Opinion
D039250.
7-25-2003
THE PEOPLE, Plaintiff and Respondent, v. VERNON TOWNER, Defendant and Appellant.
Vernon Towner appeals from judgment of conviction for a number of drug-related offenses. He contends that the trial court erred in excluding his proffered impeachment evidence relating to the police officers who testified regarding his involvement in the underlying incident and in denying his motion to conduct forensic testing of the rock cocaine the officers alleged he had in his possession at the time of his arrest. We find Towners arguments unavailing and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On the afternoon of May 2, 2001, San Diego police officers conducted an undercover drug operation near Seventh Avenue and C Street, an area where rock cocaine sales regularly occur. Dressed in plain clothes, Officer Dawn Wolfe approached Towner, Wellington Fuller and another man, who were sitting together on a planter box, and asked them whether they had cocaine base to sell. Towner motioned for Wolfe to come closer and asked her "how much?" Wolfe replied "twenty" and showed him a $ 20 bill. Towner told Wolfe to give Fuller the money and began to rummage around in the breast pocket of his jacket. He took several small pieces of cocaine base from his pocket and showed them to Wolfe, who objected that the pieces were just "kibbles."
Towner assured Wolfe he would "take care" of her and started digging through his pocket again. As Fuller tried to help Towner remember where he might have other drugs, Laurrano Caberera approached the group, holding out some rock cocaine. Fuller pulled Caberera aside briefly for a private conversation and, after the men returned to the planter, waved for Wolfe to move away so that the men could finish "dealing weight." Caberera sold Towner a number of pieces of cocaine and Fuller walked over to Wolfe and handed her one of them. Wolfe complained that the piece was too small, but Fuller shooed her away, indicating that was all she was going to get.
Wolfe walked away and gave a buy-bust signal to fellow officers, who arrested the three men. Officer Michael Pidgeon arrested Towner and found six pieces of cocaine base, a baggie of marijuana and $ 451 in cash (consisting mostly of $ 20 bills) in Towners pockets. Officer Pidgeon saw that Towner had something in his mouth and after Towner complied with his request to spit it out, Pidgeon retrieved a cocaine piece from the ground. The officers also found $ 130 in cash, including the $ 20 bill Wolfe had given to Fuller, in Cabereras pants pocket. One of the officers saw Fuller try to hide something behind him and found a small piece of rock cocaine in the planter box where Fuller had been sitting.
The District Attorney charged Towner, Fuller and Caberera with selling cocaine base, possession of cocaine base for sale, possession of a controlled substance and conspiracy to sell a narcotic substance. Although the court initially appointed counsel for Towner, it later granted Towners motion to represent himself in the proceedings. Towner made a successful Pitchess motion to discover certain records from the personnel files of Officers Wolfe and Pidgeon, based in part on Towners apparent contentions that Wolfe falsely accused him of involvement in the transaction and that Pidgeon had planted the rock cocaine on him at the time of arrest. (Pitchess v. Superior Court (1974) 11 Cal.3d 531, 113 Cal. Rptr. 897, 522 P.2d 305.)
Towner requested approval from Private Conflicts Counsel (PCC) to conduct DNA testing on the rock cocaine impounded from him to determine whether any of it was in his mouth at the time of arrest, as Officer Pidgeon had testified at the preliminary hearing. PCC denied Towners request, but referred him to forensic expert Richard Whalley. Towner spoke to Whalley and, shortly before the trial date, Towner requested a continuance to permit him time to access resources (including phones and the jail law library) and allow his investigator time to locate and interview witnesses, including those identified in the Pitchess proceedings.
At the time of trial, Towner argued in favor of his request for a continuance, adding an argument that he needed to have the rock cocaine DNA tested for the presence of saliva. The court conducted a hearing in which it spoke by phone with Whalley, who indicated that DNA testing might reveal whether the rock cocaine had been in Towners mouth, although environmental conditions could reduce the likelihood of finding DNA. Whalley identified two local DNA experts who could perform such testing.
The court also spoke to PCC director Patricia Robinson. Robinson indicated that PCC had denied Towners request for DNA testing because he had not disclosed the allegation that he had some of the cocaine in his mouth, but that in light of such an allegation the testing would be appropriate. After the court stated that there was only a one-week window for having the testing done, Robinson recommended a lab in Long Beach and offered to check on the time it would take for the lab to do the testing. PCC apparently informed the court that the testing would take two to six weeks. The court granted Towner a one-week continuance, but declined to allow additional time for DNA testing on the grounds that Towners request was untimely and that the testing would have little evidentiary value to him (at best, showing no DNA or, at worst, establishing that his DNA was present).
