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People v. Hale

California Court of Appeals, Second District, Eighth Division
Mar 24, 2008
No. B197784 (Cal. Ct. App. Mar. 24, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. SUSAN HALE, Defendant and Appellant. B197784 California Court of Appeal, Second District, Eighth Division March 24, 2008

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County. Super. Ct. No. LA053232 Richard Kirschner, Judge.

John D. O’Loughlin, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Mary Sanchez and Corey J. Robins, Deputy Attorneys General, for Plaintiff and Respondent.

RUBIN, J.

Defendant Susan Hale appeals her conviction of sale of cocaine base. She contends that her counsel was ineffective in failing to ask for an instruction on voluntary intoxication and in eliciting damaging hearsay testimony and failing to object to that evidence on Evidence Code section 352 grounds. We find no error and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Viewed in accordance with the usual rules on appeal (People v. Kraft (2000) 23 Cal.4th 978, 1053), on August 15, 2006, narcotics officers arrested defendant and others following a sting operation. One of the undercover officers in the buy team asked suspect Don Darrett in the parking lot of a convenience food store if she could purchase rock cocaine. The officer gave Darrett $30 in prerecorded money. After a short wait during which Darrett spoke to two other men, a silver Infiniti, driven by defendant, arrived in the parking lot. Suspect Jiles Crenshaw was in the front passenger seat. Crenshaw got out of the car, walked into the convenience store, came out, and spoke to one of the men in the parking lot, Shain Bowyer. Bowyer and Crenshaw got into the Infiniti. The car drove a short distance out of the lot, then stopped, and Bowyer got out. Bowyer approached Darrett. An exchange appeared to take place, and Darrett returned to the undercover officer and handed her rock cocaine. Crenshaw and defendant drove away.

Various officers proceeded to apprehend the suspects. Two officers followed the Infiniti which defendant was driving. When the car stopped to let Crenshaw out, one officer arrested him. The other officer pursued defendant with lights and siren for approximately five minutes until the Infiniti was forced to stop when several police cars cordoned off the area. While driving, defendant had exceeded the speed limit, ignored several red lights, drove on the wrong side of the street, and almost hit several pedestrians. Pieces of rock cocaine and money were recovered from defendant, Darrett, and Crenshaw all of whom, along with Bowyer, were arrested. Bowyer testified that after the transaction he smoked some of the cocaine he obtained as part of the deal and swallowed the rest when officers approached. Another piece of rock cocaine was found under the front driver’s seat of the Infiniti. Following a consolidated jury trial, defendant, Darrett and Bowyer were convicted of sale of cocaine base. According to the trial court’s statements at defendant’s sentencing hearing, Crenshaw had pled guilty before trial.

DISCUSSION

Defendant makes two contentions on appeal, both of which involve claimed ineffective assistance of counsel. First, she argues her trial lawyer was ineffective because he failed to ask for an instruction on voluntary intoxication as it may have affected her knowledge of the drug transaction and her intent to aid and abet the actual perpetrators of the crime. Second, she claims counsel was incompetent in eliciting testimony from one of the officers that a supervisor told him a “delivery” was taking place. We find no error.

A. General Principles Relating to Ineffective Assistance of Counsel

To demonstrate ineffective assistance of counsel, a defendant must show both that counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms, and that the defendant was prejudiced as a result, i.e., it is reasonably probable that, but for counsel’s unprofessional errors, the verdict would have been different. (In re Thomas (2006) 37 Cal.4th 1249, 1256, citing Strickland v. Washington (1984) 466 U.S. 668, 687-688.) As it relates to jury instructions, an obvious corollary is: defense counsel is not ineffective if he fails to request an instruction which the trial court is under no duty to give. (See People v. Cunningham (2001) 25 Cal.4th 926, 1037-1038.)

B. Failing to Request CALJIC Instruction No. 4.21 on Voluntary Intoxication.

1. Relevant trial court proceedings.

The prosecution’s theory of the case against defendant was that she aided and abetted Darrett’s sale of cocaine to the undercover officer. Although there were several steps along the way, essentially Darrett talked to Bowyer in the parking lot, then Bowyer called Crenshaw from a payphone, and defendant drove Crenshaw with the cocaine to the convenience store. In the parking lot, Crenshaw gave the cocaine to Bowyer, likely while they were both in defendant’s car; then Bowyer gave the drugs to Darrett who proceeded to complete the sale to the undercover officer.

