Opinion
B224617
08-04-2011
THE PEOPLE, Plaintiff and Respondent, v. VENSON SANFORD, Defendant and Appellant.
California Appellate Project and Ann Krausz, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA348837)
APPEAL from a judgment of the Superior Court of Los Angeles County, C.H. Rehm, Judge. Affirmed.
California Appellate Project and Ann Krausz, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Venson Sanford appeals from the judgment entered following a jury trial that resulted in his convictions for the sale, transportation, or offer to sell a controlled substance, cocaine, and possession of cocaine for sale. Execution of sentence was suspended and Sanford was placed on probation for a period of five years.
Sanford's sole contention on appeal is that the trial court violated his constitutional rights to confrontation, due process, and to present a defense by precluding him from cross-examining two police officers regarding their assertion of the official information privilege, at Sanford's prior trial, to shield disclosure of the location of a police surveillance post. Discerning no error, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
a. People's evidence.
At approximately midnight on November 8, 2008, Los Angeles Police Department (L.A.P.D.) Officers Thomas Denton, Christopher Doan, and Padilla were conducting surveillance near the intersection of Ceres and Sixth Streets in downtown Los Angeles, an industrial area known for narcotics sales and activity. The officers' observation post was located in a rooftop parking lot atop a three-story building. The area was well-lit.
Officer Denton observed Sanford walking southbound on Ceres. Another man, Lopez, approached Sanford and briefly spoke to him. Denton, using binoculars, observed Sanford remove a clear plastic baggie containing numerous off-white objects from his jacket pocket. Sanford handed one of the off-white objects to Lopez, and Lopez handed Sanford cash. Both men then walked northbound on Ceres.
Approximately a minute later, another man, Austin, approached Sanford and conversed with him for a few seconds. As Denton observed, again using binoculars, Sanford removed the baggie from his pocket and handed Austin two or more pieces of the off-white substance. Austin examined the rocks, placed them in a small black container, and handed cash to Sanford. Both men continued northbound on Ceres. At Sixth Street, Austin turned left, while Lopez and Sanford continued walking on Ceres.
Officers Denton and Doan drove in a marked police vehicle from the rooftop parking lot to the intersection of Sixth and Ceres, where Denton exited the car. During this period, they lost sight of Sanford for approximately one minute. Denton, who was in uniform, identified himself as a police officer to Sanford and Lopez, and ordered both men to stop and place their hands on a nearby wall. Lopez complied. Sanford removed the baggie containing the white rocks from his pocket and dropped it on the bumper of a nearby van.
After detaining the men, Denton recovered the plastic baggie from the bumper. It contained four smaller baggies, each holding approximately eight to ten off-white rocks, later determined to contain cocaine. The total weight of the rocks recovered from the baggie was 9.25 grams. Denton also discovered currency in Sanford's pocket.
Officer Doan searched Austin and discovered a glass pipe with cocaine residue, as well as a brown vial with an off-white solid containing cocaine. Officer Denton searched Lopez, and discovered a glass cylinder which held an off-white substance that contained cocaine.
An L.A.P.D. detective, testifying as a narcotics expert, opined that the cocaine in the baggies was possessed for sales.
b. Defense evidence.
A defense investigator used a laser measuring tool to calculate the distance between the observation post and the points where the two sales transpired. According to his measurements, the observation post was 89.06 feet from the spot where one of the sales took place, and 71.04 feet from the other.
2. Procedure.
Sanford was tried twice. His first trial, conducted in August 2009, ended in a mistrial after the jury was unable to reach a verdict. At the second trial, the jury convicted Sanford of two counts of the sale, transportation, or offer to sell a controlled substance, cocaine (Health & Saf. Code, § 11352, subd. (a)) and possession of cocaine base for sale (Health & Saf. Code, § 11351.5.) Sanford admitted suffering three prior convictions within the meaning of Health and Safety Code section 11370.2, subdivision (a). The trial court sentenced Sanford to a suspended term of seven years in prison, and placed him on probation for five years on condition he serve 120 days in jail. It imposed a restitution fine, a suspended parole restitution fine, a stayed probation revocation fine, a DNA assessment fee, court security assessments, criminal conviction assessments, and a laboratory fee and related penalty assessment. Sanford appeals.
