Opinion
A146474
03-08-2017
THE PEOPLE, Plaintiff and Respondent, v. RUSSELL DWAYNE RODGERS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. SC083105)
I.
INTRODUCTION
Appellant was charged with two counts of transportation and sale of cocaine base (Health & Saf. Code, § 11352, subd. (a)), and two counts of possession for sale of cocaine base (Health & Saf. Code, § 11351.5). The People further alleged that appellant was ineligible for probation because of two prior drug convictions (Pen. Code, § 1203.07, subd. (a)(11)); and was subject to several sentence enhancements due to a prior felony drug conviction (Health & Saf. Code, § 11370.2, subd. (a)), and 11 prison term priors (Pen. Code, § 667.5, subd. (b)).
A jury convicted appellant of the charged offenses based on evidence that he sold rock cocaine to a confidential informant employed by the San Mateo County Narcotics Task Force (NTF) on two separate occasions in the fall of 2014. Thereafter, the trial court found that the prior conviction and prison term allegations were true. Appellant was sentenced to a total term of 11 years in county jail.
In this court, appellant contends his convictions must be reversed because his trial counsel provided him with ineffective assistance by failing to object to evidence that appellant agreed to help the NTF confidential informant purchase a gun. We affirm the judgment.
II.
STATEMENT OF FACTS
In October 2014, East Palo Alto Police Sergeant Clint Simmont was heading up a NTF investigation of narcotics-related activities at appellant's home. There had been numerous citizen complaints regarding narcotics sales in front of the home, and Simmont had personally witnessed drug sales there. San Mateo County Deputy Sheriff Jeffrey Carr worked with Simmont on this investigation. They also enlisted the assistance of a confidential informant named Richard Lopez. The NTF paid Lopez to purchase narcotics from suspected dealers while officers "conduct[ed] surveillance of the entire operation." Lopez then turned the drugs over to the NTF and testified about his encounters in subsequent court proceedings.
All date references are to the 2014 calendar year.
On October 30, Simmont arranged for Lopez to buy cocaine in front of appellant's home. Before the transaction occurred, officers searched Lopez and his vehicle. They also placed a wireless transmitter and tape recorder on his person. From that time until the transaction was complete, Lopez could be seen by at least one officer involved in the operation. Lopez arrived outside appellant's residence at around 2:30 p.m., made contact with appellant a minute later, and purchased a rock of cocaine for $20. On November 6, Deputy Carr arranged for Lopez to make another narcotics purchase outside appellant's home, following the same procedures that Simmont had used. That day, Lopez purchased another rock of cocaine from appellant for $20.
At trial, the jury heard testimony about these pertinent events from Simmont, Lopez and Carr. Audio recordings and printed transcripts of the conversations between appellant and Lopez which took place on October 30 and November 6 were admitted into evidence. The People also presented expert testimony from criminalist Tina Chang. Chang testified that the material Lopez purchased on October 30 consisted of .207 grams of cocaine base, and the material Lopez purchased from appellant on November 6 consisted of .157 grams of cocaine base.
Appellant did not call any witnesses at trial. His defense was that the prosecution failed to prove their case beyond a reasonable doubt. As support for this defense, appellant's trial counsel pursued a theory that Lopez had a "sweet gig" which allowed him to plant drugs and pretend he bought them from people like appellant so that he could get paid between $100 and $200 per completed transaction for essentially five minutes of work.
Defense counsel used his closing argument to highlight circumstances that were consistent with the defense theory. He argued that NTF procedures were not airtight and that officers did not do a sufficiently thorough search of Lopez and his vehicle before the alleged buys. Defense counsel also questioned the quality of the officers' surveillance of Lopez, pointing out that they could not see what he was doing below the windows of his car. Counsel argued that the conversations captured on the audio tapes were vague, and peppered with long silences when it simply was not clear what was going on. Throughout his argument, appellant's counsel attempted to convince the jury that Lopez was not a reliable witness because he was "a professional liar," he had the opportunity to plant evidence, and he was paid only if he actually completed a drug transaction.
During his cross-examination of Deputy Carr, defense counsel probed the witness about the quality of the searches that were conducted before Lopez interacted with appellant on October 30 and November 6. Carr was present when Simmont searched Lopez on October 30 and Carr himself searched Lopez on November 6. Carr testified they did not just do a "pat search," but a "search of his person," which included pulling out his wallet, checking his pockets and any place where contraband could be located. Carr checked the waistband of Lopez's underwear but acknowledged that he did not pull Lopez's underwear down. Nor did he remove Lopez's shoes and socks.
The jury deliberated for less than an hour before returning verdicts finding that appellant was guilty of the four charged drug offenses.
