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People v. Hammond

California Court of Appeals, Second District, Fourth Division
Sep 23, 2008
No. B199630 (Cal. Ct. App. Sep. 23, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. LEON DWIGHT HAMMOND, Defendant and Appellant. B199630 California Court of Appeal, Second District, Fourth Division September 23, 2008

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. KA076845, Charles Horan, Judge.

Law Offices of Pritz & Associates and Danalynn Pritz, 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, Senior Assistant Attorney General, Lawrence M. Daniels and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.

SUZUKAWA, J.

Leon Dwight Hammond (appellant) appeals from the judgment entered following a jury trial in which he was convicted of possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)) and a court trial in which he was found to have suffered one prior conviction within the meaning of the Three Strikes Law (Pen. Code, §§ 1170.12, subds. (a)-(d), and 667, subds. (b)-(i)) and served three prior prison terms within the meaning of Penal Code section 667.5, subdivision (b). He was sentenced to eight years in prison. He appeals, contending that his constitutional rights were violated when the court excluded third-party culpability evidence, and his counsel’s failure to object to the prosecutor’s closing argument constituted ineffective assistance. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On October 24, 2006, at approximately 8 a.m., Pomona Police Officer Robert Devee went to conduct a search of a residence at 1641 East Kingsley Street in Pomona. When Officer Devee knocked, Patricia Judkins answered the door. There were three children present. About 30 to 40 seconds later, appellant came out of a back bedroom, holding a black beanie in his hand. When Devee saw appellant he said, “Hey, Leon, how are you? We’re here to do a search. You need to come out.� Appellant started walking towards Devee and dropped the beanie on the ground. Devee picked up the beanie, looked inside, and found a wallet, cellular phone, loose change, and three small baggies containing white rocks. The wallet contained appellant’s identification. A criminalist determined that the white rocks in one of the baggies contained cocaine. Devee searched the residence but did not find additional narcotics or any drug paraphernalia.

After the prosecution rested, appellant sought to introduce Judkins’s testimony. His offer of proof was as follows. During the week and a half prior to appellant’s arrest, he stayed at his brother’s house. During appellant’s absence, Mark Anthony, the father of Judkins’s daughters, had access to the apartment. According to Judkins, Anthony is a drug user. She would also testify that she had not seen appellant with a beanie, however, she had seen Anthony with one.

The trial court recognized that appellant was seeking to present evidence of third- party culpability, and understood such evidence was admissible if it was capable of raising a reasonable doubt as to appellant’s guilt. It expressed doubt that evidence establishing a third party had access to appellant’s home was relevant, given that the narcotics were found in a beanie appellant possessed. The court suggested that, at best, appellant was capable of producing evidence of motive and opportunity to commit the crime. It observed that such evidence was generally not sufficient “to point strongly enough in the direction of a third party to warrant the admission of that type of evidence. But here, what makes it very problematic is you have the defendant with the dope in his hand. The only thing between the dope and the defendant is the stocking cap.� The court noted that the beanie also contained a cellular telephone and a wallet containing appellant’s identification. The court ruled Judkins’s testimony inadmissible, concluding that Anthony’s drug use and his prior possession of a cap that possibly looked like the one where the drugs were found were insufficient to raise a reasonable doubt that someone other than appellant possessed the drugs that were in the beanie.

Appellant testified in his defense. He said that he moved into Judkins’s apartment on October 11, approximately two weeks prior to his arrest. He left almost immediately and stayed at his brother’s house. At some point during his stay with his brother, he purchased the beanie. He explained that he returned to Judkins’s apartment a few days prior to his arrest, left the beanie there, and returned to his brother’s house. He came back to Judkins’s apartment on the evening before his arrest. He admitted that, upon his return, he put his cellular telephone and wallet in the beanie, but did not look to see if anything else was inside. He denied that the baggies containing the drugs were his. When Officer Devee came into the house, he told appellant to drop the beanie. Appellant did not see the officer pick up the beanie or search it.

In rebuttal, Officer Devee testified that he was in uniform on the day of appellant’s arrest and that appellant dropped the beanie without being asked to do so.

Defense counsel then asked the court to reconsider its ruling regarding Judkins’s testimony, and the court stated, “I don’t think that there’s anything the young lady could add given the defendant’s testimony which [was], frankly, as I say was quite at odds with the offer [of proof]. He says [the beanie] was his. He doesn’t know how the dope got in there. That’s fine. And that’s his testimony. And if believed, that equals acquittal [and] what she could add is virtually nothing other than inadmissible third party culpability evidence.�

After the jury found appellant guilty, he moved for a new trial, claiming the trial court should have allowed Judkins’s testimony. His motion was denied.

