P. v. Lockett
Filed 3/20/13 P. v. Lockett CA2/3
Opinion following order vacating prior opinion
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opinion has not been certified for publication or ordered published for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
THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
FLOYD LOCKETT,
Defendant and Appellant.
B231603
(Los Angeles
County
Super. Ct.
No. BA371797)
APPEAL
from a judgment of the Superior Court
of
County, Drew E. Edwards, Judge. Affirmed.
David L.
Kelly, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Steven E. Mercer and J. Michael
Lehmann, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
Defendant and appellant, Floyd
Lockett, appeals the judgment entered following his conviction for selling
cocaine, with prior prison term, prior serious felony conviction, and prior
drug conviction enhancements (Health & Saf. Code, §§ 11352, 11370.1;
Pen. Code, §§ 667.5, 667, subd. (b)-(i)).
of 17 years.
The judgment is affirmed.
BACKGROUND
Viewed in accordance with the usual
rule of appellate review (People v. Ochoa
(1993) 6 Cal.4th 1199, 1206), the evidence established the following.
1.
Prosecution evidence.
On May 25, 2010, Los Angeles Police Officer Edgar Ramos
was working on a drug trafficking sting operation at Sixth
Street and San Pedro, an area known for narcotics
transactions. He was monitoring Officer
Ben McCauley, who was posing as a customer.
Defendant Lockett and a man named
Baptiste were standing on the street. An
unidentified man approached them and spoke with Lockett. As they talked, Baptiste kept looking up and
down the street. When a marked police
car stopped at a nearby traffic light, Baptiste said something like “hold onâ€
and the three men “just froze there.â€
After the patrol car drove off,
Baptiste “signaled with his hand [and] motioned him sort of to go ahead with
the transaction,†Lockett then “remove[d] what appeared to be a clear plastic
bindle containing off-white solids resembling rock cocaine from his buttocks
area.†Ramos testified this was a common
place for dealers to hide their drugs due to the unlikelihood of being
strip-searched in the field. Lockett
took something from the bindle and gave it to the unidentified man in exchange
for some cash. Lockett returned the
clear plastic bindle to his buttocks area and the unidentified man walked away.
Officer
McCauley then approached Lockett and said, “ ‘Let me get a dub’ referring
to $20 worth of drugs.†McCauley
testified he saw Lockett “reach into his [buttocks] area and remove a clear
plastic bindle which contained several off-white solids resembling rock
cocaine. From the bindle he removed some
of the items and handed them to me as I simultaneously handed him my
prerecorded $20 bill.†The
substances Lockett gave McCauley were later determined to contain .41 grams of
cocaine base. McCauley walked away and
gave the signal indicating he had made a purchase.
Less than a minute later, several
uniformed officers drove up. When
Lockett saw them approaching, he put what looked like paper currency into his
mouth. Both Lockett and Baptiste were
taken into custody. By the time Lockett
was arrested, his mouth was empty.
Lockett had the following cash in his possession: four $100 bills, six $20 bills, three $10
bills, two $5 bills and eighteen $1 bills, totaling $578. This cash was distributed between Lockett’s
right front pocket, right rear pocket, and left rear pocket.
Neither the buy money nor the
plastic bindle was recovered. There was
testimony that, because many drug dealers in this area were familiar with
undercover operations involving marked money, it was common for them to swallow
both drugs and money as a way of destroying evidence.
2.
Defense evidence.
Brenda Sanford, a manager for Lamp
Community, a nonprofit organization which provides transitional housing for
homeless people, testified she had hired Lockett as a Laundromat attendant in
January 2010. Lockett usually
worked for two hours five days a week, although sometimes he put in more
hours. Sanford
issued Lockett’s paychecks, but she did not recall exactly how much he was
paid.
Lockett had a burn mark on one of
his forearms, which was shown to the jury.
CONTENTIONS
1.
The trial court improperly denied Lockett’s motion for a continuance.
2.
The trial court erred by excluding certain
3.
