Opinion
A112827
4-20-2007
THE PEOPLE, Plaintiff and Respondent, v. JASON R. MELGARD, Defendant and Appellant.
NOT TO BE PUBLISHED
I. INTRODUCTION
After a day and a half jury trial in which he personally testified, appellant was convicted on both drug-related counts in the charging information. He appeals claiming (1) the trial court erred in permitting the prosecutor to impeach him on cross-examination by confronting him with a prior drug-related conviction and (2) his trial counsel was ineffective because, during the course of cross-examination of a prosecution drug expert, a question by that counsel adduced evidence of appellants prior drug convictions. We reject both arguments and affirm the judgment of conviction.
II. FACTUAL AND PROCEDURAL BACKGROUND
In the early morning hours of September 17, 2003, Mendocino County Deputy Sheriff Michael Tobin was on patrol on Main Street in Willits (also known as U.S. Highway 101) when he passed a red Acura which failed to dim its high beam headlights. He initiated a traffic stop of the car and learned that the driver, a man named Miller, was driving with a suspended license. Tobin arrested Miller and, in the process of so doing, learned that one of the three passengers in the car, appellant, owned the vehicle.
Tobin asked appellant for some identification. As appellant exited the car trying to get his wallet from his pocket, Tobin noted that he had difficulty in both doing that and simultaneously maintaining his balance. Appellant was also "incoherent" in his conversation with Tobin, repeatedly talking about "spacemen or spaceships that he was traveling through earth" and the like, and did not appear to know who Tobin was. Appellants eyes were also "darting around" and he was looking off into space.
Tobin concluded that appellant was under the influence of a hallucinogenic, and thus arrested and searched him. In appellants pocket, Tobin found a baggy containing 94 tablets of methylenedioxymethamphetamine, also known as MDMA or "Ecstacy." The pills were green in color and had a "happy face" imprinted on them.
By an information filed June 8, 2005, appellant was charged in count one with possessing this substance for sale (Health & Saf. Code, §§ 11378/11401, subd. (a)) and in count two with transporting that drug. (Id., §§ 11379/11401, subd. (a).)
A jury trial commenced on November 7, 2005, and concluded the following day. In the course of it, the prosecution presented testimony from a criminalist, who testified that MDMA changes an individuals moods and perceptions and that the type of pills appellant possessed were "homemade" and tended to degrade over time.
Also testifying for the prosecution was Mendocino County Deputy Sheriff Darren Brewster, who was qualified as an expert in the use, possession, and possession for sale of MDMA. He testified, among other things, that: (1) the normal dose of MDMA is one pill, the effects of which last from four to six hours, (2) albeit heavy users may consume up to five pills in one night, but doing so often causes significant "hangovers"; (3) as a result of which, regular users of MDMA do not consume it daily; (4) MDMA pills customarily cost between $20 and $40 a pill; (5) and that, therefore, appellants possession of 94 pills indicated an intent to sell them based on "the sheer quantity of the pills."
In support of the latter conclusion, Brewster stated that he had also relied upon the fact that appellant had previously been arrested for drug sales; this point was made by Brewster in the course of answering a question posed to him in cross-examination by trial defense counsel.
The only witness testifying for the defense was appellant himself. He testified that, on the evening before, he had fallen asleep in a trailer in Garberville and only awoke when the car being driven by Miller was stopped by Deputy Sheriff Tobin in Willits. He surmised, based on this, that some friends had put him into that car while he was asleep in Garberville. He testified that he had not used MDMA and was not under the influence of any other drug when he was arrested; he attributed his demeanor to the fact that he had been awake for several days. The pills in the baggy in his pocket were, he admitted, his, but possessed by him for his personal use and not for sale. He stated that he owned such a large quantity because the drug was hard to find "so when you find it you get what you can." He stated that when he used MDMA, he customarily used one or two pills in a day, and that 100 pills would last from six months to a year.
On cross-examination, he conceded that he often shared the pills with friends who would provide him with marijuana in return, explaining that "[w]e all look out for each other."
After, as noted, a day and a half jury trial, the jury convicted appellant on both charged counts. On January 6, 2006, the court sentenced him to the three year mid-term on count two (transportation of MDMA) and stayed any sentence on the first (possession for sale) count.
Appellant filed a timely notice of appeal.
III. DISCUSSION
Appellant makes two arguments on appeal, namely, that (1) the trial court erred in allowing the prosecution to use a 2001 federal conviction of appellant for distributing LSD to impeach him on cross-examination and (2) appellants trial counsel was ineffective in asking Deputy Sheriff Brewster, on cross-examination, whether there were any other factors, aside from the large quantity of pills in appellants possession, which had led him to the conclusion that appellant possessed the pills for sale, thus allowing Brewster to note appellants prior drug convictions. We find both contentions unpersuasive.