Although the information alleged that Sanford had served three prior prison terms within the meaning of Penal Code section 667.5, subdivision (b), the People did not attempt to prove the allegations, which were dismissed in furtherance of justice (Pen. Code, § 1385).
DISCUSSION
The trial court properly excluded cross-examination regarding the assertion of the official information privilege.
a. Additional facts.
At the preliminary hearing and at Sanford's first trial, the prosecution successfully invoked the official information privilege (Evid. Code, § 1040) to prohibit disclosure of the exact location of the observation post from which the officers observed Sanford selling cocaine. (See generally People v. Lewis (2009) 172 Cal.App.4th 1426, 1431.) At some point prior to the second trial, the defense successfully moved for disclosure of the observation post location. The defense subsequently determined that the distance between the observation post and the sales location was greater than the officers had originally claimed when testifying at the first trial.
During direct examination at the second trial, both Officers Denton and Doan testified that the observation post was located on the roof of a three-story building. Officer Denton testified that the observation post was approximately 75 feet away from the spot where Sanford sold narcotics to Lopez and Austin.
Defense counsel, at sidebar, sought a ruling permitting him to cross-examine Officers Denton and Doan regarding the assertion of the official information privilege in the earlier proceedings. Counsel argued that in the prior trial, the officers provided "wholly inaccurate" estimates of the distance between the observation post and the drug sale location, "knowing they could keep the observation post secret" and could not be adequately cross-examined regarding the distance. Defense counsel argued that the officers had lied and had "us[ed] the privilege to shield" themselves from cross-examination. Counsel urged that the officers' purported use of the privilege in this fashion demonstrated bias and motive to lie.
The prosecutor stated that the officers' testimony at the prior trial had been based on estimates and approximations. After the first trial, the officers had returned to the area and taken measurements, and were able to provide more accurate testimony. The prosecutor opined that the fact the official information privilege had been invoked did not demonstrate the officers had lied.
The trial court precluded the requested cross-examination, concluding that the assertion of the privilege was irrelevant. The court reasoned that the "differences in [the officers'] testimony concerning distances at different times, that certainly is relevant," and allowed cross-examination on that issue. Defense counsel objected that the court's ruling violated Sanford's confrontation rights, and requested a mistrial. The trial court found the limitation on cross-examination did not infringe on Sanford's constitutional rights, and denied the motion.
During defense counsel's subsequent cross-examination of Officer Denton, counsel elicited the following. Denton was very familiar with the areas of Sixth and Ceres Streets. He had obtained permission from the owner of one of the nearby buildings to use the rooftop parking lot as an observation post. He had used the observation post several times prior to November 8, 2008, and was familiar with the location. He had testified, inaccurately, in Sanford's prior trial that the observation post was atop a one-story building. He had also testified previously that the distance between the observation post and the sales location was "the equivalent of about 20 feet from [him] using the binoculars" and that the actual distance between the two points was approximately 45 feet.
The prior trial and the preliminary hearing were denominated "prior proceedings" before the jury.
During redirect, Denton explained that he had previously testified the building was one story high because "[t]he way the [building] is set up, you drive up what seems to be one story to the roof of the building, and that is why I had testified that it was one story." He explained that he had estimated the distance between the spot where the sales occurred and the observation post. He acknowledged that he was "not very good" at estimating distances.
Officer Doan testified on cross-examination that he had used the observation post on two or three occasions prior to November 8, 2008. Doan had previously testified at the prior trial and preliminary hearing, and had estimated on those occasions that the distance between the observation post and the sales point was approximately 15 to 20 feet. Doan had also previously testified that Sanford was approximately 50 feet away when Doan first observed him; at the second trial, he corrected this estimate to 75 feet.
b. Discussion.
We review a trial court's evidentiary rulings for abuse of discretion. (People v. Thomas (2011) 51 Cal.4th 449, 488; People v. Hoyos (2007) 41 Cal.4th 872, 898; People v. Doolin (2009) 45 Cal.4th 390, 437.)
