Opinion
NOT TO BE PUBLISHED
APPEALS from judgments of the Superior Court of Los Angeles County. No. KA083891, Robert M. Martinez, Judge.
Larry Darnell Taylor, in pro. per., and Christopher Nalls, under appointment by the Court of Appeal, for Defendant and Appellant Taylor.
Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and Appellant Richards.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, and Shawn McGahey Webb, Deputy Attorney General, for Plaintiff and Respondent.
MALLANO, P. J.
Defendants Larry Darnell Taylor and Lindsey Conrad Richards appeal from the judgments entered following a jury trial in which they were convicted of violating Health and Safety Code section 11352, subdivision (a), by selling, furnishing, or giving away cocaine base. Richards contends the court erred by failing to modify CALCRIM No. 301 to state that his exculpatory testimony did not have to be supported by corroborating testimony and by instructing the jury that he and Taylor were accomplices as a matter of law. We agree and reverse Richards’s conviction. Taylor’s appointed attorney filed an opening brief raising no issues and asking this court to review the record independently. Taylor then filed six supplemental briefs raising numerous contentions that we find meritless. We affirm Taylor’s conviction.
BACKGROUND
Pomona Police Department Officers Reginald Villanueva and Vanessa Munoz were working undercover as part of a narcotics task force on the afternoon of June 27, 2008. (All further date references pertain to 2008.) They were in an unmarked car in an area of Pomona where narcotics sales and activity had been reported. There were several people on the sidewalk, and Villanueva stopped his car at the curb. Richards, whom Villanueva had never seen before, approached the car window. Villanueva asked for “Ken Dog” or “Bo, ” but Richards said they were not there. Richards said he would make a phone call to get what Villanueva needed and asked Villanueva to return in two to five minutes. As Villanueva drove away, he saw Richards ride a bicycle to a pay phone. After about five minutes, Villanueva returned to the same location, but left when he did not see Richards.
Villanueva testified that when he returned the second time, he saw Richards and Taylor. Villanueva knew Taylor from a prior undercover operation in which Taylor and Ken Dog rode around with Villanueva attempting to find someone selling cocaine. The prior contact ended when their car was “pulled over by the team.” Before parking at the curb, Villanueva turned on a video camera that was located in the cup holder. The camera was pointed toward the front passenger-side window. Richards raised his hand with the palm forward and fingers extended, which Villanueva believed was a signal to wait. Richards and Taylor, who were “four to five paces” apart, walked up to one another. Villanueva thought Richards handed something to Taylor. Taylor then walked to the passenger side of the officers’ car. Munoz, who was seated in the front passenger seat, handed Taylor a $20 bill and Taylor handed her an off-white rock that appeared to be rock cocaine. Richards then walked up to the car, leaned in through the front passenger window and asked if everything was all right. Richards shook Villanueva’s hand and, as he did so, handed him a second off-white rock. Villanueva admitted that he had testified at the preliminary hearing that Richards handed the rock to Munoz, but said that reviewing the video before trial refreshed his recollection. Richards and Taylor walked away. They were not arrested that day. Chemical analysis subsequently established that both of the rocks contained cocaine base.
