Opinion
C053247
4-15-2008
THE PEOPLE, Plaintiff and Respondent, v. TREVORIS JERMAINE THOMAS et al., Defendants and Appellants.
NOT TO BE PUBLISHED
After a jury trial, codefendants Trevoris Jermaine Thomas and Justice Lamar Alleyne were found guilty of possessing and transporting cocaine base for sale from one county to a noncontiguous county (Health & Saf. Code, §§ 11351.5, 11352, subds. (a), (b).) Thereafter, the court found true enhancement allegations that defendant Thomas had previously been convicted of possession of a controlled substance for sale (Health & Saf. Code, § 11370.2, subd. (a)) and that defendant Alleyne had previously been convicted of a serious felony (Pen. Code, § 1170.12) and had served two separate prior prison terms (id., § 667.5, subd. (b)). Sentenced to 12 and 19 years in state prison, respectively, defendants Thomas and Alleyne appeal.
Undesignated statutory references are to the Penal Code.
Defendants contend (1) that the judgment is not supported by substantial evidence and that the trial court erred in: (2) denying a motion for a new trial for alleged jury misconduct, (3) admitting evidence of tattoos borne by each defendant, (4) imposing an upper term, (5) failing to vacate the conviction of transportation of cocaine base for sale, and (6) failing to award defendant Thomas an additional day of custody credit. Finding merit only in the two lattermost contentions, we shall modify the judgment accordingly and, as modified, affirm it.
FACTUAL AND PROCEDURAL BACKGROUND
On October 30, 2005, Sacramento City Police officers surrounded the Greyhound bus from Reno when it arrived that morning. After the passengers disembarked, the officers found a black Echo jacket with a fur collar on the overhead luggage rack near the rear of the bus. None of the passengers claimed the jacket. In the jacket, in plastic wrap, were lumps of rock cocaine, with a street value of approximately $40,000.
Defendant Thomas was among the first 10 passengers off the bus. He was wearing a sweat suit and had no jacket. He falsely identified himself as Trevoris White. He was detained.
Defendant Alleyne did not get off the bus with the other passengers. After getting up from a seat near the rear of the bus and initially moving toward the front of the bus, he returned and went to the rear restroom. He came out only after officers threatened to set loose a police dog if he did not. He declined to give his name. He was wearing a dark blue ski coat with a fur collar. He had $1,858 in cash in his pants pocket. He had a cell phone charger cord in another pocket. During the booking process with defendant Alleyne, he asked officers how they had known "we" were on the bus.
When the other passengers claimed their checked luggage and left, six pieces remained. Three of the bags were checked to a passenger identified as Chris White. The other three were checked to a passenger identified as Kevin Thomas. Greyhound records showed no mention of either defendant as a passenger, however, a Chris White had purchased passage for himself and a Kevin Thomas from Minnesota to Sacramento. One of the bags contained two distinct sizes of shoes and clothing. The two sizes were consistent with the defendants insofar as one is larger than the other. Also found in the bags, inter alia, were pictures of defendant Alleyne, a credit card in his name, a digital scale for gram weighing, an empty box for a prepaid cell phone, and two boxes of plastic baggies, one of which bore defendant Alleynes fingerprint.
Rufus Cooks, the Greyhound bus driver, testified as follows. He noticed defendants in Reno when they came out together to the bus before it was cleared for boarding. They were supposed to remain in the terminal so he directed them to go back inside. They were wearing jackets with big furry collars. He had thought one of the jackets was white or light colored, but had principally focused on the fur collars, one dark, one light. None of the other passengers had fur collars as far as he could recall. However, he was not positive that no one else might have had a puffy jacket with a fur collar.
The lighter complexioned of the two men Cooks saw together in Reno wore the lighter colored coat and asked Cooks a question during a brief stop in Colfax (to fix an air pressure problem with the brakes). Defendant Thomas has a lighter complexion than defendant Alleyne. At trial, Cooks could only say the defendants looked similar to the pair. However, he was "100 percent positive" that the two men who were detained on arrival in Sacramento were the pair he had first noticed in Reno. He could not be certain that the jackets at trial were those worn by the men, but the two collars were the same colors (one dark, one light) that he had seen in Reno.
