Opinion
B161648.
7-7-2003
THE PEOPLE, Plaintiff and Respondent, v. JULIO CESAR MEDRANO, Defendant and Appellant.
Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Jaime L. Fuster and Erin M. Pitman, Deputy Attorneys General, for Plaintiff and Respondent.
Julio Cesar Medrano appeals from the judgment entered following a jury trial that resulted in his conviction of possession for sale of cocaine base (Health & Saf. Code, § 11351.5) and his admission to having served a prior prison term (Pen. Code, § 667.5, subd.
(b)). He was sentenced to prison for the five-year upper term on his conviction, plus one year on the prior prison term enhancement.
Appellant contends he was deprived of due process and a fair trial (U.S. Const., 6th & 14th Amends.) by the prejudicial admission of evidence of his 1999 prior drug-related arrest. He also contends his prior prison term enhancement must be stricken, because when he admitted the underlying prior conviction he was not advised of his privilege against self-incrimination and his right to confront witnesses (U.S. Const., 5th & 6th Amends.)
Based on our review of the record and applicable law, we affirm the judgment.
FACTUAL SUMMARY
We view the evidence in the light most favorable to the People and presume the existence of every fact the trier could reasonably deduce from the evidence that supports the judgment. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206, 864 P.2d 103.) The following summary is based on this appellate standard of review.
On April 18, 2002, about 10:00 p.m., Los Angeles Police Officer Eric Rogers was conducting surveillance in a known high narcotics traffic area when he noticed appellant appear to engage in a narcotics transaction in front of 447 South Rampart Boulevard. A male approached, engaged appellant in a brief conversation, and handed him something which he put in his pocket. After looking around, appellant walked about five feet away, reached through a wrought iron fence, and retrieved an object. After removing something from the object, he replaced it behind the fence and handed something to the male, who then walked away. As a police car approached, appellant ran off. Following a short chase, he was arrested.
Behind the fence the police found a plastic bubble container containing white wafers of cocaine base weighing about 1.25 grams and the equivalent of 12 to 25 doses of crack cocaine.
Rogers opined appellant possessed the cocaine to sell. A search of appellant produced $ 57 but no smoking paraphernalia. Also, he did not appear to be under the influence of narcotics at the time of his arrest.
Evidence was also presented that on February 2, 1999, about 7:15 p.m., undercover officer Richard Bengston observed appellant in the area of Alvarado and 6th Streets in Los Angeles, engage in what appeared to be several narcotics transactions. When he and his partner approached, appellant offered to sell them marijuana. After taking him into custody, Bengston retrieved from appellant a plastic bubble container with pieces of rock cocaine inside.
Appellants defense was that he bought the cocaine from a male and placed the narcotics on the fence upon seeing a marked police car. He testified that he bought the narcotics for personal use and explained that he did not have any drug paraphernalia, because he planned to smoke the cocaine with cigarettes at home. He denied any intent to sell the cocaine.
DISCUSSION
1.Prior Drug-related Activity Evidence Proper
Appellant contends he was deprived of due process and a fair trial (U.S. Const., 6th & 14th Amends.), because the trial court allowed evidence of his 1999 drug-related activity. We find no abuse of discretion.
In their motion, the People sought a ruling allowing admission of evidence of appellants prior drug-related activity to prove motive and intent (Evid. Code, § 1101, subd. (b) [section 1101, subd. (b)]). At the hearing, the prosecutor argued that such evidence was admissible for those purposes, because the expected defense was that appellant possessed the cocaine for personal use, not sale. She further argued that the charged crime was recent and similar to the prior activity. Appellant used the same bubble device in each instance, and the charged crime took place just a few blocks away.
Defense counsel acknowledged that intent was the crucial issue but urged there were insufficient similarities. He argued the use of the same type of storage container for the narcotics does not show that possession of the narcotics was for sale or personal use. He further argued that appellants plea to possession for sale of marijuana does not reflect an intent to sell cocaine.
The prosecutor responded that in the prior case, the officers observed similar hand-to-hand transactions, and appellant offered to sell drugs to them.
The court ruled the evidence was admissible to show intent. It explained that a comparison of the incidents reflected a common plan and scheme "sufficiently similar to support an inference that [he] had the same intent in each instance"; "the source of the evidence is from an independent case with an independent witness"; and the prejudicial impact could be lessened by an instruction limiting its admission on the issue of intent and precluding the jury from considering such evidence to show appellant was a bad person or he was predisposed to commit crime.
