traffic stop of a car in which defendant was a passenger. As they were pulling over, the deputies saw defendant's left arm move in the driver's direction. They then saw the driver's body move up, her shoulders move back, and her right arm move down. Based on the movements they observed, the deputies concluded that defendant passed something to the driver, who stuffed it. A pat down revealed a hard object hidden in the driver's underwear, which turned out to be a plastic baggie containing eight individually wrapped rocks of cocaine with a total weight of 2.69 grams. The packaging of the cocaine indicated its planned sale on the street. As defendant got out of the car, a small piece of a plastic baggie fell from his lap. A cell phone and a large wad of bills were found on his person. When asked if he had any drug-related arrests, defendant said he had "a prior sales case."
Defendant was charged with transportation of cocaine base, a controlled substance. (Health & Saf. Code, § 11352, subd. (a).) The information alleged defendant had a prior drug-related felony conviction (id.) and a prior strike conviction. (Pen. Code, §§ 1170.12 & 667.) He had served two prior prison terms. (Id., Pen. Code, § 667.5, subd. (b).) Defendant unsuccessfully moved for dismissal or sanctions on the ground that the police had destroyed material evidence. The driver of the car was the only witness for the defense at trial. She denied defendant had passed the cocaine to her in the car. She testified that she had bought five rocks of cocaine for $100 and hid it in her underwear before she picked up defendant, who had no knowledge of it. The jury found defendant guilty of transportation of cocaine base. The trial court found the prior conviction and strike allegations to be true. The court exercised its discretion to strike one of the two prison-term priors but not the prior strike conviction. Defendant was sentenced to 12 years in prison, consisting of four years on count 1, which was doubled because of the prior strike conviction, with three additional years for the prior drug conviction and one additional year for the prior prison term.
This timely appeal followed.
DISCUSSION
I
Defendant argues that the trial court erred in denying his motion to dismiss or, in the alternative, for sanctions, because exculpatory evidence was destroyed in violation of his right to due process. On appeal, we determine whether the trial court's ruling on a motion to dismiss is supported by substantial evidence. (People v. Roybal (1998) 19 Cal.4th 481, 510 (Roybal).) "Law enforcement agencies have a duty, under the due process clause of the Fourteenth Amendment, to preserve evidence 'that might be expected to play a significant role in the suspect's defense.' (California v. Trombetta (1984) 467 U.S. 479, 488; accord, People v. Beeler (1995) 9 Cal.4th 953, 976.) To fall within the scope of this duty, the evidence 'must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.' (California v. Trombetta, supra, 467 U.S. at p. 489; People v. Beeler, supra, 9 Cal.4th at p. 976.) The state's responsibility is further limited when the defendant's challenge is to 'the failure of the State to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant.' (Arizona v. Youngblood (1988) 488 U.S. 51, 57.) In such case, 'unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.' (Id. at p. 58; accord, People v. Beeler, supra, 9 Cal.4th at p. 976.)" (Roybal, at pp. 509-510.)
Defendant's motion was based on the police failure to preserve three pieces of evidence: the plastic baggie that held the rocks of cocaine, the piece of plastic baggie that fell off defendant's lap as he exited the car, and defendant's cell phone. Defendant argues the evidence had exculpatory value because testing the plastic baggie and the piece of plastic could have shown the absence of defendant's fingerprints. We disagree. The cocaine was retrieved from the driver's underwear. She testified she had her period at the time, and the baggie holding the cocaine was bloody. Deputy Dieguez, who searched her, wiped off the blood. It is doubtful that under the circumstances any fingerprints could have been lifted from the baggie. Since the driver's handling of the baggie could have compromised or obliterated defendant's fingerprints, their absence would not tend to exonerate defendant. And if defendant's fingerprints were found on the baggie, they would be inculpatory. Defendant has not established that the baggie holding the cocaine was potentially useful to his defense. (Cf. e.g. Roybal, supra, 19 Cal.4th at pp. 509-510 [doorjamb from murder scene containing an unprocessed fingerprint was not exculpatory evidence].) Nor has defendant shown any bad faith on the part of the police. Deputy Kim, who sent the cocaine to a lab to be tested, testified that he did not preserve the baggie for fingerprinting. But he was not asked his reasons for not preserving the baggie, and the circumstances under which the cocaine was retrieved support the inference that the baggie was not good fingerprinting material.
