Opinion
NOT TO BE PUBLISHED
APPEALS from judgments of the Superior Court of Los Angeles County, Ct. No. YA071281 James R. Brandlin, Alan B. Honeycutt, and Sandra Thompson, Judges.
Jonathan B. Steiner and Ronnie Duberstein, under appointments by the Court of Appeal, for Defendant and Appellant Eric Devon Turner.
Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant Sheldon Ashley Stephens.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Michael C. Keller and Beverly K. Falk, Deputy Attorneys General, for Plaintiff and Respondent.
EPSTEIN, P.J.
Codefendants Eric Devon Turner and Sheldon Ashley Stephens appeal their convictions on charges involving the sale of cocaine base. Appellant Turner claims the evidence is insufficient to support his conviction because the instructions and verdict forms referred to cocaine instead of cocaine base. He claims the judgment must be reversed because the jury was not given a unanimity instruction, and asserts error in the court’s refusal to order disclosure of the identity of the confidential informant mentioned in the search warrant affidavit. He also asks this court to conduct an independent review of the sealed transcript of the Pitchess hearing to determine if additional police personnel information should have been disclosed. Appellant Stephens asserts the court abused its discretion in refusing to strike his prior conviction, and asks that we correct an error in the abstract of judgment. He also joins in Turner’s arguments. We find no error or abuse of discretion and affirm the judgments as modified by correction of the abstract.
Pitchess v. Superior Court (1974) 11 Cal.3d 531.
FACTUAL AND PROCEDURAL SUMMARY
Detective Joseph Carillo of the Los Angeles County Sheriff’s Department received information that drug sales were occurring in rooms 38 and 14 of the Crenshaw Holly Motel. He obtained a search warrant to look in those rooms for evidence of rock cocaine sales. On the afternoon of April 2, 2008, he led a team of undercover officers from the Gang and Narcotics Enforcement Team (GANET) in conducting surveillance of these two rooms at the motel. Detective Edward Zimmerman was the “eye” of the surveillance, positioned where he had a good view of the motel property. Detective Carrillo could not see what was happening at the motel, but was in radio and phone communication with the other team members.
Detectives Bernadette Gambino and Richard Maier, dressed in plain clothes, drove into the motel parking lot in an unmarked vehicle. They saw appellant Stephens seated on a bucket just under the stairs of the motel. Stephens walked over to the car and asked Maier what he needed. Maier believed he was being asked if he needed “any type of narcotics.” He told Stephens he was waiting for someone, and would deal with him later.
The detectives moved into a parking space where they stayed for about 30 minutes, primarily watching room 38, which was upstairs, and room 14, which was directly underneath room 38. They saw codefendant Jason Jones go in and out of room 38 several times. Detective Maier saw a female come out of a room five doors away from room 38. The woman handed something to Jones, he gave her something back, and she returned to her room. Maier could not see what was being exchanged, but he believed he had witnessed a narcotics transaction. Detective Maier also saw a male ride into the parking lot on a bicycle, meet with Jones on the second floor balcony, and engage in a hand-to-hand transaction. The man returned to his bicycle and rode off. Jones came downstairs and drove away.
Detectives Maier and Gambino left the parking lot and met with other members of the GANET team. They decided to attempt a purchase of rock cocaine at the motel, followed by execution of the search warrant. Maier obtained two pre-recorded $20 bills and returned to the motel with Gambino. Stephens was sitting on the bucket in the parking lot. Maier motioned for him to come over, and “asked him if he could hook me up.” What Maier was asking was for Stephens to get him some rock cocaine. Maier handed Stephens the pre-recorded $20 bills. Stephens said he would be right back, and went upstairs into room 38 of the motel.
