P. v. Andres
Filed 3/25/13 P. v. Andres CA4/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
KEVIN LAMARR ANDRES,
Defendant and Appellant.
D060774
(Super. Ct.
No. SCD233575)
APPEAL from
a judgment of the Superior Court
of
County, Robert F. O'Neill and William
H. Kronberger, Jr., Judges.
Affirmed.
Kevin
Lamarr Andres appeals the judgment sentencing him to prison for 10 years after
a jury found him guilty of possession of cocaine base for sale and he admitted
allegations concerning prior convictions.
Andres contends the trial court prejudicially erred by: (1) denying his
violation of his constitutional right against unreasonable searches and seizures;
(2) admitting at trial hearsay statements of anonymous informants that he
was selling drugs on the night he was arrested for the current offense; and
(3) refusing to dismiss the allegations of a prior serious felony
conviction. We reject these contentions
and affirm the judgment.
I.
FACTUAL
BACKGROUND
The primary
contention on appeal concerns the legality of Andres's detention by
police. We therefore summarize the
testimony introduced at the hearing on Andres's suppression motion. Facts relevant to Andres's other appellate
contentions will be discussed later.
A. Anonymous Reports of
Narcotics Trafficking near 19th and J Streets
The area
around 19th and J Streets in San Diego
has a reputation for narcotics trafficking.
On the night of April 12, 2011,
the San Diego Police Department received several telephone calls from anonymous
sources reporting suspected narcotics activity in the area.
One call
came in at 10:12 p.m. from a
resident of the area. The call "was
very generic and did not offer much information." The caller stated he suspected three Black
men and a woman were "involved in some kind of narcotic transactions in
his area and he was watching them."
The caller did not provide any description of the suspects' clothing.
Another
call came in at 10:17 p.m. from
a different resident of the area. The
caller stated he suspected two Black men were engaged in narcotics activity at
19th and J Streets. The caller did
not provide any additional details in this call.
The same person who called police
at 10:17 p.m. called back
several times that night to provide additional information about suspected drug
dealing. In one of those calls, the
caller reported a Black man wearing a blue jersey with the number 15 on it
possibly was selling drugs out of a red and white Ford pickup truck at 19th and
J Streets.
B. Andres's First
Encounter with Police
At approximately 11:00 p.m., Officers Chris Krumrei and Ali
Bakhshizadeh were on patrol when they received a radio dispatch regarding a man
wearing a No. 15 jersey who was possibly selling drugs out of a pickup
truck. The officers drove to the
location, spotted the pickup truck, and ran a license plate check, which
revealed Andres was the registered owner.
They also spotted a man wearing a No. 15 jersey as he was walking
with two or three other men (one of whom was later identified as Andres's
brother), and used a photograph of Andres they had obtained as part of the
license plate check to identify him as the man wearing the jersey.
The officers then drove toward
Andres as he walked near the curb. When
the officers reached Andres, Officer Bakhshizadeh, from inside the patrol car,
asked him if he was Kevin Andres. Andres
answered "yes," and produced identification. Andres's brother and the other men separated
from Andres and kept on walking. Officer
Bakhshizadeh then asked for and obtained Andres's consent to search his
person. Officer Bakhshizadeh exited the
patrol car, searched Andres, and found keys for a Ford vehicle in his pocket.
Officer Krumrei also exited the
patrol car and asked Andres what he was doing in the area. Andres responded he had taken a trolley and
denied he had a vehicle there. But when
Officer Krumrei said he believed the keys found in Andres's pocket belonged to
a pickup truck registered to Andres and parked around the corner, Andres
admitted the truck was his and said his brother had driven him there. The officers informed Andres he was loitering
in a narcotics trafficking area and advised him to leave.
Andres began to walk away. The officers drove off in the opposite
direction.
C. Andres's Second
Encounter with Police
Officer Luke Johnson, who also was
on patrol and received the same dispatch received by Officers Krumrei and
Bakhshizadeh, spotted Andres less than a minute after he separated from the
other officers. Officer Johnson advised
Andres to leave the area. Andres
responded he was waiting for his brother and was getting ready to leave. Officer Johnson then departed.