This court should determine if Pitchess
discovery was properly made.
DISCUSSION
1.
Trial court properly refused
continuance request.
Lockett contends the trial court erred
by denying his midtrial request for a continuance in order to obtain certain
physical evidence. This claim is
meritless.
a. Legal
principles.
“ ‘ “The granting or denial of a motion for continuance in the
midst of a trial traditionally rests within the sound discretion of the trial
judge who must consider not only the benefit which the moving party anticipates
but also the likelihood that such benefit will result, the burden on other
witnesses, jurors and the court and, above all, whether substantial justice
will be accomplished or defeated by a granting of the
motion. . . .†’
[Citation.]†(
1105-1106.) “A continuance will be granted for good cause (§ 1050, subd. (e)), and the
trial court has broad discretion to grant or deny the request. [Citations.]
In determining whether a denial was so arbitrary as to deny due process,
the appellate court looks to the circumstances of each case and to the reasons
presented for the request.
[Citations.]†(
894, 1012-1013, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
On appeal, the trial court’s ruling
is reviewed for abuse of discretion. (
1171-1172 [defendant must show witness is material and likely to give non-cumulative
testimony beneficial to the defense].)
An abuse of discretion may constitute harmless error. (See People
v. Hawkins (1995) 10 Cal.4th 920, 945, disapproved on another ground
in People v. Lasko (2000)
23 Cal.4th 101, 109-110 [“Nor is defendant able to demonstrate that, had
the one-week continuance been granted, there is a reasonable probability that
the outcome of the trial would have been more favorable to him.â€].)
b. Background.
On the second day of trial, as
the parties were about to discuss jury instructions in anticipation of turning
the case over to the jury later that day, defense counsel asked for a
continuance in order to obtain the pants and belt Lockett had been wearing when
he was arrested. This clothing was in
the possession of the Sheriff’s office, whose representative was not on duty in
the afternoons and thus needed some accommodation from the trial court.
Defense counsel argued the evidence
was relevant because the officers testified Lockett had retrieved the cocaine
from his buttocks area: “[N]obody could
really testify to what kind of pants he was wearing. I believe there was some testimony about not
baggy, not really tight fitting. And I
believe that the type of pants, no elastic waist, just regular pants and a
belt, a normal size belt . . . would go towards an unlikelihood that
a person wearing those pants was able to access [his buttocks area].†The prosecutor replied, “Well, I don’t know
how counsel wishes to make that connection.
We don’t know how he was wearing those pants. We don’t know how he was wearing that
belt. I mean, unless [Lockett’s] going
to get up and testify as to how he was wearing those pants and how he was
wearing that belt, then counsel is just making a very far stretched assumption
[sic] to the jury.â€
After noting defense counsel had
already indicated Lockett was unlikely to testify, the trial court refused to
delay the trial to accommodate the acquisition of this evidence: “[W]hile the items may be relevant, this is a
matter that should have been taken up long ago.
If counsel was aware of the fact that the pants could be an issue, that
item should have been taken care of and you should have got that item here in
court prior to the day we’re scheduled to actually do closing arguments.â€
c. Discussion.
We
conclude that, because the defense knew for some time, at least from when the
preliminary hearing was held six months earlier, that the officers claimed to
have seen Lockett retrieve the drugs from his “buttocks area,†the trial court
did not abuse its discretion by denying a continuance. (See People
v. Jenkins (2000) 22 Cal.4th 900, 1037 [good
cause for continuance requires diligent preparation for trial].)
Moreover, it appears Lockett would not have derived any substantial
benefit from this evidence. (See
p. 451 [motion for continuance properly denied where “[r]etesting DNA would not
have been beneficial to defendant . . . in light of the extensive
evidence linking him to each crimeâ€]; People
v. Gatlin (1989) 209 Cal.App.3d 31, 40 [speculative nature of proposed
new evidence properly justified denial of continuance].) As the Attorney General points out,
“[A]ssuming appellant were able to establish he was wearing belt and pants at
the time of the crime, there was to be no evidence as to how he was wearing them.
