P. v. Cummings

Filed 4/2/07 P. v. Cummings CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

----

A jury convicted defendant Joe Cummings of sale of cocaine base (count 1; Health & Saf. Code, 11352, subd. (a)), unlawful possession of cocaine base (count 2; Health & Saf. Code, 11351.5), and misdemeanor child endangerment (count 3; Pen. Code, 273a, subd. (b) [undesignated statutory references are to the Penal Code]). As to counts 1 and 2, the jury found in a bifurcated proceeding that defendant had been convicted of and served a prior prison term for a felony. ( 245, subd. (a)(1), 667.5, subd. (b).)

Sentenced to five years in state prison (the four-year midterm on count 1, plus one year under 667.5, subd. (b), with concurrent terms on counts 2 and 3), defendant contends: (1) The trial courts erroneous admission of substances booked into evidence by Detective Malmquist rendered his trial fundamentally unfair. (2) Defendants conviction on count 3 must be reversed because the trial court prejudicially misinstructed the jury on the burden of proof. (3) The trial courts exclusion of co-defendant Pete Turners guilty plea and admission that he sold the controlled substances to an undercover officer rendered defendants trial fundamentally unfair. In addition, defendant asks us to conduct an independent review of the sealed records regarding his Pitchess motion. (Pitchess v. Superior Court (1974) 11 Cal.3d 531; see Evid. Code, 1043.) We shall affirm.

FACTS

On the morning of February 23, 2005, Sacramento Police Detective Shim, an undercover narcotics officer, went to Oak Park, carrying marked money and a one-way radio monitored by uniformed officers in patrol cars. He drove to a market known for narcotics activity. He made eye contact with Pete Turner, who was walking away from the market. As Turner approached Shims car, Shim asked if Turner had 20 white ($20 worth of cocaine base). Turner said yes and got into the car.

After Shim gave him a marked $20 bill, Turner directed Shim to two different locations where Turner contacted people but failed to make purchases. Seeing defendant driving a gold Mustang in the opposite direction, Turner waved to him and told Shim to stop. Turner walked to the Mustang and spoke briefly with defendant, then came back to Shims car with what was later determined to be .23 gram of cocaine base. Shim signaled the monitoring officers that he had made a buy.

Narcotics detectives in an unmarked car followed defendants car while notifying other patrol officers, then pulled in behind defendant when he stopped at the Oak Park Market. Defendants girlfriend, Unique Gibson, was in the front passenger seat; defendants five-year-old daughter and Gibsons one-year-old son were in the back.

Officers Chandler and Alonso ordered defendant out of the car and searched him. In the back pocket of defendants pants Chandler found a sandwich bag containing two individually wrapped pieces of rock cocaine, each weighing roughly the same, packaged similarly to the one Turner had bought for Shim. In defendants left front pants pocket Chandler found $101 in cash, including the marked $20 bill Shim had used for his purchase. Alonso found marijuana in a sandwich bag inside the glove compartment of defendants car and a box of sandwich bags under the front passenger seat.

According to Officer Chandler, defendant admitted selling rock cocaine to Turner, but said it was the first time he had sold it. He also admitted he knew he should not be selling drugs with children in the car.

Detective Hutchins, testifying as an expert on the possession and sale of illegal narcotics, opined based on the above evidence that defendant possessed cocaine base for the purpose of sale. Hutchins also testified that drug transactions are inherently dangerous because drug selling is a cash and carry, fiercely competitive, extremely territorial business often involving firearms and violence. Furthermore, a gram to a gram and a half of cocaine base, when ingested, is enough to kill an adult; thus, having cocaine base in a pocket or a car might endanger nearby children who could ingest it.

Testifying on his own behalf, defendant admitted convictions for misdemeanor spousal battery in 2001 and felony assault with force likely to cause great bodily injury in 1999. According to defendant, on the morning of February 23, 2005, Turner (Gibsons cousin by marriage), appearing intoxicated, flagged him down and asked him to change a $20 bill, which defendant did. Defendant then drove to the Oak Park Market, where he was detained. He did not know anything about the rock cocaine Officer Chandler claimed to have found on him. He told Chandler that the money in his pants came from caring for his grandmother. He denied making any of the statements Chandler had ascribed to him.

DISCUSSION

I

The trial was conducted by Judge Hake.

Defendant contends the trial court abused its discretion by admitting over objection the substances booked into evidence by Detective Malmquist because the People failed to establish chain of custody. After a hearing, the trial court ruled that any chain of custody problem went to the officers credibility, not to the admissibility of the evidence; furthermore, the officers had sufficiently identified the evidence for chain of custody purposes. We agree.

Background

Officer Chandler testified that he took rock cocaine from defendants back pocket and put it in his own pocket until Detective Malmquist arrived and took custody of it, while Officer Alonso gave Malmquist the money seized from defendant. Chandler did not give the drugs to Alonso. According to Chandler, the drugs were packaged in two separate plastic bindles inside a plastic baggie. During his testimony, he opened the sealed evidence envelopes and identified the plastic baggie and the two pieces of cut and tied plastic as the packaging of the drugs he seized. He also examined the drugs. He noted that one piece was now crumbling, whereas they had been equal at the time of arrest; breaking bits off for testing could account for that.

Officer Alonso similarly testified that Chandler gave Malmquist the drugs, while Alonso gave Malmquist the money seized from defendant.

Detective Malmquist testified that he contacted Chandler and Alonso at the Oak Park market, retrieved the evidence, and delivered it to Detective Hutchins at a prearranged location. He believe[d] Alonso gave him all the evidence.

