Opinion
NOT TO BE PUBLISHED
APPEALS from judgments of the Superior Court of San Diego County Super. Ct. No. SCD195648, Howard H. Shore, Judge.
BENKE, Acting P. J.
Wesley James Sneed and Earvin Wilson were convicted of selling cocaine base and possessing cocaine base for sale. Wilson was also charged with possession of MDMA. After the evidentiary phase of trial concluded, the trial court on the prosecution's motion dismissed the MDMA count. Sneed admitted four and Wilson admitted three prior felony convictions within the meaning of Penal Code section 667.5, subdivision (b). Wilson admitted one strike prior within the meaning of section 667, subdivisions (b) through (i). Both were sentenced to prison; Sneed for five years, Wilson for six. They appeal, claiming evidentiary and sentencing error.
MDMA is an acronym for the drug methylenidio methamphetamine ("esctasy").
All further statutory references are to the Penal Code unless otherwise specified.
FACTS
On January 24, 2006, at approximately 9:00 p.m. undercover officer Jesse Zaldivar and other officers were conducting a controlled drug buy operation in downtown San Diego. As Zaldivar walked down the street carrying a backpack, Wilson asked him if he was going to school. Using street jargon, Zaldivar asked Wilson if he was selling drugs. Wilson asked what he wanted and Zaldivar said a $20 rock of cocaine base. Wilson told the officer he had no drugs but could help him get the cocaine base. When Zaldivar declined his help, Wilson told the officer he was "working" and insisted on helping. Zaldivar understood that drug transactions sometimes involve the use of a "facilitator" and believed Wilson was filling that role.
The men walked a short distance, and Wilson asked a man if he had a $20 rock of cocaine base. The man said he did not. Standing nearby, Sneed called out to Wilson. Wilson walked eight to ten feet to where Sneed was standing, and the two had a short conversation. Wilson returned to Zaldivar and requested money. The officer gave him a $20 bill, the serial number of which had been recorded.
As Zaldivar gave Wilson the money, he saw Sneed walk to a nearby electrical box affixed to a wall. Sneed appeared to place something on the top of the box and then take a few steps back. No one else approached the box. Sneed said something to Wilson and gestured toward the box. Wilson removed an item from the top of the box with his right hand, returned to Zaldivar and gave him rock cocaine with the same hand. At no time did Wilson put his hand in his pocket or waistband.
Wilson then returned to where Sneed and Janet Scott were standing. Scott had a history of drug arrests and knew Zaldivar was a police officer. It appeared from their behavior Scott recognized the officer and told Sneed. Sneed pulled Wilson close to him and turned away from Zaldivar. The men conversed, and it appeared the two exchanged something.
Wilson and Sneed were arrested. A search of Sneed revealed no drugs or money. A search of Wilson revealed the pre-recorded $20 bill. Handcuffed behind their backs, both men were placed in Officer David Soliven's police car. Eventually, the men were transported to the police station in separate cars. Officer Soliven inspected his patrol car for contraband before he began his shift. Wilson was the first person to ride in his car that day. After Wilson was taken from Soliven's car at the police station, the officer found rock cocaine on the floor where Wilson was sitting. The officer removed the back seat and found a baggie containing rock cocaine and ecstasy pills.
Zaldivar opined that if Wilson had drugs in his possession when he first contacted the officer, he would have sold them to him. Because of that the officer concluded Sneed might have given Wilson the drugs discovered in the police car when the two men turned away from Zaldivar and appeared to exchange something.
Zaldivar also explained drug dealers use tactics to distance themselves from a sale, including placing the drugs at a location and directing the buyer to that place or giving the drugs to an intermediary to give to the purchaser. The officer also stated facilitators do not always give purchase money to the dealer and dealers are sometimes arrested with no money or drugs on their person because they have disposed of the items.
DISCUSSION
A. Opinion Testimony
Appellants argue the trial court erred when in two instances it improperly admitted as expert testimony conclusions reached by Zaldivar. The first conclusion was Sneed passed drugs to Wilson, the second was Scott recognized Zaldivar and related to Sneed he was a police officer.