In People v. Ewoldt (1994) 7 Cal.4th 380, 867 P.2d 757, the court explained that the admissibility of evidence pursuant to section 1101(b) depends on the degree of similarity between the uncharged act and the charged offense. The standard for admissibility of evidence to prove intent is: "The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent. . . . The recurrence of a similar result . . . tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such an act . . . . . . . In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant " probably harbored the same intent in each instance."" (Id. at p. 402, citations omitted.)
Once the trial court determines that a prior bad act is admissible under section 1101, subdivision (b), it must conduct a balancing of the probative value against its prejudicial impact. (Ewoldt, supra, 7 Cal.4th at p. 404.) A court must therefore examine whether the probative value of prior bad act evidence is substantially outweighed by the probability that its admission would create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. (Evid. Code, § 352.)
The principal factor is whether the probative value of an uncharged act is similar to the charged offense. Other factors affecting the probative value include the extent to which the source of the evidence is independent of the charged offense, and the amount of time between the uncharged acts and the charged offense. The factors affecting the prejudicial effect of uncharged acts include whether the uncharged acts resulted in criminal convictions and whether the evidence of uncharged acts is stronger or more inflammatory than the evidence of the charged offenses. (Ewoldt, supra, 7 Cal.4th at pp. 404-405; People v. Balcom (1994) 7 Cal.4th 414, 427, 867 P.2d 777; People v. Falsetta (1999) 21 Cal.4th 903, 917, 986 P.2d 182.)
Mindful of these principles, we conclude the trial court did not abuse its discretion in admitting evidence of appellants prior drug-related activity. (People v. Waidla (2000) 22 Cal.4th 690, 717, 996 P.2d 46.) Intent was the pivotal issue. Evidence of such prior activity was highly probative on that issue. (See, e.g., People v. Pijal (1973) 33 Cal. App. 3d 682, 691, 109 Cal. Rptr. 230.) As noted by the trial court, there were sufficient similarities between the prior drug-related activity and the current charged crime. In each instance, there appeared to be hand-to-hand transactions which are consistent with the commission of narcotics sales, the transactions occurred within the same general vicinity, and appellant stored his narcotics for sale in the same distinctive type of container. Moreover, any prejudice flowing from the admission of such evidence was dissipated by the courts limiting instruction, which the jury is presumed to have understood and followed. (Ibid; People v. Holt (1997) 15 Cal.4th 619, 662, 937 P.2d 213; People v. Adcox (1988) 47 Cal.3d 207, 253, 253 Cal. Rptr. 55, 763 P.2d 906.)
2.Any Deficiency in Prior Conviction Admonitions Harmless
Appellant contends his prior prison term enhancement must be stricken, because he was not advised of the full panoply of his constitutional rights before he admitted his two prior convictions. We conclude any deficiency in the admonitions of his right to confront adverse witnesses and his privilege against self-incrimination was harmless.
The information alleged that under section 667.5, subdivision (b) (prior prison term enhancement), "JULIO CESAR MEDRANO" had suffered two prior convictions: (1) a conviction for violating Health and Safety Code section 11359 (possession for sale marijuana) in Los Angeles Superior Court (LASC) case No. BA181159; and (2) a conviction for violating Health and Safety Code section 11351.5 (possession of cocaine base for sale) in LASC case No. BA200276.
After being advised that the jury had reached a verdict on the charged crime, appellants attorney announced appellant was "inclined to admit that he has a prior conviction." The following colloquy transpired:
"The court: Okay. Well, do you want to take the waiver now, waiver of the jury trial on that issue?
"(Counsel and client conferred sotto voce.)
"Mr. Star (appellants attorney): He wishes to ask the court
"The court: Well, thats what counsel is for. Counsel is to answer any questions he has.
"Mr. Star: Ive already answered the question. I think he wishes to admit that he had the previous conviction.
"The court: Miss Albracht, do you want to take a waiver of jury trial and admission on the priors?
"Ms. Albracht (prosecutor): Yes, Your Honor.
"[Appellant], in this information, BA230485, we have alleged that you have two prior convictions.