D. Andres's Third
Encounter with Police
Almost immediately after he left
Andres, Officer Johnson received a radio dispatch that a suspect matching
Andres's description had gone back to the Ford pickup truck, reached in and out
of a bag behind the seat of the cab, held what appeared to be a wad of cash,
and was now standing in a driveway on private property. Officer Johnson drove to the pickup truck and
arrived at the same time as Officer Nigro.
Officers Krumrei and Bakhshizadeh
received the same radio dispatch as Officer Johnson and drove back to Andres's
pickup truck. When they arrived,
Officers Johnson and Nigro were already there talking to Andres as he sat on
the curb.
Officer Johnson advised Andres that
based on the multiple dispatches he and the other police officers had received
regarding Andres's involvement in suspected narcotics trafficking, they were
going to detain him to investigate further.
Officer Johnson instructed Andres to sit on the sidewalk.
Next, Officer Johnson requested
that a narcotics detection dog be brought to the scene to sniff Andres's
truck. While they waited approximately
10 minutes for the dog to arrive, Officer Johnson telephoned the caller who had
reported Andres's most recent activities to police. The caller stated he lived in the area for
several years, saw narcotics dealings in front of his house, was familiar with
how narcotics were sold in the area, and provided information to and worked
with police in the conduct of narcotics operations. The caller also stated he was in close proximity
with an unobstructed view of the police and Andres, and confirmed Andres was
the man he had reported as dealing drugs.
While the officers were waiting for
the narcotics detection dog to arrive, Andres received a telephone call from
his brother. Officer Bakhshizadeh
spotted Andres's brother up the street and called out to him. Andres's brother stated he was there to see
Andres and became "nervous" when he saw him talking to police. Officer Bakhshizadeh ran a routine records
check and learned Andres's brother was on probation and, as a condition of
probation, had waived his Fourth Amendment rights. He searched Andres's brother and found
several "wadded up" bills of different denominations in his pocket.
When the narcotics detection dog
arrived, it sniffed the truck, sat down on the driver's side of the cab, and
scratched the door, indicating there were narcotics inside. Seeing the dog's reaction, Andres lowered his
head and uttered an obscenity. Officer
Krumrei searched the cab and found a plastic bag containing 15.59 grams of
cocaine base, an electronic scale with white residue on it, and other
items. Andres and his brother were
arrested and taken into custody. While
Andres and his brother were being transported in the back of the patrol car,
police recorded a conversation between them in which Andres used obscene
language to describe the anonymous callers and in which his brother asked him,
"Why do you put it in the truck?"
II.
PROCEDURAL
BACKGROUND
A. The Information
The People
charged Andres with possession of cocaine base for sale. (Health & Saf. Code,
§ 11351.5.) The People also alleged
Andres had five prior drug offense convictions (id., §§ 11350, subd. (a), 11360, subd. (a)); served
two prior prison terms (Pen. Code, § 667.5, subd. (b)); and had one
prior serious felony conviction (attempted robbery), which constituted a strike
under the "Three Strikes" law (Pen. Code, §§ 667,
subds. (b)-(i), 1170.12, 1192.7, subd. (c)(19), (39)).
B. Andres's Motion to
Suppress Evidence
Andres
filed a motion to suppress the cocaine base, scale, and other evidence obtained
as a result of his detention and arrest and the search of his truck. He argued the evidence was inadmissible
because he was unlawfully detained and searched without a warrant. The People opposed the motion on the ground
that under the totality of the circumstances the police had reasonable
suspicion to detain Andres and to investigate the multiple anonymous reports
they had received concerning his suspected involvement in drug dealing. The People also argued the police had probable
cause to arrest Andres and to search him and his truck after the narcotics
detection dog indicated the presence of narcotics in the truck.
The trial court ruled that the
officers' receipt of multiple anonymous reports of suspected drug dealing, knowledge
the area had a reputation for drug dealing, and observation of Andres loitering
in the area were sufficient to detain Andres; and it further ruled that once
the narcotics detection dog indicated narcotics were in the truck, the officers
had probable cause to arrest him and to search him and his truck. The court therefore denied Andres's
suppression motion.