The piece of plastic baggie that fell from defendant's lap was booked into evidence along with his cell phone. But the detective who handled this evidence inadvertently forgot to place a hold on it, and it was destroyed after six months. Again, defendant fails to establish either the detective's bad faith or the exculpatory value of the evidence. If his fingerprints could have been lifted off the plastic, that would be incriminating. But the absence of fingerprints would not exonerate defendant because testimony that the piece fell from his lap would still support the inference that he was aware of its presence there. Whether the piece of plastic baggie could have tested negative for narcotics residue also would not be decisive because its evidentiary value was based solely on its similarity to the plastic in which the cocaine was packaged. That similarity would support the inference that defendant packaged the cocaine even if he did not actually touch this particular piece of plastic or leave any cocaine residue on it.
Defendant argues that the cell phone was necessary to defend against testimony that he received drug-related messages during the arrest. The argument that the cell phone contained impeachment evidence fails because, although Deputy Kim testified that it rang repeatedly throughout the arrest, he did not claim that any drug-related messages were received at the time. He testified, instead, that his search of the cell phone uncovered only four drug-related messages, received on other dates. The deputy was extensively cross-examined about the four messages he transcribed. In light of his testimony, any other messages on the cell phone would have been irrelevant rather than exculpatory.
Because none of the destroyed evidence had apparent exculpatory value or potential usefulness to the defense, the trial court did not err in denying defendant's motion for dismissal or sanctions.
II
During deliberations, the jury requested a reading of all testimony about defendant's admission that he had a prior sales case. Defense counsel attended the readback of testimony, which did not take place in open court or in defendant's presence. The court rejected defense counsel's request that a portion of Deputy Kim's cross-examination be included in the readback.
Defendant contends that his exclusion from the readback deprived him of due process. Although the United States Supreme Court has recognized that an accused has a right to be present at critical stages of trial, it has not declared a readback to be such a stage. (People v. McCoy (2005) 133 Cal.App.4th 974, 981-982 (McCoy).) The California Supreme Court has held that the rereading of testimony is not substantially related to the opportunity to defend a case and declined to grant relief where the defendant's presence at a readback would not have assisted the defense. (People v. Hovey (1988) 44 Cal.3d 543, 585.) Similarly, here defendant did not have a constitutional right to be present at a readback of testimony as his presence would not have affected the testimony that was reread to the jury.
Defendant argues that he was prejudiced because the court did not admonish the jury, as the court did in McCoy. In that case, neither the defendant nor his counsel was allowed to be present at the readback. (McCoy, supra, 133 Cal.App.4th at p. 981.) The jury was admonished that it should not ask questions or discuss the case during the readback but could request that the court reporter read additional testimony on the same subject. (Ibid.) The admonishment in that case was given because defense counsel was not allowed to attend the readback, object to the portions read, or ask that additional testimony be reread to the jury. (Ibid.) Here, in contrast, defense counsel was present both at the readback and at the selection of the portions of the transcript to be read to the jury. He requested that additional testimony be included in the readback and placed his objections to the court's refusal to do so on the record. McCoy is therefore not on point.
Defendant argues further that he was prejudiced because the court did not admonish the jury to weigh all evidence and allowed it to hear testimony that was not balanced. Defendant relies on U.S. v. Hernandez (9th Cir. 1994) 27 F.3d 1403, 1408-1409, but that case did not involve a readback of testimony. There, the district court gave the jury portions of the transcript consisting of a key witness's direct and cross-examination testimony. But it did not sufficiently ensure that the unsupervised jury would rely on its memory of the entire trial and not place undue emphasis on the portions of the transcript it was given. (Ibid.) Here, the jury was not given a written transcript, and the concern that it would unduly emphasize recorded testimony was not implicated.
Defendant complains that the jury did not hear reread testimony that his counsel wanted it to hear. But when a jury requests a rereading of testimony, the jury—rather than the parties or their attorneys—determines what testimony it hears; counsel may request that other portions be read but cannot compel the trial court to order the jury to listen to the rereading of testimony the jury does not want to hear. (See People v. Ayala (2000) 23 Cal.4th 225, 289 (Ayala) and cases cited.) In People v. Gordon (1963) 222 Cal.App.2d 687, 689, the defendant complained that a witness's full testimony rather than portions of it should have been read to the jury. (Ibid.) The appellate court disagreed, explaining that if the jurors wanted additional testimony read to them, they would have asked for it. "If the testimony actually read to them did not contain the matters they wished to hear, they surely would have said so. The trial judge does not have to order read any part of the testimony not requested by the jury foreman. [Citation.]" (Ibid.)