While Stephens was upstairs, a man in a camouflage jacket arrived on a bicycle and knocked on the door of room 15. Codefendant Julie Normil opened the door. The two had a conversation, the man gave Normil some money, and she went up the stairs toward room 38. As Normil walked up the stairs, she passed Stephens, who was coming down. Stephens handed Maier four pieces of rock cocaine, which Detective Maier considered a usable quantity. As Detective Gambino started the car, Stephens asked Maier for more money. Maier gave him a beer instead. Stephens went back to his seat on the bucket, and Gambino moved the car across the parking lot against the wall, where they had an unobstructed view of the motel. Maier alerted the team to the completed sale, and the search warrant was executed.
The search team included eight or nine deputies wearing full tactical gear. The officers, including Detective Carrillo, first went to room 38. Julie Normil was outside that room. Carrillo ordered her to get down on the ground, and she complied. He saw the curtains of room 38 open, then close. Carillo knocked on the door and announced they were serving a warrant. The door was locked and there was no answer. Based on the curtain movement, Carrillo believed it was necessary to break the door open. When the officers did so, they found a dresser was in front of the door, blocking their entry.
Upon entering the room, they found appellant Eric Turner and codefendant Jones, sitting on the bed, watching television. He ordered them to the ground, and asked whose room it was. Turner said it was his. Detective Carrillo found a baggie of marijuana on the nightstand. Inside the kitchenette area of the room, he found “small little particles of what appeared to be rock cocaine on the countertop.”
According to the motel registration card, Turner had rented room 38 on April 1, 2008, paying $50 in cash, and then paid an additional $50 in cash for April 2.
Detective Zimmerman noticed that the curtain on the window in the kitchenette area was pulled to the side, and a glass louver panel was missing from the window. Looking through the window, he saw a baggie of rock cocaine on the ground below. Zimmerman and Carrillo went downstairs and recovered the baggie. Carrillo estimated the street value of the rock cocaine in the baggie to be between $400 and $500. In his opinion, the contents of that baggie and the four rocks of cocaine sold to Detective Maier matched in consistency and quality.
Carrillo searched Turner and recovered the two pre-recorded $20 bills that Maier gave to Stephens to purchase rock cocaine. Turner also had another $20 bill, two $5 bills, and a razor blade in his pocket. Jones had $50, and Normil had $60. No paraphernalia was found in the room, and neither Turner nor Jones appeared to be under the influence of cocaine.
The deputies also searched room 14. One person was in the room, but he was not arrested.
Stephens, Turner, Normil, and Jones were charged with selling, transporting, and offering to sell cocaine base in violation of Health and Safety Code section 11352, subdivision (a)(1) and Turner and Jones were charged with possession for sale of cocaine base in violation of section 11351.5; prior convictions also were alleged. The charges against Normil were resolved through an open plea. The remaining three defendants were tried and found guilty. This is a timely appeal by Stephens and Turner; Jones’s appeal is pending in case No. B216768.
All statutory references are to the Health and Safety Code unless otherwise indicated.
DISCUSSION
I
Appellants claim the evidence was insufficient to support their convictions because the jury instructions and jury verdicts referred to cocaine rather than cocaine base, as charged in the information.
The amended information charged Stephens and Turner with selling, transporting or offering to sell cocaine base, in violation of section 11352, subdivision (a) (counts 1 and 5), and Turner was charged with possession for sale of cocaine base, in violation of section 11351.5 (count 4). Greater punishment is proscribed for possession for sale of cocaine base (§ 11351.5 [state imprisonment for three, four, or five years]) than for possession of cocaine for sale (§ 11351 [state imprisonment for two, three, or four years]).
The information unambiguously charged appellants with offenses involving cocaine base. Unlike People v. Adams (1990) 220 Cal.App.3d 680, 687-688, where the criminalist identified the substance as cocaine but did not mention cocaine base, criminalist Victor Wong testified that the substances recovered in this case and submitted to him for testing contained cocaine base. There was substantial evidence to support the guilty verdicts on the charged offenses.