C. The Verdict and
Admissions
A jury
found Andres guilty of possession of cocaine base for sale. After the jury returned its verdict, Andres
waived his trial rights on the allegations concerning his prior convictions and
prison terms and admitted the allegations.
D. The Sentence
At the sentencing hearing, Andres
asked the court to dismiss the allegations concerning his prior strike
conviction and two prior prison terms.
The court agreed to dismiss the allegations concerning one of the prior
prison terms, but refused to dismiss the allegations concerning the other prior
prison term or the prior strike conviction.
The court
then imposed an aggregate prison term of 10 years. This consisted of three years for the
conviction of possession of cocaine base for sale (Health & Saf. Code,
§ 11351.5), doubled under the Three Strikes law for the prior strike conviction
(Pen. Code, §§ 667, subd. (e)(1), 1170.12, subd. (c)(1)), plus
consecutive terms of three years for the prior drug offense conviction (Health
& Saf. Code, §§ 11352, 11370.2, subd. (a)) and one year for the
prior prison term (Pen. Code, § 667.5, subd. (b)).
III.
DISCUSSION
Andres
argues the trial court committed prejudicial error in three respects: (1) denying his pretrial motion to
suppress evidence obtained in violation of his
unreasonable searches and seizures; (2) admitting at trial hearsay
statements of anonymous informants regarding his drug dealing activities; and
(3) refusing at the sentencing hearing to dismiss the allegations
concerning his prior conviction of attempted robbery. We shall address each claim of error in turn.
A. Denial of Suppression
Motion
Andres's
primary contention on appeal is that the cocaine base, scale, and other items
seized from his truck, as well as statements he and his brother made while
seized by police, were admitted at trial in violation of his Fourth Amendment
right "to be secure in [his] person[], houses, papers, and effects,
against unreasonable searches and seizures." (U.S. Const., 4th Amend.; see
[holding 4th Amend. applicable to states through 14th Amend.].) Andres argues his suppression motion should
have been granted because he "was illegally stopped and detained and
searched on the basis of uncorroborated anonymous tips provided through phone
calls." Specifically, Andres
challenges the legality of his detention on two occasions: (1) when Officers Krumrei and
Bakhshizadeh spoke with him on the street and searched his person (the first
police encounter), and (2) when Officer Johnson detained him at his truck
and summoned the narcotics detection dog (the third police encounter). After setting forth the applicable standard
of review, we shall explain why these contentions lack merit.
1.
A defendant
may move to suppress evidence obtained as a result of a search or seizure on
the ground the search or seizure was unreasonable. (Pen. Code, § 1538.5,
subd. (a)(1)(A).) On appeal from a
trial court's ruling on a motion to suppress, "[w]e defer to the trial
court's factual findings, express or implied, where supported by substantial
evidence. In determining whether, on the
facts so found, the search or seizure was reasonable under the Fourth
Amendment, we exercise our independent judgment." (People
v. Glaser (1995) 11 Cal.4th 354, 362.)
2.
The parties disagree over whether
Andres's first encounter with police was a detention or a consensual
encounter. We need not resolve that
dispute, however, because Andres has not shown any of the evidence he moved to
suppress was obtained as a result of that encounter. A defendant moving to exclude evidence as
having been obtained in violation of the Fourth Amendment "has the initial
burden to establish cause and effect, showing an exploitative nexus, between
the challenged evidence and the primary illegality." (People
v. Cella (1983) 139 Cal.App.3d 391, 400.)
Here, none of the physical evidence Andres moved to exclude (the cocaine
base, scale, and other items found in his truck) was obtained as a result of
the first police encounter; it was all obtained as a result of the third police
encounter. Nor did Andres satisfy his
evidentiary burden with respect to the statements made by him or his brother
that he argues should have been suppressed.
The only statements by Andres or his brother introduced at trial were
made during the third police encounter, when the narcotics detection dog
alerted to the truck and when Andres and his brother were being transported by
police. Andres has not identified any
specific statement he made during the first police encounter that was admitted
against him at trial, and his brother was not present and therefore made no
statements during that encounter.
Without a causal connection between the evidence Andres moved to exclude
and the first police encounter, that encounter, whether consensual or not,
provided no basis for suppression.