Regarding the use of the 2001 federal conviction for impeachment purposes, prior to impaneling the jury, the trial court heard argument on appellants pre-trial motion in limine to exclude from evidence any reference to his four prior felony convictions, i.e., a 2001 federal court conviction for distribution of LSD and conspiracy to possess and distribute that drug, and two 2005 state court convictions for second degree burglary and unlawful taking of a motor vehicle. At the outset, the court indicated that, after reading the pleadings on the subject, it was tentatively disposed to allow use of one of the federal drug convictions and one of the two state court convictions. Appellants counsel objected to this result, arguing—as he does to us—that the prior drug convictions were too similar to that for which he was charged in the present case and thus tended to establish his propensity to commit drug offenses. He suggested that the two non-drug offenses were more probative on the issue of appellants credibility. The trial court was not persuaded and did not change its tentative ruling.
The prosecution was, thus, allowed to cross-examine appellant about the 2001 federal LSD distribution conviction and the 2005 state court burglary conviction. After appellant conceded both convictions, the court promptly admonished the jury that the evidence of those two offenses was being admitted "only for the purpose of determining the believability of the witness" and "[n]ot for any other purpose." The court repeated this admonition via an instruction to the jury (specifically CALJIC No. 2.23) following the conclusion of all testimony.
Regarding the propriety of the courts ruling allowing admission of this evidence for impeachment purposes, the post-Proposition 8 law on this subject was summarized in People v. Green (1995) 34 Cal.App.4th 165, 182-183 (Green). In that case, the appellate court affirmed a trial court ruling allowing the use, for impeachment purposes, of six prior convictions for the unlawful driving of a motor vehicle in a trial for the same offense. It explained: "`[S]ubject to the trial courts discretion under [Evidence Code] section 352 [article I, section 28, subdivision (f) of the California Constitution] authorizes the use of any felony conviction which necessarily involves moral turpitude, even if the immoral trait is one other than dishonesty[, for impeachment purposes]. [Citations.] In determining whether to admit the prior convictions, `[t]he trial court should consider four factors outlined in [People v.]Beagle [(1972) 6 Cal.3d 44]: (1) whether the prior conviction reflects adversely on an individuals honesty or veracity; (2) the nearness or remoteness in time of a prior conviction; (3) whether the prior conviction is for the same or substantially similar conduct to the charged offense; and (4) what the effect will be if the defendant does not testify out of fear of being prejudiced because of impeachment by prior convictions. [Citation.] [Citation.] The first factor goes to admissibility of the prior convictions, which determination the trial court must first reach before exercising its discretion based on the remaining factors. [Citations.] [¶] `A trial courts exercise of discretion will not be disturbed unless it appears that the resulting injury is sufficiently grave to manifest a miscarriage of justice. [Citation.] In other words, discretion is abused only if the court exceeds the bounds of reason, all of the circumstances being considered. [Citation.] [Citation.] . . . [¶] Prior convictions for the identical offense are not automatically excluded. `The identity or similarity of current and impeaching offenses is just one factor to be considered by the trial court in exercising its discretion. [Citation.] Since the admission of multiple identical prior convictions for impeachment is not precluded as a matter of law [citation], and a series of crimes may be more probative than a single crime, there was no abuse of discretion. [Citation.]" (Green, supra, 34 Cal.App.4th at pp. 182-183; see also, to the same effect, People v. Mendoza (2000) 78 Cal.App.4th 918, 926.)
Many other cases, a number of them cited in Green, have reached the same result. Thus, in People v. Johnson (1991) 233 Cal.App.3d 425, 459, a prior murder conviction was held admissible for impeachment purposes in a later trial for murder and kidnapping. And in People v. Tamborrino (1989) 215 Cal.App.3d 575, 590, two prior robbery convictions were admissible for impeachment purposes in a trial on a charge of robbery. Similarly, in People v. Lewis (1987) 191 Cal.App.3d 1288, 1298, the appellate court held there was no abuse of discretion in admitting, for impeachment purposes, evidence of two prior rape convictions in a trial for rape, and in People v. Dillingham (1986) 186 Cal.App.3d 688, 695, the same result was reached regarding the admission, again for impeachment purposes, of prior convictions for burglary and attempted burglary in a trial on a charge of residential burglary. Finally, in People v. Stewart (1985) 171 Cal.App.3d 59, 65-66, four prior robbery convictions were allowed to be admitted for impeachment purposes in a trial for attempted robbery and false imprisonment.