This case is more like People v. Martin (2008) 169 Cal.App.4th 822, in which the information and the evidence named the controlled substance at issue as cocaine base. The jury was correctly instructed on the elements of the crime of possession of a controlled substance, but the written instructions and the verdict forms both listed that substance as cocaine, not cocaine base. Noting that defense counsel contributed to the confusion by referring to the substance as cocaine, and also had the opportunity to alert the trial court to the confusion over the name but failed to do so, the court held appellant had forfeited the issue. (169 Cal.App.4th at pp. 826-827.)
In this case, too, the jury was correctly instructed on the elements of the charged offenses, but the instructions, the verdict forms, some of the testimony, and much of the argument by the prosecutor and defense counsel identified the controlled substances at issue as cocaine, not cocaine base. Defense counsel contributed to the confusion, and did not alert the trial court to the problem. Under these circumstances, we agree with the Martin court that the issue has been forfeited.
Even if the issue was not forfeited, we find no prejudice from the conflicting references. There was no ambiguity in the criminalist’s identification of the substance as cocaine base. There was no cocaine other than cocaine base recovered in this case, so there was no likelihood of confusion between two types of controlled substances. Instead, the jury was likely to consider references by the witnesses and by counsel to cocaine, and the designation in the jury instructions and verdict forms to cocaine, as a short form for the only substance at issue in the case-cocaine base. But to avoid even the possibility of confusion, we join the admonition in Martin that courts and counsel “be particularly careful that all references to a controlled substance name the correct controlled substance.” (169 Cal.App.4th at p. 827.)
II
Turner claims his conviction of possession of cocaine base for sale must be reversed because the court failed to give a unanimity instruction. In a criminal case, a jury verdict must be unanimous, and the jury must agree unanimously that the defendant is guilty of a specific crime. (People v. Russo (2001) 25 Cal.4th 1124, 1132.) “[W]hen the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act.” (Ibid.)
Turner argues that he could have been convicted of possession for sale based either on the substance found on the kitchen counter, or on the substance in the baggie found outside, below the kitchen window. Given the state of the evidence, he claims a unanimity instruction was required.
Contrary to Turner’s assertion, there was neither evidence nor argument that his possession for sale was based on the substance found on the kitchen counter. Detective Zimmerman testified that he found “some small, some very small minute pieces of what appeared to be rock cocaine on a kitchen counter.” This looked to him like an amount consistent with use by one person. He agreed that the amount was “too small to be further cut up to be effectively sold[.]”
Victor Wong, the criminalist who tested the substances recovered in this case, identified the substance retrieved from the kitchen counter and introduced at trial as People’s Exhibit 21 as “0.07 gram[s] of solid substance containing cocaine (in the base form).” He testified that he had no training or experience as to what minimum weight would constitute a usable amount of rock cocaine. No evidence was presented about the street value of the substance found on the kitchen counter.
In comparison, the baggie found on the ground outside room 38 contained a total of 5.16 grams of solid substance containing cocaine. Detective Carrillo estimated the street value of rock cocaine in that baggie to be between $400 and $500. It was Detective Maier’s opinion, based on the quantity of rock cocaine contained in that baggie, that it was possessed for sale, not for personal use.
In closing, the prosecutor argued that the possession element of the charges against appellant could be based on “the cocaine that was found on the kitchen counter and the cocaine that was thrown out the window of room 38 when the police were serving the search warrant.” He also argued that the cocaine found on the counter in plain view showed that appellant knew of its presence. But the prosecutor did not argue that the charges of possession for sale could be premised solely on the substance found on the kitchen counter.
The jury was instructed on the lesser included offense of simple possession of cocaine.
Defense counsel asked the jurors to use their common sense when looking at the photographs of the cocaine recovered by the officers. “They don’t even appear to be the same type of cocaine, from the same mix. There’s been expert testimony about that. And that white cocaine, the smaller bits of it that’s supposedly found on a kitchen counter in No. 38. There’s expert testimony that says that really wasn’t an amount that could have been sold. And also you can look at it. They’re just basically crumbs.”