III.
DISCUSSION
Appellant contends his right to the effective assistance of counsel was violated because his trial counsel failed to take steps to prevent the jury from learning that Lopez's conversation with appellant on November 6 included a discussion about whether appellant could help Lopez purchase a gun.
A. Background
During her opening statement, the prosecutor told the jury that the trial evidence included audio recordings of the two alleged drug sales. Then, when describing evidence pertaining to the November 6 charges, the prosecutor stated: "And there was some conversation about Mr. Lopez attempting to purchase a firearm or a gun from the defendant. The defendant did not ultimately end up selling Mr. Lopez a gun. He's not charged with anything related to a gun in this case." Defense counsel did not object to this remark, and the issue did not come up again during the prosecutor's opening statement.
Later, Lopez testified that when he stopped his car in front of appellant's house that day, he told a couple of guys who were standing there that he wanted to buy some "crack" from appellant. Lopez then described how appellant got in his car, agreed to sell him $20 worth of cocaine, offered him a free pipe and also attempted to get Lopez to smoke crack with him. Then the prosecutor asked if Lopez tried to purchase anything else from appellant other than the cocaine, and Lopez responded "A gun." A few questions later, the following exchange occurred:
"Q. Why did you tell him it was that you needed a gun?
"[Defense Counsel]: Objection; relevance. It's not relevant to any of the charges.
"THE COURT: I don't think it is.
"[Prosecutor]: It's not, Your Honor. It's just explaining the conduct that he had with him.
"THE COURT: Sustained.
"[Prosecutor]: Okay. "[By [the Prosecutor]]
"Q: At the end of the conversation that you had with the defendant on November 6th, did he ever sell you the gun?
"A: No, ma'am.
"[Defense Counsel]: Objection; relevance.
"THE COURT: Sustained."
After Lopez completed his testimony, the prosecutor called Deputy Carr to testify about the November 6 transaction. Carr described how Lopez was provided with a wire transmitter that enabled officers to hear his conversations "live-time," as well as a digital recorder that recorded those conversations. Carr testified that, after the drug transaction was completed, he retrieved the digital recorder from Lopez, made a transcript of the recording, and booked it into evidence. At that point in the trial, copies of the transcript were provided to the jury and the audio recording of the November 6 transaction was played.
The transcript of the November 6 recording reflects that Lopez told appellant that somebody broke into his house and that he needed to get "a, a thing." The two talked about where Lopez lived and what had been stolen, and then Lopez repeated "And I just need to get . . . It don't matter what it is, man. I just need something." "A Roscoe?" appellant asked. Lopez replied, "Yeah. Just something, man. You know?" Appellant said "I know someone would sell you one, uh, if they, they said . . . I don't know what a forty (.40) is. A forty (.40)." Lopez said he could go get money from the ATM. Appellant said he would give Lopez a pipe for free and then there was a break in the recording.
When the conversation resumed, the two greeted each other again and appellant told Lopez that appellant's nephew said that "he'll look out for your, your Roscoe, you know?" Lopez told appellant more details about the break-in at his house, what he had lost, and how he wanted to "shoot the motherfucker, man." After further discussion, which comprised another page of the transcript, appellant told Lopez "I'll look for you, if I get the thing, you know? What's your name again?" Lopez gave a false name and the conversation turned back to cocaine, but a few minutes later Lopez reiterated that he really needed "one." Appellant agreed that "Motherfuckers can't be rippin' off your house, come take your shit."
The transcript of the recording also includes a conversation between Lopez and Deputy Carr that took place after the November 6 drug sale was completed. During that conversation, the officer asked Lopez what appellant had said about the gun; whether Lopez had asked for one or two guns; and how much the gun would cost. The transcript ended with this question from Carr: "Hey, uh, did he tell you that [?—], he has a gun?"
After the jury heard the November 6 recording, the prosecutor asked Carr several questions about what he saw and heard over the wire during the interaction between Lopez and appellant. Carr testified that he saw appellant approach Lopez's car and engage with Lopez. He also identified appellant in photographs that were taken during the drug sale and subsequently admitted into evidence. He answered other questions about surveillance procedures. Then the prosecutor said that it "seemed" like appellant and Lopez were having a conversation "regarding the purchase of another item," and then she asked Carr whether he had instructed Lopez to pursue that subject with appellant. Carr said that he had, and then the following exchange occurred:
"Q. And what specifically were you trying to have Mr. Lopez purchase from the defendant on that day?
"[Defense Counsel]: Objection; relevance. This refers to the
"THE COURT: Haven't we already gone over this?