Thus, appellant was not planning on testifying that he had the belt
notched at the tightest position or that it somehow prevented him from reaching
into his buttocks area, or that it fit tightly, or even snugly. As the prosecutor also pointed out,
there is nothing unusual about people wearing belts and pants
loosely. Accordingly, the proffered
‘evidence’ was of no consequence. . . .â€
Hence, the trial court did not abuse
its discretion by refusing to continue the trial to accommodate Lockett’s
attempt to introduce the pants and belt into evidence.
2. Excluded
testimony.
Lockett
contends the trial court erred by excluding certain proposed testimony from
Brenda Sanford, the Lamp Community manager.
This claim is meritless.
a. Background.
Sanford testified her
organization had employed Lockett to work in the Laundromat. Defense counsel wanted Sanford to also
testify “that [Lockett] was in the process of getting ready to do independent
living to move into his own apartment.â€
This was relevant, defense counsel said, because Lockett had been
arrested with $578 on him, which suggested he was selling drugs, whereas
Sanford’s testimony about Lockett moving to an independent living situation
would offer an innocent explanation for all that cash: “[T]he offer of proof is that this is
obviously a low income area. This is
probably presumably a low income job and why would he have that amount of money
with him at one time, why would he have it on him saving it, whatever it might
be, but he had that amount of money on him.
And she can testify that he was in the process of being placed in – I’m
using the word ‘place’ because of the assistance that’s given to be in an
independent living.†The trial court
rejected this argument: “In my view that
is not relevant. The only thing that is
relevant is . . . that the money [appellant] had in his possession
could have come from his job. She can
certainly testify [appellant] had a job where he was getting paid. The fact he was going into independent living
is not relevant to any issue in this case.â€
b. Discussion.
asserts the trial court should have allowed this testimony: “It is one thing to prove that a low-income
resident of this neighborhood had a menial job.
It is entirely another to show that he was on his way out of the
transitional home to independent living.
The obvious inference is that he had been saving his meager salary to do
so.†We disagree.
As
the Attorney General points out, there was apparently not going to be any
evidence tying the cash Lockett had in his pockets to any specific change in
his living situation because “appellant made no offer as to what ‘independent
living’ meant in that context, i.e., whether it meant appellant was to obtain
his own apartment for which he paid rent, whether he was moving into some sort
of ‘group home’ with others who had been involved with LAMP, or if he would
simply be leaving to fend for himself after a given amount of time had passed. Moreover, assuming this meant that appellant
was going to be renting an apartment at some point, there was no offer of proof
as to what the time table was for appellant renting his own apartment or
anything that would connect such proffered testimony with the cash appellant
had on him at the time of the arrest.
At best, the inference appellant sought to have the jury draw was
speculative, and thus irrelevant.â€
“ ‘[E]vidence which produces only speculative inferences is irrelevant
evidence.’ †(People v. Babbitt (1988) 45 Cal.3d 660, 682; see, e.g.,
924 [error to admit testimony from defendant’s domestic partner that they had
not been sexually active during the two weeks prior to a sexual
assault/murder: “To infer from such
testimony that at the time of the crimes defendant was sexually frustrated and
thus motivated to rape [the victim] was highly speculative and thus
irrelevant.â€].)
The trial court did not err by excluding this evidence.
3.
Review of in camera Pitchess hearing.
Lockett requests review of the trial court’s ruling on
his motion seeking discovery under Pitchess
v. Superior Court (1974) 11
Cal.3d 531. Review of the in camera
hearing by this court reveals no abuse of the trial court’s discretion. (See People
v. Mooc (2001) 26 Cal.4th 1216, 1232.)
DISPOSITION
The
judgment is affirmed.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
KLEIN,
P. J.
We concur:
CROSKEY, J.
ALDRICH, J.
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All further statutory references
are to the Penal Code unless otherwise specified.