Kevin Forson, a Greyhound terminal security guard, was looking into the bus on arrival when it was surrounded by the police. He saw defendant Thomas standing near the rear of the bus. Defendant Thomas took off his jacket and put it down on the seat or floor. When Forson next saw defendant Thomas, he was being handcuffed by police officers.
Both defendants were Chico residents. Each had "MOB" tattooed on his right upper arm.
Defendant Alleyne testified, in pertinent part, as follows. He denied involvement with the cocaine. The money had been earned through lawful employment. He admitted owning three of the bags. He said he had been traveling with another man from Minnesota to Sacramento, not defendant Thomas. The other man bought the tickets and the phone and checked the luggage. He knew nothing about the scale in the other mans luggage. The baggies were to store food purchased along the way for use on the bus. He had waited in the bus restroom on arrival because he was on parole and was aware he was unlawfully traveling outside the permitted distance from his home.
DISCUSSION
I. Sufficiency of the Evidence
Defendants contend that there is insufficient evidence to support the judgments. They argue: (1) without the evidence of Cooks, the driver, and Forson, the security guard, the evidence does not suffice and (2) the testimony of both witnesses is of little weight and is inherently improbable and must be entirely rejected. The arguments are unpersuasive and the contention of error is without merit.
We need not decide if the other evidence alone would suffice, as we find defendants claims about the testimony of Cooks and Forson unpersuasive.
We summarize the other evidence briefly: Someone on the bus discarded a jacket with bulk cocaine in it. Two African-American men on the bus traveled from Minnesota together under false names. One was notably darker in complexion than the other. Their possessions were comingled in luggage no one else claimed. The luggage contained baggies and a scale suitable for weighing bulk cocaine to sell. One of the men was defendant Alleyne. He hid in the restroom when he saw the police and had to be threatened to come out. He had a large amount of cash in his pocket and a cell phone charger, but no cell phone turned up. After he and defendant Thomas were arrested, he asked the police how they knew "we" were on the bus. Defendant Alleyne testified, allowing the jury to infer from demeanor that he was lying about his role and connection to defendant Thomas.
Defendant Thomas disembarked on a cold morning, having traveled from points east of Reno in very late October, with no coat or jacket. He gave a false name to the police. The last name he used is the same as the man who traveled with defendant Alleyne. Defendant Thomas carried no luggage and no unaccounted for luggage but that of the man who traveled with defendant Alleyne was on the bus. He is African-American and lighter in complexion than defendant Alleyne. Both defendants are Chico residents and they sport similar, unusual tattoos.
Defendants make two kinds of attacks on the testimony of each witness. They first argue (1) that the testimony actually does not add significant weight to the other evidence and (2) if it did, the entire testimony of the witness should be rejected as without credibility. As is frequently the case (see, e.g., Overton v. Vita-Food Corp. (1949) 94 Cal.App.2d 367, 370, disapproved on different grounds in Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 866, fn. 2), these arguments are unpersuasive. Defendants fail to assess the evidence in the requisite light, i.e., that most favorable to the prosecution. (People v. Davis (1995) 10 Cal.4th 463, 509.)
A.
Defendants argue that Cookss testimony adds no weight because Cooks was, in their words, "adamant that one of the two evidence coats could not have been one of those worn by the two men he saw." They point to the following passage in his cross-examination:
"[DEFENSE COUNSEL]: [Y]ou cant say for sure whether or not this was the jacket ...?
"[COOKS]: Correct.
"[¶] ... [¶]
"[DEFENSE COUNSEL]: You are fairly certain that one of these is not a jacket that was being worn by the two men in Reno. Correct?
"[COOKS]: "As far as the collar, yes, but the color of the collars are the same.
"[¶] ... [¶]
"[DEFENSE COUNSEL]: You told me at the time [of an earlier hearing] that one of them could be but the other one, no.
"[COOKS]: Correct.
"[DEFENSE COUNSEL]: And thats true today as well. Correct?