We thus
turn to the legality of the third police encounter, which the People concede
was a detention and which resulted in discovery of incriminating evidence
against Andres, including the cocaine base and scale Officer Krumrei found in
Andres's truck. Relying principally on
argues his detention was illegal because (1) "the only information
from the anonymous tip corroborated by police was the innocent and readily
observable location and appearance of [Andres] standing near his truck,"
and (2) "police never observed [Andres] or his [brother] engaging in
narcotics transactions or any other type of illegal activity." The People counter that the anonymous tips
plus other information the police had was sufficient to give them reasonable
suspicion to detain Andres. We agree
with the People.
It is well
established that a detention is permissible under the Fourth Amendment if the
detaining officer can articulate specific facts that, when considered together,
provide an objective basis for concluding the person detained has been, is, or
is about to be engaged in criminal activity.
(E.g., United States v. Cortez (1981)
449 U.S. 411, 417-418 & fn. 2 (Cortez);
Terry v. Ohio (1968) 392 U.S. 1,
21-22 (Terry); People v. Souza (1994) 9 Cal.4th 224, 230.) When evaluating the reasonableness of a
detention, "the totality of the circumstances—the whole picture—must be
taken into account." (
The defect
in Andres's argument on appeal is that it does not consider "the whole
picture." (Cortez, supra, 449 U.S.
at p. 417.) Focusing exclusively on
the fact that police verified only that one of the anonymous callers had
correctly described Andres's race, clothing, vehicle, and location, Andres
insists that was not sufficient corroboration to make the tip reliable. It is true that a single anonymous
informant's "accurate description of a subject's readily observable
location and appearance" is not enough to create a reasonable suspicion
that the subject is engaged in criminal activity, because such a description
"does not show that the tipster has knowledge of concealed criminal
activity." (J.L., supra, 529 U.S. at
p. 272.) "The reasonable
suspicion here at issue requires that a tip be reliable in its assertion of
illegality, not just in its tendency to identify a determinate
person." (Ibid.) Thus,
anonymous report that Andres and his truck were in the vicinity of 19th and
J Streets, under J.L. the police
would not have had sufficient grounds to detain Andres. (J.L.,
170, 175.) But, as we shall explain, that
was not "the whole
picture." (Cortez, at p. 417.)
The police
had several other pieces of information that, together with the anonymous tips,
justified Andres's detention. The
receipt of "two independent tips from citizens, very close in time,
describing in a similar manner the criminal activity . . . and
suspect's physical attributes and location," supported the reliability of
the tips. (People v. Coulombe (2000) 86 Cal.App.4th 52, 59.) The fact that one of the informants
telephoned repeatedly to report suspected criminal activity as it was happening
indicated the caller had firsthand knowledge, which further enhanced the tips'
reliability. (See People v. Dolly (2007) 40 Cal.4th 458, 468 [tipster's
contemporaneous viewing of suspicious activity enhances reliability of tip].)
the area around 19th and J Streets has a reputation for narcotics
trafficking is "among the relevant contextual considerations in a
v. Wardlow (2000) 528 U.S. 119, 124.)
Thus, police observation of Andres walking in that area late at night
with no apparent purpose, and his refusal to leave after he agreed to do so,
supported a reasonable suspicion criminal activity might have been afoot. (See People
v. Huggins (2006) 38 Cal.4th 175, 242 [defendant's "loitering in a
high-crime residential area at night" was factor supporting investigative
detention].) Andres's false statement to
Officer Krumrei that he had taken the trolley and did not have a vehicle in the
area, which suggested he did not want police to know his truck was nearby, also
supported a reasonable suspicion Andres might be using the truck in drug
trafficking. (See People v. Carrillo (1995) 37 Cal.App.4th 1662, 1671 ["false
statements designed to mislead or ward off suspicion a particular vehicle may
contain contraband" support probable cause to search vehicle].)