The video recorded by the camera concealed inside the undercover car was played at trial. We have watched the video, which includes sound. The video does not show the initial contact with Richards. It also does not show Richards signaling Villanueva to stop when the officers returned to the location or Richards handing anything to Taylor. The first event seen on the video is Taylor at the car window. After Villanueva and Munoz greeted Taylor, Taylor asked, “You want a dub?” which Villanueva testified meant $20 worth of cocaine. Both officers said, “Yeah.” Taylor then pointed at Villanueva as he said, “Tony, ” as if recognizing him. Villanueva replied, “Yeah.” Taylor asked, “Where’s your car at?” Villanueva said, “This is my girl’s car.” Taylor then asked, “[D]id they follow you or anything?” Villanueva said, “No.” Taylor said, “They let me go, ” then recounted police checking his records and releasing him because he had been discharged from parole. He added, “I’m clean—no warrants, no probation, no parole. And I want to stay that way. You know.” Villanueva said that was “cool, ” then asked, “Is he going to hook me up or what?” Taylor replied, “I got it. Right here.” Villanueva asked, “Oh, he gave it to you?” Taylor said, “Yeah, ” followed by something indecipherable. Munoz handed money to Taylor and Taylor placed the rock in Munoz’s outstretched palm. Taylor asked for “a hit.” Villanueva refused, saying they were “about to take off.” Taylor said, “You can break me a hit.” Villanueva told Taylor to “[b]reak it.” Taylor said, “He ain’t going to give me shit.” Munoz and Villanueva repeatedly urged Taylor to break off a piece. Taylor took the rock from Munoz’s palm, which was still outstretched, pinched off a piece, and handed the rest back to Munoz. He then asked if the piece he had broken was too big. Munoz looked at it and said, “No, you’re cool.” Taylor said, “Cause, yeah, they have to get, you know, they have to get to know you. You know, I sort of got to know you, you know.” He continued, “But I know you now, I’ll see you in the future, you know.” Taylor asked if they were coming back later, and Villanueva said he would. A second or so later, Richards leaned in the car window and asked, “You alright?” Villanueva said, “Yeah, ” and asked Richards’s name. Richards replied, “Z, ” and Villanueva said, “Z. Tony.” During the introductions, Richards first bumped fists with Villanueva, then shook Villanueva’s hand. Villanueva said, “Ah, for real. Alright, Z.” Munoz said, “Thank you, man.” Although it is possible that Richards transferred something to Villanueva during the handshake, no transfer is visible on the video, and Villanueva does not display any item received from Richards on the video.
Richards testified that as of June 27, he had been homeless and living on the streets or in a “tent city” in Pomona or Ontario and for about nine years. He was a long-time cocaine abuser and had occasionally helped street-level drug dealers sell drugs in exchange for a little money or cocaine for his own consumption. Sometimes he would sell a friend a small piece of the cocaine he was going to use. On cross-examination he estimated he had sold drugs between five and 10 times.
Richards testified that on June 27 Villanueva pulled to the curb near him and asked if he knew Ken Dog or Bo. Richards knew of a man called Bo who sold drugs. Richards said that if he saw Bo, he would send him toward Villanueva. Richards denied telling Villanueva that he would make a phone call to get what Villanueva needed and explained that he would have no way of knowing which of the several different types of drugs sold in the area Villanueva wanted. Richards rode off on his bicycle to buy a sandwich. About 45 minutes or an hour later, Richards was riding back through the area where he had met Villanueva. It was a grassy, shaded area where homeless people often gathered. Richards saw Taylor, whom he knew from the streets, and two other men sitting there. Richards stopped to talk to them. As the officers’ car approached, Richards told the men that he thought “these people are looking for somebody. They were looking for Bo and some guy named Ken Dog.... [T]hey might be looking for something.”
Richards testified that when the officers’ car stopped at the curb, he made the hand gesture Villanueva described to signal them to wait. He then told Taylor and the other two men, “I think these people are looking for something, ... but, personally, I don’t trust them.” Taylor walked up to the officers’ car. Richards did not know what Taylor was going to do, did not know whether Taylor had drugs to sell, and did not hand anything to Taylor. Richards could neither hear the conversation between Taylor and the officers nor see what happened in the car, but he “was almost positive something took place there, ” and he thought the officers might give him two or three dollars if they thought he had facilitated the transaction, so he went up to the car. Villanueva asked Richards his name. Richards responded, “Z, ” then shook Villanueva’s hand because a handshake customarily follows an introduction. Richards denied handing anything to either officer. Richards explained that he had been a drug addict for more than 25 years and would “rather have drugs than... food.” Under no circumstances would he give away drugs, though he sometimes allowed people, including Taylor, to have a “hit off of” his pipe.
