Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Alameda County Super. Ct. No. 155247A
RIVERA, J.
Mario King appeals from a judgment upon a jury verdict finding him guilty of selling cocaine (Health & Saf. Code, § 11352, subd. (a)) and selling marijuana (id., § 11360, subd. (a)). He contends that admission of testimony concerning his prior criminal history deprived him of a fair trial. He also argues that the court committed sentencing error. We affirm.
I. FACTS
At approximately 11:00 a.m. on March 25, 2007, Officer Steve Glover was conducting narcotics surveillance in the vicinity of 71st Avenue and Hamilton Street in Oakland. He was “almost positive” that he saw defendant when he drove by on 69th Avenue before parking his patrol car because he knew him for several years and recognized his physical features and his glasses. After he parked the car and walked to a surveillance location in the 7000 block of Hamilton, he saw defendant standing on the southeast corner of 71st and Hamilton with two women, codefendant Myesha Cloird and T. J. From his location, he was approximately 100 to 125 feet away from defendant.
Glover testified that from 2000 to 2005 he was in a street-level drug task force squad and was involved in targeting drug dealers. He worked in the area of 71st and Hamilton. He first met defendant in about 2002 when he arrested him for drug possession. He had known defendant for five years and had at least a hundred or more contacts with him. In some instances, he had seen him on the corner and had casual conversation. Other times, the contact involved an arrest, either by him or one of the other members of his squad. Glover testified that on one occasion, he spent several hours during two days with defendant, following his arrest, driving around and investigating crimes. His contacts with defendant included an arrest for selling and having drugs in his possession at 71st and Hamilton. He “also had numerous contacts with Mr. King where I’ve seen him on the corner, I’d simply drive up and I just talk to him. And all of my contacts haven’t been negative with Mr. King. We didn’t have a hostile-type of relationship.” While Glover opined that he had a police officer/suspect type of relationship with defendant, he said it was also a “mutual contact type of relationship.... [¶]... I see him in the same place almost every day. So it’s like if you would go to the grocery store and see the same guy ringing you up every day, you just get familiar with him. You see the same guy in the same place, you just get to know him.” Ultimately, Glover testified that he had “[a]bsolutely no doubt” that he saw defendant on the corner of 71st and Hamilton with the two women on March 25 and that he witnessed four drug transactions that day between defendant and others.
Glover also testified that he did not take Martin Mayfield, who was detained after he bought marijuana from defendant, back to the scene to identify defendant because Mayfield would never identify his supplier. Glover stated, “if the police were to take this person who just bought the drugs back down and had them point out, ‘Hey, did this guy just sell you drugs,’ well, the drug—the buyer is never going to tell us, ‘Yeah, he did’ because, one, they don’t want to get killed—” When defense counsel objected, the following colloquy occurred: “The Court: Well, you’re speaking generally, you’re speaking about a general proposition giving information to the police as opposed to anything specific to Mr. King, right? [¶] [Officer Glover]: Yes. [¶] The Court: Okay. You don’t have any information Mr. King kills people. [¶] [Officer Glover]: No, I have no information.... [¶] The Court: You’re talking about the general idea that one doesn’t want to be a snitch to the police? [¶] [Officer Glover]: Yes. General knowledge based on my 10 years of experience.”
Glover further testified that defendant, Cloird, and T. J. left the area after the fourth drug transaction. About 20 to 25 minutes later, Cloird and T. J. returned. Glover directed back-up officers to arrest them. They were arrested at the scene. When T. J. was arrested, the police saw five little bags of marijuana fall to the ground around her. In a search incident to Cloird’s arrest, the police found two cell phones and about $215. When they arrived at the police station, Cloird asked to use the restroom. She was allowed to use a restroom where the toilet flush mechanism and the sink water flow are controlled by an outside valve. After she used the restroom, the police found 10 baggies containing marijuana in the toilet.
Following Glover’s direct testimony, the court admonished the jury that “to the extent the officer is testifying to prior contacts with Mr. King, they’re being offered on the question of his ability or inability to identify Mr. King on the date in question. That’s the only reason those prior contacts are being offered and the only reason why—for which you should consider.”
Officer John Cunnie testified that he responded to Glover’s request for assistance during the surveillance. In response to Glover’s call, he assisted in arresting Cloird at the scene, and subsequently arrested T.J. who had fled the scene. Cunnie further testified that Glover broadcast on his radio that defendant had fled the scene. Cunnie recalled that Glover used defendant’s name in the broadcast. He arrested defendant a week later because Glover advised him there was probable cause for an arrest on this case as well as another narcotics sales case. Glover had previously advised Cunnie that defendant was on parole. Cunnie searched defendant but found no drugs.
In defense, Annette Hamilton testified that she purchased drugs on March 25, between 11 a.m. and noon, but did not get a look at the seller and could not identify defendant as the person who sold her the drugs. Mayfield also acknowledged buying drugs on March 25 and testified that he did not recognize defendant as being the seller. Defendant’s wife testified that she spent the morning of March 25 with defendant. They went grocery shopping and then returned home where defendant stayed until about 3:00 p.m. when he went to the store.
In rebuttal, Officer Phong Tran testified that upon her arrest, Hamilton gave a statement in which she described the seller as an African-American male about 5 feet 8 inches, 190 pounds, wearing thick eyeglasses. She told Tran that she could identify the seller and was willing to help with the prosecution.