In short, based on "the whole
picture" (Cortez,
including the anonymous tips and the independent police observation of
suspicious activity that corroborated those tips, the police had sufficient
grounds to detain Andres. (See
331 [investigative detention justified when "anonymous tip had been
sufficiently corroborated to furnish reasonable suspicion that respondent was
engaged in criminal activity"]; People
v. Jordan (2004) 121 Cal.App.4th 544, 558 ["Where police officers
follow up an anonymous tip and observe suspicious behavior, the totality of the
circumstances may generate a reasonable suspicion that justifies a
detention during the third police encounter was unconstitutional under
We also reject Andres's related
argument that his detention was unlawful because none of the police officers
ever saw him dealing drugs or committing any other criminal act. We have upheld a detention based on a
corroborated anonymous tip of drug dealing, even though the detaining officer
"did not testify that he observed actual drug dealing." (People
v. Ramirez (1996) 41 Cal.App.4th 1608, 1619.) Similarly here, the anonymous tips were
corroborated, but the detaining officers admitted they never observed Andres
engage in any drug dealing or other criminal
activity. Of course, had the
officers observed such conduct, they would have had probable cause to arrest
Andres immediately. (Pen. Code,
§ 836, subd. (a)(1); Atwater v.
City of Lago Vista (2001) 532 U.S. 318, 354.) The level of
"obviously less demanding than that for probable cause" and can be
established by "considerably less than proof of wrongdoing by a
preponderance of the evidence." (United
States v. Sokolow (1989) 490 U.S. 1, 7.)
The " 'whole picture' " discussed above
satisfied the Fourth Amendment's requirement of " 'some minimal
level of objective justification' for making the stop." (Id. at
pp. 7, 8.)
Having legally detained Andres for
suspicion of narcotics trafficking based on the totality of the circumstances,
the police officers were entitled to conduct an investigation to determine
whether a crime had been committed.
"[I]f the circumstances are 'consistent with criminal activity,'
they permit—even demand—an investigation:
the public rightfully expects a police officer to inquire into such
circumstances 'in the proper discharge of the officer's duties.' " (In re
Tony C. (1978) 21 Cal.3d 888, 894.)
In particular, the officers were entitled to have the narcotics
detection dog sniff Andres's truck, and, once the dog indicated the presence of
narcotics, they had probable cause to search the truck. (Florida
v. Harris (2013) ___ U.S. ___, ___ [185 L.Ed.2d 61, 133 S.Ct. 1050];
Cal.App.4th 996, 1006; People v. Salih (1985)
173 Cal.App.3d 1009, 1015.)
name="_ftnref3" title="">[3] The cocaine base, scale, statements of Andres
and his brother, and other evidence Andres sought to suppress were thus legally
obtained.
In sum, police did not violate Andres's
Fourth Amendment rights when they seized him and searched his truck. The trial court therefore correctly denied
his motion to suppress the evidence obtained as a result of the seizure and
search.
B. Admission of Anonymous
Informants' Hearsay Statements at Trial
Andres next
argues the trial court erred by admitting at trial testimony from police
officers relating some of the content of the anonymous tips they had received
regarding Andres's suspicious conduct.
According to Andres, that testimony was irrelevant, was more prejudicial
than probative, and constituted inadmissible hearsay; and further, its
admission violated his constitutional right "to be confronted with the
witnesses against him." (U.S.
Const., 6th Amend.; see Pointer v. Texas (1965)
380 U.S. 400, 403 [holding 6th Amend. confrontation right applicable to states
through 14th Amend.].) We shall provide
additional background and then analyze, and ultimately reject, these
contentions.
1.
The People
moved in limine to allow admission of testimony from police officers about the
telephone calls received from anonymous informants reporting Andres's suspected
drug dealing. The People argued the
testimony was admissible for the nonhearsay purpose of explaining to the jury
why the officers suspected Andres was involved in drug dealing and why they
conducted the investigation they did.
The People also argued the testimony would prevent the jury from
speculating on those matters.
Andres's
trial counsel objected that the proposed testimony regarding the anonymous tips
was irrelevant and its prejudicial effect outweighed its probative value. Counsel also argued admission of the proposed
testimony would violate Andres's federal due process rights.
The trial
court overruled Andres's objections and allowed the People to offer testimony
from police officers regarding the anonymous tips. The court conditioned its ruling "upon
it being [of] a generalized nature as represented."