"[COOKS]: Correct."
However, when his testimony is read as a whole, Cooks was not adamant that the coat with the cocaine could not have been worn by defendant Thomas. He was "not for sure on the color of the jacket. In my mind the jacket was cream colored ...." In contrast, he was adamant about the incriminating similarity of the collar color of that jacket, the item on which he had focused:" ... but Im sure that collar was light colored." His admitted uncertainty about the jacket color does not eviscerate the thrust of Cookss damaging testimony. The certainty about the collar color was nonetheless an incriminating similarity. Moreover, in any event, he was "100 percent positive" that the two men who had been detained on arrival in Sacramento were the pair he had first noticed in Reno. This incriminating assessment was made at the time of the arrest when his recollection was fresh.
B.
Defendants also argue that Cookss testimony should be entirely rejected because he testified incorrectly that the police removed another man from the bus before defendant Alleyne. Cooks qualified this assertion: "I believe they took that person off the bus if I recall correctly." He did not watch the entire incident: "I went inside the building and then I came back out, and thats when they was bringing out the other one." He went inside because he was frightened.
Cookss mistake does not require rejection of the rest of his testimony. It can reasonably be ascribed to confusion or innocent misrecollection in part. As the Judicial Council of California, Criminal Jury Instructions (Jan. 2006), CALCRIM No. 226 provides, in part: "People sometimes honestly forget things or make mistakes about what they remember."
On issues involving the weight and value of the evidence and the credibility of the witnesses and determination of factual conflicts, we are not required to give credence to conflicting testimony. (See, e.g., People v. Gray (1960) 180 Cal.App.2d 594, 598.) We cannot reject the testimony of a witness supporting the judgment unless there exists either a physical impossibility that it is true or its falsity is apparent without resorting to inferences and deductions. (Ibid.) Cookss mistaken recollection was a legitimate point of criticism bearing on his credibility in the trial court. However, it does not permit the rejection of his entire testimony on appeal.
C.
Defendants argue that Forsons testimony, on its face, adds no weight because he did not implicate defendant Thomas as the man who took off the coat containing the cocaine. They note that he testified the man he saw was a shadow and he did not know at the time he saw him that it was one of the two men in the photos the officers had shown him. However, this critique rests on an improperly slanted version of Forsons testimony. The shadow comment referred to Forsons first notice of the man removing his coat. Forson did say he was not initially sure, "[i]t was a possibility in my head," that the disrober was one of the men. However, he was in a position to track the mans progress getting off the bus and saw defendant Thomass arrest. As a result, he was "99.5 percent" sure it was defendant Thomas whom he saw taking off the coat. This testimony does implicate defendant Thomas as the man who took off the coat containing the cocaine.
D.
Defendants lastly argue that Forsons testimony should be entirely rejected because: (1) he was incorrect as he said the man put the jacket down, but it was found up, on the overhead luggage rack; (2) a police officer standing in the area did not see anyone take a jacket off; and (3) it is unlikely defendant Thomas could have gotten from the back of the full bus to the front in time to be among the first 10 people off the bus.
None of these claims requires rejection of the crux of Forsons testimony. He could have been mistaken about the coat being placed down, or defendant Alleyne could have moved the jacket up. The nearby officers testimony did not contradict Forson, different witnesses see different parts of the whole. We cannot say it was impossible to leave the coat at the back of the bus and still get off pretty early. Perhaps defendant Thomas was actually only in the first 20 passengers off the bus. Perhaps an unusual number of passengers remained seated because the bus was surrounded by police and he was able to move to the front with alacrity. Once again, defendants points were legitimate criticisms bearing on Forsons credibility in the trial court; however, for reasons already given, they do not permit the rejection of his entire testimony on appeal.
II. Juror Misconduct
Defendants contend the trial court erred in denying their motion for new trial on the ground of misconduct of a juror. They argue that the jury foreman who is an engineer (Juror No. 9) committed prejudicial misconduct in applying "the law of probability" to the various items of circumstantial evidence in order to reach the conclusion that defendants were guilty. The trial court decided that the declaration in support of a new trial pertained to the mental processes of the juror and was inadmissible in evidence. The trial court did not err.