At trial, the prosecution introduced testimony from Officers Wolfe and Pidgeon, as well as other officers involved in the arrest, about the incident. Still representing himself, Towner took the stand and testified that he did not sell, intend to sell or possess any cocaine base at the time of the incident, indicating that Wolfe had purchased the cocaine from Fuller and an unidentified young woman. He admitted that at the time the officers arrived, he was chewing on something but he thought he swallowed "whatever it was" and opined that the officer arrested him because, when asked whether he had swallowed cocaine base, he responded "one never knows." Towner also testified that the police arrested him because they learned he had a prior record. Towner called William Calhoun, a transient, who testified that he had never known Towner to sell drugs or jewelry, to commit a crime or to associate with people who openly dealt drugs.
The prosecution called Fuller as a rebuttal witness, but Fuller corroborated Towners testimony that Wolfe had purchased the drugs from him and a young woman named Cindy. The prosecutor then introduced Fullers written guilty plea in which he admitted that he had committed the charged offenses with Towner and Caberera (who Towner referred to at trial as "Mr. Charley"), as well as evidence that Fuller had told his probation officer that he had assisted Towner in selling the drugs to Wolfe.
The jury found Towner guilty of all charges and, in a bifurcated proceeding, made true findings that he had committed two prior strikes. The court later granted Towners motion to strike one of the priors and sentenced him to a 10-year prison term.
DISCUSSION
1. Denial of Continuance to Conduct DNA Testing
A trial court may grant a continuance in a criminal trial only on a showing of good cause. (Pen. Code, § 1050, subd. (e); People v. Beeler (1995) 9 Cal.4th 953, 1003, 891 P.2d 153.) Whether to grant a request for a continuance is within the sound discretion of the trial court, although the court may not exercise that discretion in a manner that deprives the defendant of a reasonable opportunity to prepare. (People v. Sakarias (2000) 22 Cal.4th 596, 646, 995 P.2d 152.) It is the defendants burden to establish an abuse of discretion and an order denying a request for a continuance " is seldom successfully attacked." (People v. Beeler, supra, 9 Cal.4th at p. 1003.) Applying these standards, we find no abuse of discretion here.
Factors to be considered in determining good cause are (1) whether the defendant has exercised due diligence to secure the evidence, (2) the materiality of the evidence to be obtained, (3) whether the evidence is obtainable within a reasonable time and (4) whether alternative methods of proof exist. (People v. Roybal (1998) 19 Cal.4th 481, 504, 966 P.2d 521; People v. Beeler, supra, 9 Cal.4th at p. 1003.) Here, Towner did not establish diligence in seeking authorization for the DNA testing. He was informed of Officer Pidgeons proffered testimony at the May 17 preliminary hearing, a time when he was still represented by counsel. After Towner began representing himself a month and a half later, the court authorized his use of a legal runner and an investigator and set trial for October 1 to allow him time to prepare. Although Towner sought DNA testing authorization from the PCC at some unspecified prior time, he did not raise the issue with the court until October 1, the date set for trial.
In addition, Towner has not established that the materiality of the evidence justified a continuance. Towner contends that the DNA testing was material because it would bear on the truthfulness of Officer Pidgeons testimony that Towner had rock cocaine in his possession at the time of arrest, which in turn might affect Pidgeons credibility with the jury. However, Whalley told the court that he could not specify the likelihood that DNA testing might reveal the presence of DNA from the rock cocaine and that environmental factors (particularly, if the rock cocaine piece was spit out onto the ground) might affect the test results. Further, Officer Wolfe was prepared to testify that Towner had rock cocaine in his possession at the time of the drug transaction and Fuller had made incriminating statements in pleading guilty to the charges against him, thus diminishing the significance of the proposed evidence. Towners admission at trial that he had something in his mouth at the time Officer Pidgeon arrested him (although not known to the trial court when it ruled on his continuance request) suggests that the materiality of the evidence was not nearly as strong as Towner contends.
Towner has not shown the court abused its discretion in denying his request for a continuance. (People v. Roybal, supra, 19 Cal.4th at p. 504.)
