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People v. Thomas

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE
Jan 25, 2012
B231070 (Cal. Ct. App. Jan. 25, 2012)

Opinion

B231070

01-25-2012

THE PEOPLE, Plaintiff and Respondent, v. JAMES THOMAS, Defendant and Appellant.

Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BA376038)

APPEAL from a judgment of the Superior Court of Los Angeles County, Judith Champagne, Judge. Affirmed.

Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

James Thomas appeals from the judgment entered following a jury trial which resulted in his conviction of the sale or transportation of cocaine base (Health & Saf. Code, § 11352, subd. (a)) and his admissions that he previously had been convicted of two counts of possession for sale of cocaine base (Health & Saf. Code, §§ 11351.5, 11370.2, subd. (a)) and had served a prison term within the meaning of Penal Code section 667.5, subdivision (b). The trial court sentenced Thomas to eight years in prison. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Los Angeles Police Officer Edgar Ramos has been assigned to the narcotics buy team for the past two years. As part of the team, he has been involved in over 2,500 narcotics investigations, has acted in both an undercover capacity and as a uniformed officer and has participated in over 1,000 undercover operations in the "skid row area" of Los Angeles. The buy team is a special unit which consists of a number of officers who "work problematic narcotics areas throughout the city, [including] downtown, south Los Angeles" and the valley. After determining that an area is known for the sale of narcotics, the buy team, working in part in an undercover capacity, attempts to purchase those narcotics. Generally, one designated undercover officer goes into the area and looks for "an active dealer." That officer is equipped with a one-way wire, primarily for his or her safety. Other undercover officers monitor the designated officer's actions and contacts with potential dealers while, a short distance away, a support group of uniformed "chase officers" stands by in marked police vehicles. Once the designated undercover officer makes a purchase, the uniformed chase officers move into the area and arrest the seller.

At approximately 6:15 p.m. on September 16, 2010, Ramos was working the skid row area of Los Angeles. He was at Gladys Park, near 6th Street and Stanford, an area "known [as one] where narcotics dealers and users congregate." Ramos, the designated buyer, was undercover, wearing a one-way wire and carrying two $20 bills in prerecorded "buy money." As he walked south on the sidewalk, just east of Stanford, Ramos noticed Thomas and his codefendant at trial, Charles Edward Lee. Thomas was straddling a bicycle leaning against a tree and Lee was standing next to him. Ramos made eye contact with Thomas, walked in his direction and, when he was approximately three feet from him, asked Thomas if he was "working." Thomas responded, " 'Yeah, how much do you need, or how much do you want?' " Ramos indicated that he was looking for a "20," or $20 worth of narcotics. Thomas looked at Lee and gave him "a head nod in [Ramos's] direction." Lee acknowledged the "nod" and asked Ramos for the money. Ramos handed to Lee one of the prerecorded $20 bills and, in exchange, Lee handed to Ramos "one small off-white solid resembling rock cocaine[.]" Ramos took the rock, held it in his hand and, as he was walking away from Thomas and Lee, gave a "predetermined signal [which advised the] other officers in the area that a narcotics transaction had been completed." Ramos then walked east on 6th Street and out of the area. As he did so, other officers moved in and took Thomas and Lee into custody.

Prerecorded "buy money" consists of funds in various denominations which have been issued to the designated buy officer after having been photocopied.

"Working" is street vernacular for selling narcotics.

With regard to the interaction between Thomas and Lee, Ramos explained that, because there are usually so many officers working in the skid row area, it is easier for a dealer to have someone else, usually a user, hold the narcotics for him. In this way, the seller of the narcotics has a better chance of avoiding detection by police officers and the "user," if caught, will be charged with the lesser crime of mere possession rather than the more serious offense of possession for sale. Ramos, however, added that "[n]umerous times [he had] purchased from individuals who also appear[ed] to be users. They, in [turn, would] go back and purchase additional narcotics to use themselves . . . ."

Ramos was of the opinion that the rock he purchased from Thomas was a usable amount of cocaine base. He stated that he estimated it weighed between .18 and .20 grams and that "[t]hat [was] sufficient for any type of user to get high on." After leaving the area, Ramos placed the rock of cocaine in a Ziploc baggie, which was later booked into evidence.

When Ramos asked Thomas if he was selling narcotics, it was understood that Ramos wished to purchase "crack cocaine." Ramos had never purchased or been aware of another officer purchasing methamphetamine at Gladys Park. In addition, although one might be able to purchase marijuana there, the purchase of heroin would not be a "common" occurrence.