"[The Prosecutor]: Your Honor, it's in evidence. I'm just trying to explain to the jury what the evidence shows. It's already in evidence. I just wanted an explanation. I have explained that the defendant is not charged with any type of crime related to that.
"THE COURT: I'll sustain the objection.
"[The Prosecutor]: Okay.
"[Defense Counsel]: Your Honor, since they have heard it on the tape, I would ask that the jury be admonished that it's not relevant; it's just that it's there on the tape.
"THE COURT: So admonished."
During the remainder of his testimony, Carr was questioned by both the prosecutor and the defense about what he saw and/or heard during the December 6 encounter. Carr testified that Lopez drove up to appellant's house, was contacted by a man named John Rodgers, and asked to speak to appellant. At the request of John Rodgers, Lopez moved his vehicle up the street away from the front of the house. After Lopez parked his car, appellant approached the vehicle and, at that point, Carr "heard, again, initiation of a narcotics transaction." Appellant walked away from the car, then returned and got inside. When the conversation was complete, appellant got out of the car, the officers followed Lopez to another location and obtained the narcotics from him.
B. Legal Principles
" ' "A criminal defendant is guaranteed the right to the assistance of counsel by both the state and federal Constitutions. [Citations.] 'Construed in light of its purpose, the right entitles the defendant not to some bare assistance but rather to effective assistance.' " [Citation.] It is defendant's burden to demonstrate the inadequacy of trial counsel. [Citation.]' " (People v. Vines (2011) 51 Cal.4th 830, 875, italics omitted (Vines).)
To demonstrate ineffective assistance of counsel, the appellant must show that his "counsel's representation was so deficient as to undermine confidence in the resulting judgment. 'The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.' [Citations.]" (People v. King (2010) 183 Cal.App.4th 1281, 1298 (King).)
" ' "[A] defendant must first show counsel's performance was 'deficient' because his 'representation fell below an objective standard of reasonableness . . . under prevailing professional norms.' [Citations.]" ' " (People v. Lucas (1995) 12 Cal.4th 415, 436 (Lucas).) "In reviewing counsel's performance, we 'exercise deferential scrutiny.' [Citations.] To that end, it is up to [appellant] to show his counsel's performance was deficient because his ' "representation fell below an objective standard of reasonableness . . . under prevailing professional norms." ' [Citation.]" (King, supra, 183 Cal.App.4th at p. 1298.) "Second, [the defendant] must also show prejudice flowing from counsel's performance or lack thereof. [Citation.] Prejudice is shown when there is a 'reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.' " ' [Citation.]" (Lucas, supra, 12 Cal.4th at p. 436.)
"Reviewing courts defer to counsel's reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a 'strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.' [Citation.]" (Lucas, supra, 12 Cal.4th at pp. 436-437.) "[T]o the extent the record is silent as to defense counsel's reasons for his actions or inaction, a claim of ineffective assistance must be rejected. We may reverse on grounds of ineffective assistance of counsel only if the record affirmatively discloses no rational purpose for counsel's act or omission. [Citation.] Where the record contains no explanation for the challenged representation, we will reject an ineffective assistance claim unless counsel was asked to explain his performance and failed to provide an explanation, or unless there simply could be no satisfactory explanation. [Citation.]" (King, supra, 183 Cal.App.4th at p. 1299; see also Vines, supra, 51 Cal.4th at pp. 875-876.)
C. Analysis
Appellant contends that the following circumstances demonstrate that his trial counsel's representation fell below objective standards of reasonableness: (1) the gun evidence was indisputably irrelevant; (2) the record demonstrates that defense counsel understood this evidence was irrelevant; and yet, (3) defense counsel "failed to object to the jury hearing about it from the prosecutor in her opening statement and in the subject recording, and in the written transcript of the recording."
We agree that the gun evidence was irrelevant to the charged offenses. This fact was expressly acknowledged by the prosecution, defense and the trial judge. However, irrelevant evidence is not by definition prejudicial. Furthermore, depending on the circumstance, there may be tactical reasons for not making a relevancy objection. Because he assumes without analysis that the failure to object to irrelevant evidence is always the wrong decision, appellant does not consider how the specific circumstances could have affected a reasonable defense attorney's decision about whether or how to object to the gun evidence as the trial progressed.
We begin with the contention that objective standards of reasonableness required defense counsel to make a relevancy objection during the prosecutor's opening statement. As noted above, the prosecutor told the jury that Lopez tried to buy a gun from appellant, but appellant did not sell him a gun or face any charges relating to a gun. Though technically irrelevant, this information could reasonably have been interpreted as consistent with the defense theory that Lopez was not a credible witness. Pointing out that Lopez tried to buy a gun made Lopez look like a bad guy. Objecting to the comment, especially when the prosecutor immediately acknowledged that the conversation did not go anywhere, also could have caused the jury to wonder if appellant had something to hide.