“A unanimity instruction is not required if the evidence shows one criminal act or multiple acts in a continuous course of conduct.” (People v. Jantz (2006) 137 Cal.App.4th 1283, 1292.) Here, evidence of cocaine base “crumbs” on the kitchen counter and the large quantity of cocaine base in rock form contained in the baggie found outside the window supported the prosecution theory that cocaine base was cut into smaller rocks on the kitchen counter, then stored in the baggie which was thrown out the window as the detectives arrived for the search. This continuous course of conduct was essentially one criminal act, not separate acts of possession for sale about which the jurors could disagree. No unanimity instruction was required.
We also disagree with appellant’s speculation that some jurors might have relied solely on the substance found on the kitchen counter. The evidence was that the very small quantity of cocaine base on the counter was a usable amount; no evidence was presented that it was a quantity sufficient for sale. There was no reasonable likelihood that the verdict was premised only on the cocaine base found on the kitchen counter.
III
Appellant Turner claims the trial court erred in denying his motion for disclosure of the identity of the confidential informant upon whose information the detectives relied in obtaining the search warrant for room 38 of the Crenshaw Holly Motel. Turner argued that the informant might have exculpatory evidence on the issue of his guilt on count 4, possession of cocaine base for sale.
If an informant is a material witness in a criminal case, the prosecution must disclose his or her name or suffer dismissal of the charges against the defendant. (People v. Lawley (2002) 27 Cal.4th 102, 159.) “An informant is a material witness if there appears, from the evidence presented, a reasonable possibility that he or she could give evidence on the issue of guilt that might exonerate the defendant.” (Ibid.) It is defendant’s burden to adduce “‘“‘some evidence’”’ on this score.” (Ibid.) Appellant did not meet this standard.
In his affidavit in support of the search warrant, Detective Carrillo stated he had received information from a reliable confidential informant within the past 10 days that two individuals were selling rock cocaine from rooms 38 and 14 of the Crenshaw Holley Motel. The informant had purchased rock cocaine from these individuals, at this location, on several occasions, most recently within the past two weeks. Detective Carrillo arranged for the informant to make controlled purchases from rooms 38 and 14 while detectives watched from outside. For one of the transactions, the informant knocked on the door of room 38, someone opened the curtains and the door, and the informant entered the room for approximately five minutes. Another transaction was completed at the door of room 14; the informant did not enter that room.
In urging disclosure of the identity of the informant, Turner noted that one of the prosecution’s theories on the charge of possession for sale was that he had constructive possession of the baggie of cocaine base found on the ground outside the motel, underneath the window of room 38, where he was registered on April 2 and 3. Room 14 was on the first floor, directly below room 38. Turner expected to present the defense that the baggie had come from room 14, or had come from room 38 before he rented it and the informant “could have been there just previously and just have left.” It was Turner’s position that the informant might have been able to say whether he had seen a baggie containing rocks of cocaine when making purchases at an earlier time, or whether the baggie was on the ground before he rented the room.
The affidavit and resulting search warrant were dated April 1, 2008. That was the same date appellant Turner registered for room 38 at the Crenshaw Holly Motel. The parties stipulated that Turner and codefendant Jones did not rent room 38 from March 15 to March 31, 2008. Any observations of the confidential informant thus would have preceded Turner’s occupancy of the motel room and could not have provided exculpatory evidence.
We also are unpersuaded by Turner’s argument that the informant could have provided information about the baggie found outside. The informant did not enter room 14 at the time of the controlled buy, and there was no suggestion that the informant was present at the motel or inside room 38 or 14 during the time he rented room 38. More importantly, it is not reasonable that a baggie containing 5.16 grams of cocaine base, with a street value between $400 and $500 would have remained on the ground outside a window at a motel known for drug sales for any lengthy period of time.