Ben McCauley is a Los Angeles police officer who investigates gangs and narcotics. On September 16, 2010, he was assigned to a narcotics team and was working as an undercover officer near the area of 6th and Stanford in Los Angeles. At approximately 6:15 p.m., McCauley was at Gladys Park, approximately 20 feet west of Officer Ramos. McCauley, who was dressed in plain clothes, watched as Ramos walked east, toward 6th Street. McCauley then saw Ramos make contact with Thomas and Lee. As McCauley watched, "Ramos engaged Mr. Thomas in a brief conversation, after which Mr. Thomas turned towards the co-defendant[,] [Lee]." McCauley "observed Officer Ramos engage in a hand-to-hand transaction with the co-defendant[,] [Lee]." McCauley could see "arm movements consistent with a hand-to-hand transaction." Throughout the transaction, McCauley was "keeping a visual" contact. He stated, "[I]t is not a situation where you can stand there and just stare at a person." However, after the transaction was complete, McCauley "alert[ed] the chase officers" and "confirm[ed] [that] the chase officers . . . had [taken] the right individuals in[to] custody[.]" He had kept "visual contact" with Thomas and Lee after Ramos left the park.

At approximately 6:15 p.m. on September 16, 2010, Los Angeles Police Officer Christopher Patterson was working as a "chase officer" in the area near 6th Street, between Gladys and Stanford, in the City of Los Angeles. Patterson had worked in the skid row area for between 10 and 11 years. That evening, he was driving a marked black and white vehicle and had been "alerted" to report to Gladys Park. Near the intersection of 6th Street and Stanford, Patterson made "contact" with Thomas. Patterson searched Thomas and found that he was carrying money, however he did not have on his person the prerecorded $20 bill used by Ramos to purchase cocaine. There was a lot of "foot traffic" in and around Gladys Park at the time and, although Patterson searched the area, he did not find the prerecorded $20 bill. This was not uncommon. On previous occasions when he had "come into contact with [an] individual that [he] suspect[ed] might have been involved in narcotics activity," Patterson had not always found the money or the narcotics. He indicated that, "[a] lot of times" when a suspect sees a uniformed officer approaching, the suspect will "eat whatever evidence they have."

Los Angeles Police Officer Abner Orozco was also working as a chase officer on the evening of September 16, 2010. He was in uniform and driving a marked black and white patrol car when, at approximately 6:15 p.m., he was directed to report to the intersection at 6th and Stanford. There, Orozco made contact with defendant Lee. After transporting Lee to the police station, Orozco conducted a strip search. During the search, Orozco found in Lee's possession a "glass cylinder pipe also known as a crack pipe used to ingest narcotics."

Glenn Johnson is a criminalist for the Los Angeles Police Department. He analyzes items suspected of being narcotics or dangerous drugs. He has analyzed suspect substances on at least 5,000 occasions and approximately 1,000 of those instances involved cocaine base.

Johnson identifies an evidence envelope in which officers place narcotics. On the outside of the envelope is the suspect's name and a "D.R." number used for tracking the evidence and reports. Johnson verifies that the information on the outside of the sealed envelope matches the report attached to it, then photographs the front and back of the envelope to show the condition it was in when he received it. After identifying a photograph of the back of an envelope as that of the one he received in the present case, Johnson verified that it was closed with all three required seals.

On the back of the envelope, there will be three red seals. If those seals are not in place, Johnson will assume the contents have been tampered with and will not analyze them.

After photographing the envelope, Johnson opened it and photographed its contents. In the present case, the envelope contained a plastic bag inside of which there was "an off-white solid material." The envelope also contained an item usually referred to as a "cocaine pipe."

The off-white solid in the plastic bag weighed 0.26 grams. Johnson twice analyzed the substance and, both times, determined that it contained cocaine base. Johnson, however, could not determine how much of the 0.26 grams consisted of pure cocaine.

2. Procedural history.

Following a preliminary hearing, an information was filed on October 28, 2010 in which it was alleged Thomas committed one count of the sale, transportation or "offer to sell" cocaine base in violation of Health and Safety Code section 11352, subdivision (a). It was further alleged that, on May 24, 2007, Thomas had been convicted of possession for sale of cocaine base in violation of Health and Safety Code section 11351.5 within the meaning of Penal Code section 1203.07, subdivision (a)(1) and (11) and that, on April 21, 2008, Thomas suffered a conviction of Health and Safety Code section 11351.5 for which he served a prison term within the meaning of Penal Code section 667.5, subdivision (b). The information also alleged that, pursuant to Health and Safety Code section 11370.2, subdivision (a), Thomas had suffered two prior convictions for possession of cocaine base for sale in violation of Health and Safety Code section 11351.5 within the meaning of Health and Safety Code section 11370.2, subdivision (a) and Penal Code section 1203, subdivision (e)(4).

