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People v. McCaskill

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE
Feb 7, 2012
No. B228449 (Cal. Ct. App. Feb. 7, 2012)

Opinion

B228449

02-07-2012

THE PEOPLE, Plaintiff and Respondent, v. ROBERT MCCASKILL, Defendant and Appellant.

Gail Ganaja, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr., Jaime L. Fuster and Nima Razfar, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BA365755)

APPEAL from a judgment of the Superior Court of Los Angeles County, Clifford L. Klein, Judge. Affirmed. Remanded with directions.

Gail Ganaja, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr., Jaime L. Fuster and Nima Razfar, Deputy Attorneys General, for Plaintiff and Respondent.

I. INTRODUCTION

A jury convicted defendant, Robert McCaskill, of heroin sale in violation of Health and Safety Code section 11352, subdivision (a). The trial court found defendant had: incurred a prior serious felony conviction (Pen. Code, §§ 667, subds. (b)-(i), 1170.12); served four prior prison terms (Pen. Code, § 667.5, subd. (b)); and sustained two previous convictions for violations of Health and Safety Code sections 11379, subdivision (a), and 11352, subdivision (a) (Health & Saf. Code § 11370.2, subd. (a)). The trial court struck the prior prison term and drug conviction findings. Defendant was sentenced to six years in state prison. We affirm the judgment. We remand with directions to amend the abstract of judgment.

II. THE EVIDENCE

We view the evidence in the light most favorable to the verdict. (Jackson v. Virginia (1979) 443 U.S. 307, 309; People v. Elliot (2005) 37 Cal.4th 453, 466; Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) At about 4:40 p.m. on December 11, 2009, Officer Rudy Gonzalez was participating in a law enforcement sting in a place known for narcotics sales. Officer Gonzalez was acting undercover to purchase narcotics. Officer Gonzalez passed defendant on the street. Officer Gonzalez spoke to defendant as they walked by each other. Defendant was asked whether he was "working"—vernacular for selling drugs. Officer Gonzalez testified to what happened next, "Mr. McCaskill turned to me and said he only had chiva, which I understood . . . to refer to heroin." Officer Gonzalez said he would take two balloons. Defendant removed two green balloons from his mouth. Officer Gonzalez gave defendant a pre-recorded $20 bill. Defendant handed the balloons, which contained .31 grams of heroin, to Officer Gonzalez.

Detective Vip Kanchanamongkol was monitoring the one-way transmitting device Office Gonzalez was wearing at the time of the sale. Over the radio, Detective Kanchanamongkol testified he heard the following, "I heard Officer Gonzalez ask an individual if he or she was working." The next thing Detective Kanchanamongkol heard was a verbal signal from Officer Gonzalez indicating a drug transaction had been completed. Detective Kanchanamongkol explained that the one-way transmitting device was used for officer safety purposes only. The audio quality was poor. Background noise and interference were common.

When arrested, defendant had $293 in his left front pants pocket. There was: one $100 bill; one $50 bill; two $20 bills; seven $10 bills; four $5 bills; and thirteen $1 bills. The pre-recorded $20 bill was not found. Defendant did not have any heroin on his person. A second individual who was with defendant at the time of the sale to Officer Gonzalez was questioned and released. Both the absence of heroin on defendant's person and the denominations of the bills found in his pocket were consistent with drug trafficking.

III. DISCUSSION


A. Peace Officer Personnel Records

Defendant requested that we independently review the record of the trial court's in camera hearing for review of peace officer personnel records. (People v. Mooc (2001) 26 Cal.4th 1216, 1228-1232; Pitchess v. Superior Court (1974) 11 Cal.3d 531, 535.) On March 19, 2010, the trial court conducted an in camera hearing. The court ordered a number of peace officer personnel records disclosed. On July 29, 2011, we assigned the trial court to conduct record correction proceedings pursuant to People v. Mooc, supra, 26 Cal.4th at page 1231. On September 9, 2011, the trial court filed under seal with this court the transcript of the August 4, 2011 in camera record correction proceedings, together any papers presented in that hearing. We have reviewed the transcripts of the two in camera hearings and any peace officer personnel records presented at those hearings. The trial court did not abuse its discretion in ruling on defendant's peace officer personal records disclosure motion. (People v. Hughes (2002) 27 Cal.4th 287, 330; People v. Samayoa (1997) 15 Cal.4th 795, 827.)

B. CALCRIM No. 358

Defendant asserts the trial court had a sua sponte duty to instruct with CALCRIM No. 358. CALCRIM No. 358 states: "You have heard evidence that the defendant made [an] oral or written statement[s] (before the trial/while the court was not in session). You must decide whether the defendant made any (such/of these) statement[s], in whole or in part. If you decide that the defendant made such [a] statement[s], consider the statement[s], along with all the other evidence, in reaching your verdict. It is up to you to decide how much importance to give to the statement[s]. [Consider with caution any statement made by (the/a) defendant tending to show (his/her) guilt unless the statement was written or otherwise recorded.]" We conclude any error was harmless.