Richards admitted he had been convicted of selling drugs in 2004 based on two $20 sales of drugs to the same undercover police officer over a two-day period.
Taylor represented himself through most of the pretrial proceedings and at trial. He presented no defense.
In bifurcated proceedings, the jury convicted each defendant of selling, furnishing, or giving away cocaine base. The court found true allegations that Taylor had suffered 15 prior “strike” convictions and a prior Health and Safety Code section 11352 conviction, and had served a prior prison term within the scope of Penal Code section 667.5, subdivision (b). (All further statutory references pertain to the Penal Code unless otherwise specified.) The court found that Richards had served two prior prison terms within the scope of section 667.5, subdivision (b), and suffered prior Health and Safety Code sections 11351.5 and 11352 convictions.
The trial court implicitly granted Taylor’s motion to dismiss its strike findings with respect to 14 of the 15 strikes. The court sentenced to a second strike term of 14 years in prison. The court sentenced Richards to six years in prison.
DISCUSSION
1. Richards’s appeal
The trial court instructed the jury that Taylor and Richards were accomplices as a matter of law (CALCRIM No. 335) and that “Except for the testimony of Lindsey Richards, which requires supporting evidence, the testimony of only one witness can prove any fact. Before you conclude that the testimony of one witness proves a fact, you should carefully review all the evidence.” (CALCRIM No. 301.)
In his opening brief, Richards contended that by instructing with CALCRIM No. 301, the trial court violated his federal constitutional rights to due process, to a jury trial, to testify, and to present a defense. We asked Richards and the Attorney General to brief two additional, related issues: whether CALCRIM No. 301 altered the prosecution’s burden of proof and whether the trial court erred by instructing that Taylor and Richards were accomplices as a matter of law. Richards argued that CALCRIM No. 301 altered the prosecution’s burden of proof and that the trial court should not have instructed that Taylor and Richards were accomplices as a matter of law. The Attorney General did not respond to this court’s request for additional briefing.
The problem with the unmodified version of CALCRIM No. 301 given here is that Richards gave both self-exculpatory testimony, which is not subject to the rule of corroboration, and testimony that had some tendency to incriminate Taylor, which was subject to the corroboration requirement. (§ 1111; People v. Guiuan (1998) 18 Cal.4th 558, 569 [addressing related instruction to view accomplice’s testimony with caution]; People v. Fowler (1987) 196 Cal.App.3d 79, 87 [same, in context of testifying codefendants].) As given, the instruction imposed a corroboration requirement upon all of Richards’s testimony. This effectively placed a burden upon Richards to introduce corroborating evidence in order to have the jury consider his self-exculpatory testimony, and thus violated due process. (Cool v. United States (1972) 409 U.S. 100, 104 [93 S.Ct. 354].)
In addition, the version of CALCRIM No. 301 given here impaired Richards’s federal constitutional right to testify in his own defense (People v. Gutierrez (2009) 45 Cal.4th 789, 821; Rock v. Arkansas (1987) 483 U.S. 44, 49–52 [107 S.Ct. 2704]) by imposing a legally invalid corroboration requirement upon his self-exculpatory testimony. (People v. Turner (1990) 50 Cal.3d 668, 697 [defendant’s uncorroborated exculpatory testimony entitled to same treatment as uncorroborated testimony of prosecution witness].)
The trial court compounded the error by instructing the jury that Taylor and Richards were accomplices as a matter of law. (CALCRIM No. 335.) “Whether a person is an accomplice is a question of fact for the jury unless there is no dispute as to either the facts or the inferences to be drawn therefrom.” (People v. Fauber (1992) 2 Cal.4th 792, 834.) The facts were disputed at trial. Richards testified that he did not know that Taylor had drugs, did not hand drugs to Taylor or the officers in the car, did not know Taylor was going to sell drugs to the officers, and told Taylor he did not trust the officers. If Richards’s testimony were accepted by the jury, he was not an accomplice. The trial court’s erroneous choice of CALCRIM No. 335 instead of CALCRIM No. 334, which directs the jury to determine whether a witness was an accomplice, improperly removed the determination of accomplice status from the jury. This was a serious error because informing the jury that Richards was Taylor’s accomplice as a matter of law was completely irreconcilable with Richards’s defense testimony that he did not play any role in the drug transaction. By giving CALCRIM No. 335, the trial court effectively negated Richards’s defense.
