Opinion
B199700
4-26-2008
THE PEOPLE, Plaintiff and Respondent, v. PIERRE REDD, JR., Defendant and Appellant.
Judith Vitek, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Defendant and appellant Pierre Redd was convicted by a jury of possession of a controlled substance. Appointed appellate counsel filed an opening brief in which she acknowledged that she had been unable to find any arguable issues and requested that we independently review the record pursuant to People v. Wende (1979) 25 Cal.3d 436, 441 (Wende). After we advised defendant that he had 30 days within which to personally submit any contentions or issues which he wished us to consider, he submitted a letter brief in which he argues that his constitutional rights were violated as a result of the trial courts denial of his preliminary hearing motion to dismiss the information for insufficiency of the evidence. Having examined the entire record, we are satisfied that there are no arguable issues and affirm the judgment.
FACTS
Viewed in accordance with the usual rules on appeal (People v. Kraft (2000) 23 Cal.4th 978, 1053), the evidence adduced at trial established that at about 10:30 p.m. on June 25, 2006, City of Los Angeles Police Officer Bobby Romo and his partner were in a marked car patrolling the alley west of Western Ave., between 92nd and 94th Streets. Romo noticed defendant and another male engage in a "hand to hand exchange." Afterwards, defendant appeared startled when he looked in the direction of the patrol car; he immediately put his right hand into his right front pants pocket, and then quickly removed it. Romo parked and both officers approached defendant and his companion on foot. Responding to Romos questions, defendant said he did not live in the area, denied having any narcotics or weapons in his possession, and gave Romo permission to search him. Defendant complied with Romos instructions to put his hands on top of his head. As Romo approached defendant to perform the search, he noticed that defendant was wearing a watch on his left wrist. When Romo placed his hand on top of defendants hands to secure them during the search, defendant "took off running." Defendant ignored Romos command to "Stop." During the ensuing foot pursuit, Romo noticed defendant put his right hand to his waistband area and then pull it away with a clenched fist. When defendant tripped over a curb and fell face down, he unclenched his fist to brace himself for the fall, then pushed himself off the ground and continued running. As defendant pushed himself up, Romo saw that defendants watch was on the ground and about an inch from the watch, Romo saw a clear plastic baggie. Defendant ran about 25 more feet before complying with Romos command to stop. Defendant was handcuffed and both officers walked with him back to where he had fallen. Defendant replied in the affirmative when Romos partner picked the watch up off the ground and asked if it was defendants. Romos partner also picked up the baggie, which contained several smaller baggies, each containing about 2 pieces of an off-white substance for a total of 10 pieces. Romo recognized this as a common method for distributing narcotics. After transporting defendant to the police station, Romos partner placed the baggie into an evidence bag and booked it into evidence under DR No. 061221960. Photos of the baggies and the evidence envelope were admitted into evidence as Peoples Exhibits 2, 3, 4 and 5. The parties stipulated that the police forensic expert would testify that the off-white solid material booked into evidence under DR No. 061221960 was cocaine base. Romo described the contents of the baggie as "approximately 10 small off-white solids. They were packaged in, 2-a-piece, in another plastic baggie." The district attorney introduced into evidence two photographs, which she described for the record as "a plastic baggie with some white substances" (Peoples Exhibit 1) and "3 small separate items" (Peoples Exhibit 2). Romo opined that this cocaine base was possessed for sale based on the way the rocks were packaged, the amount, the denominations of currency found in defendants pocket at the time of his arrest, and the absence of any drug paraphernalia.
PROCEDURAL BACKGROUND
Defendant was charged with possession for sale of cocaine base (Health & Saf. Code, § 11351.5), enhancements for four prior prison terms (Pen. Code, § 667.5) and one Three Strikes prior conviction (Pen. Code, § 1170.12, subds. (a)-(d), § 667, subds. (b)-(d)) were also alleged.
At the preliminary hearing only Romo testified. He described the events leading up to defendants arrest and the recovery of the baggie of cocaine base. Defense counsels motion to dismiss for insufficiency of the evidence (§ 995, subd. (a)(2)) was denied, and defendant was held to answer. The information containing the charges was filed on July 10, 2006.
After several continuances, the evidentiary portion of defendants one day jury trial commenced on March 19, 2007. Defendant and the People were represented by attorneys different than those present at the preliminary hearing. During the Peoples case-in-chief, the district attorney introduced into evidence four photographs: "a photo of the Los Angeles Police Department label and bears an envelope" (Peoples Exhibit 2); "a front of an envelope entitled `analyzed evidence and has R-E-D-D in red" (Peoples Exhibit 3); "a Ziploc baggie containing another baggie with several off-white solids" (Peoples Exhibit 4); and "several off-white solids outside the baggie" (Peoples Exhibit 5). Romo identified the items depicted in the photographs as: the back of a police department narcotics envelope containing his partners writing (Peoples Exhibit 2); the front of that same envelope "that has the defendants name . . . my partners name, serial number, division, booking number, and DR number" (Peoples Exhibit 3); and "a narcotic bag that we recovered on the date of the incident as well as the sandwich baggies put into another narcotics bag . . . " (Peoples Exhibit 4).
