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People v. McKnight

California Court of Appeals, Fourth District, Second Division
Mar 20, 2008
No. E042209 (Cal. Ct. App. Mar. 20, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. LAWRENCE GONZO McKNIGHT, Defendant and Appellant. E042209 California Court of Appeal, Fourth District, Second Division March 20, 2008

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

APPEAL from the Superior Court of Riverside County. Joan F. Burgess, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Super.Ct.No. RIF130730

Terrence Verson Scott, under appointment by the Court of Appeal, and Andrew E. Rubin for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Steve Oetting, Supervising Deputy Attorney General, and Theodore M. Cropley, Deputy Attorney General, for Plaintiff and Respondent.

Gaut J.

1. Introduction

A jury convicted defendant of one count of violating Health and Safety Code section 11379, subdivision (a), involving the sale of methamphetamine. The court sentenced defendant to the lower term of two years in prison.

Defendant appeals, citing evidentiary and instructional error. We reject defendant’s contentions and affirm the judgment.

2. Facts

Michelle Williams, a security officer for the Riverside city library, testified that she frequently saw defendant at the library. On three occasions in May and June 2006, she saw him give people small plastic bags, about one-inch square, in exchange for money. On one occasion, she saw a white substance. She recognized methamphetamine because of her own previous drug use.

Jeff Spencer, a Riverside detective, testified the police had received complaints about drug sales occurring near the library, at the corner of Mission Inn Avenue and Lemon Street. On June 8, 2006, he organized a videotaped surveillance and undercover drug buy. Spencer first observed defendant engage in what appeared to be hand-to-hand drug transactions with several people.

Detective Mario Dorado then approached defendant and asked to “holler at you,” meaning to buy drugs. Defendant asked Dorado what he needed and he responded “a 20,” meaning about a quarter gram of methamphetamine. Defendant said Dorado had to contact “Twist,” referring to a codefendant, Michael James Perrotti. Ultimately Dorado completed a $20 purchase of methamphetamine from codefendant, Perrotti, and another codefendant, Julian Thomas Zaragoza. Dorado actually received the drugs directly from Zaragoza. The amount of methamphetamine was .04 grams, a useable amount of about eight doses.

The defense witnesses included a downtown restaurant owner who said defendant was a street artist but she had not observed him ever being involved with drugs. Additionally, Zaragoza, who had pleaded guilty, testified that defendant was not involved in the drug transaction, only himself and Perrotti.

Defendant testified he had been homeless for 30 years and had a history of various criminal offenses. He was in the company of Zaragoza and Perrotti, smoking and reading a newspaper, when he was accosted by Dorado. Defendant assumed Dorado wanted to buy drugs and defendant told him to “hit up Twist.” Defendant did not participate in the drug transaction and he had no money or drugs when he was arrested.

3. Hearsay Evidence

Defendant protests the admission of the hearsay statement by Spencer that Dorado reported buying methamphetamine from the three defendants. The court allowed the statement, not for the truth of the matter asserted, but to show its effect on Spencer and his subsequent actions. We determine that, even if Spencer’s testimony should not have been admitted it was not prejudicial because Dorado testified directly regarding his purchase of methamphetamine from the three defendants.

Defendant cites some authority holding that hearsay evidence should not be admitted for the purpose of showing why the police arrested a defendant. (People v. Scalzi (1981) 126 Cal.App.3d 901, 906-907; see People v. Armendariz (1984) 37 Cal.3d 573, 586; Judicial Council of California Criminal Jury Instruction (2007-2008), CALCRIM No. 220.) But Dorado independently corroborated Spencer’s testimony. Even if the court admitted Spencer’s statements in error, there was no prejudice because the evidence was properly admitted in another form.

4. Expert Evidence

Both Spencer and Dorado testified about how illegal drug deals are generally conducted and how the events in this particular case matched their knowledge and experience about the business. Defendant contends the detectives were improperly allowed to give expert opinion that defendant was guilty.

Another officer, Matthew Lackey, testified exclusively as an expert regarding drug transactions. Additionally, Spencer and Dorado both testified about their police training and experiences regarding drug crimes. They also testified as percipient witnesses to the events pertaining to defendant’s crime. We have reviewed the record and we disagree with defendant’s characterization of the detectives’ testimony as constituting expert opinion on the subject of guilt.