Under Evidence Code section 1040, a public employee is privileged to refuse to disclose official information acquired in confidence in the course of his or her duty if "[d]isclosure of the information is against the public interest because there is a necessity for preserving the confidentiality of the information that outweighs the necessity for disclosure in the interest of justice . . . ." (Evid. Code, § 1040, subd. (b)(2).) The location of a police surveillance post falls within Evidence Code section 1040's ambit if the public interest in preserving confidentiality outweighs the need for disclosure. (People v. Lewis, supra, 172 Cal.App.4th at p. 1431; People v. Garza (1995) 32 Cal.App.4th 148, 152-154; People v. Haider (1995) 34 Cal.App.4th 661, 664; In re Sergio M. (1993) 13 Cal.App.4th 809, 813.) Applied in this circumstance, the privilege is sometimes denominated the "surveillance location privilege."
Evidence Code section 1040 provides in pertinent part: "(a) As used in this section, 'official information' means information acquired in confidence by a public employee in the course of his or her duty and not open, or officially disclosed, to the public prior to the time the claim of privilege is made. [¶] (b) A public entity has a privilege to refuse to disclose official information, and to prevent another from disclosing official information, if the privilege is claimed by a person authorized by the public entity to do so and: [¶] . . . . [¶] (2) Disclosure of the information is against the public interest because there is a necessity for preserving the confidentiality of the information that outweighs the necessity for disclosure in the interest of justice . . . ."
Evidence Code section 913 prohibits the trier of fact from drawing any inference from a witness's invocation of a privilege in the current or a prior proceeding. Subdivision (a) of that section provides: "If in the instant proceeding or on a prior occasion a privilege is or was exercised not to testify with respect to any matter, or to refuse to disclose or to prevent another from disclosing any matter, neither the presiding officer nor counsel may comment thereon, no presumption shall arise because of the exercise of the privilege, and the trier of fact may not draw any inference therefrom as to the credibility of the witness or as to any matter at issue in the proceeding."
In light of Evidence Code section 913, the trial court properly precluded cross-examination regarding the assertion of the surveillance location privilege at the preliminary hearing and first trial. The jury was prohibited by Evidence Code section 913 from making any presumption or drawing any inference from the fact the privilege was invoked. Cross-examination on the issue therefore would have had no tendency to prove any disputed fact and was not probative on the question of the officers' credibility. Accordingly, it lacked relevance. (See Evid. Code, § 350 [only relevant evidence is admissible]; Evid. Code, § 210; People v. Mills (2010) 48 Cal.4th 158, 193; People v. Williams (2008) 43 Cal.4th 584, 633-634.) A defendant does not have a right to present all evidence, "no matter how limited in probative value such evidence will be." (People v. Reeder (1978) 82 Cal.App.3d 543, 553.)
Sanford, however, argues that Evidence Code section 913 must give way to his constitutional rights to due process, a fair trial, and to confront the witnesses against him. He argues that the officers' credibility was central to resolution of the case. In his view, evidence the officers asserted the privilege in the prior trial would have allowed the jury to infer that, because the officers knew their estimates of the distance between the sale and surveillance locations could not be challenged, their underestimation of the distance was deliberate, rather than an innocent mistake. If jurors concluded the officers had previously invoked the privilege in order to allow them to testify dishonestly with impunity, Sanford argues, the jury might well have disbelieved their testimony regarding the drug sales.
The right of confrontation and cross-examination " 'is an essential and fundamental requirement for the kind of fair trial which is this country's constitutional goal,' " and deprivation of an accused's right to cross-examine the witnesses against him is a denial of due process. (People v. Brown (2003) 31 Cal.4th 518, 538; People v. Ardoin (2011) 196 Cal.App.4th 102, 118.) The right to confrontation includes the right to cross-examine adverse witnesses on matters reflecting on their credibility. (People v. Ardoin, supra, at p. 118; People v. Szadziewicz (2008) 161 Cal.App.4th 823, 841-842.) State evidentiary rules "must yield to a defendant's due process right to a fair trial and to the right to present all relevant evidence of significant probative value to his or her defense." (People v. Cunningham (2001) 25 Cal.4th 926, 999; Crane v. Kentucky (1986) 476 U.S. 683, 690-691; Chambers v. Mississippi (1973) 410 U.S. 284, 302-303.)