"One is that you were convicted in case BA181159 of a violation of Health and Safety Code section 11359, that is, possession for sale of marijuana. That is a felony. Its alleged that conviction date was March 8, 1999, here in L.A. County.
"We have also alleged that in case BA200276 you were convicted of a violation of Health and Safety Code section 11351.5, possession for sale of cocaine base, on July 13, 2000, again here in Los Angeles County.
"You have the right to a jury trial in this matter and I would have to, first of all, prove to the judge that the prior convictions belong to you and to a jury that these prior convictions were valid beyond a reasonable doubt.
"So the judge would decide whether this package belonged to you and the fingerprints here and we would attempt to prove to the judge that in fact these are your convictions and then the jury would see these convictions and decide whether they were valid.
"Its my understanding that rather than go through that you are willing to just admit that you suffered these prior convictions.
"Is that what you wish to do?
"[Appellant]: What I want to do is to appeal this case.
"Ms. Albracht: At this point you havent been convicted. You may be found not guilty in this case and none of this will matter. If you are convicted, you will have appeal rights.
"This is a separate issue. If you dont admit that these are your convictions, I will attempt to prove them to the judge and to the jury.
"This is separate from the underlying case that youre being tried for right now.
"[Appellant]: Okay.
"Ms. Albracht: Understanding that, do you wish to admit these convictions or do you wish to cause me to prove them to the jury?
"[Appellant]: No. I admit them.
"Ms. Albracht: Do you understand that admitting them will cause you, if you are convicted, to receive a higher sentence?
"[Appellant]: Yes.
"Ms. Albracht: Counsel, do you join?
"Mr. Star: Yes." (Italics added.)
Mr. Star then explained that "there are two one-year priors alleged but I think its only a single prior. I mean, . . . its only one trip to state prison." The prosecutor agreed.
After appellants admission of the two priors, the prosecutor proffered as Peoples exhibit 5 for identification "a seven-page document which is the 969(b) packet regarding these convictions." The court ruled, "It is so marked." When she asked that exhibit 5 be admitted into evidence, the court stated "it will be received into the file." Appellants attorney responded he had no objection when asked by the court. The reporters transcript reflects Exhibit 5 was marked for identification and received into evidence.
Based on appellants admission, the court imposed one year for a single prior prison term enhancement ( § 667.5, subd. (b)).
Prior to acceptance of a defendants admission to having suffered a prior conviction, the defendant must be advised of and waive his right to a jury trial; his privilege against self-incrimination; and his right to confront witnesses. (In re Yurko (1974) 10 Cal.3d 857, 863-864, 112 Cal. Rptr. 513, 519 P.2d 561.) Nonetheless, our Supreme Court has held that in the absence of an express admonition, "a plea [or admission of a prior conviction] is valid if the record affirmatively shows that it is voluntary and intelligent under the totality of the circumstances." (People v. Howard (1992) 1 Cal.4th 1132, 1174-1175, 1178, 824 P.2d 1315 [no advisement of privilege against self— incrimination; see also People v. Allen (1999) 21 Cal.4th 424, 437, 981 P.2d 525.)
As we shall now explain, although the totality of the circumstances reflects appellant was not advised of right to confront adverse witnesses and his privilege against self-incrimination before he admitted his priors, such deficiencies in the admonition were harmless in light of his impeachment with such priors, which he admitted, during cross-examination in the trial of the current charged crime.
We begin by pointing out that, unlike Howard, which only involved the absence of an express advisement of the privilege against self-incrimination, in this case there was also no advisement of the right to confront adverse witnesses.
The United States Constitution, 6th Amendment, expressly provides that the accused shall have the right "to be confronted with the witnesses against him[.]" Arguably, evidence includes the testimony of witnesses; however, this is not always so, and Howard involved a clear distinction between evidence and witnesses. In Howard, there is an express reference by the court to the defendants "right to force the District Attorney to prove this [prior] and to bring in evidence and witnesses" and his right to "be confronted by them[.]" (People v. Howard, supra, 1 Cal.4th at p. 1179, italics added.)
In this instance, the record reflects the prosecutor clearly informed appellant he would be confronted (albeit that specific label was not uttered) with evidence in the form of the 969(b) prison packet. She did not, however, make any mention of witnesses or refer to his right to be confronted by witnesses. Moreover, the record does not indicate appellant was at any time advised, directly or indirectly, of his constitutional right to confront adverse witnesses.