1. Background
a. Janet Scott
During direct examination by the prosecutor, Zaldivar explained the events surrounding Wilson taking cocaine base that Sneed placed on the top of an electrical box and giving it to the detective. Zaldivar testified that immediately after giving him the contraband, Wilson walked to where Sneed was standing. As Zaldivar asked Wilson to walk away with him, Sneed put his arm around Wilson. The two men's backs were to the detective.
Zaldivar explained that among the persons standing with Sneed was Scott. The detective noted he arrested Scott on numerous occasions in the past, she recognized him in other undercover operations and he believed she recognized him on this occasion.
Wilson's counsel objected that the answer was speculation. The court stated a foundation would have to be laid, but subject to a motion to strike it overruled the objection.
The officer explained that when Scott first looked at him, she pulled away from the group where she was standing. After Wilson gave the detective the cocaine and returned to where Sneed was standing, Scott walked up to Sneed and said something to him. Sneed immediately turned around and looked at Zaldivar. Sneed then put his arm around Wilson.
On cross and redirect examination the detective stated he was not certain Scott recognized him, but based on events it was his opinion that she did. Wilson's counsel objected again that Zaldivar's opinion was speculation. The trial court overruled the objection, saying the detective's conclusion could be evaluated by the jury.
b. Contact Between Sneed and Wilson
On cross-examination, Sneed's counsel asked the detective what transpired between Sneed and Wilson after Wilson gave Zaldivar the cocaine base. The detective stated the two men whispered to each other with their backs to him. The officer stated it appeared Sneed's right arm was moving across his body toward Wilson. The officer stated he could not see what Sneed was doing. When Sneed's counsel asked what Zaldivar thought, based on his training and experience, was going on between the men, Wilson's counsel objected that the answer would be speculation. The trial court replied that the question sought "lay observation," but if the answer was speculation it would be stricken.
Zaldivar stated he believed Wilson was handing Sneed the money the detective used to buy the cocaine base. Wilson's counsel moved to strike the answer as speculation. The trial court asked the detective on what he based that conclusion. Zaldivar stated he gave Wilson money for contraband that Sneed supplied and Wilson was giving Sneed the money. The trial court stated it would treat the answer as lay opinion and allow the jury to evaluate it.
Sneed's counsel asked the detective if it was common for the facilitator to "transfer the money to the person he purchased the drugs from." Zaldivar stated it happened but not in all cases. Sneed's counsel noted no money was found on Sneed. Sneed's counsel asked if, therefore, the detective's conclusion that Wilson was giving Sneed the purchase money was incorrect. Zaldivar stated he did not know what the men were doing.
On redirect the detective stated he was aware that when Sneed was searched after his arrest, no money or drugs were found. Zaldivar stated that was not unusual, that drug dealers were able to discard money and drugs quickly.
The officer also noted cocaine base and ecstasy pills were found in the car in which Wilson and not Sneed was taken to the police station. The officer also noted Wilson told him before the sale he had no drugs. The officer stated this seemed strange. When asked by the prosecutor if Zaldivar had an explanation, Sneed's counsel objected that the answer would be speculation. The trial court overruled the objection, saying the jury could evaluate the answer. The detective stated he concluded that when Sneed and Wilson had their backs to him after the sale, Sneed was giving Wilson the contraband later found in the police car. Both defense attorneys objected that the answer was an improper opinion. The trial court overruled the objection, saying the jury could evaluate the strength or weakness of the opinion in light of the officer's experience.
The officer testified that while at first he believed after the sale Wilson gave Sneed the purchase money, he later concluded Sneed gave Wilson the drugs found in the back of the police car.
2. Discussion
Under proper circumstances both lay and expert opinions may be admitted. Lay opinion is admitted when no particular or esoteric knowledge is required or when, as a practical matter, the subject of the testimony is too complex or subtle to enable the witness to accurately convey to the trier of fact his or her observations in any reasonable form other than an opinion, e.g., that a person was intoxicated. (Evid. Code, § 800; People v. Chapple (2006) 138 Cal.App.4th 540, 546-547.) The modern tendency is for courts to admit lay opinion when it is helpful to understanding a witness's testimony. (Evid. Code, § 800; 1 Witkin, Cal. Evidence (4th ed.) Opinion Evidence, § 4, pp. 531-532.)