It is well settled, however, that not every restriction on a defendant's desired method of cross-examination amounts to a constitutional violation. (People v. Harris (2008) 43 Cal.4th 1269, 1291-1292; People v. Ardoin, supra, 196 Cal.App.4th at p. 119; People v. Singleton (2010) 182 Cal.App.4th 1, 18.) The routine application of state evidentiary rules does not ordinarily infringe upon a defendant's due process rights. (People v. Hovarter (2008) 44 Cal.4th 983, 1010; People v. Solomon (2010) 49 Cal.4th 792, 841; People v. Lewis (2009) 46 Cal.4th 1255, 1284.) The right of confrontation is not absolute, and may, in appropriate cases, " 'bow to accommodate other legitimate interests in the criminal trial process.' [Citation.]" (Alvarado v. Superior Court (2000) 23 Cal.4th 1121, 1138-1139; People v. Brown, supra, 31 Cal.4th at p. 538.) " '[T]he Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish. [Citation.]' [Citations.]" (People v. King (2010) 183 Cal.App.4th 1281, 1314-1315; People v. Ardoin, supra, at p. 119.)
Thus, while the complete exclusion of an accused's defense may constitute federal constitutional error, excluding defense evidence on a minor, subsidiary, collateral, or marginally relevant point does not infringe upon the right to present a defense. (People v. Harris, supra, 43 Cal.4th at pp. 1291-1292; People v. Cunningham, supra, 25 Cal.4th at p. 999; People v. Fudge (1994) 7 Cal.4th 1075, 1103; Taylor v. Illinois (1988) 484 U.S. 400, 410 [a defendant does not have an unfettered right to present testimony that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence]; Delaware v. Van Arsdall (1986) 475 U.S. 673, 679.) A trial court's limitation on cross-examination pertaining to a witness's credibility does not violate the Sixth Amendment unless the defendant can show the prohibited cross-examination would have produced a significantly different impression of the witness's credibility. (People v. Hamilton (2009) 45 Cal.4th 863, 942-943; People v. Quartermain (1997) 16 Cal.4th 600, 623-624; People v. King, supra, 183 Cal.App.4th at pp. 1314-1315.)
Here, Sanford was not prevented from presenting his defense or impeaching the officers' credibility, which was admittedly a central issue. Sanford cross-examined both officers at length regarding their inaccurate testimony given at the prior proceedings. The jury could not have missed the fact that Officer Denton misstated the height of the building and both officers significantly underestimated the distance between the observation post and the sales point at the earlier proceedings. Indeed, defense counsel pointedly asked Officer Doan whether he had purposely misstated the distance in order to make his testimony regarding the drug deal appear more believable. Under these circumstances, the fact the privilege was successfully asserted at the prior proceedings would have added little to the defense case. Testimony regarding the assertion of the privilege would not have produced a significantly different impression of the officers' credibility. (See People v. Harris, supra, 43 Cal.4th at pp. 1291-1292; People v. Smith (2007) 40 Cal.4th 483, 513; People v. Bautista (2008) 163 Cal.App.4th 762, 783.)
Jennings v. Superior Court (1967) 66 Cal.2d 867, cited by appellant, is readily distinguishable. Jennings concerned a defendant's right to present a defense at the preliminary hearing stage of a criminal case. There, the defendant was observed by police officers driving near a motel, when his companion, a woman named Kittelson, ran from the car. According to the officers, the defendant threw a narcotics injection kit over a wall when they approached. The defendant contended the kit belonged to Kittelson, who was collaborating with the officers and had set him up for arrest. At the preliminary hearing, the defendant sought but was denied a continuance so he could subpoena Kittelson. The court also prohibited him from cross-examining the arresting officers regarding their prior communications with Kittelson. The court reasoned that at the preliminary hearing stage, evidence the defendant had been framed was irrelevant. (Id. at p. 873.) On appeal, the California Supreme Court held the trial court erred by denying the continuance and restricting cross-examination. (Id. at pp. 876-878.) Here, in contrast, the trial court did not preclude the defense from cross-examining the officers on matters central to the defense. To the contrary, as we have noted, the defense was allowed to, and did, cross-examine the officers at length regarding the discrepancies between their distance estimates at the first and second trial. Moreover, Jennings did not involve Evidence Code sections 913 and 1040, and is thus of limited relevance here.
In sum, the trial court did not abuse its discretion by precluding cross-examination of the officers regarding assertion of the surveillance location privilege, and its ruling did not violate Sanford's constitutional rights.
Our resolution of this issue makes it unnecessary for us to reach the issue of prejudice.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ALDRICH, J. We concur:
KLEIN, P. J.
CROSKEY, J.