Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, John T. Doyle, Judge, Los Angeles County Super. Ct. No. TA080172.
Lea Rappaport Geller, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Beverly K. Falk, Deputy Attorneys General, for Plaintiff and Respondent.
VOGEL, J.
James Lamar Rossum was convicted of one count of possession of a controlled substance, with one prior strike and six prior prison term allegations found true. He was sentenced to state prison for six years (three years upper term plus three years for three of the prior prison terms). Rossum appeals, claiming there were evidentiary and Pitchess errors and, in a supplemental brief, Cunningham error.
Pitchess v. Superior Court (1974) 11 Cal.3d 531; Cunningham v. California (2007) 549 U.S. __, 127 S.Ct. 856.)
FACTS
As Los Angeles County Deputy Sheriffs Groenow and Richardson watched from their patrol car, Rossum (standing with another man on a Compton street in a known drug area) started to hand a small white object to a young woman (age 14). The young woman looked toward the deputies, backed away from Rossum, threw up her hands and said, “I don’t want that. Get that away from me.” Rossum turned and started to walk away.
As deputies got out of their car and approached Rossum, Deputy Groenow saw Rossum put something in his mouth. The deputy, believing Rossum had put drugs in his mouth and that he had a duty to ensure that Rossum did not ingest the drugs, grabbed Rossum, handcuffed him, patted him down, walked him to the patrol car and told him that if he had put cocaine in his mouth and swallowed it, he would take him to a hospital so his stomach could be pumped. Rossum spat out a cocaine rock.
Rossum was arrested and charged with one count of possession of cocaine, with allegations that he had suffered one prior strike conviction and served six prior prison terms. (Health & Saf. Code, § 11350, subd. (a); Pen. Code, §§ 667, subds. (b)-(i), 667.5, subd. (b).) Before trial, Rossum filed two motions: (1) a Pitchess motion, which resulted in a finding of good cause to hold an in camera hearing, after which the court found there were no discoverable items; and (2) a motion to suppress evidence (the rock cocaine), which was denied.
At trial, the People presented evidence of the facts summarized above, and also established that the rock weighed .07 grams and contained a usable amount of cocaine. Rossum testified in his own defense, admitted two prior felony convictions and four other crimes of moral turpitude, and denied the deputies’ version of events, claiming a deputy had choked him and told him to “spit it out” even though he had nothing in his mouth. The jury convicted him as charged, and the trial court thereafter found the prior strike and six prior prison term allegations were true. The court then struck the prior strike and three prior prison term enhancements and sentenced Rossum to the upper term of three years, plus three additional years for the remaining prior prison term enhancements, a total of six years.
DISCUSSION
I.
Rossum contends his motion to suppress the cocaine should have been granted because he was neither lawfully detained nor lawfully arrested at the time he was searched. More specifically, he claims that because the deputies “never saw what [he] was trying to give the girl, . . . never heard either of them allude to narcotics, and could not say that the item [he] tossed in his mouth was the same item he tried to give [the girl],” the deputies had “no reasonable grounds to detain [him]” and thus arrested him “without probable cause to do so.” We disagree.
A.
Deputy Groenow testified at the suppression hearing that he was on patrol in a marked vehicle in a high narcotics area when he saw Rossum start to hand something to the girl. She looked toward the deputies and “got really startled,” then said, “I ain’t taking that,” at which point Rossum started to walk off. From about two feet away, Deputy Groenow saw Rossum toss something that “looked like a little white object” into his mouth, and it was then that the deputy grabbed Rossum, handcuffed him because he “didn’t want to fight him,” and asked Rossum to spit out the object in his mouth. Rossum complied, and the deputies recovered a rock-like substance.
For his part, Rossum testified that he was just “chilling” with a friend when an unmarked police car approached and the deputies ordered him onto the hood of their car, handcuffed him, threw him into the back seat, and searched him.
The trial court accepted the deputy’s version and denied the motion to suppress (and the court’s factual finding, supported as it is by substantial evidence, is binding on this appeal). (People v. Cappellia (1989) 208 Cal.App.3d 1331, 1336.)
B.