In People v. Muldrow (1988) 202 Cal.App.3d 636, 646-647 (Muldrow ), this court addressed this precise issue. There, we found no abuse of discretion in a ruling by the trial court admitting six prior convictions, including three for first degree burglary, in a trial on two charges of exactly that same offense. We ruled: "We must ask whether, on the facts of this case, it is proper to admit six prior felonies, especially where three are identical to the charged offense. The trial court found that `in weighing the evidence, the exclusion of all priors except for the petty theft in 1984 would lead the jury to falsely believe that defendant had otherwise led a law-abiding life. In the course of making his decision, the judge reviewed the date of each prior and the number of intervening years between each conviction. As to the identical nature of the three prior burglaries to the charged offense, the court noted that there was `potentially a greater prejudicial effect on the defendants rights, but `pursuant to Evidence Code section 352, I find it is permissible . . . to use each and every one of the six felony convictions . . . . [¶] On the facts of this case, an admission of any less than six prior convictions would allow the defendant a `"false aura of veracity." [Citation.] [N]ot even the admission of five identical prior convictions is precluded on grounds of numerosity and/or identity where there is a supported exercise of discretion. Similarly, in this case, as to numerosity and identity, the probative value of the convictions outweighed their prejudicial effect." (Id. at pp. 646-647, italics omitted.)
Here, as in Muldrow, the trial court clearly considered the issue with which it was faced regarding the 2001 federal LSD conviction. In the course of discussing this issue with counsel immediately before the commencement of trial, the court indicated it had read and was familiar with several of the authorities cited above. Citing Tamborrino, the court commented: "[T]here it was a robbery case were [sic: where] there were two robbery priors. The Court said it was not an abuse of discretion to allow those. So I think the Court has to exercise its discretion and look at the Beagle factors and in terms of the time its going to take, if theres undue prejudice. [¶] That is why I feel . . . there is a kind of basic fairness issue in terms of undue prejudice. . . . [¶] . . . And any sale-related thing with regard to controlled substances is a moral turpitude crime. So I am going to allow one of those."
As the trial court noted, and as appellant effectively concedes in his brief to us: "Possession of drugs for sale, which involves the intent to corrupt others, is conduct involving moral turpitude." (People v. Harris (2005) 37 Cal.4th 310, 337; see also, to the same effect, People v. Castro (1985) 38 Cal.3d 301, 317.) In view of (1) the substantial discretion of the trial court in such matters, (2) the exercise of that discretion by this trial court, (3) the many precedents allowing the use for impeachment purposes of convictions on an offense similar to that charged, (4) this trial courts dual admonitions to the jury regarding the purpose of the admission of evidence of appellants prior convictions, and (5) the well-established presumption that jurors follow such instructions (see, e.g., People v. Chavez (2000) 84 Cal.App.4th 25, 31), we find no abuse of discretion in the trial courts ruling allowing into evidence for impeachment purposes the prior conviction of appellant for an offense similar to those charged here.
Regarding the alleged ineffective assistance of trial counsel, the record discloses that appellants trial counsel, a Mendocino County Deputy Public Defender, pressed Deputy Sheriff Brewster in her cross-examination of him concerning the opinion he had expressed on direct examination that appellant possessed the 94 MDMA pills for sale. She got Brewster to admit, among other things, that: (1) there was "no way to gage [sic] how potent [MDMA] pills are going to [be] before you take [them]", (2) a user of such pills doesnt know in advance "how many pills it will take to reach a certain high", (3) weapons—none of which were found in appellants car on the night in question—"can be involved in dealing", (4) he had never before met appellant, talked to him, or "interviewed him about his own personal use of MDMA.." Then, defense counsel asked the following question: "And your opinion [that appellant possessed the 94 tablets for sale] is basically based on your training and experience and then the number of pills?" Deputy Brewster answered: "And I know that hes been arrested for sales in the past."
Appellant argues that the question by trial counsel constituted ineffective assistance. We strongly disagree. In the first place, the question posed by trial defense counsel was not "open ended," i.e., did not violate the basic rule of cross-examination to avoid allowing a hostile witness to volunteer damaging information. But the fact of life was that Brewster, obviously not a neophyte regarding criminal trial testimony, saw an opportunity to add a damaging element to his affirmative answer—and did so. But there is simply no way trial counsels question amounts to ineffective assistance. Trial counsel was trying—and almost succeeded—in getting Brewster to concede an arguably limited basis for his "possession for sale" conclusion. The fact that she narrowly missed doing so because of Brewsters clever "add on" to his otherwise affirmative answer does not—even slightly—make her question to him amount to ineffective assistance.
Secondly, any possible error in this regard was harmless. As noted, at least one of appellants prior drug-related convictions was, per the courts tentative pretrial ruling, destined to come into evidence anyway. And the fact of that prior conviction was not stressed particularly in the prosecutions closing statements. Rather, the prosecution stressed appellants admission on cross-examination that he could and would trade the MDMA pills for other drugs.
Finally, this was not even remotely a close case; the jury deliberately for less than two hours before reaching a verdict on the second day of trial. We have no doubt, based on the record before us, that it would have reached the same result even if Brewster had not volunteered anything concerning appellants "past sales."
IV. DISPOSITION
The judgment is affirmed.
We concur:
Lambden, J.
Richman, J. --------------- Notes: No reply brief was filed on behalf of appellant.