DISCUSSION

I. Evidence of Third-party Culpability

Appellant contends that the court erred in excluding the evidence relating to Mark Anthony’s access to Judkins’s apartment. “‘To be admissible, the third-party evidence need not show “substantial proof of a probabilityâ€� that the third person committed the act; it need only be capable of raising a reasonable doubt of defendant’s guilt. At the same time, we do not require that any evidence, however remote, must be admitted to show a third party’s possible culpability. . . . [E]vidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant’s guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime.’ (People v. Hall [(1986) 41 Cal 3d 826,] 833.) . . . ‘[C]ourts should simply treat third-party culpability evidence like any other evidence: if relevant it is admissible [Evid. Code, § 350] unless its probative value is substantially outweighed by the risk of undue delay, prejudice, or confusion [Evid. Code, § 352].’ (People v. Hall, supra, 41 Cal.3d at p. 834.) A trial court’s discretionary ruling under Evidence Code section 352 will not be disturbed on appeal absent an abuse of discretion. (People v. Alvarez (1996) 14 Cal.4th 155, 201.)â€� (People v. Lewis (2001) 26 Cal.4th 334, 372-373.)

Appellant’s contention lacks merit. The excluded evidence did not have sufficient probative value. The proposed testimony suggested that Anthony may have had an opportunity to put the drugs in the beanie. However, the evidence was very weak, as no one was able to testify when Anthony was present in the apartment relative to appellant’s arrest or whether he had access to the beanie where the drugs were found. Judkins’s proffered testimony was that she saw Anthony with a beanie at some unspecified time. More significantly, appellant testified he purchased the beanie and placed it in the apartment a few days prior to his arrest, and there was no evidence Anthony was present during that short period of time. Thus, there was a complete lack of direct or circumstantial evidence linking Anthony to the cocaine found in appellant’s possession. (See People v. Gutierrez (2002) 28 Cal.4th 1083, 1136-1137.) The trial court correctly concluded that any suggestion that Anthony had placed the narcotics found in appellant’s beanie was purely speculative and insufficient to raise a reasonable doubt. (Id. at p. 1137; Lewis, supra, 26 Cal.4th at p. 373.)

II. Ineffective Assistance of Counsel

Appellant asserts that the prosecutor committed prejudicial misconduct during his closing argument. We quote appellant’s citation of the prosecutor’s summation to the jury wherein appellant alleges the misconduct occurred. At the time, the prosecutor was referring to appellant’s claim that he did not know the drugs were in his beanie.

“‘What else is he going to say? . . . I didn’t know it was there. That’s what he’s going to say.’ [Record citation omitted.] ‘. . . There’s only four kids . . . and Ms. Judkins. Those are the people the defense is referring to. Are you telling me that they put it inside of there? Four kids and Ms. Judkins? Unreasonable, [L]adies and [G]entlemen. Unreasonable. He had it the whole time.’�

Appellant urges “[t]he prosecutor committed misconduct by impermissibly arguing the nonexistence of a fact, that no one else had access to the beanie, when the prosecutor knew the defense was ready, willing and able to produce evidence that Anthony had access to the beanie, but was prevented from doing so when the court sustained the prosecutor’s objection and excluded appellant’s third-party culpability evidence.� He acknowledges his trial counsel failed to object to the prosecutor’s argument and claims counsel was ineffective as a result.

After viewing the prosecutor’s closing argument in its entirety, we conclude that appellant has taken the cited argument out of context. We find appellant’s assignment of error unconvincing.

The prosecutor asked the jury rhetorically, “What else is [appellant] going to say because — right? It is knowledge. I didn’t know it was there. That’s what he’s going to say. But he had stories. He couldn’t even figure out when he actually had the stocking cap. He couldn’t tell us when he actually put it at the residence.� The prosecutor pointed out that appellant claimed he purchased the beanie five days prior to returning to Judkins’s apartment on the evening of the 23rd. He argued it would have been unreasonable for appellant to claim that the salesperson placed the drugs in the beanie. The prosecutor continued, “There’s no testimony to show that he placed it at the residence [Judkins’s apartment] for that five-day period. So he had it the whole time. And now he puts it on there and there’s only four kids, four kids and Ms. Judkins. Those are the people that the defense is referring to. Are you telling me that they put it inside of there? Four kids and Ms. Judkins? Unreasonable, Ladies and Gentlemen. Unreasonable. He had it the whole time.�

It is clear that when the prosecutor said, “And now he puts it on there,� he was referring to the fact that appellant, by his own admission, retrieved his beanie and placed items into it when he returned to Judkins’s apartment the night before his arrest. It is undisputed that from the time appellant returned to Judkins’s apartment until Officer Devee arrived there the next morning, the only individuals at the apartment were appellant, Judkins, and the children. In appellant’s offer of proof concerning Anthony’s presence in the apartment, he never claimed Anthony and he were in the apartment at the same time. Put simply, the prosecutor did not, as appellant asserts, argue that only Judkins and the children were in the apartment during the entire time appellant was absent and staying with his brother.

“Representation does not become deficient for failing to make meritless objections.� (People v. Ochoa (1998) 19 Cal.4th 353, 463.) As we have concluded the prosecutor committed no misconduct, appellant’s counsel had no reason to object.

DISPOSITION

The judgment is affirmed.

We concur: EPSTEIN, P. J., MANELLA, J.


Summaries of

People v. Hammond

California Court of Appeals, Second District, Fourth Division
Sep 23, 2008
No. B199630 (Cal. Ct. App. Sep. 23, 2008)
Case details for

People v. Hammond

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. LEON DWIGHT HAMMOND, Defendant…

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

Date published: Sep 23, 2008

Citations

No. B199630 (Cal. Ct. App. Sep. 23, 2008)