We note "the record in Howard" consisted solely of "the trial courts colloquy with defendant and his counsel[.]" (People v. Allen, supra, 21 Cal.4th at p. 438, parentheses omitted.)
"As a practical matter, . . . prior convictions are normally proven by the use of documentary evidence alone. (People v. Keating (1981) 118 Cal. App. 3d 172, 183, 173 Cal. Rptr. 286 . . . .) Once the prosecutor presents this prima facie evidence of conviction, the trial court is allowed to make reasonable inferences from the facts presented. If there is no evidence to the contrary, the trial court may consider the abstract and the facts of the particular case, and utilizing the official duty presumption, find a defendant was convicted of and served the term of imprisonment for the listed felony. (People v. Haney (1994) 26 Cal.App.4th 472, 475-476 . . . .)" (People v. Prieto (2003) 30 Cal.4th 226, 258.)
For instance, in proving identity, the prosecutor may elect not to call any witnesses and, instead, simply rely on the 969(b) photograph of the person convicted, which the trier of fact, court or jury, would then determine whether the person so depicted and the defendant were identical. (People v. Purcell (1937) 22 Cal. App. 2d 126, 129, 131, 70 P.2d 706 ["It was for the jury to declare by its finding whether the photograph in question was that of defendant."].)
This scenario, however, does not exist here. For whatever reason, e.g., poor quality of the photograph, absence of distinctive scars, prominent features, etc., the prosecutor here did not elect to rely on the 969(b) photograph. Rather, she expressly singled out the "fingerprints" in the 969(b) packet as the specific factor upon which she intended to rely in proving identity. (See People v. Richardson (1968) 258 Cal. App. 2d 23, 29, 65 Cal. Rptr. 487 ["Fingerprint evidence constitutes the strongest proof of identity and is ordinarily sufficient alone to identify the defendant. . . ."], citations omitted.)
In order to establish the 969(b) fingerprints were those of appellant, it would have been incumbent on the prosecutor to call a fingerprint expert as a witness who, in rendering his or her opinion, would have had to compare those fingerprints with a sample of fingerprints taken from appellant. (See, e.g., People v. Ayala (2000) 23 Cal.4th 225, 248; People v. Richardson, supra, 258 Cal. App. 2d at p. 29 ["witness had identified thousands of fingerprints and had the training and experience necessary to qualify as an expert"].)
In view of the foregoing, we conclude the absence of an admonition of the right to confront adverse witnesses therefore was not rendered inconsequential by reason of the prosecutors advisement that she would rely on the 969(b) packet to prove appellant had suffered the prior convictions.
With respect to the privilege against self-incrimination, Howard concluded "the record in this case affirmatively demonstrates that defendant knew he had a right not to admit the prior conviction and, thus, not to incriminate himself." (People v. Howard, supra, 1 Cal.4th at p. 1180.) In this regard, our Supreme Court pointed out the trial "court specifically informed defendant that he had a right to force the district attorney to prove the prior conviction in a trial and that, in such a trial, he would have the rights to a jury and to confront adverse witnesses." (Ibid. italics added.) Additionally, the Court pointed out "there was a strong factual basis for the plea." (Ibid., fn. omitted.)
In this case, however, appellant was not advised of his right to confront adverse witnesses. Also, unlike Howard, where "the People subsequently proved the prior conviction at the penalty phase through certified records and the testimony of foundational witnesses[,]" the record does not contain a comparable showing of "a strong factual basis for the plea." (People v. Howard, supra, 1 Cal.4th at p. 1180, fn. 19.) Although there was a certified 969(b) prior prison packet, the People did not proffer any witnesses to show appellant was the person who suffered the priors reflected in the 969(b) packet.
On the other hand, we conclude the omission of admonitions of the right to confront adverse witnesses and the privilege against self-incrimination did not render appellants admission of the priors constitutionally infirm. The record establishes that inasmuch as appellant admitted these same priors during cross— examination in the trial on the current charged crime, these deficiencies were necessarily harmless. (See, e.g., People v. Harris (1992) 8 Cal.App.4th 104, 106— 109; People v. Elmore (1990) 225 Cal. App. 3d 953, 957, 960, 275 Cal. Rptr. 315.)