Jurors, of necessity, bring to their deliberations knowledge and beliefs about general matters of law and fact that find their source in everyday life and experience, including their education and professional work. (See In re Lucas (2004) 33 Cal.4th 682, 696.) Every assessment by a trier of fact of the weight of the evidence involves the conscious or implicit application of "laws" of probability. A jurors use of notions, assessments, or laws of probability does not amount to misconduct (cf. People v. Marshall (1990) 50 Cal.3d 907, 950) nor, per se, does it show reliance upon erroneous legal theory. (Compare People v. Venegas (1998) 18 Cal.4th 47, 82-83 with People v. Collins (1968) 68 Cal.2d 319, 332.)
"In the Evidence Code the Legislature has determined that certain facts may be proved to impeach a verdict. `Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined. (Evid. Code, § 1150, subd. (a).) This distinction between proof of overt acts, objectively ascertainable, and proof of the subjective reasoning processes of the individual juror, which can be neither corroborated nor disproved, has been advocated by commentators [citations] .... [¶] ... This limitation prevents one juror from upsetting a verdict of the whole jury by impugning his own or his fellow jurors mental processes or reasons for assent or dissent. The only improper influences that may be proved under section 1150 to impeach a verdict, therefore, are those open to sight, hearing, and the other senses and thus subject to corroboration." (People v. Hutchinson (1969) 71 Cal.2d 342, 349-350.)
The declaration in support of a new trial, in pertinent part, is as follows: "Juror [No.] 9, the Foreperson[,] then stated to me that he had taken some time at home on Saturday and listed all of the circumstantial evidence, making a list similar to the one [the prosecutor] had presented in his closing argument, and that he then `applied the law of probability to the list. Juror [No.] 9 said that, although there might have been an explanation for any one item on the list by itself, when he `applied the law of probability and considered all of the items together, he decided that [defendants] must be guilty."
The claimed misconduct presented in the declaration supporting the motion for a new trial addresses a jurors thought processes in reaching the verdict. However, as related above, the subjective reasoning processes of a juror are not open to proof. Since the declaration in support addressed only such matters, the trial court did not err in denying the motion for a new trial.
Defendants mention two statements by trial counsel in the course of the hearing. First, the prosecutor, in a rambling account of his recollection of the jurors remarks, indicated that the juror discussed the list of circumstantial evidence with other jurors. The account is ambiguous as to whether the juror said he stated any theory about a law of probability to other jurors and provides no information on the content of such a statement, if any. Second, one defense counsel asserted the juror said "there were ... like mathematical equations that he used in his profession as an engineer that he utilized in this law of probability to make actual calculations with."
None of these remarks in argument were adduced at the hearing as evidence. There was no request to adduce them as evidence. We note that the court expressly ruled on the sufficiency of the declaration submitted in support of the motion for new trial.
In any event, we cannot draw inferences against the judgment based on equivocal remarks. (See, e.g., 9 Witkin, Cal. Procedure (4th ed. 1997) § 349, pp. 394-396.) The prosecutors remarks are not an assertion that Juror No. 9 argued to other jurors that they also should apply a law of probability to decide the case. (Even if that were so, the conduct could well be immaterial, e.g., if the "law" were a valid one, properly applied.) Defense counsels remarks pertain solely to the mental processes of Juror No. 9 and, for reasons given in the text, are inadmissible. Moreover, those remarks fail to reveal that the use made by Juror No. 9 of the laws of probability was, in effect, erroneous.
III. Evidence of Defendants Tattoos
Defendants contend the trial court erred in ruling evidence that they both bore a similar tattoo on their right arms was admissible. They argue that the evidence was irrelevant and more prejudicial than probative. The arguments are unpersuasive and the contention of error has no merit.
The sole defense objection tendered in the trial court was that the tattoo evidence was irrelevant. However, that two people make the same unusual "fashion choice" is relevant to the issue of whether they are connected socially. As the saying goes, "Birds of a feather flock together." Each such cumulative point of similarity has a tendency in reason to prove such connection.