Expert opinion is admitted when a witness has special knowledge or experience and when the subject matter of that witness's opinion concerns a subject that is sufficiently beyond common experience that it would assist the trier of fact. (Evid. Code, § 801; People v. Chapple, supra, 138 Cal.App.4th at p. 547.)
The decision to permit opinion testimony rests in the sound discretion of the trial court. (People v. Robinson (2005) 37 Cal.4th 592, 630; People v. Medina (1990) 51 Cal.3d 870, 887.)
Zaldivar's testimony that Scott recognized him was a lay opinion. It did not require special knowledge or experience and was a common sense conclusion based on his observation of the interaction between Scott and Sneed. It may be that the actions of Scott and Sneed so clearly demonstrated she recognized the officer and conveyed that conclusion to Sneed that Zaldivar's opinion to that effect was unnecessary. We, nonetheless, find no abuse of discretion in the admission of the detective's opinion. Even if improper as expert opinion, it was harmless because it was proper for Zaldivar to express his belief that he was recognized.
Zaldivar's testimony concerning the interaction between Wilson and Sneed after the detective gave Wilson $20 involved both lay and expert opinion. The detective stated that based on their actions, he at first believed Wilson gave Sneed the $20 bill used in the transaction. Even if admitted improperly as expert testimony, it was harmless. The conclusion proved incorrect given that the money was later recovered from Wilson and not Sneed. Moreover, there was no doubt Wilson was always in possession of the $20 bill, and because Sneed was kept for a time in the back seat of the car in which the drugs were found, he could have left them there himself.
B. Sufficiency of Evidence
Appellants argue the evidence is insufficient to convict them of sale and possession for sale of cocaine base.
In determining whether the evidence is sufficient to support the verdict, we review the entire record, viewing the evidence in the light most favorable to the judgment and presuming in support of the verdict the existence of every fact the jury could reasonably deduce from the evidence. The issue is whether the record so viewed discloses evidence that is reasonable, credible and of solid value such that a rational trier of fact could find the elements of the crime beyond a reasonable doubt. (People v. Carter (2005) 36 Cal.4th 1114, 1156.)
The evidence and the reasonable inferences that can be drawn from that evidence supports the conclusion Wilson arranged to sell Detective Zaldivar a quantity of cocaine base. Because Wilson did not have the cocaine base, he arranged for Sneed to supply the drug. The evidence allows the reasonable conclusion Sneed placed cocaine base in a position where Wilson took it and gave it to Zaldivar. The evidence is sufficient, therefore, to convict both appellants of sale and possession of cocaine base for sale.
C. Motion for Mistrial
Appellant argues the trial court erred when after learning two officers discussed their testimony, it denied the defense request for a mistrial.
1. Background
a. Testimony
On direct examination Officer Soliven testified Sneed and Wilson were detained in his patrol car before Sneed was removed but that the two men were separately transported to the police station.
When cross-examined by Wilson's counsel, Soliven acknowledged that at the preliminary hearing he testified he transported both Sneed and Wilson to the police station in his patrol car.
On redirect examination Soliven testified that after the preliminary hearing he thought about the transportation of Sneed and Wilson and realized he was mistaken in testifying he transported both in his car to the police station. He recalled Sneed was transported by Officer Tagaban. Asked to review his report concerning the incident, Soliven noted it stated he transported Wilson but made no mention of Sneed.
On recross examination by Sneed's counsel, Soliven testified he realized soon after the preliminary hearing he mistakenly testified both appellants were transported in his car. He stated that days before trial, he discussed how the defendants were transported with his partner, Officer Usery. He stated that the day after the preliminary hearing, Officer Zaldivar asked him who transported Sneed. Soliven told Zaldivar he believed Officer Tagaban transported him.
During the prosecutor's direct examination of Officer Tagaban, the officer testified that the day of the charged offenses she arrested Sneed and placed him in Officer Soliven's patrol car. Eventually, Wilson was placed in the same car with Sneed. Tagaban testified she took Sneed from Soliven's car, placed him in her car and transported him to the police station.