A detention is reasonable when the officer can point to specific articulable facts that, considered with the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity. (People v. Souza (1994) 9 Cal.4th 224, 230-231.) Here, the deputy (a 17-year veteran with substantial drug expertise) described a high crime area, the transaction he observed, and the participants’ conduct after the girl noticed the patrol car, which together show that Rossum was detained based upon a reasonable suspicion that he was engaged in drug activity. (Id. at pp. 235, 240-241; People v. Aldridge (1984) 35 Cal.3d 473, 477-478.)
The fact that Rossum was handcuffed when first detained did not convert the lawful stop into an unlawful arrest because the detention was brief and pointed (the deputy immediately asked Rossum to spit out the object). (In re Carlos M. (1990) 220 Cal.App.3d 372, 384-385; People v. Bowen (1987) 195 Cal.App.3d 269, 273.) The request to spit out the object was permissible to prevent the destruction of evidence (People v. Cappella, supra, 208 Cal.App.3d at p. 1336) and the rock, once observed, provided probable cause for Rossum’s arrest (People v. Bowen, supra, 195 Cal.App.3d at p. 274). It follows that the motion was properly denied.
II.
When Rossum testified, he was impeached with evidence that he had suffered six prior convictions. On this appeal, Rossum contends the use of all six priors was more prejudicial than probative. We disagree.
A.
When it became apparent that Rossum intended to testify in his own defense, the prosecutor asked (outside the presence of the jury) for permission to impeach Rossum with six prior convictions -- possession of marijuana for sale (1987), robbery (1988), possession of a firearm by a felon (1993), and three separate convictions of possession of cocaine for sale (1994, 1995, 2004). In response, defense counsel asked the court to exclude the 1987 and 1988 convictions because they were too remote and the four drug convictions because they were too similar to the charged crime (and thus more prejudicial than probative). The trial court ultimately agreed with the prosecutor that Rossum’s consistent pattern of criminality over the preceding 20 years (there were more convictions than the six used for impeachment) outweighed the prejudicial effect of the evidence and overrode the claim of remoteness -- although the court sanitized the drug convictions because they were so similar to the current offense and described them simply as crimes of moral turpitude.
At the beginning of his testimony, Rossum quickly acknowledged his convictions for robbery, possession of a firearm by a felon, and four crimes of moral turpitude.
B.
We reject Rossum’s contention that the robbery and firearm convictions should not have been used at all or, in the alternative, should have been sanitized because neither was probative of his honesty. Aside from the fact that these issues were waived by his failure to raise them below (People v. Marks (2003) 31 Cal.4th 197, 228-229), we disagree with Rossum’s characterization of these offenses, both of which show a “readiness to do evil” and were relevant to his credibility and honesty. (Evid. Code, § 352; People v. Hinton (2006) 37 Cal.4th 839, 888; People v. Turner (1990) 50 Cal.3d 668, 705; People v. Valdez (1986) 177 Cal.App.3d 680, 696; People v. Littrel (1986) 185 Cal.App.3d 699, 702-703.)
We also reject Rossum’s claims that the robbery and firearm convictions were too remote to be probative. As the trial court noted, they were part and parcel of a continuous 20-year period of criminal activity, the scope of which was relevant to his honesty and integrity.
III.
At Rossum’s request, we have reviewed the record of the in camera proceedings to see whether there was anything to suggest Deputies Groenow and Richardson had ever falsified reports, manufactured evidence, lied or otherwise been dishonest (such as by fabricating evidence). We found nothing in the record to support these allegations and thus conclude there was no Pitchess error. (Evid. Code, § 1045; Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1016, 1022-1028; People v. Mooc (2001) 26 Cal.4th 1216, 1225-1226.)
IV.
Rossum’s supplemental brief on the Cunningham issue does not claim reversible error -- presumably because he admitted six prior convictions during his testimony or because the trial court found that he had suffered a prior strike and served numerous prior prison terms and was on probation at the time of the current offense. There was no Cunningham error. (Cunningham v. California, supra, 127 S.Ct. at pp. 860, 864-865.)
DISPOSITION
The judgment is affirmed.
We concur: MALLANO, Acting P.J., ROTHSCHILD, J.