Our Supreme Court has held: "A trial court has a sua sponte duty to instruct the jury to view a defendant's oral admissions with caution if the evidence warrants it. (People v. Dickey (2005) 35 Cal.4th 884, 905; People v. Carpenter (1997) 15 Cal.4th 312, 393 . . . .) To determine prejudice, '[w]e apply the normal standard of review for state law error: whether it is reasonably probable the jury would have reached a result more favorable to defendant had the instruction been given.' (People v. Carpenter, supra, 15 Cal.4th at p. 393.) Because the cautionary instruction's purpose is to '"help the jury to determine whether the statement attributed to the defendant was in fact made, courts examining prejudice in failing to give the instruction examine the record to see if there was any conflict in the evidence about the exact words used, their meaning, or whether the admissions were repeated accurately. [Citations.]" [Citation.]' (People v. Dickey, supra, 35 Cal.4th at p. 905.)" (People v. Wilson (2008) 43 Cal.4th 1, 19.) Where there is no conflict in the evidence, the failure to give the cautionary instruction is harmless. (People v. Dickey, supra, 35 Cal.4th at p. 906; People v. Bunyard (1988) 45 Cal.3d 1189, 1225-1226.)

There was no evidence contradicting the extrajudicial statement attributed to defendant by Officer Gonzalez. The jury was properly instructed on determining witness credibility. Further, the prosecutor did not rely solely on defendant's statement about "chiva" to prove knowledge of the narcotic nature of the substance in the balloons. (See People v. Coria (1999) 21 Cal.4th 868, 875 ["[t]he requirement that the accused be aware of the character of the substance . . . applies to crimes of selling or transporting a controlled substance"]; Rideout v. Superior Court (1967) 67 Cal.2d 471, 474-475 ["[k]knowledge by the defendant of [the drug's] narcotic character is essential to establish unlawful . . . sale . . . of narcotics"].) In addition to defendant's statement, the evidence showed he was in a place known for drug trafficking. Defendant understood the street vernacular "working" and the heroin was packaged and carried in the normal manner for street sales. It is not reasonably probable the jury would have reached a verdict more favorable to defendant had CALCRIM No. 358 been given. Any error in failing to so instruct was harmless.

C. Abstract Of Judgment

The trial court imposed a $50 Health and Safety Code section 11372.5, subdivision (a) criminal laboratory analysis fee "plus penalty assessment." The use of the term penalty assessment reflects the trial court's intent that the mandatory penalties and surcharge be added to the drug laboratory fee. (People v. Voit (2011) 200 Cal.App.4th 1353, 1372-1373; People v. Sharret (2011) 191 Cal.App.4th 859, 864.) But the abstract of judgment only reflects "a penalty assessment of $85 ($50 per section 1464 Penal Code and $35 section 76000 Government Code)." It makes no reference to any surcharge or other penalties. The criminal laboratory analysis fee is subject to the following, in addition to the $50 Penal Code section 1464, subdivision (a)(1) state penalty and the $35 Government Code section 76000, subdivision (a)(1) county penalty: a $10 section 1465.7, subdivision (a) state surcharge; a $15 Government Code section 70372, subdivision (a)(1) state court construction penalty; a $10 Government Code section 76000.5, subdivision (a)(1) emergency medical services penalty; a $5 Government Code section 76104.6, subdivision (a)(1) deoxyribonucleic acid penalty; and a $5 Government Code section 76104.7, subdivision (a)(1) state-only deoxyribonucleic acid penalty. (See People v. Castellanos (2009) 175 Cal.App.4th 1524, 1528-1533; People v. McCoy (2007) 156 Cal.App.4th 1246, 1254-1257; People v. Taylor (2004) 118 Cal.App.4th 454, 456-457.) The abstract of judgment must be amended to so reflect. Upon remittitur issuance, the trial court is to actively and personally insure the clerk prepares an amended abstract of judgment that correctly reflects the penalty assessments and surcharge set forth above. (People v. Acosta (2002) 29 Cal.4th 105, 109, fn. 2; People v. Chan (2005) 128 Cal.App.4th 408, 425-426.)

IV. DISPOSITION

The judgment is affirmed. Upon remittitur issuance, the clerk of the superior court shall prepare an amended abstract of judgment that includes the penalties and surcharge set forth in the body of this opinion. The clerk shall forward the amended abstract of judgment to the California Department of Corrections and Rehabilitation.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

TURNER, P. J. We concur:

ARMSTRONG, J.

MOSK, J.


Summaries of

People v. McCaskill

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE
Feb 7, 2012
No. B228449 (Cal. Ct. App. Feb. 7, 2012)
Case details for

People v. McCaskill

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ROBERT MCCASKILL, Defendant and…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE

Date published: Feb 7, 2012

Citations

No. B228449 (Cal. Ct. App. Feb. 7, 2012)