Although most instructional errors are reviewed as errors of state law, the errors committed here violated Richards’s federal constitutional rights to due process, to present a defense, to testify, and to a jury trial. Accordingly, we must evaluate the error under the standard of Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824]: the Attorney General has the burden of proving beyond a reasonable doubt that the error did not contribute to the verdict.
The Attorney General did not meet her burden. She argued that, on the whole, CALCRIM No. 301 told “the jury to assess the testimony of every witness within the context of all the evidence adduced at trial.” This may be true, but such advice did not counteract the clear requirement of corroboration imposed upon Richards in the first sentence of the instruction. Indeed, no instruction given to the jury counteracted that corroboration requirement or clarified that only Richards’s testimony incriminating Taylor required corroboration. The Attorney General cited CALCRIM No. 335 as clarification of the corroboration requirement, but nothing in CALCRIM No. 335 informed the jury that the requirement of corroboration set forth in CALCRIM No. 301 was applicable only to portions of Richards’s testimony that incriminated Taylor, and not to portions that were self-exculpatory.
As opposed to the Attorney General’s failure to show that CALCRIM Nos. 301 and 335 were harmless beyond a reasonable doubt, we note that Richards’s testimony was plausible. We cannot conclude beyond a reasonable doubt that the serious constitutional errors committed in this case did not contribute to Richards’s conviction.
2. Taylor’s appeal
We have examined the entire record and are satisfied that defendant’s attorney has fully complied with his responsibilities and that no arguable issues exist. (People v. Kelly (2006) 40 Cal.4th 106, 109–110; People v. Wende (1979) 25 Cal.3d 436, 441.)
Taylor asserts numerous arguments in the six supplemental briefs he filed in propria persona. His first group of arguments revolved around entrapment. He argues that the evidence established entrapment based upon the conduct of Villanueva and Munoz, and the trial court erred by refusing to instruct the jury on entrapment and refusing to let him argue entrapment, even though it had “found that there was evidence of entrapment” before trial began and “certified the issue of entrapment to the jury” by reading a jury instruction during voir dire that defined entrapment. The trial court did not find that there was evidence of entrapment, before or after the presentation of evidence. It defined entrapment for the jury during voir dire because Taylor was asking questions of potential jurors about their attitude toward an entrapment defense. The court was not required to include an entrapment instruction in the charge to sitting jurors unless there was substantial evidence of entrapment. (People v. Watson (2000) 22 Cal.4th 220, 222.) There was no evidence of entrapment presented at trial. Taylor approached the officers’ car and asked if they wanted to buy “a dub” as soon as they said hello to him. The officers did not entice or pressure Taylor into doing anything. Neither the officers’ acceptance of Taylor’s offer to sell them “a dub” nor Villanueva’s subsequent question about whether the transaction was going to be completed constituted conduct “likely to induce a normally law-abiding person to commit the offense.” (Id. at p. 223; People v. Van Alstyne (1975) 46 Cal.App.3d 900, 907.) In his second supplemental brief, Taylor argues that “he was ‘enticed’ into participating in the transaction by repeaded [sic] and insistant [sic] requests and offering of extraordinary benefit, (cocaine), and payment in drugs.” The record belies this contention. After the drug sale was completed, Taylor asked the officers if he could “have a hit.” Villanueva refused. Taylor insisted, “You can break me a hit.” Villanueva responded, “Break it then, ” and Munoz joined, saying, “Go ahead and break it, man.” The officers’ acquiescence to Taylor’s repeated requests for part of the rock he had just sold them does not constitute entrapment. Taylor also argues that he was entrapped because the police did not seize the buy money from him, the police let him go after detaining him, and Munoz and Villanueva did not “dispose of the contraband in the manner prescribed by law, ” and they thus “committed ‘outrageous conduct.’” None of these acts would show entrapment, and there was no evidence at trial on any of these points other than testimony by Villanueva that neither Richards nor Taylor was arrested on June 27. Because there was no evidence of entrapment, the trial court did not err by prohibiting Taylor from arguing the theory to the jury.