Defendant testified at trial. She said that she had known Crenshaw for 10 years and that he was her drug dealer. She had purchased crack cocaine from him some 50 times. From time to time, she did Crenshaw favors such as driving him to places. On the day in question, he asked her to drive him to the store; Crenshaw did not say why and defendant did not ask. She expected to be paid something for her efforts. Earlier that day, defendant had purchased $10 worth of cocaine from Crenshaw, and while she drove with Crenshaw to the store, she was holding the rock in her hand. She had also taken some “puffs” of crack cocaine. She drove into the parking lot. Crenshaw got out of the car, went into the convenience store, and talked to Bowyer. He and Bowyer got into the car. She thought she was going to take both Crenshaw and Bowyer to her cousin’s house where she had originally picked up Crenshaw. After driving a short distance out of the parking lot, defendant stopped the car because she “didn’t appreciate [Crenshaw] bringing somebody into my car, and I told [Bowyer] to get out of my car.” She was angry when she told Bowyer to leave.

Defendant testified that she did not know that a drug transaction was going to take place, she did not see any drugs on Crenshaw, she did not see a drug deal between Crenshaw and Bowyer, and the two men did not discuss a drug deal while they were in her car.

The trial court instructed the jury on the prosecution’s theory that defendant had aided and abetted a drug sale. CALJIC No. 12.02 stated that a conviction for sale required that the defendant knew of the drug’s “presence and nature as a controlled substance.” CALJIC No. 3.01 stated that a person aids and abets the commission of a crime when the person (1) has knowledge of the unlawful purpose of the perpetrator; (2) intends to commit, encourage or facilitate the crime’s commission; and (3) aids, promotes, encourages or instigates the crime. Mere presence at the scene and knowledge a crime is being committed are alone insufficient. CALJIC No. 1.21 defined “knowingly” as knowledge of the existence of the facts in question.

Defendant does not complain that the trial court erred in giving any of the instructions that it in fact gave, only that the court failed to instruct on voluntary intoxication.

In argument, the prosecutor challenged defendant’s testimony that she did not know anything about a drug deal. The uncontroverted facts were that Bowyer called Crenshaw on the phone to arrange for a delivery; Crenshaw had just sold defendant a rock of cocaine, which she had in her hand; defendant drove Crenshaw to the lot; Crenshaw and Bowyer talked outside the car; the two men got into the car; defendant drove to a place less conspicuous than the lot; Bowyer got out of the car and gave the cocaine to Darrett; Darrett sold it to the undercover officer. According to the prosecutor, defendant’s claim that she had no knowledge was not believable; rather, the only reasonable inference from the circumstantial evidence was that she aided and abetted a drug sale by driving the dealer to the location, in exchange for which she expected to be paid.

Defendant’s counsel argued there was no direct evidence that his client was aware of any drug transaction until, at most, after it took place and she heard Crenshaw and Bowyer bickering over the details. At that point, she became furious and ordered Bowyer out of her car. She did not intend to aid and abet any crime because she did not know any crime was going to take place.

2. No substantial evidence supports a voluntary intoxication instruction.

Defense counsel did not ask for a voluntary intoxication instruction. On appeal, defendant contends trial counsel was ineffective for not requesting CALJIC No. 4.21. In general, voluntary intoxication may negate the specific intent required of an aider and abettor. (See People v. Mendoza (1998) 18 Cal.4th 1114, 1133.) But a defendant is not entitled to a voluntary intoxication instruction absent substantial evidence that the defendant was intoxicated and that the intoxication affected the defendant’s “actual formation of specific intent.” (People v. Williams (1997) 16 Cal.4th 635, 677.) Evidence of intoxication can be established in several interrelated ways: (1) eyewitness testimony about a defendant’s behavior; (2) expert testimony on the predictable pharmacological effects of the ingested substance; (3) evidence of the defendant’s consumption of inordinate quantities of the intoxicating substance; and (4) the common knowledge of jurors of the effect of the intoxicants. (People v. Kaurish (1990) 52 Cal.3d 648, 696.)

CALJIC No. 4.21 reads in part: “If the evidence shows that the defendant was intoxicated at the time of the alleged crime, you should consider that fact in deciding whether defendant had the required [specific intent] [mental state]. [¶] If from all the evidence you have a reasonable doubt whether the defendant formed that [specific intent] [mental state[s]], you must find that [he] [she] did not have such [specific intent] [mental state[s]].”