We note our Supreme Court has granted review in People v. Mosby (formerly (2002) 95 Cal.App.4th 967, review granted May 1, 2002, No. S104862) wherein the appellate court emphasized the fact the defendant had just undergone a jury trial on the guilt issues in determining the validity of his admission of the prior.
EPSTEIN, J.
I concur in the opinion and the judgment with respect to the issue of prior drug-related activity. I concur in the judgment only with respect to the plea admitting the charged prior convictions. With respect to the latter, I believe the plea admonitions were constitutionally adequate, and that if they were not, the proper remedy would be reversal as to the prior prison term enhancement.
The guiding rule, nationally as well as in California, is that "a plea is valid if the record affirmatively shows that it is voluntary and intelligent under the totality of the circumstances." (People v. Howard (1992) 1 Cal.4th 1132, 1175, 824 P.2d 1315.) This case should be decided on the proper application of that standard.
The majority opinion concludes, at the beginning of its discussion about validity of the plea, that "any deficiency in the admonitions of [appellants] right to confront adverse witnesses and his privilege against self-incrimination was harmless." (Maj. opn. ante, at p. 6.)
If this means, simply, that the trial court failed to give, or to have the prosecutor give, crisp admonitions and receive specific acknowledgements and waivers of the three constitutional rights (jury trial, confrontation and self-incrimination), I would agree and, with adequate explanation, that would be an end of it. The reason is that Howard did away with the rule that failure to proceed with that sort of exactitude amounts to constitutional error, invalidating the plea — the previous rule under In re Yurko (1974) 10 Cal.3d 857, 863, 112 Cal. Rptr. 513, 519 P.2d 561. The case substituted the totality of the circumstances rule. That requires an assessment whether, in light of all the pertinent circumstances, the plea was knowing and voluntary.
But the majority later say that "although the totality of the circumstances reflects appellant was not advised of [the] right to confront adverse witness and his privilege against self-incrimination before he admitted his priors," these deficiencies are harmless because he admitted the priors on cross-examination during the guilt phase of the trial. (Maj. opn. ante, at p. 9, emphasis added.) The problem with this reasoning is that it misapplies the totality of the circumstances test to the adequacy of the advisement rather than to whether the plea is knowing and voluntary. The majority seems to be saying that, given what it perceives as the inadequacies of the advisements, the resulting plea fails to satisfy the totality of the circumstances test, but that it makes no difference and the error is nevertheless harmless because of appellants testimony at the guilt phase of the trial. No authority is offered for that proposition.
I would conclude that the plea colloquy did not satisfy the requirements announced by our Supreme Court in Howard under its supervisory authority, but this is not a constitutional requirement. Under all the circumstances, the record reflects that the plea satisfied what is the constitutional standard: it was knowingly and voluntarily made.
The colloquy amply advised appellant that he was entitled to a trial on the issue of the prior convictions, at which the prosecutor would have to present proof sufficient to satisfy judge and jury (with respect to their respective areas of decision under Pen. Code, § 1025) beyond a reasonable doubt. Telling appellant that the prosecution would have to present evidence to prove the priors (and detailing the evidence it would present) told him that he had the right to confront that evidence. The term "confrontation" was not used, but the explanation given conveyed the concept in terms that were probably more understandable than the technical language would have been. That is as much, or more, than the state and federal constitutions require.
The majority also find that defendant was not adequately informed about his privilege against self-incrimination. The privilege was not called out by name in the colloquy, but neither was it mentioned in the Howard colloquy. In that case, the Supreme Court quoted a Ninth Circuit decision explaining that "[a] plea of guilty is the most complete form of self-incrimination. By the plea, the defendant admits that he is guilty of the offense charged." (People v. Howard, 1 Cal.4th at p. 1180, quoting United States v. Sherman (9th Cir. 1973) 474 F.2d 303, 305.) The reasoning of the Howard court applies here: under the totality of the circumstances, the defendant made a knowing and voluntary waiver of his privilege against self-incrimination.
I conclude, then, that under the totality of the circumstances, defendants pleas were knowingly and voluntarily made. Hence, there was no constitutional error, and the failure to follow the standard proper procedure as announced in Howard, was harmless. For those reasons, I would affirm.
DISPOSITION
The judgment is affirmed.
I concur: VOGEL (C.S.), P.J.