Taylor also contends the following argument by the prosecutor violated his right to present a defense: “Good morning, everyone. You’ve heard all the evidence in this case and it is my burden to prove this case to you beyond a reasonable doubt of the charges in this case beyond a reasonable doubt. And let me tell you how I’ve done that.” The argument was unobjectionable.
Taylor argues that his confrontation and due process rights were violated because the prosecutor did not call Munoz or Sergeant Congolton to testify. Taylor should have called these witnesses if he wanted their testimony; the prosecutor’s decision not to call them did not violate Taylor’s rights.
Taylor next argues he was denied a fair trial and impartial jury because the trial court did not excuse Juror No. 2, who submitted a note expressing reservations about the concept of entrapment before the prosecutor began presenting evidence. The court took the matter under submission. After arguments and instruction, but before the jury began deliberating, the court stated that it was inclined not to replace the juror because entrapment was not an issue. Counsel for Richards agreed that there was no cause to excuse the juror, and Taylor stated, “I’ll go along with that.” Taylor forfeited this claim. In addition, because no entrapment defense was presented, the potential ground for dismissing the juror was moot.
Taylor also makes numerous claims regarding the testing and analysis of the cocaine rock he sold to the officers. First, he argues that the prosecutor failed to introduce evidence at the preliminary hearing and at trial that the rock contained cocaine base, resulting in insufficient evidence in both proceedings. Taylor is wrong. At the preliminary hearing, the attorneys representing Taylor and Richards stipulated that Tom McCleary would be “deemed to have been duly called, sworn, testified as an expert forensic chemist, and that Tom McCleary did a chemical and physical analysis of the item booked under file No. 0897156, with a lab receipt number of K007651, under the subject name of Taylor, first name is Larry, and came to the expert conclusion and opinion that that item had a net weight of approximately.12 grams of solid substance containing cocaine in the base form.” At trial, McCleary testified that he tested the item booked by the Pomona Police Department under file number 0897156, with a lab receipt number of K007651 and suspect name of Larry Taylor and found it to contain “approximately 0.12 grams of a solid substance containing cocaine in the base form.” Taylor also argues that prior to trial the prosecutor “served” him with a “laboratory report” that was similar to the stipulation at the preliminary hearing, but the prosecutor did not introduce the “laboratory report” at trial. This seems to be a misunderstanding of terms. The minute order and the portion of the reporter’s transcript cited by Taylor in support of his claim that he was “served” with a “laboratory report” use the phrase “lab receipt.” During cross-examination at trial by Taylor, McCleary clarified that the “lab receipt” was his “chemical analysis report.” A photocopy of the “lab receipt” was admitted as part of People’s exhibit 1 at trial, and McCleary identified it as a copy of his “lab receipt.”