Here, the jury asked for a "reading of all testimony of 'I have prior sales case.'" Defense counsel requested that the portion of Deputy Kim's cross-examination to be included in the readback "go back to the point" when the deputy was asked whether he was keeping an eye on defendant while Deputy Dieguez searched the driver. The portion counsel referenced included testimony about Deputy Kim not noticing the piece of plastic on defendant's lap. Deputy Kim's cross-examination testimony about defendant's admission of his prior drug-related conviction began on the next page of the transcript. A defendant does not have the right to compel a different or more comprehensive rereading of testimony than the jury requested. (Ayala, supra, 23 Cal.4th at p. 289.) Defendant does not identify any specific portion of this testimony that was responsive to the jury's request but was not read to the jury. Since the jury did not request a rereading of any testimony about Deputy Kim's observation of defendant or the piece of plastic on his lap, the court was not required to include that portion of the cross-examination in the readback. Defendant's right to due process was not violated.
III
Defendant contends that he was prejudiced by the admission at trial of evidence about his 2002 conviction for possession of rock cocaine for sale. We disagree.
Evidence Code section 1101 does not permit the admission at trial of evidence of a defendant's prior criminal act to prove his criminal disposition. (Evid. Code, § 1101, subd. (a); People v. Davis (2009) 46 Cal.4th 539, 602.) Such evidence is admissible only if relevant to prove a material fact at issue, such as motive, opportunity, intent, knowledge, identity, or absence of mistake or accident. (Evid. Code, § 1101, subd. (b).) Even then, the probative value of the evidence must not be substantially outweighed by the probability that its admission will create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. (Evid. Code, § 352.) We review the trial court's ruling on the admissibility of evidence for abuse of discretion. (People v. Cole (2004) 33 Cal.4th 1158, 1195.)
To be probative of defendant's intent, the results of the prior criminal act must be sufficiently similar to those of the charged offense. (People v. Ewoldt (1994) 7 Cal.4th 380, 402 (Ewoldt), superseded by statute on other grounds as stated in People v. Britt (2002) 104 Cal.App.4th 500, 505-506.) A greater degree of similarity in the features of the charged and uncharged offenses is required to establish a common design or plan. (Ewoldt, at pp. 402-403.) The greatest degree of similarity, requiring that the two crimes share distinctive and unique common features, is needed to establish identity. (Id. at p. 403.) In the prosecution of drug crimes, evidence of prior drug use and drug-related convictions is admissible under Evidence Code section 1101, subdivision (b), to establish knowledge, intent, or common design or plan. (See e.g. People v. Williams (2009) 170 Cal.App.4th 587, 596-598, 607 [evidence of searches conducted in 1991, 1992, and 2003 that uncovered drugs and firearms in defendant's home and car was admissible to establish knowledge in prosecution for possession of firearms, ammunition and methamphetamine found in house and garage where defendant and other gang members were present]; People v. Earley (2004) 122 Cal.App.4th 542, 546-548 [evidence that defendant had been caught with marijuana on his person and on the ground nearby was admissible to establish intent or common design in prosecution for possession for sale stemming from his arrest after marijuana was found in his pocket, in a nearby dumpster, and in a nearby car]; People v. Thornton (2000) 85 Cal.App.4th 44, 48 [defendant's statement that he had used heroin was admissible at trial for possession of heroin to prove knowledge where syringe was found in his car and heroin was found in police car that transported him].)
Transportation of a controlled substance is established by carrying or conveying a usable quantity of a controlled substance with knowledge of its presence and illegal character. (People v. Rogers (1971) 5 Cal.3d 129, 133-134, 137.) While knowledge is a necessary element of the offence, actual possession is not because the accused may have retained the right to control contraband possessed by another. (Id. at pp. 133-134). Here, the prosecution's theory was that defendant knew of the presence of cocaine in the car because he had given it to the driver to hide when the car was pulled over. The jury was instructed on constructive possession and on the relevance of defendant's 2002 conviction to his knowledge, intent and "characteristic method, plan or scheme." The trial court found the prior conviction highly probative because of the almost identical packaging and amount of cocaine: in both cases, eight rocks were individually wrapped in little plastic baggies and placed in a larger baggie, with a total weight of 2.74 grams in 2002 and 2.69 grams in 2009. Defendant argues that any similarity was purely coincidental or indicative of how cocaine is packaged for sale on the street. Indeed, Deputy Kim testified that rocks of cocaine intended for sale on the street are individually packaged, whether in plastic baggies or other plastic containers, and the packaging in this case was consistent with an intent to sell the cocaine on the street. Defendant maintains that, if the packaging was not distinctive, then the similarity in the number of rocks and the amount of cocaine was purely coincidental. But since coincidence is not the only reasonable inference, we cannot conclude that the trial court abused its discretion in finding that the similarity in the amount of cocaine was probative.