Tagaban and Soliven testified at trial on the same day. On cross-examination by Sneed's counsel, Tagaban testified that the day before, as she and Soliven waited outside the courtroom, Soliven told her he mistakenly testified at the preliminary hearing he transported Sneed to the police station. She stated the two also discussed the placement of Sneed and Wilson in Soliven's car.
b. Motion for Mistrial
At the conclusion of Tagaban's testimony, both defense counsel moved for a mistrial. They argued the witnesses were admonished by the court not to discuss their testimony. They noted Tagaban's testimony that she and Soliven discussed Soliven's claim he was mistaken at the preliminary hearing when he testified he transported Sneed to the police station. Counsel stated the placement of the defendants in the vehicle in which drugs were found was an important issue in the case. They argued the witnesses coordinated their testimony to the detriment of the defense.
After a review of the record, the trial court concluded it made no order pursuant to Evidence Code section 777 excluding witnesses from the courtroom or admonishing them not to discuss their testimony. Additionally, the prosecutor noted count 3 charged only Wilson with possession of the ecstasy found in Soliven's patrol car. Given the testimony both Sneed and Wilson were in that car, the prosecutor asked the trial court to dismiss that count. The trial court granted the motion.
2. Discussion
A motion for mistrial should only be granted when the defendant's chance of receiving a fair trial has been irreparably damaged. (People v. Valdez (2004) 32 Cal.4th 73, 128.) Such a decision is one the trial court is better equipped to make than a reviewing court. The trial court is necessarily vested with considerable discretion in making that decision, and it will not be disturbed absent a showing of abuse. (See People v. Williams (2006) 40 Cal.4th 287, 323.) There was no abuse of discretion in this case.
Appellants speculate, but did not demonstrate below, that Officers Solevin and Tagaban somehow "coordinated" their testimony. The trial court could take Officer Solevin at his word that he simply made a mistake at the preliminary hearing when he testified he transported both Sneed and Wilson to the police station. After the preliminary hearing, Solevin spoke to Officers Usery and Zaldivar and the prosecutor and told them of his mistake. There is no indication Tagaban ever stated or believed Solevin and not she transported Sneed to the police station. There is no evidence the discussion between Solevin and Tagaban resulted in some "coordination" of their testimony designed to prejudice appellants. In any event, the question of who transported Sneed was of little significance. There was no question both men were for a time in the back of Solevin's police car and could have discarded the drugs later discovered in the vehicle. The trial court could reasonably conclude no mistrial was required to ensure appellants a fair trial.
D. Strike Priors
Wilson argues the trial court abused its discretion when it refused to strike his strike prior. Appellant contends his role in the sale of cocaine base, i.e., a "petty street transaction," to the officer was nothing more than "acting stupidly in a public place." He argues his role in the crime was "so minimal it falls outside the spirit of the 'three strikes law'."
1. Background
Wilson admitted three prior prison term allegations within the meaning of section 667.5, subdivision (b), and one strike prior within the meaning of section 667, subdivisions (b) through (i). The probation report reveals Wilson has a lengthy criminal history that includes drug, assaultive and theft-related offenses.
Appellant asked the trial court to strike the three prison priors and the strike prior and grant him probation on the condition he enter a drug rehabilitation program.
The trial court found Wilson's present offenses were not the "crimes of the century" and the core of his problem was drug abuse. The court noted Wilson was honorably discharged from the Navy and was entitled to consideration for service to his country. The court noted, however, Wilson had a long criminal history that included acts of violence, was given many opportunities to reform and did not do so.
The trial court sentenced appellant to the mitigated term of three years on count 1 and the mitigated term of three years on count 2. The court stayed the sentence on count 2 pursuant to section 654. The court struck appellant's three prison priors. Pursuant to the three strikes law the court doubled appellant's three-year mitigated term and imposed a prison term of six years.
2. Discussion
A trial court may strike a strike prior if it finds that based on all relevant factors the defendant is outside the spirit of the three strikes law. (People v. Williams (1998) 17 Cal.4th 148, 161.) The trial court acted properly in refusing to strike Wilson's strike prior. Appellant has a lengthy and continuing criminal history that includes not only drug offenses but theft and assaultive offenses as well. Wilson is well within the spirit of the three strikes law.
The judgments are affirmed.
WE CONCUR: McDONALD, J., McINTYRE, J.