At trial,
Officers Krumrei, Bakhshizadeh, and Johnson testified that on the night of
April 12, 2011, they received multiple radio dispatches relaying telephone
calls from area residents reporting suspected narcotics activity. The officers testified one of the callers
described a red and white pickup truck and a Black man wearing a No. 15
jersey.
At the
beginning of this testimony, the trial court instructed the jury as follows:
"In this case, you are going to hear
testimony of what this officer heard over the radio about what somebody else
called in and reported to the police dispatcher, so it's double removed back,
so that the information that you're going to receive is not received by you or
to be considered by you for the truth of those statements made by the person to
the 911 operator.
"Rather, the information is admitted
in this instance to explain the conduct of the police officers and the
consequences of their statements to the defendant, but it is not for the truth
of what the person who called in about."
"You will be receiving testimony here
as to what the officer heard over the radio.
Don't take that as true. That
what happened, what he was told was true or false, that's not the issue. It is what he did, why he did it."
Immediately prior to closing arguments, the court gave the
jury a similar instruction patterned after CALCRIM No. 303:
"During the trial, certain evidence
was admitted for a limited purpose. You
may consider that evidence only for that purpose and for no other.
"You have heard certain statements
regarding 911 calls made to the police.
You may not consider those specific statements to the police as proof
that the facts within those statements are true. You may only consider those calls to the
extent they assist you in understanding why the officers did what they did in
this case."
2.
We agree
with Andres the trial court should have excluded the police officers' testimony
about the anonymous tips they had received because the testimony was
irrelevant. Only relevant evidence is
admissible (Evid. Code, § 350), and to be relevant evidence must have some
tendency to prove or disprove a disputed fact of consequence to the
determination of the case (id.,
§ 210). Testimony from a police
officer relating information he received from a third party to explain why the
officer acted as he did is not relevant when the good faith or reasonableness
of his conduct is not at issue. (
1107, 1109-1110 (Lucero);
68.) Here, the question presented to the
jury was whether Andres possessed cocaine base for sale, i.e., whether he had
control over a usable amount of cocaine base, knew it was present and was a
controlled substance, and intended to sell it.
(See Health & Saf. Code, § 11351.5; People v. Montero (2007) 155 Cal.App.4th 1170, 1175-1177
[discussing elements of offense].) The
information that prompted the officers to conduct their investigation had no
tendency to prove or disprove that Andres committed that offense. Thus, the officers' testimony about the
anonymous tips "was simply irrelevant for the nonhearsay purpose offered
because it had no tendency in reason to prove any disputed issue of fact in the
action." (Lucero, at p. 1110.)
The People
counter that the testimony about the tips was needed to explain why the police
investigated Andres and to prevent the jury from speculating about the reasons
for the investigation. The People quote
a treatise for the proposition that police "officers should not be put in
the misleading position of appearing to have happened upon the scene and
therefore should be entitled to provide some explanation for their presence and
conduct." (2 McCormick, Evidence
(6th ed. 2006) The Hearsay Rule, § 249, p. 136.) But they omit the sentences surrounding the
one they quote, which refute their argument:
"One
area where abuse may be a particular problem involves statements by arresting
or investigating officers regarding the reason for their presence at the scene
of a crime. The officers should not
be put in the misleading position of appearing to have happened upon the scene
and therefore should be entitled to provide some explanation for their presence
and conduct. They should not, however, be allowed to relate historical aspects of
the case, such as complaints and reports of others containing inadmissible
hearsay. Such statements are sometimes
erroneously admitted under the argument that the officers are entitled to give
the information upon which they acted.
The need for this evidence is slight, and the likelihood of misuse
great. Instead, a statement that an officer acted 'upon information received,'
or words to that effect, should be sufficient." (Id. at
pp. 136-137, italics added, fns. omitted.)
The cases the People cite are also unhelpful because they
considered only hearsay objections to out-of-court statements offered for
nonhearsay purposes, not relevancy objections.
(See People v. Beamon (1973) 8
Cal.3d 625, 633-634; People v. Smith (1970)
13 Cal.App.3d 897, 910; People v. Spivak (1959)
166 Cal.App.2d 796, 812-813.) "[I]t
is axiomatic that cases are not authority for propositions not
considered." (People v. Alvarez (2002) 27 Cal.4th 1161, 1176.) We thus reject the People's argument that the
police officers' testimony about the anonymous tips was properly admitted.