Defendant argues that the court abused its discretion under Evidence Code section 352 by not excluding the prior conviction. He relies on People v. Harris (1998) 60 Cal.App.4th 727, but the facts of that case are significantly different. There, a mental health nurse was on trial for sexual offenses stemming from his fondling of two patients in his care. (Id. at p. 738.) The trial court allowed the prosecution to admit an extremely redacted and inflammatory version of a 23-year-old incident where the defendant had brutally raped a stranger after breaking into her home and had then pled guilty to burglary in exchange for a dismissal of the sexual assault charges. (Id. at pp. 738-739.) In contrast, here the facts of defendant's prior sales case were far from inflammatory. During a traffic stop in 2002, the police had found eight individually wrapped rocks of cocaine in a ziplock bag and several empty ziplock bags in a car defendant was driving. The facts of the prior case were similar to the facts of this case except that in 2002 defendant was alone in the car. Defendant was convicted of a drug offense in 2002, so there was no danger that the jury would want to punish him for the uncharged crime in this case. (See ibid.) The prior conviction was seven years old, but there is no bright-line rule for remoteness (id. at p. 739) and, as the trial court noted, defendant had an uninterrupted criminal history in between. We cannot conclude that the trial court abused its discretion by admitting the evidence of defendant's prior drug offense under the circumstances.
But even were we to find an abuse of discretion, it was not prejudicial because it was not reasonably probable that the jury would have acquitted defendant had the prior conviction been excluded. (People v. Watson (1956) 46 Cal.2d 818, 836-837.) This case rested on a credibility determination as the jury had to select between the arresting officers' and the driver's version of events. If the jury believed the officers saw defendant give something to the driver, who stuffed it, then it could infer that the cocaine retrieved from her underwear was what had been passed and stuffed. The piece of plastic baggie on defendant's lap additionally supported the inference that defendant had packaged the cocaine. Thus, there would be substantial evidence to support defendant's conviction even were we to exclude the evidence of his prior sales case.
IV
Defendant's last contention is that the court abused its discretion when it declined to strike his 2005 burglary conviction. Under Penal Code section 1385, subdivision (a), a trial court may order an action dismissed in furtherance of justice. The statute applies to a request to strike an allegation of a prior serious or violent felony conviction. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 504.) In exercising its discretion, the court "must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161.) The court's decision is reviewed for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 376.) Absent an affirmative record to the contrary, the court is presumed to have considered all relevant factors even if its explanatory comments focus on a particular characteristic of a defendant's criminal history. (People v. Myers (1999) 69 Cal.App.4th 305, 310.)
In this case, the court reviewed defendant's adult criminal history, which included the 2002 conviction of possession of cocaine for sale; a 2003 vehicle theft conviction, for which defendant received a two-year prison sentence; a 2005 burglary conviction, for which he received another two-year prison sentence; and his present drug offense, which was committed a few months after his release from prison. Defense counsel argued that none of these crimes was violent, and the amount of drugs was small. The court stated that it had considered all factors and, in light of his uninterrupted criminal history since 2002, believed defendant was within the spirit of the Three Strikes law. Defendant argues that the court abused its discretion because his offenses were non-violent, and his current offense was not serious. But the three strikes sentencing scheme does not limit prior strikes to violent felonies and does not require that the current felony be "serious." (Pen. Code, §§ 667, subd. (b), 1170.12, subd. (c)(1).) Defendant fails to acknowledge that for a career criminal to fall outside the spirit of the Three Strikes law, his circumstances must be extraordinary, so that reasonable minds could not differ as to the result. (People v. Carmony, supra, 33 Cal.4th at p. 378.) That is far from this case. Defendant's current offense was his second drug offense, and it followed on the heels of his release from his prison term for his 2005 burglary conviction. On this record, it was not unreasonable to conclude that defendant was a revolving-door criminal.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EPSTEIN, P. J.
We concur:
WILLHITE, J.
SUZUKAWA, J.