"`Relevant evidence means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.)
There was discussion outside the presence of the jury about undue prejudice of the evidence if additional evidence were adduced that defendants "MOB" tattoos were gang related. The court said it would exclude any such gang connection information. On appeal, defendants argue for the first time that the evidence was more prejudicial than probative because: "No rational juror could have failed to understand that the tattoo evidence was meant to be probative of gang membership ...." As this argument was not made in the trial court, it is precluded on appeal. (See Evid. Code, § 353.)
The trial court also said it found the evidence more probative than unduly prejudicial. However, in context, this statement was not addressed to prejudice from gang-related associations. It seems to have been addressed toward an implicit claim that the jury would simply overrate the probative value of the evidence.
IV. Upper Term Sentences
Defendants contend that the trial court erred in imposing upper term sentences. They argue the sentences were imposed based upon factors that were not subjected to a jury trial as required by Cunningham v. California (2007) 549 U.S. ___ , Blakely v. Washington (2004) 542 U.S. 296 , and Apprendi v. New Jersey (2000) 530 U.S. 466 . The arguments are unpersuasive as, for each defendant, the upper term was imposed based upon defendants record of prior convictions, a factor outside the precept on which they rely.
People v. Black (2007) 41 Cal.4th 799 concludes that "imposition of the upper term does not infringe upon the defendants constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendants record of prior convictions." (Id. at p. 816, italics added.) Accordingly, "[t]he issue to be determined in each case is whether the trial courts factfinding increased the sentence that otherwise could have been imposed, not whether it raised the sentence above that which otherwise would have been imposed." (Id. at p. 815.)
Under rule 4.421(b)(2) of the California Rules of Court, circumstances in aggravation include that "[t]he defendants prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness." The prior convictions and sustained petitions to which the trial court pointed meet this criterion.
Defendant Alleyne argues that sustained juvenile petitions may not be considered as within his record of prior convictions for enhancement purposes. We have rejected a closely parallel view in People v. Palmer (2006) 142 Cal.App.4th 724, 727 and reject defendant Alleynes claim for the reasons given therein. Because one legally sufficient aggravating circumstance was justified based on the defendants records of priors, the trial courts finding of additional aggravating circumstances did not violate defendants constitutional rights under Black.
V. Lesser Included Offense
Defendants contend the trial court erred in failing to vacate sua sponte the conviction of the offense of transportation of cocaine base for sale under Health and Safety Code section 11352, subdivision (a). They argue that conviction must be vacated as the offense is a lesser included offense of transportation of cocaine base for sale from one county to a noncontiguous county under subdivision (b) of the statute, of which they were also convicted. The Attorney General concedes the point; we accept the concession. (See, e.g., People v. Montoya (2004) 33 Cal.4th 1031, 1034.)
Health and Safety Code section 11352 states as follows:
"(a) Except as otherwise provided in this division, every person who transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell, furnish, administer, or give away, or attempts to import into this state or transport ... any controlled substance specified in [statutory references omitted], unless upon the written prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in this state, shall be punished by imprisonment in the state prison for three, four, or five years.
"(b) Notwithstanding the penalty provisions of subdivision (a), any person who transports for sale any controlled substances specified in subdivision (a) within this state from one county to another noncontiguous county shall be punished by imprisonment in the state prison for three, six, or nine years."
VI. Custody Credits
Defendant Alleyne contends that the trial court erred in failing to grant him an additional day of preimprisonment custody credit (§ 4019). The Attorney General concedes the point; we accept the concession.
DISPOSITION
The judgment for both defendants is modified by striking the conviction under Health and Safety Code section 11352, subdivision (a)—count three. The judgment of defendant Alleyne is modified by awarding him an additional day of credit (actual credits of 265 days, and total credits of 397 days). As modified, the judgments are affirmed. The trial court is directed to prepare amended abstracts of judgment reflecting the modifications and to forward certified copies of the amended abstracts to the Department of Corrections and Rehabilitation.
We Concur:
SCOTLAND, P.J.
HULL, J.