Opinion
F055641.
7-9-2009
THE PEOPLE, Plaintiff and Respondent, v. PRETTY CEDERA JACKSON, Defendant and Appellant.
Grace Lidia Suarez, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published in the Official Reports
Following a jury trial, Pretty Cedera Jackson (appellant) was convicted of one count of selling cocaine and one count of selling heroin, both within 1,000 feet of a school while in session (Health & Saf. Code, §§ 11352, subd. (a), 11353.6, subd. (b)), two additional counts of selling heroin (Health & Saf. Code, § 11352, subd. (a)), and one count of maintaining a place for the purpose of selling drugs (Health & Saf. Code, § 11366). The court dismissed two additional counts of selling drugs on which the jury had deadlocked. Criminal street gang allegations were found not true. The trial court sentenced appellant to 15 years 4 months in prison.
Appellant contends that the trial court erred when it denied her motion to suppress and that the trial court failed to properly inform her on a legal issue. We disagree and affirm.
FACTS
Between September 13 and 18, 2007, a confidential informant (CI) contacted Detective Dewayne Chatman with the Multi-Agency Gang Enforcement Consortium and reported that appellant was selling cocaine and heroin from her residence. Chatman initiated an investigation and had the CI make a recorded telephone call to appellant. On September 17, 2007, during a monitored meeting between the two, the CI purchased 0.6 gram of heroin and 0.1 gram of cocaine from appellant. The sale took place across the street from a school while children were present. Adam Weith testified to these same facts, stating that he was the one who worked with Chatman on a monitored drug buy from appellant on September 17, 2007.
On September 26, 2007, while conducting surveillance on appellants house, officers observed a number of people coming and going, including Burton Bugg. Officers observed Bugg hand several bills to appellant and, in return, appellant hand him an object. After Bugg left, Weith drove up and made a similar exchange. Weiths vehicle was stopped and a search revealed 0.2 gram of heroin. Weith admitted buying drugs from appellant "several times" over "[s]everal months." Bugg, while in jail on a parole violation, later admitted purchasing heroin from appellant on that occasion and also admitted purchasing heroin from her on three to four earlier occasions.
After Bugg and Weith purchased drugs from appellant, she got into a vehicle and left her residence. Officers pulled her over and arrested her. Detective Anthony Gates confiscated appellants cell phone. Appellant received 20 to 30 calls in an hour while the cell phone was in the officers possession. Detective Gates answered five or six of the calls; the callers asked for drugs. Appellant had $1,000 on her when she was arrested.
Officers searched appellants residence and located "pay-owe" sheets, with dollar amounts and names, six hypodermic syringes, and a digital scale.
DISCUSSION
1. Motion to Suppress
In appellants first two arguments she contends that the trial court erred when it denied her Penal Code section 1538.5 motion to suppress evidence. Specifically, she challenges her arrest and the officers search of her cell phone, both without a warrant. We find no error.
Procedural history
Appellant represented herself throughout the proceedings. On December 20, 2007, the trial court conducted a hearing on appellants motion to suppress evidence. The court framed the issue as twofold: (1) whether Detective Gates had probable cause to arrest appellant without a warrant because he believed she had committed a felony and (2) whether Gates had probable cause to search appellants cell phone because he believed it would yield incriminating evidence and that exigent circumstances existed.
The prosecutor called Detective Chatman to the stand. Chatman testified that he investigated appellant for selling narcotics and that, as part of that investigation, he had obtained a search warrant for appellants residence, which he served on September 26, 2007. In the week prior to serving the warrant, Chatman twice observed appellant conduct hand-to-hand narcotics transactions. He also received information from two CIs that appellant was selling narcotics. Chatman communicated this information to Detective Gates, who was also involved in the investigation on September 26.
Detective Gates testified that he arrested appellant on September 26, 2007. Prior to the search of appellants residence, he participated in surveillance of the residence and observed appellant go in and out of the residence several times. Toward the end of the surveillance, Gates obtained specific information from Chatman that appellant was subject to arrest for sale of narcotics.
Detective Gates noticed appellant leave the residence in a car, and he participated in a traffic stop in which he detained and arrested her for sale of narcotics. Following her arrest, appellant was searched and $1,000 in cash was found on her person and in a wallet. Gates seized a cell phone that appellant was holding in her hand. He "looked through a phone list, contact list, and then . . . monitored calls that would come in." The phone rang numerous times. Gates answered approximately five of the calls. When he did so, he would inform the caller that appellant was busy and asked how he could help. Each of the callers asked for appellant and then requested narcotics. He did not recall retrieving or replying to any text messages.