Turner did not establish a reasonable possibility that the informant could provide exculpatory evidence on the issue of guilt. The trial court properly denied his motion to disclose the identity of the informant.
IV
Appellant Turner asks that we conduct an independent review of the reporter’s transcript of the trial court’s in camera examination of the police personnel records to determine whether any documents were incorrectly withheld. (See People v. Mooc (2001) 26 Cal.4th 1216. 1228-1232.) We have done so, and find no basis for the release of additional information about complaints made with respect to any of the involved officers.
V
Appellant Stephens claims the trial court abused its discretion in denying his motion to dismiss his prior strike conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. We disagree.
A trial court has the authority, in furtherance of justice, to dismiss an allegation or vacate a finding that a prior serious or violent felony conviction constitutes a strike within the meaning of the “Three Strikes” law. (Romero, supra, at p. 504; Pen. Code, §1385.) In making that decision, the court “must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.” (People v. Williams (1998) 17 Cal.4th 148, 161.) We review the court’s decision whether or not to strike a prior conviction for abuse of discretion. (Id. at p. 152.)
Defense counsel argued that Stephens had well-documented mental health and substance abuse problems, that these problems had not been alleviated during his prior prison terms, and that there was a Volunteers of America program which would focus specifically on his needs. Counsel noted that the prior serious felony conviction for terrorist threats occurred because appellant thought one of his brothers “was manipulating the family’s estate situation in the wake of the father’s death....” This prior conviction was in 1997, which counsel argued was remote. Counsel also argued that the current offense was relatively minor and nonviolent.
The court considered Stephens’s arguments, but concluded it was “very difficult for me to deny what happened and the history that he has, and so I have to deny the motion.” That history included five prior prison convictions related to possession of cocaine, dating from 1994 to 2003. He also suffered a conviction for vandalism, violated parole eight times, and was on parole when he committed the current offense. Given this extensive record, and Stephens’s repeated unsuccessful performance on parole, we find no abuse of discretion in the court’s denial of his motion to strike the prior felony conviction.
VI
Appellant Stephens asks that the minute order and abstract of judgment be corrected to reflect the oral judgment pronounced by the court, which was a doubling of the middle term plus two one-year enhancements for priors, rather than a doubling of the upper term with no enhancements. We agree.
The trial court sentenced Stephens to 10 years. The prosecutor asked the court to clarify its calculation: “Just so the record is clear, did the court come up with 10 years based on mid-term double[d] and (2) 1-year priors?” The court replied, “Yes. Because as I recollect it, Mr. Stephens at the time of the prior trial, there was an agreement between you to dismiss some of the priors.” The prosecutor agreed, and the court indicated it wanted “to make sure that happens.” The prosecutor explained that Stephens admitted five priors, two of which were to be stricken, but the court was striking three priors. The court corrected itself: “Did I inadvertently strike a prior? Please forgive me. I’m so sorry. I meant for it to be the 11 years.”
At this point, defense counsel explained: “My understanding of the agreement that we had was that only two of the priors would go forward.” The prosecutor acceded to that position: “Your honor, if there was a misunderstanding, I will agree to strike the remaining priors if we can get 10 years.” The court proceeded to sentence appellant to 10 years.
Respondent argues that the court struck all the priors and sentenced Stephens to the upper term, doubled. We disagree with this interpretation, since the court articulated no such intention or reason for imposing the upper term. We understand this colloquy as demonstrating the court’s intent to sentence Stephens to the mid-term, doubled, with
one-year enhancements for two priors. The minute order and abstract of judgment should be corrected accordingly.
DISPOSITION
The judgment as to appellant Turner is affirmed. With respect to appellant Stephens, we direct the clerk of the superior court to correct the abstract of judgment as discussed in this opinion. The judgment, as corrected, is affirmed.
We concur: WILLHITE, J., MANELLA, J.