On December 2, 2010, Thomas, acting in propria persona, made a Pitchess motion, arguing that Officer Ramos had made false statements in police reports and had arrested him without probable cause. Following a hearing during which the custodian of Police Department records testified, the trial court determined that there had been two instances, or "Pitchess compliance complaints," that were relevant to Thomas's case and that evidence of those complaints was to be produced by the following Monday, December 6, 2010.

Pitchess v. Superior Court (1974) 11 Cal.3d 531.

At proceedings held on January 3, 2011, Thomas relinquished his in propria persona status and a "[b]ar panel attorney" was appointed to represent him. Trial was set to begin on January 5, 2011. Just prior to trial, an affidavit of prejudice pursuant to Code of Civil Procedure section 170.6 was filed by defense counsel against the trial judge. The matter was, accordingly, assigned to a different department where it would be heard by a different judge.

Thomas's case was called for trial on January 5, 2011. His motion to bifurcate the trial on the alleged prior convictions and prison terms from the substantive offense was granted. After a panel of 12 jurors and one alternate was then selected, the matter was continued to January 7, 2011.

After the People presented their case, Thomas made a motion for the entry of a judgment of acquittal, asserting that the People had failed to present sufficient evidence to convict him. (Pen. Code, § 1118.1.) The trial court denied the motion and, after the prosecutor and defense counsel presented their arguments, instructed the jury.

While the jury was deliberating with regard to the substantive offense, Thomas waived his right to a jury trial on his prior convictions and prison terms and agreed that the court could decide whether they were true. The trial court determined that the waiver had been "knowingly, understandingly, and intelligently" made.

On January 10, 2011, during their deliberations, the jury sent to the trial court two communications. The first requested that the court reporter read back to the jury "Officer McCauley's testimony of his description of Mr. Lee and the transaction that occurred between Officer Ramos and the defendants." The second requested the court reporter to read back that portion of the record regarding "Officer [O]rozco's [arrest] of Mr. Lee." After the court reporter read back to the jury part of Officer Orozco's testimony, a recess was taken until the following day.

On the following day, Tuesday, January 11, 2011, the trial court addressed the jurors and stated, "We were about to provide the [remainder of the] requested readback [when] we got your notification of a verdict; is that correct?" A juror indicated that the jury had reached a verdict and the verdict forms were given to the bailiff, then to the court. With regard to Thomas, the jury found him "guilty of the crime of [the] sale of a controlled substance, to wit, cocaine base, in violation of section 11352[, subdivision (a) of the] Health and Safety Code . . . , a felony, as charged in count 1 of the information." After the court polled the jury, the verdicts were recorded. It was then agreed that the trial court would rule on the alleged priors and sentence Thomas and Lee at proceedings to be held on February 2, 2011.

On February 4, 2011, the prosecutor indicated that Thomas had agreed to admit his prior convictions and prison terms. After Thomas waived his "right to remain silent," his "right to confront and cross-examine the witnesses against [him]," his "right to use the subpoena power of the court at no cost to [him] . . . to present a defense," and his right to "testify on [his] own behalf," Thomas admitted that, pursuant to Health and Safety Code section 11370.2, subdivision (a), he had twice previously been convicted of Health and Safety Code section 11351.5. One conviction, in case No. VA098393, occurred on or about December 15, 2006 and the second, in case No. BA318903, occurred on or about May 24, 2007. With regard to his conviction in case No. BA318903, Thomas admitted he had served a prison term within the meaning of Penal Code section 667.5, subdivision (b). Counsel for Thomas then joined in the waivers, concurred in the pleas and stipulated to a factual basis for them.

At sentencing, counsel for Thomas argued that, although he had "drug addiction issues," he did not take the stand "and try to present any type of falsehood or misleading testimony." In addition, the amount of cocaine involved was not large: a small rock of crack cocaine worth only $20. Moreover, Thomas is 30 years old and the father of two minor children. Under these circumstances, counsel asserted that Thomas "should [not] be penalized for the fact he went to trial" and should be sentenced to the pretrial offer of four years in prison.

The trial court noted that Thomas "appeared to have taken the supervisory role in this transaction" and "that he is on parole [for] two prior drug[-]related felonies." The trial court, accordingly, found Thomas "ineligible" and "unsuitable" for probation and sentenced him to state prison for the upper term of five years for his conviction of Health and Safety Code section 11352, subdivision (a) and a three-year, consecutive term for his admission, made pursuant to Health and Safety Code section 11370.2, subdivision (a), that he previously had been convicted of Health and Safety Code section 11351.5 in case No. BA318903. The trial court struck the remaining one year, Penal Code section 667.5, subdivision (b) enhancement and the "additional three-year enhancement [pursuant to case No.] BA318903." The trial court concluded Thomas's "total term" was eight years "concurrent with his parole status." The court awarded Thomas presentence custody credit for 142 days actually served and 142 days of good time/work time, for a total of 284 days.