When asked why he seized appellants cell phone, Detective Gates testified that appellant was subject to arrest for narcotics sales and, in his training and experience in conducting over 200 arrests for narcotics violations, he was aware that many drug sales are initiated or furthered by use of a cell phone. Gates also testified that cell phones are used for initiating location points for sales and recording pay/owe sheets. Gates believed appellants cell phone could provide additional evidence supporting her arrest. Gates opined that, had he not answered the cell phone, the buyers were not likely to leave a message. In addition, he noted that appellants cell phone was listed in the search warrant for her residence.
The trial court denied appellants motion to suppress. As to the legality of appellants arrest, the court noted that the search warrant for appellants residence had been issued the day before the arrest; that Detective Gates had obtained information from Detective Chatman that appellant was subject to arrest for narcotics sales; and that Gates had a basis to arrest appellant pursuant to Penal Code section 836. The court also determined that the officer could legally seize appellants cell phone because the warrant authorized the officers to "`answer the telephone, cellular phone, or return page[]s the suspect may receive," but more importantly, because "the exigency of the circumstances justify it."
Standard of review
Our standard of review on appeal from the denial of a motion to suppress is well established. "We defer to the trial courts factual findings where supported by substantial evidence, but exercise our independent judgment to determine whether, on the facts found, the search was reasonable under Fourth Amendment standards. [Citation.]" (People v. Brown (1998) 62 Cal.App.4th 493, 496; see Ornelas v. United States (1996) 517 U.S. 690, 697.) "`"[T]he power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted," to support the trial courts findings. . . . `Reversal is not warranted merely because the circumstances might also be reasonably reconciled with a contrary finding." (People v. Snead (1991) 1 Cal.App.4th 380, 384.)
Applicable Law and Analysis
Appellant first argues that her warrantless arrest was unlawful. She acknowledges that the law is contrary to her position, but makes the argument to preserve it for further review. We find no error.
A warrantless arrest is presumed to be unlawful, therefore the prosecution has the burden to show that the arrest was lawful. (Badillo v. Superior Court (1956) 46 Cal.2d 269, 272.)
Under Penal Code section 836, subdivision (a)(3), an officer may make a warrantless arrest if the officer has reasonable cause to believe the person to be arrested has committed a felony. The applicable principles governing the existence of probable cause were stated by our Supreme Court in People v. Ingle (1960) 53 Cal.2d 407, 412-413:
"Reasonable cause has been generally defined to be such a state of facts as would lead a man of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that the person is guilty of a crime. [Citations.] Probable cause has also been defined as having more evidence for than against; supported by evidence which inclines the mind to believe, but leaves some room for doubt. [Citations.] It is not limited to evidence that would be admissible at the trial on the issue of guilt. [Citation.] The test is not whether the evidence upon which the officer acts in making the arrest is sufficient to convict but only whether the person should stand trial. [Citation.]"
Under these guidelines each case must be decided on its own facts and the totality of the ambient circumstances presented to the officers at the time they were required to act. (People v. Fein (1971) 4 Cal.3d 747, 752, disapproved on another ground in People v. Palaschak (1995) 9 Cal.4th 1236, 1242.) To justify the intrusion as a reasonable one, "the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." (Terry v. Ohio (1968) 392 U.S. 1, 21.)
The experience and knowledge of a police officer in his or her field of expertise has long been acknowledged as an important factor in the judicial determination of whether probable cause existed for an arrest. (Wimberly v. Superior Court (1976) 16 Cal.3d 557, 565; People v. Medina (1972) 7 Cal.3d 30, 37.) "The rule requiring probable cause `should not be understood as placing the ordinary man [or woman] of ordinary care and prudence and the officer experienced in the detection of narcotics offenders in the same class. Circumstances and conduct which would not excite the suspicion of the man [or woman] on the street might be highly significant to" a trained and experienced officer. (People v. Medina, supra, at p. 37; see People v. Superior Court (Kiefer) (1970) 3 Cal.3d 807, 827.)
We find substantial evidence to support the trial courts finding of probable cause. Detective Chatman indicated that he had twice personally observed appellant involved in hand-to-hand narcotic transactions in the week prior to her arrest. He also received information from two CIs that appellant was selling narcotics. Chatman communicated this information to Gates, which gave Gates probable cause to arrest appellant. (See, e.g., People v. Ramirez (1997) 59 Cal.App.4th 1548, 1553 ["[O]fficers can make arrests based on information and probable cause furnished by other officers"].)
Appellant also claims that the court erred in its belief that answering her cell phone was justified as a search pursuant to arrest. Appellant does not dispute that the phone was lawfully seized in a search incident to arrest, but her complaint is that answering the phone and checking the text messages constituted a search of the phone and that that search was undertaken without a warrant or exigent circumstances. We disagree.