When the prosecutor returned to the subject of the gun conversation during Lopez's testimony, different considerations were at play. Defense counsel did not object when Lopez simply reiterated that he had "tr[ied] to purchase" a gun from appellant. However, he did promptly object when the prosecutor attempted to delve into the issue. The fact that the prosecutor continued to pursue the matter, not just with Lopez but again with Deputy Carr, may well have been misconduct. However, each time, defense counsel objected, which was certainly an appropriate course of action. Indeed, appellant does not assign any error to those actions by his trial counsel.
In contrast to the prosecutor's comments, the November 6 recording did not just let the jury know that Lopez asked for a gun, it also disclosed that appellant tried to help Lopez find a gun to buy. As best we can determine from this record, appellant's trial counsel never objected that this part of the November 6 recording was irrelevant. However, the record does not foreclose the possibility that there was a reasonable tactical decision not to object.
As noted, appellant's defense to the drug charges was that Lopez was a professional liar and a game player, and that he had the opportunity to manipulate his interactions with appellant to make it appear that he bought drugs even if he did not. The recordings of the alleged drug sales were consistent with this theory because, among other things: appellant and Lopez used slang terms and cryptic language; there were long pauses in their conversation; and nobody could actually see their movements inside the car. The defense capitalized on these circumstances by suggesting that Lopez planted the drugs he claimed to have purchased from appellant. By parity of reasoning, defense counsel could reasonably have concluded that the discussion about Lopez wanting to buy a gun was an integral part of Lopez's questionable behavior, and ultimately more damning of him than it was damaging to appellant. Indeed, it appears from some of the comments in the transcript that appellant knew very little about guns, but was simply trying to be supportive of Lopez and get in his good graces.
However, the part of the November 6 recording that captured the conversation between Lopez and Deputy Carr raises a different concern. That conversation was not only completely irrelevant to the charged drug offenses, it told the jury that the NTF suspected appellant was involved in gun trafficking. Furthermore, the recording ended with Carr's question whether appellant had a gun, a question that was left unanswered for the jury. We are hard-pressed to conceive of a sound tactical reason for failing to object to this part of November 6 recording and transcript.
The People offer another tactical reason for not making a relevancy objection to the gun discussion on the November 6 recording. First, they characterize the recording as "the most probative evidence" of the charges that were based on the November 6 incident. In this regard, the People underscore that appellant has never disputed that the recording of the actual drug sale was admissible evidence. Second, respondent contends that the discussion of a possible future gun sale was interspersed throughout the admissible conversation about buying crack cocaine. Thus, the Attorney General concludes that although defense counsel could have made a relevancy objection to the gun discussion, redacting that discussion would have been highly problematic, and even if that was possible, "[a] series of obvious deletions in the recording would have led the jury inevitably to speculate on what was missing."
Respondent's theory only goes so far. It provides a tactical reason for not objecting to the actual discussion between Lopez and appellant that was captured on the November 6 recording. However, the conversation Lopez had with Deputy Carr at the end of the recording could easily have been redacted.
Although we have concerns about the wholesale admission of the November 6 audio recording, we have no doubt that appellant cannot carry his ultimate burden of proving prejudice. "[E]ven after a party demonstrates ineffective assistance, he must also show he has been prejudiced, i.e., 'that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' [Citation.] If [appellant's] showing as to either component is insufficient, the claim fails. [Citation.]" (King, supra, 183 Cal.App.4th at p. 1298.)
In this case, evidence supporting the charged drug offenses was overwhelming and essentially undisputed. Appellant's only defense was that Lopez was an unreliable witness. However, excluding evidence that Lopez attempted to purchase a gun from appellant would not have strengthened that defense. Equally important, excluding that evidence—or even the entire November 6 recording—would not have diminished the overwhelming evidence that appellant sold rock cocaine to a NTF confidential informant on October 30 and again on November 6. Under these circumstances, we cannot find that the results of these proceedings would have been different if the jury had not known that Lopez enlisted appellant's assistance in attempting to purchase a gun.
In his reply brief, appellant argues that, to the extent the November 6 recording was not amenable to redaction, it should have been excluded because the witness testimony provided "ample details of the transaction," and "the testimony of Lopez and Carr was sufficient for the jury to fully understand the prosecution's case." By making these points, appellant implicitly concedes that the evidence against him was overwhelming. --------
IV.
DISPOSITION
The judgment is affirmed.
/s/_________
RUVOLO, P. J. We concur: /s/_________
REARDON, J. /s/_________
STREETER, J.