It appears the court misspoke when it struck the enhancement it had just imposed for case No. BA318903. The second felony enhancement admitted to by Thomas pursuant to Health and Safety Code section 11370.2 was case No. VA098393. However, as the error makes no practical difference in the sentence as it appears on the abstract of judgment, we need not remand the matter for correction of the case number by the trial court.
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The trial court imposed a $200 restitution fine (Pen. Code, § 1202.4, subd. (b)), a stayed $200 parole revocation restitution fine (Pen. Code, § 1202.45), a $30 criminal conviction assessment (Gov. Code, § 70373), a $30 court security assessment (Pen. Code, § 1465.8, subd. (a)(1)), a $50 laboratory analysis fee (Health & Saf. Code, § 11372.5) and an $85 penalty assessment (Pen. Code, § 1464; Gov. Code, § 76000). After imposing the relevant fines and fees, the trial court recommended that the Department of Corrections house Thomas in a facility where he would receive "substance abuse treatment."

Thomas filed a timely notice of appeal on February 18, 2011.

This court appointed counsel to represent Thomas on appeal on April 18, 2011.

CONTENTIONS

After examination of the record, counsel filed an opening brief which raised no issues and requested this court to conduct an independent review of the record. By notice filed October 14, 2011, the clerk of this court advised Thomas to submit within 30 days any contentions, grounds of appeal or arguments he wished this court to consider.

On October 31, 2011, Thomas filed with this court a letter in which he asserted his counsel had been ineffective for failing to argue on appeal that Officer Ramos "engage[d] in [an] act of dishonesty" when he fabricated evidence. Thomas also asserted his appellate counsel was ineffective for failing to raise as an issue the fact that the trial court refused to allow his codefendant, Lee, to enter a plea. Thomas contends that, had Lee been allowed to do so, he would then have exonerated Thomas by testifying at Thomas's trial that Thomas had nothing to do with the narcotics transaction.

An indigent defendant has the right to the effective assistance of competent counsel on appeal. (In re Spears (1984) 157 Cal.App.3d 1203, 1210.) "The duties which appointed appellate counsel must fulfill to meet his or her obligations as a competent advocate include the duty to 'argue all issues that are arguable' " (Ibid.) "[F]or an issue to be an arguable issue on appeal it must be reasonably arguable that there is prejudicial error justifying reversal or modification of judgment." (Id. at p. 1211.) "[I]t is not the duty of appellate counsel to 'contrive arguable issues.' " (Ibid.)

Here, Thomas has presented no evidence, other than his own uncorroborated, self-serving statement, to indicate that Officer Ramos fabricated evidence. To warrant consideration, an appellant's contention must be corroborated by independent, objective evidence. (In re Alvernaz (1992) 2 Cal.4th 924, 938, 945.) Thomas has directed us to nothing in the record which indicates Officer Ramos was less than candid in his testimony at trial. Accordingly, his counsel cannot be deemed to have been ineffective for failing to argue that Officer Ramos's testimony was not truthful.

Thomas's contention he was prejudiced by the fact that his appellate counsel failed to argue that the trial court erred when it refused to allow his codefendant, Lee, to enter a plea in this matter is also without merit. Not only is there no evidence to indicate Lee wished to enter a plea, Thomas has pointed us to no evidence which indicates that, had he done so, Lee would have testified on Thomas's behalf. Again, Thomas's self-serving uncorroborated assertion is "insufficient in and of itself to sustain [his] burden of proof he suffered "prejudice [at trial.]" (Id. at p. 938.) To warrant relief, Thomas's contention "must be corroborated independently by objective evidence." (Ibid.) No such evidence exists here.

APPELLATE REVIEW

We have examined the entire record and are satisfied that Thomas's counsel has complied fully with counsel's responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284; People v. Wende (1979) 25 Cal.3d 436, 443.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KITCHING, J. We concur:

KLEIN, P. J.

CROSKEY, J.


Summaries of

People v. Thomas

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE
Jan 25, 2012
B231070 (Cal. Ct. App. Jan. 25, 2012)
Case details for

People v. Thomas

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JAMES THOMAS, Defendant and…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE

Date published: Jan 25, 2012

Citations

B231070 (Cal. Ct. App. Jan. 25, 2012)