Nevertheless, the error in
admitting the officers' testimony was harmless.
The testimony was brief and general, and the trial court advised the
jury, both before and after the testimony was given, that it could not consider
the testimony for the truth of the information contained in the tips but only
for the limited purpose of explaining the officers' conduct in responding to
the tips. We presume the jury followed
these instructions. (
26; People v. Panah (2005) 35 Cal.4th
395, 492.) Further, other evidence
pointed convincingly to Andres's guilt.
Officer Krumrei testified he found 15.59 grams of cocaine base and a
scale in Andres's truck. Officer Johnson
testified such a large quantity of cocaine base indicated it was intended for
sale and could sell for up to $3,000 on the street. Also, the prosecutor only referenced the tips
very briefly at one point near the beginning of his closing argument. On this record, we cannot say "it is
reasonably probable that a result more favorable to [Andres] would have been
reached in the absence of the error."
(People v. Watson (1956) 46
Cal.2d 818, 836.) We thus discern no
"miscarriage of justice" that would allow us to reverse the judgment
based on the trial court's error in admitting the challenged testimony. (Cal. Const., art. VI, § 13; Evid.
Code, § 353, subd. (b); see Lucero,
supra, 64 Cal.App.4th at p. 1110
[concluding error was harmless under similar circumstances].)
Nor do we discern in the admission
of the police officers' testimony about the tips a violation of Andres's right
"to be confronted with the witnesses against him." (U.S. Const., 6th Amend.) The right to confront adverse witnesses bars
the use of "testimonial" hearsay statements against a criminal defendant
unless the declarant is unavailable and the defendant had a previous
opportunity to cross-examine the declarant.
(Crawford v. Washington (2004)
541 U.S. 36, 53-54.) A statement is
testimonial when it constitutes " '[a] solemn declaration or affirmation' "
or "a formal statement [by an accuser] to government officers" (
"primary purpose . . . is to establish or prove past events
potentially relevant to later criminal prosecution" (Davis v. Washington (2006) 547 U.S. 813, 822). Statements made in 911 calls (such as those
at issue here) repeatedly have been held to be nontestimonial because they were
neither formalized nor given primarily to document facts for possible use in a
later criminal trial. (See, e.g.,
1453, 1464.) Even if we assume the
anonymous informants' statements were testimonial, the result would be the same
because the Sixth Amendment "does not bar the use of testimonial
statements for purposes other than establishing the truth of the matter
asserted." (Crawford, at p. 59, fn. 9.) Since the police officers' testimony about
the tips was admitted solely for a nonhearsay purpose (i.e., to explain why the
officers focused their investigation on Andres and his truck) and the trial
court repeatedly instructed the jury it could not consider the testimony for
any other purpose, its admission did not violate Andres's confrontation rights.
C. Refusal to Dismiss Allegations
of Prior Serious Felony Conviction
Andres
contends the trial court abused its discretion by denying his invitation to
dismiss the allegations concerning his prior conviction of attempted
robbery. He argues "the interests
of justice weighed heavily in favor of dismissal" based on the remoteness
of the prior conviction, the nonviolent and victimless nature of the current
offense, and his positive character and prospects. After setting forth additional background, we
shall explain why these contentions are unpersuasive.
1.
Prior to
the sentencing hearing, the trial court received and read a probation report
that detailed Andres's criminal history.
It listed offenses dating back to 1993, including robbery, receipt of
stolen property, petty theft, burglary, trespass, attempted robbery, resisting
a police officer, and multiple drug offenses.
The report stated Andres had at least five parole violations, but
successfully completed parole after having been released from a program for
drug addicts. According to the probation
report, prior to his arrest Andres was doing well in college, had his own
consulting business, and worked two jobs.
The report also stated Andres had a long history of substance abuse and
was abusing methamphetamine daily at the time of the current offense.
The People
submitted a sentencing memorandum that discussed aggravating factors. The People pointed out the crime involved a
large quantity of contraband, and Andres had numerous prior convictions, served
a prior prison term, and performed unsatisfactorily on parole.