As phrased by defendant, the function of the detectives’ testimony was “to give the jury some ‘background from which they could infer that the somewhat unusual acts on the part of the respective defendants were’ criminal (People v. Crooks [(1967) 250 Cal.App.2d 788, 792]), not to tell them how to decide a case.” (People v. Melton (1988) 44 Cal.3d 713, 744.) To the extent the detectives’ testimony helped the jury understand drug transactions and defendant’s role, the expert opinions were also admissible. (Evid. Code, § 801; People v. Olguin (1994) 31 Cal.App.4th 1355, 1371, overruled on another ground in People v. Cromer (2001) 24 Cal.4th 889, 901, footnote 3; People v. Harvey (1991) 233 Cal.App.3d 1206, 1226-1229.)

No prejudicial error occurred on this point. (People v. Watson (1956) 46 Cal.2d 818, 835.)

5. Unanimity Instruction

Defendant also criticizes the trial court for not giving a unanimity instruction, reasoning that some members of the jury could have based their verdict on Spencer’s testimony about defendant possibly engaging in drug sales before he was approached by Dorado. (People v. Russo (2001) 25 Cal.4th 1124, 1132.) The record in this case offers no support for defendant’s argument because it is indisputable that the prosecutor elected to use only the transaction with Dorado as the basis for the prosecution: “[C]ases have long held that when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act.” (Ibid.)

A unanimity instruction is not required if there is no reasonable grounds for disagreement by the jurors. (People v. Riel (2000) 22 Cal.4th 1153, 1199-1200; People v. Naploles (2002) 104 Cal.App.4th 108, 119.) In this case, Spencer’s testimony about the earlier drug transaction was presented only to explain the reason for proceeding with the undercover drug buy. The remainder of the evidence and all of the argument by both the prosecutor and defense counsel focused entirely on the purchase of a useable amount of methamphetamine from the three defendants, as effected by Dorado. No reasonable juror or jury could have concluded otherwise. Either there was no error or any error was harmless. (Napoles, supra, at p. 119.)

6. Entrapment

Defendant described his encounter with Dorado as follows: “A guy came up. He looked like a gangbanger. He was wearing a Pendleton, and I noticed he was packing a pistol.” Later, “he was blocking my way. I’m thinking, why is this gang-banging looking dude that I think might be packing a pistol in my way for? So I backed the bike up. . . . [¶] . . . [¶] I saw a pistol under his Pendleton. A bulge.” Dorado was not armed.

Based on the foregoing, defendant contends the trial court erred by deciding not to give an entrapment instruction before hearing the defense evidence concerning defendant’s fear that Dorado was an armed gang member. Relying on a case from the Court of Appeals of North Carolina, defendant asserts the evidence shows Dorado coerced him, justifying the instruction. (State v. Bradshaw (1971) 183 S.E.2d 787, 790.) In that case, a defendant had been tricked by two state actors into believing one of them might have a gun. Here there was no such trickery, only defendant’s subjective belief that Dorado was armed.

In determining whether an entrapment defense applies, the court considers the totality of the circumstances:

“[G]uidance will generally be found in the application of one or both of two principles. First, if the actions of the law enforcement agent would generate in a normally law-abiding person a motive for the crime other than ordinary criminal intent, entrapment will be established. . . . Second, affirmative police conduct that would make commission of the crime unusually attractive to a normally law-abiding person will likewise constitute entrapment. . . .

“Finally, while the inquiry must focus primarily on the conduct of the law enforcement agent, that conduct is not to be viewed in a vacuum; it should also be judged by the effect it would have on a normally law-abiding person situated in the circumstances of the case at hand. Among the circumstances that may be relevant for this purpose, for example, are the transactions preceding the offense, the suspect’s response to the inducements of the officer, the gravity of the crime, and the difficulty of detecting instances of its commission. [Citation.] We reiterate, however, that under this test such matters as the character of the suspect, his predisposition to commit the offense, and his subjective intent are irrelevant.” (People v. Barraza (1979) 23 Cal.3d 675, 690-691.) Here nothing in Dorado’s conduct would reasonably “generate in a normally law-abiding person a motive for the crime other than ordinary criminal intent.” (Id. at p. 690.) Nor did Dorado demonstrate any “affirmative police conduct that would make commission of the crime unusually attractive to a normally law-abiding person.” (Ibid.) Unless, defendant had some concrete, objective reason to believe Dorado was an armed gang member, he cannot claim to have been coerced or compelled to commit a crime based on his subjective fear.

No entrapment instruction was warranted under these facts.

7. Disposition

We affirm the judgment.

We concur: McKinster, Acting P. J., King J.


Summaries of

People v. McKnight

California Court of Appeals, Fourth District, Second Division
Mar 20, 2008
No. E042209 (Cal. Ct. App. Mar. 20, 2008)
Case details for

People v. McKnight

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. LAWRENCE GONZO McKNIGHT…

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

Date published: Mar 20, 2008

Citations

No. E042209 (Cal. Ct. App. Mar. 20, 2008)