P. v. Houston

P. v. Houston

Filed 8/28/08 P. v. Houston CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, Plaintiff and Respondent, v. FRANCES TAWANA HOUSTON, Defendant and Appellant.

2d Crim. No. B200461 (Super. Ct. No. KA078207) (Los Angeles County)

A jury found Frances Tawana Houston guilty of possession of cocaine base for sale (Health & Saf. Code,  11351.5) and possession of marijuana for sale (Health & Saf. Code,  11359). In a bifurcated proceeding, the trial court found Houston served two prior prison terms for violations of Penal Code section 666. (Pen. Code, 667.5.)

On appeal, Houston contends the prosecutor committed misconduct by failing to redact reference to her prior criminal history from a recording of her statement to the police. She also contends she received ineffective assistance of counsel when her counsel failed to ensure the redaction. We affirm.

FACTS

On February 9, 2007, five police officers searched Houston's apartment in Covina. One of the officers had a dog that was trained to sit down when it scented narcotics. The dog sat down in front of a closet that contained a lockbox. Inside the lockbox were a digital gram scale, packaging material and 23 individually packaged small bags of marijuana. The net weight of the marijuana was 308 grams, more than a half pound. The police did not find any paraphernalia for using drugs.

Under the driver's seat of Houston's car, the police found a large plastic bag containing nine small bags of marijuana and a nonprescription pain reliever bottle. Inside the bottle were 19 individually wrapped rocks of cocaine.

Based on the cocaine rocks' location, quantity, individual packaging in roughly equal sizes, and the use of one large container, two police detectives testified the rocks were packaged for purposes of sale. An individual user would typically possess no more than three to five rocks.

At the police station, Houston agreed to waive her rights pursuant to Mirandav.Arizona (1966) 384 U.S. 436, and talk to the police. She admitted the marijuana and cocaine were hers. She also admitted that she possessed the marijuana for sale. She denied, however, that she possessed the cocaine for sale. She insisted she possessed the cocaine for her personal use. She said she broke up a rock and sprinkled it on marijuana before smoking it. The interview was recorded.

Houston did not testify or otherwise present evidence in her defense.

DISCUSSION

Houston contends the prosecutor committed misconduct and she was denied due process when the jury heard evidence of her past criminal conduct.

The trial court granted Houston's pretrial motion to bifurcate trial on the prior conviction allegations. Houston, however, did not expressly request that the recording of her statement to the police be redacted to eliminate references to her prior criminal activity at the beginning and end of the recording. The entire recording was played for the jury.

At the beginning of the recording, Houston admitted she was familiar with her rights because she had been "arrested a couple of times for some small petty theft stuff." At the end of the recording, Houston discussed possible punishment with

a detective:

"[Detective]: Could be probation with a, you know, suspended sentence. You know, it depends on your past. I look[ed] at your past, you don't really have narcotics stuff. That's all, you know, possession of stolen property, it looks like . . . .

"[Houston]: That was my thing, before [inaudible] . . . .

"[Detective]: You know, stealing, some burglaries, some, some thefts . . . ."

After the recording was played for the jury, defense counsel requested a sidebar. Defense counsel stated evidence of prior convictions should have been redacted from the recording. She stated she assumed the prosecution would redact reference to Houston's prior convictions because trial on the prior convictions had been bifurcated.

The trial court agreed reference to the prior convictions should have been redacted. The court instructed the jury to disregard the statements at the end of the transcript of the recording. The court stated "Obviously any mention of other activities [is] not relevant to the question of whether the defendant is guilty or not guilty of the offenses charged in our particular case."

The Attorney General concedes the recording should have been redacted to eliminate reference to Houston's prior criminal history. The only question is whether the error is harmless.

Houston argues we cannot consider the trial court's admonition to the jury because it did not cover the initial references to her prior crimes, only later references, and because evidence of prior crimes is so highly prejudicial it cannot be cured by an instruction. Even if we ignore the trial court's admonition, however, the error is harmless by any standard.

First, uncontradicted expert opinion testimony was that, based on quantity and packaging, the cocaine was possessed for sale. Second, the police found no paraphernalia that would indicate personal use. Third, and most important, Houston admitted she possessed the marijuana for sale. Houston's admission that she was selling drugs is not only all but conclusive as to the marijuana count, it is also directly and highly relevant to whether she possessed the cocaine for sale. In light of Houston's admission, evidence of unrelated prior theft and burglary convictions pales into insignificance.

It follows that ineffective assistance of counsel is also not a ground for reversal. In order to obtain a reversal for ineffective assistance of counsel, Houston must show prejudice. (See In re Sixto (1989) 48 Cal.3d 1247, 1257.) For the reasons stated above, she has failed to do so here.

The judgment is affirmed.

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

YEGAN, J.

COFFEE, J.

Bruce F. Marrs, Judge

Superior Court County of Los Angeles

Catherine White, under appointment by the Court of Appeal, Defendant and Appellant.

Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec, Supervising Deputy Attorney General, Robert M. Snider, Deputy Attorney General, for Plaintiff and Respondent.

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