Outside the presence of the jury, defense counsel informed the trial court that shortly before trial began he and the district attorney realized that the photographs that had been introduced at the preliminary hearing as Peoples Exhibits 1 and 2 were not photographs of the narcotics recovered by the officers in this case; upon making this discovery, the district attorney obtained the correct photographs, which were the photographs she introduced into evidence at trial through Romo. The trial court allowed the defense to introduce the photographs shown to Roma at the preliminary hearing as Defense Exhibits A and B, and to question Romo about those photographs. In response to defense counsels questions, Romo recalled being shown two photographs at the preliminary hearing and identifying those as depicting the items recovered from the floor next to defendants watch, but he could not recall whether Defense Exhibits A and B were the photographs he was shown. Regarding Exhibits A and B, Romo testified: "Based on these initials, this is none of my information or my partners information. There is a different name, on Hollywood Division, and different officer, different DR number as well." Romo recalled testifying at the preliminary hearing that the baggie recovered at the scene contained approximately 10 off-white solids, packaged 2 apiece in another plastic baggie; based on the transcript of the preliminary hearing, he recalled the prosecutor referring to a photograph depicting "3 small separated items;" and he testified that Defense Exhibit B shows three "individual plastic baggies with items of off-white rock-like substances divided into 2s."
In closing argument, defense counsel conceded that the watch and baggie collected at the scene belonged to defendant. But he noted the discrepancy between Romos preliminary hearing testimony identifying Defense Exhibits A and B as photographs of that baggie and his trial testimony identifying Peoples 4 as a photograph of that baggie. As a result of this discrepancy, he argued: "Can we still decide beyond a reasonable doubt that my client is guilty of possession for sale of controlled substances in this case when we are not sure which controlled substance they were? If, for example, the mistake is that those were the controlled substances featured in Defense A and B, then the whole argument about how much is there becomes critical . . . [¶] Compare what you see in Peoples 4 . . . compared to what you see in Defense A. Looks like just a few rocks in Defense A. Looks like quite a few in Peoples 4. [¶] . . . If [Defense A] is in fact what was recovered by the officers that evening . . . then the question becomes is this a possession for sale case or is this a simple possession case." Defense counsel concluded: "Now, you folks can say well, again, no harm, no foul, they may have got it wrong at the preliminary hearing, they may have gotten the evidence mixed up. But folks, I dont think it sends the right message to society to decide we are just going to overlook this minor screw-up and go ahead and convict this guy anyway. I dont think that is the way to go." The district attorney countered that the discrepancy between the photographs was a red herring and urged the jury to concentrate on Romos trial testimony.
After deliberating for about 2 hours, 45 minutes the jury found defendant not guilty of the charged offense but guilty of the lesser included offense of possession of cocaine base (Health & Saf. Code, § 11350, subd. (a)). Defendant waived his right to a jury trial on the prior conviction allegations. Later, he admitted two section 667.5 prior prison term allegations (four were alleged, but two of the four were concurrent sentences), but not the Three Strikes allegation. The trial court found true the Three Strikes allegation. Defendants motion to strike the Three Strikes prior was denied and he was sentenced to the two year middle term for possession, doubled pursuant to Three Strikes.
Defendant filed a timely notice of appeal.
DISCUSSION
In his letter brief, defendant contends that his constitutional rights were violated at his preliminary hearing. Defendant argues that Romo testified "that he recognize[ed] the items in Peoples 1 and 2 because `he recovered them from the floor next to my watch. I never had a watch on, and the drugs Officer Romo testified to at my [preliminary hearing] didnt even match the DR# on my police report, and my lawyer at the time asked for insufficiency of the evidence and the motion was denied. . . . But at my trial . . . Romo testified some other photographs had to be requested 2 days before trial because the photos that were used at [the preliminary hearing] were false not mine. I was bound over on false evidence . . . ." This does not raise an arguable issue.
Before an information may be filed there must be a preliminary examination of the case and an order holding the defendant to answer. (§ 738.) The purpose of a preliminary hearing is to assure that a person is not detained for a crime that was never committed. (People v. Plengsangtip (2007) 148 Cal.App.4th 825, 835 (Plengsangtip); see also (4 Witkin & Epstein, Cal. Criminal Law (2d ed. 1989) Pretrial, § 117 [preliminary hearing used to weed out groundless or unsupported charges].) "Only a reasonable probability of guilt need be shown; it is not necessary to produce evidence that would support a verdict of guilty. . . . [¶] In testing the evidence offered to support the prosecution, every legitimate inference that may be drawn from the evidence must be drawn in favor of the information. Even if the magistrate considered inadmissible evidence, a motion to dismiss under [section] 995 should be denied if the remaining admissible evidence was sufficient to lead the magistrate to conclude that probable cause existed. [Citation.]" (4 Witkin & Epstein, supra, Pretrial, § 147.) An information may not be set aside if there is " `some rational ground for assuming the possibility that an offense has been committed and the accused is guilty of it. [Citation.]" (Plengsangtip, supra, at p. 835.) Denial of a section 995 motion is appealable from a final judgment. (Guerin v. Superior Court (1969) 269 Cal.App.2d 80, 83.)
Here, Romos testimony at the preliminary hearing was sufficient to establish probable cause to believe that a crime was committed and that defendant was guilty of committing it. That the deputy district attorney inadvertently showed Romo the wrong photographs at the preliminary hearing does not establish otherwise.
Our independent review of the record satisfies us that no arguable issue exists.
DISPOSITION
The judgment is affirmed.
WE CONCUR:
COOPER, P. J.
FLIER, J. --------------- Notes: All future undesignated statutory references are to the Penal Code.