Next, Taylor argues that “the criminalist and the prosecutor destroyed evidence by using all of the alleged rock in the testing process.” Although Taylor repeatedly made this assertion in his motions and arguments to the trial court, nothing in the record supports his claim that the rock was destroyed. Indeed, McCleary testified at trial that after he conducted his testing, the rock was smaller because he “consumed some of the material during the testing.” The loss of some mass is not equivalent to complete destruction. Taylor argues in his fifth supplemental brief that the prosecutor “explained” at the preliminary hearing that the cocaine rock “was used up in the testing process.” No such statement appears in the transcript of the preliminary hearing or anywhere else in the record, except in Taylor’s motions. Taylor also argues the prosecutor “showed bad faith by failing to request and submit the toxicology report to the defense and the court, or to to [sic] stipulate that the drug test report was inconclusive as to item No. 1 containing cocaine base.” The record does not support Taylor’s assertions that testing was inconclusive or that a toxicology report existed. To the extent that Taylor is referring to the printout of the infrared spectroscopy that McCleary testified was one of the tests he used in reaching his conclusion that the rock contained cocaine base, Taylor fails to show how he was prejudiced by the failure to receive the printout, but merely wondered if McCleary’s testimony was reliable. Taylor also complains of the reliability of a “NIK” field test apparently used by one of the police officers to test the rock before submitting it to McCleary for analysis. This is irrelevant as the prosecution did not rely upon the results of a field test to establish the composition of the rock. Taylor also argues that, in the absence of the “toxicology report, ” McCleary’s testimony was an inadmissible opinion based upon a hypothetical state of facts not supported by the evidence. McCleary testified to his actual scientific testing of the rock, not an opinion based upon a hypothetical.
Taylor also argues that the police delayed arresting him to attempt to entrap him. He claims that between June 27 and his arrest on August 1, “Sergeant Congolton and Officer Gomez stopped Taylor about five times, pat searched Taylor, and ran warrant checks on Taylor.” He also claims that during the same period, Villanueva and Munoz “stopped Taylor three times and tried to force Taylor to walk in front of their car and find some cocaine.” No evidence of such stops appears in the appellate record. Taylor has not demonstrated how any such stops could have established entrapment for the already completed June 27 sale or otherwise affected the validity of his conviction or sentence.
Taylor also argues that his rights to due process, to present a defense, and to a fair trial were impaired because the trial court denied his section 995 motion raising the issue regarding additional police contacts after June 27 and his discovery motion seeking four videos, together with witness information and dispatch logs regarding these post-June 27 stops. Taylor fails to show how additional police contacts after June 27 rendered the evidentiary showing at the preliminary hearing insufficient. We have read the preliminary hearing transcript and find the evidentiary showing sufficient. No ground raised in any of Taylor’s several motions invoking section 995 or in any of his numerous supplements to those motions constituted a basis for setting aside the information. Taylor’s “discovery motion” regarding evidence of the additional police contacts with Taylor between June 27 and August 1 complained that his appointed investigator had not obtained the materials he sought and requested their production from “government agents.” He also sought depositions of various purported witnesses to the post-June 27 contacts, a copy of his arrest warrant, and police dispatch records. At the hearing on the motion, the prosecutor stated that he had previously provided both defendants with all of the dispatch tapes and a dispatch log. Taylor admitted these videos were not in police custody, that the witnesses to which his motion referred “were defense witnesses, ” and that the events they purportedly witnessed occurred after June 27. Taylor’s appointed investigator informed the court that he had attempted to obtain videotapes from the stores Taylor specified, but no tapes existed. The investigator attempted to contact the alleged witnesses Taylor named, but the ones he could find said they did not know Taylor or recognize his photo, and others were unknown to the staff at the businesses where Taylor said they worked. One store identified by Taylor did not exist. Taylor had the investigator search for a witness named Gladys, and the investigator could not find her. Taylor told the court that the witness’s name was really Alice, but her “stage name” was Gladys. Finally, Taylor insisted he needed his own arrest warrant to cross-examine Congolton. The court denied the motion, but stated Taylor could address the issue of the warrant if and when Congolton testified. Congolton did not testify. Taylor has established neither error nor prejudice regarding the denial of his “discovery motion.”
Finally, we note that the instructional errors requiring reversal of Richards’s conviction did not affect the validity of Taylor’s conviction.
DISPOSITION
As to Taylor, the judgment is affirmed. As to Richards, the judgment is reversed.
We concur: ROTHSCHILD, J., CHANEY, J.