The officers interception of the calls on appellants cell phone was a search of the cell phone. (People v. Ledesma (2006) 39 Cal.4th 641, 703; People v. Bullock (1990) 226 Cal.App.3d 380, 386.) Because the search was without a warrant, it was presumptively unlawful. (People v. Ledesma, supra, at p. 703.)
In People v. Bullock, supra, 226 Cal.App.3d 380, the defendant was arrested after a car in which he was riding was stopped by police and a warrant check revealed that two arrest warrants had been issued for his apprehension. A search of the defendant yielded an electronic pager which beeped at least 20 times while defendant was being booked. The officer retrieved the callers numbers by pushing a button and displaying them on a screen on top of the pager. When the officer called the phone numbers, three or four of the individuals who answered requested delivery of cocaine. The pagers memory could store a maximum of four messages for retrieval at a later time. (Id. at pp. 383, 385.) A motion to suppress was denied and the denial was affirmed by the court of appeal. The appellate court stated that exigent circumstances excused the warrant requirement. First, a danger existed that incoming telephone numbers would be lost unless quickly retrieved by the officer, and second, there was a need to return the calls in a timely manner while the callers were likely to be at the numbers they had provided. The pager could only store four messages and at least 20 had been received during the booking process. Some would have been lost had the officer not timely retrieved them. (Id. at pp. 387-388.)
Here, too, we find that the trial court did not abuse its discretion in denying appellants suppression motion as to the cell phone calls. When the cell phone rang after appellants arrest, the officers were justified in answering the cell phone based on exigent circumstances. There was a need to gather and preserve further evidence that a crime (the sale of narcotics) was being committed in their presence. It was reasonable for the officers to believe that incoming calls would contain evidence of drug dealing. (People v. Vanvalkenburgh (1983) 145 Cal.App.3d 163, 167.)
Appellant makes a further argument concerning the search of the cell phones text messages. At trial, Detective Chatman testified to the contents of a number of outgoing and incoming text messages from appellants phone, made and received on the day of her arrest and the day before. The majority of those text messages arranged for the sale or delivery of drugs. But, as argued by appellant, Detective Gates testified at the suppression motion that he did not recall seeing any text messages. Appellant contends a new suppression motion is required because the government concealed the existence of the text messages at the suppression hearing, and therefore, the trial court did not take those text messages into consideration in making its ruling.
We conclude for the reasons which follow that the receipt of the text messages into evidence does not require remand for a new hearing. Detective Chatman testified that he observed a CI purchase heroin and cocaine from appellant on September 17, 2007, and he witnessed transactions between Bugg and appellant and Weith and appellant on September 26, 2007. Weith testified that he participated in a controlled buy with appellant on September 17, 2007 and made a purchase from her on September 26, 2007. Bugg admitted to officers that he purchased heroin from appellant on September 26, 2007. Surveillance of appellants residence revealed numerous comings and goings by a variety of people, and a search of appellants residence revealed "pay-owe" sheets, hypodermic needles, and a digital scale.
The controversial text messages, describing various random requests for drugs, are of little significance in the overall evidence. The only text messages that pertain to a charged offense were a message sent to appellant by Weith which stated, "`On my way. Be there in 12 min . . . [n]eed a 2 and 1," and a reply from appellant, "`No work." Weith testified that appellants response meant that she did not have any drugs at that moment.
We conclude that the evidence of appellants guilt is overwhelming even without the inferences which may be drawn from the text messages. Assuming without deciding that the court erred in not suppressing the text messages, we hold that such error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24; see, e.g., People v. Tewksbury (1976) 15 Cal.3d 953, 969-972 [finding harmless error where court denied motion to suppress a gun as evidence].)
2. Seizure of Appellants Papers
Appellant contends that the trial court erred when it failed to inquire into the sheriff departments seizure of her legal materials. We disagree.
Procedural history
During trial, appellant informed the court that, on the previous Friday when she returned to the jail following court, a correctional officer contacted her about removing her tongue ring. Appellant explained to the officer that the ring was soldered shut and would not come out. The officer retrieved a pair of pliers, but appellant would not comply and allow the officer to remove the ring. As a result, the officer became upset, left appellant in booking, and searched appellants cell. According to appellant, the officer "took out some of my legal evidence regarding my gang enhancements, and she threw them in the trash. She threw all of my exhibits, pictures, and the majority of the evidence in the trash." The officer told appellant that she threw the items away because they were gang-related.
Appellant informed the court that, because she was now at trial "without my gang exhibits," she wanted to file a "motion for the interception of my confidential materials." Appellant then asked the court "how do you want to go about doing it, because we are in the middle of trial. But I did want to raise that issue so that it can be raised upon appeal." The court responded, "Well, youre representing yourself, and Im not going to give you any advice."