2. Exclusion of Proffered Impeachment Evidence Regarding Wolfe and Pidgeon
During trial, Towner sought to admit evidence relating to the credibility of Officers Wolfe and Pidgeon. As to Officer Wolfe, Towner proffered evidence that she had interfered with California Highway Patrol Officers Paul Segal and Michael Lopez on an occasion when they stopped Wolfes sister for driving under the influence. As to Officer Pidgeon, Towner sought to introduce evidence that Richard Beitz had filed a complaint against the officer for stealing Beitzs gold wedding band, two gold earrings and a tongue ring, which Pidgeon had impounded from Beitz in an arrest unrelated to the incident in question.
Based on Towners proffer, the court conducted a hearing pursuant to Evidence Code section 402 in which Officer Lopez testified that at the time he stopped Wolfes sister, Wolfe identified herself as a police officer but initially refused to show her identification. Lopez also testified that Wolfe advised her sister not to submit to a field sobriety test, which was a voluntary test, and that Wolfe was generally agitated and angry. Officer Segal testified that Wolfe initially interfered with his investigation and that, after her sister was arrested, she made a false administrative complaint against him, which prompted him to file a similar complaint against her.
Towner also called Beitz, who testified that Officer Pidgeon was the impounding officer for the missing items, he believed Pidgeon had stolen the items and that the police departments risk management department issued him a check for $ 1,065 for the missing items. Beitz also testified that an Internal Affairs investigation was ongoing at that time.
The prosecutor objected that the proffered testimony by Segal and Lopez was irrelevant because Wolfes advice to her sister was consistent with the law and there was no showing that her complaint against Segal was false, but instead reflected a difference in the officers opinions as to how the investigation should have been handled. The prosecutor argued that the court should exclude Beitzs testimony because although it was undisputed that the jewelry was missing, there was no evidence that Pidgeon had stolen it. The court excluded all of the proffered evidence for lack of foundation and lack of relevance.
Unless precluded by statute, evidence is admissible to attack the credibility of a witness if it will establish a fact that has a tendency in reason to disprove the truthfulness of the witnesss testimony. (Evid. Code, § 210.) However, the trial court is vested with wide discretion in determining whether evidence is relevant under this standard. (People v. Kelly (1992) 1 Cal.4th 495, 523, 822 P.2d 385.) Further, as with all relevant evidence, the trial court retains broad discretion to admit or exclude evidence offered for impeachment purposes. (Evid. Code, § 352; People v. Ayala (2000) 24 Cal.4th 243, 282-283.) We review a trial courts exercise of such discretion for abuse and will not disturb its decision unless the defendant shows that the exercise of discretion was arbitrary, capricious or patently absurd and resulted in a manifest miscarriage of justice. (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10, 971 P.2d 618.)
Towner argues that the trial court erred in excluding the proposed testimony of Lopez and Segal because it showed that Wolfe engaged in "obstructionist behavior [that] hampered [the officers] investigation of suspected drunk driving." However, as established by the record, Wolfes only alleged "obstructionist" conduct consisted of her agitation at the scene and her advice that her sister not submit to a voluntary field sobriety test. Such conduct does not implicate Wolfes tendency or character for untruthful or dishonest behavior. The fact that Wolfe identified herself to Lopez and Segal as a police officer, standing alone, might have some relevance to the issue of her ethical standards; however, the trial court could reasonably have concluded that Wolfes refusal to provide proof of her occupation in response to the officers requests minimized such relevance. Further, in the absence of specific challenges or reasons for his conclusion, Segals general characterization of Wolfes complaint against him as false is not sufficient to cast doubt on Wolfes character traits for honesty or veracity. Similarly, the trial court could have reasonably concluded that Beitzs testimony was too speculative to be relevant in establishing Pidgeons character for veracity.
Towner aptly notes the California Supreme Courts repeated observation that "wise advice for trial judges in criminal cases [is that] "whenever the evidence proposed by the defense is not plainly inadmissible, it is better to let it go in, since, in nine cases out of ten, a single equivocal fact, of doubtful bearing upon the case, would have no effect upon the judgment of the jurors, who are usually disposed to pass . . . upon the general merits [of the charges.]"" (People v. Wright (1985) 39 Cal.3d 576, 584-585, 217 Cal. Rptr. 212, 703 P.2d 1106, quoting People v. Murphy (1963) 59 Cal.2d 818, 829, 31 Cal. Rptr. 306, 382 P.2d 346.) Although the trial court did not follow this sage advice here, we cannot conclude that it exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice so as to require a reversal of the judgment.
DISPOSITION
The judgment is affirmed.
BENKE, Acting P. J., AARON, J., We Concur.