II. DISCUSSION
Prior to trial, the court ruled on the prosecution’s motion to introduce evidence of defendant’s prior convictions under Evidence Code section 1101, subdivision (b) to prove intent or common plan and scheme. Defense counsel objected arguing that the evidence was more prejudicial than probative. The court agreed, finding that the offenses were in essence being offered to prove identity since defendant was not apprehended at the scene and, hence, whether there was a common plan or scheme was irrelevant. The court further found that the evidence did not “suggest a uniqueness that would be probative of identity” given that marijuana sales are prevalent at the corner of 71st Avenue and Hamilton Street, and that evidence of two of defendant’s prior offenses which occurred on the same corner, would be very prejudicial. Ultimately, the court ruled that it would not permit the prior incidents to be offered in the prosecution’s case-in-chief.
Defendant contends that Glover’s testimony concerning his past arrests and drug possession, and Cunnie’s testimony about his parole status, was so inflammatory and prejudicial that he was denied a fair trial. He also argues that the prosecutor committed misconduct by introducing this evidence.
Defendant acknowledges that he did not object to the evidence when it was offered. He argues that his objections to the evidence during the prosecution’s motion in limine on the issue preserved it for appeal, citing People v. Karis (1988) 46 Cal.3d 612. In Karis, the Court of Appeal recognized that the failure to object to the challenged evidence normally constitutes a waiver, but found that the issue was preserved in that case because the trial court’s ruling on a motion in limine to allow the evidence was made on the day the evidence was offered and, thus, the court was in a position to assess its relevance and whether it was within a hearsay objection. (Id. at p. 634, fn. 16.) The Court of Appeal also noted that the record reflected that the trial court and the parties treated the motion to exclude the evidence as the equivalent of an objection. (Ibid.)
Although the record here does not indicate that the court and parties considered the ruling on the motion in limine as constituting defendant’s continuing objection to the introduction of evidence of his prior arrests or parole status, we consider the issue on the merits because defendant also claims that trial counsel was ineffective for failure to object.
It is well settled that evidence of mere arrests is inadmissible because it is more prejudicial than probative. (People v. Anderson (1978) 20 Cal.3d 647, 650-651 [“a witness’[s] credibility in the eyes of the jury would be seriously impaired by evidence of prior criminal arrests, because of the ‘bad character’ inevitably suggested...”]; People v. Lopez (2005) 129 Cal.App.4th 1508, 1523 [same].) Although the court abused its discretion in allowing the admission of the evidence here, we must conclude the error was harmless. First, the court admonished the jury that Glover’s testimony concerning any prior contacts with defendant was offered only on the issue of his ability or inability to identify defendant on the date in question. The jury was instructed to consider the evidence solely for that purpose. Second, the evidence that Glover could identify defendant, independent of his prior arrests, was overwhelming. Glover testified that he had known defendant for at least five years and that he had “[a]bsolutely no doubt” that he saw defendant at the scene on March 25. Moreover, Cunnie testified that Glover sent out a radio broadcast during the surveillance on March 25, identifying defendant by name and indicating that he had fled the scene. Finally, the prosecutor did not make use of defendant’s prior arrests and parole status in her closing argument. She simply referred to the fact that Glover had known defendant for five years and had “spent considerable face time” with him, and that his identification of defendant was corroborated by Cunnie who heard Glover say defendant’s name on his radio broadcast. While the arrest evidence and the fact that defendant was on parole should not have been admitted, the error here was harmless on this record. (People v. Watson (1956) 46 Cal.2d 818, 836.)
We note that the better approach here to dissipate the danger of prejudice of an officer’s testimony concerning the basis for his acquaintance with a defendant would have been for the court to have heard the foundational facts supporting Glover’s knowledge of defendant outside the jury’s presence. (See People v. Mixon (1982) 129 Cal.App.3d 118, 132-133.)
See People v. Harris (1994) 22 Cal.App.4th 1575, 1580-1581 [incidental remark about a defendant’s parole status harmless error].
Defendant also argues that the court violated the prohibition against dual use of facts in using defendant’s prior conviction both to impose the aggravated term on his conviction for selling cocaine and a separate three-year enhancement for his prior conviction under Health and Safety Code section 11370.2, subdivision (a).
As the Attorney General points out, the court relied on five aggravating factors in sentencing defendant: (1) defendant induced a minor to join him in the commission of the offense; (2) defendant had numerous prior convictions as an adult and a juvenile; (3) defendant served three prior prison terms; (4) defendant was on parole at the time he committed the offense; and (5) his prior performance on parole was unsatisfactory. Any one of these factors was sufficient to justify imposition of the aggravated term or to impose the consecutive three-year enhancement. (People v. Osband (1996) 13 Cal.4th 622, 728-729 (Osband).)
“ ‘Improper dual use of the same fact for imposition of both an upper term and a consecutive term or other enhancement does not necessitate resentencing if “[i]t is not reasonably probable that a more favorable sentence would have been imposed in the absence of the error.” ’ (People v. Coleman [(1989)] 48 Cal.3d [112,] 166.) Only a single aggravating factor is required to impose the upper term [citation], and the same is true of the choice to impose a consecutive sentence [citation]. In this case, the court could have selected disparate facts from among those it recited to justify the imposition of both a consecutive sentence and the upper term, and on this record we discern no reasonable probability that it would not have done so.” (Osband, supra, 13 Cal.4th at pp. 728-729.) As in Osband, the court here recited numerous aggravating factors, from which it could have chosen to impose both the aggravated term and the consecutive enhancement. Resentencing, on these facts, is not required.
Defendant also contends that the court’s sentence violated his right under the Sixth and Fourteenth Amendments to the federal Constitution to have facts that increase punishment beyond the statutory minimum submitted to a jury. He acknowledges that under People v. Black (2007) 41 Cal.4th 799, the trial court’s imposition of the aggravated term based on recidivist factors did not violate the Sixth Amendment. He nevertheless raises the sentencing issue to preserve it for federal review. We are bound by our Supreme Court’s decision in Black. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
III. DISPOSITION
The judgment is affirmed.
We concur: RUVOLO, P.J., SEPULVEDA, J.