At the
sentencing hearing, Andres's trial counsel asked the court to dismiss the
allegations concerning the prior attempted robbery conviction. Counsel conceded Andres had a significant
prior criminal history, but argued the prior conviction should be stricken
because it was 14 years old, Andres had successfully completed parole, and he
was working and going to college at the time.
Andres then
addressed the court. He stated he
attended school, ran his own business, worked two part-time jobs, volunteered
at Toys for Tots every Christmas, volunteered to clean up the beach every
summer, completed two drug programs, and attended Narcotics Anonymous
classes. Andres contended: "It's just I'm not that person that you
are depicting on this and I'm being depicted on this paperwork, you know, as
hardened or whatever [the prosecutor] wanted to call me. That's not me."
After
listening to Andres and considering the arguments of counsel, the court expressly
acknowledged its discretion to dismiss the allegations concerning the prior
conviction. In exercising its
discretion, the court stated it had to consider Andres's future prospects, his
criminal history, and whether he fell within the scope of the Three Strikes
law. The court credited Andres for
successfully completing a program for drug addicts, but noted he had not
remained crime-free since his release from prison for the attempted robbery
conviction, and in fact had committed multiple offenses and served another
prison term. The court then
concluded: "I think on the whole in
looking at [Andres's] prospects I cannot truthfully say that he's outside of
the scope of [the Three Strikes law] and the purpose thereof. He's a continuing offender, albeit perhaps
low level. Nonetheless, he's still
within the strike provisions. And thus,
I will decline to strike the allegations of the strike."
2.
A trial
court may dismiss prior felony conviction allegations in cases prosecuted under
the Three Strikes law when dismissal is "in furtherance of
justice." (Pen. Code, § 1385,
subd. (a); see People v. Superior
Court (Romero) (1996) 13 Cal.4th 497, 529-530.) "[T]he law creates a strong presumption
that any sentence that conforms to [its] sentencing norms is both rational and
proper." (People v. Carmony (2004) 33 Cal.4th 367, 378 (Carmony).) In deciding
whether to dismiss prior conviction allegations, 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 a trial court's refusal to dismiss
prior conviction allegations for abuse of discretion. (Carmony,
discretion unless its decision is so irrational or arbitrary that no reasonable
person could agree with it." (
There was
no abuse of discretion here. The trial
court's statements at the sentencing hearing indicate its awareness of its
discretion to dismiss the allegations of the prior attempted robbery conviction
and the factors it was to consider in exercising that discretion. Various mitigating and aggravating factors
were presented in the probation report (which the trial court read and signed),
the People's sentencing memorandum, and counsel's arguments and Andres's
statements at the sentencing hearing.
These sources presented no " 'extraordinary
[circumstances] by which [Andres] can be deemed to fall outside the spirit of
the very scheme within which he squarely [fell] once he committ[ed] a strike as
part of a long and continuous criminal record.' " (Carmony,
supra, 33 Cal.4th at
p. 378.) Moreover, the trial court
considered the mitigating and aggravating factors and, on balance, concluded
Andres was "a continuing offender, albeit perhaps low level," but
"still within the strike provisions."
Where, as here, the record indicates the trial court balanced the relevant
facts and reached an impartial decision in conformity with the spirit of the
Three Strikes law, we must affirm its ruling.
(Ibid.)
DISPOSITION
The judgment is affirmed.
IRION, J.
WE CONCUR:
McCONNELL, P. J.
NARES,
J.
name="_ftn1" title="">[1] The People also charged Andres's brother with possession of
cocaine base for sale and alleged he had several prior convictions. The two men were tried together, but Andres's
brother is not a party to this appeal.
name="_ftn2" title="">[2] The People also contend the tips were reliable because
Officer Johnson "had the ability to talk to one of the callers directly,
ask questions, and gauge the caller's credibility." Officer Johnson did not talk to that caller
until after Andres had been detained,
however. Thus, whatever information
Officer Johnson obtained during that conversation could not have supported his
decision to detain Andres because the information was not "available to
the officer at the moment of the seizure." (Terry,
supra, 392 U.S. at p. 22,
italics added; see also J.L.,
["The reasonableness of official suspicion must be measured by what the
officers knew before they conducted their
search." (italics added)].)