The court then asked the prosecutor for comment because "whatever is done by law enforcement ultimately needs to come back to you for a response." The prosecutor denied any knowledge of the incident, but noted that the sheriffs department was likely checking up on appellant because she had received a rule violation for abusing her phone privileges in the law library. The court then informed appellant that she had made a statement for the record and "however you intend to pursue that will be dependent upon yourself." Appellant did not ask for and the court did not take any further action on the issue.
Applicable law and analysis
Defendants in criminal cases have the constitutional right to waive counsel and represent themselves if they knowingly and intelligently elect to do so. (People v. Maddox (1967) 67 Cal.2d 647, 651.) No question has been raised in this case as to appellants competence to make that decision. But, defendants who choose to represent themselves assume the responsibilities inherent in the role that they have undertaken. (People v. Robinson (1965) 62 Cal.2d 889, 894.)
A self-representing defendant is not entitled to special privileges not given an attorney, and the judge ordinarily is not required to assist or advise the defendant on matters of law, evidence or trial practice. (See, e.g., People v. Robinson, supra, 62 Cal.2d at p. 894 [failure to object to unlawfully obtained evidence]; People v. Ashley (1963) 59 Cal.2d 339, 364 [failure to call a witness]; People v. Chessman (1951) 38 Cal.2d 166, 177 [failure to object to prosecutors misconduct], overruled on other grounds in People v. Daniels (1969) 71 Cal.2d 1119, 1139; People v. Northcott (1930) 209 Cal. 639, 653 [failure to offer instructions].)
Appellant cites to People v. Redmond (1969) 71 Cal.2d 745 (Redmond), in which our Supreme Court stated:
"Although a trial judge may not be required to aid a defendant who represents himself, it is a common practice in both civil and criminal cases for trial judges, by advice and suggestion, to assist persons who represent themselves. (Witkin, Cal. Criminal Procedure (1963) p. 383.) The primary goal of the effective administration of justice in this country is to assure that legal controversies are determined on the merits, and this goal is not furthered if a determination is based not on the merits but on the inabilities of a litigant untrained in the law who has chosen perhaps unwisely to represent himself and who is not fully conversant with legal procedures. It is in the highest tradition of American jurisprudence for the trial judge to assist a person who represents himself as to the presentation of evidence, the rules of substantive law, and legal procedure, and judges who undertake to assist, in order to assure that there is no miscarriage of justice due to litigants shortcomings in representing themselves, are to be highly commended." (Redmond, supra, at pp. 758-759.)
Appellant contends that, in her case, she made a request for a motion and hearing and that the trial court mistook her request for legal advice. Appellant, relying on Redmond, argues that the trial courts response to her request was "misleading" and that the court "shirked its duty to consider matters on their merits." We disagree.
In Redmond, the defendant was found guilty of burglary after equivocal eyewitness and lineup testimony as to the suspects identification. (Redmond, supra, 71 Cal.2d at pp. 748-752.) After the finding of guilt, the defendant moved to relieve counsel. The trial court then gave the defendant incorrect advice regarding the filing of a new trial motion. The Supreme Court reversed the defendants conviction, finding that "The judges [incorrect] explanation . . . foreclosed defendant from arguing insufficiency, misled defendant as to the law, and in the light of the evidence, caused a miscarriage of justice." (Id. at p. 760.)
Here, however, the trial court did not offer any incorrect advice. Instead, after appellant expressed a desire to file "a motion for the interception of my confidential materials," the court informed appellant that she was free to do so, but that it was not going to give her any legal advice.
Appellant, claiming the trial court should have looked into the matter, argues now that the seizure of her legal papers by jail officials violated her constitutional right to counsel. Assuming for the sake of argument improper action by jail personnel, appellant has not preserved this issue for appeal. Despite her claim to the contrary, appellant made no motion of any kind regarding the matter in the trial court. (See, e.g., People v. Hines (1997) 15 Cal.4th 997, 1075-1076 [defendant complained before jury selection that correspondence between himself and counsel had been searched in his cell by officers; defendant did not preserve issue for appeal as he made no motion].)
Moreover, there is no evidence that the alleged seizure had any effect on appellants trial because, as discussed above, the prosecutor did not know of the seizure of appellants papers. And while appellant claims she suffered prejudice from the removal of her papers, she does not state how she was prejudiced. When appellant first mentioned the incident at trial, she told the court the jail official removed legal evidence regarding her "gang enhancements." We note that all gang enhancement allegations alleged against appellant were found not true, negating any possibility of prejudice in the seizure of her papers.
DISPOSITION
The judgment is affirmed.
WE CONCUR:
ARDAIZ, P.J.
HILL, J. --------------- Notes: The facts are briefly summarized from the probation report and the reporters transcript as they are not relevant to the issues on appeal.