Here, the only testimony supporting defendant’s voluntary intoxication theory came from defendant herself: she had taken a couple of puffs of rock cocaine earlier in the day and she described herself as high. Inferentially, her poor driving might have been attributable to intoxication but it appears more the result of her desire to avoid capture by the police: she did not hit any parked cars and stopped without incident when cornered by police. We conclude this evidence is legally insufficient to support a voluntary intoxication defense.

Assuming for sake of discussion that her statement she was “high” was sufficient to establish some level of intoxication, the balance of defendant’s testimony negated any inference that the intoxication affected her “actual formation of specific intent.” (People v. Williams, supra,16 Cal.4th at p. 677.) Defendant testified that although she sometimes gets “discombobulated” when under the influence, it depended on her mood. She was able to drive an automobile safely; she had no trouble understanding what people were saying; her memory was usually unimpaired: “I can recollect anything. My mind – I can pay attention and tell you what happened yesterday, after I had smoked some crack. [¶] . . . [¶] . . . It does not make me a worse witness. I understand that I can - - I recollect everything that happened. My mind is clear. I mean, it stays clear, anything that’s before me.”

In light of defendant’s own admissions, no reasonable jury could have found that defendant’s voluntary intoxication interfered with her ability to form the specific intent necessary to aid and abet. On this record, if counsel had requested the instruction, the trial court properly would have refused it. Accordingly, counsel was not ineffective for not requesting the instruction. (People v. Cunningham, supra,25 Cal.4th at pp 1037-1038.)

C. Eliciting Testimony That a Delivery Was Going to Take Place

One of the undercover officers at the scene testified that he saw appellant drive the Infiniti into the parking lot. On cross-examination, defendant’s trial counsel asked whether there was any particular reason that the officer took notice of the car as it entered the lot. The officer responded: “Yeah, the reason I took notice of it, to begin with, was my supervisor had announced over the radio --.” Defendant’s counsel interposed a hearsay objection. The trial court overruled it, and the officer continued: “The reason it caught my attention was because, 20 or 30 minutes before that the supervisor had put out, ‘It looks like a delivery is going to be coming.’ So, at that point, we’re basically monitoring that lot for any car that the people that are waiting for the drugs actually respond to.”

We find no ineffective assistance of counsel. First, the question was not inherently unreasonable. There is nothing to suggest that asking why the officers were looking for a car would have prompted a hearsay response. Second, when it appeared that the officer was going to provide hearsay testimony, counsel promptly objected before any third person testimony was given. The error at this point – if there was error – was in the trial court not sustaining the objection. Arguably, the proper objection was relevance, not hearsay, as the statement was not offered for the truth of whether a transaction was taking place (that was essentially conceded at trial), but the effect the statement had on the officer. But the effect of the statement on the officer was of doubtful relevance. What mattered was what the officer observed, not why he was looking. In any event, the supervisor’s statement did not implicate defendant: defendant does not deny she drove the car into the lot; the statement that a drug delivery was impending did not make it more likely that defendant had knowledge of the transaction. The supervisor’s statement only confirmed what was not contested: calls had been made to a dealer who was bringing the drugs to the parking lot. The statement did not assist the jury in deciding who was involved in the transaction. Even if the evidence was inadmissible on relevancy or Evidence Code section 352 grounds (as defendant now argues on appeal), any error was harmless.

DISPOSITION

The judgment is affirmed.

WE CONCUR: COOPER, P. J., FLIER, J.

Although not specifically mentioned in defendant’s brief, CALJIC No. 4.21.2 also deals with the subject: “In deciding whether a defendant is guilty as an aider and abettor, you may consider evidence of voluntary intoxication in determining whether a defendant tried as an aider and abettor had the required mental state.”


Summaries of

People v. Hale

California Court of Appeals, Second District, Eighth Division
Mar 24, 2008
No. B197784 (Cal. Ct. App. Mar. 24, 2008)
Case details for

People v. Hale

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. SUSAN HALE, Defendant and…

Court:California Court of Appeals, Second District, Eighth Division

Date published: Mar 24, 2008

Citations

No. B197784 (Cal. Ct. App. Mar. 24, 2008)