Detective Hutchins testified that he received the evidence from Detective Malmquist, including the sandwich baggie containing two small pieces of cocaine base individually wrapped in plastic. Hutchins opened the baggie and removed the cocaine pieces from their wrapping, then put all of this evidence into a sealed envelope for booking.

Defendant objected to the admission of the two pieces of rock cocaine and their alleged packaging, arguing that the People had failed to show how this evidence got from Officer Chandlers pocket to the point of booking: Detective Malmquist testified he got it from Officer Alonso, but Alonso testified that he had handled only the money. The prosecutor replied that whoever transported the evidence to the police department or the crime lab, the chain of custody was never broken.^[1] The trial court ruled: Im satisfied the argument goes to credibility[,] not admissibility.

After further discussion, the court reiterated: Again, it goes to credibility[,] not admissibility. Everything has been identified adequately, and if there is some distinction between Officer Chandler and Officer Alonso, there may be some ambiguity there. I dont believe it is sufficient to hinder the admissibility.

Analysis

The trial court has broad discretion in determining the admissibility of evidence. (People v. Williams (1997) 16 Cal.4th 153, 196.) We review trial court rulings admitting evidence over chain of custody objections for abuse of discretion. (People v. Catlin (2001) 26 Cal.4th 81, 134.) The erroneous admission of evidence offends due process if it is so prejudicial as to render the defendants trial fundamentally unfair. (People v. Partida (2005) 37 Cal.4th 428, 439.)

The party offering evidence has the burden of showing it is reasonably certain the evidence was not altered. This requirement is not met when a vital link in the chain of possession is not accounted for. However, so long as the links offered connect the evidence with the case and do not raise a serious question of tampering, gaps in the chain of custody do not require excluding the evidence. If there is only speculation of tampering, this goes to the weight of the evidence, not its admissibility. (People v. Catlin, supra, 26 Cal.4th at p. 134.)

Here, the only problem defendant identifies is the conflict as to whether Officer Chandler or Officer Alonso handed the drugs seized from defendants pocket to Detective Malmquist. This simply created a jury question as to which officer or officers had the better memory on that point. There is no doubt Malmquist relayed the drugs to Detective Hutchins, who delivered them in turn to the police department. Defendant has not shown that any vital link in the chain is missing. Thus, his inference that the substances given to Malmquist by Alonso were not the same items taken from [defendant] by Chandler is mere speculation.

Defendant also asserts there is either an inference that the substances ultimately tested . . . were different from the substances seized from [defendant] or . . . that the substances were altered because Officer Chandler testified that the two pieces of rock cocaine he seized were not in the same condition as the pieces in evidence: the items in evidence included one large piece and at least 10 small ones, not two equal pieces. However, defendant does not show that he raised this objection below, which forfeits the point. (Evid. Code, 353, subd. (a).)

The trial court did not abuse its discretion by admitting the evidence.

II

Defendant contends the trial court erred reversibly as to count 3 (misdemeanor child endangerment; 273a, subd. (b)) by instructing the jury on the required mens rea in a way which lowered the prosecutions burden of proof.^[2] Defendant contends the trial court erred in failing to instruct on criminal negligence. We conclude that if the trial court erred, the error was harmless beyond a reasonable doubt.

Background

During the conference on jury instructions, defendant moved to dismiss count 3 because the Peoples only evidence for the charge was the opinion of Detective Hutchins that being present during a drug transaction could imperil a childs health or safety. Citing People v. Valdez (2002) 27 Cal.4th 778 (Valdez), defendant also questioned whether it was appropriate to instruct on criminal negligence under CALJIC No. 16.170 (apparently on the theory that Hutchinss testimony did not establish criminal negligence).^[3] (Ibid.)

After denying defendants motion to dismiss count 3, the trial court ruled that it would omit the criminal negligence language in CALJIC No. 16.170. The court reasoned: (1) section 273a, subdivision (b), and the instruction are worded disjunctively; (2) the People were not trying to prove harm to a child or the specific intent to harm a child, but only the general intent to sell drugs with a child present, which would be acting willfully under the statute and the instruction; and (3) the mere presence of a child during a drug transaction was not evidence of criminal negligence.^[4] Defendant objected to striking the criminal negligence language from the instruction.

The trial court thereafter orally instructed the jury with modified CALJIC No. 16.170 as follows:

Defendant is accused in Count Three of having violated 273a(b) of the Penal Code, a misdemeanor. Every person who has care and custody of a child and willfully causes or permits the child to be placed in a situation where his or her person or health may be in danger is guilty of a violation of Section 273a(b) of the Penal Code, a misdemeanor.

The word willfully does not require any intent to violate the law or to injure another person or acquire any advantage. In the crime charged there must exist a union or joint operation of act or conduct and general criminal intent.

To establish general criminal intent it is not necessary there should exist an intent to violate the law. When a person intentionally does that which the law declares to be a crime, he is acting with general criminal intent even though he may not know his act or conduct is unlawful.

A person who has care or custody of a child and willfully caused or willfully permitted the child to be placed in a situation where his or her person or health may be endangered.^[5]

Analysis

Child endangerment is a felony if committed under circumstances or conditions likely to produce great bodily injury or death; otherwise it is a misdemeanor. ( 273a, subds. (a), (b).) Among other things, it is misdemeanor child endangerment to willfully cause[] or permit[] [a] child to be placed in a situation where his or her person or health may be endangered[.]^[6] ( 273a, subd. (b).) The offense here was charged on this basis alone.^[7]

In Valdez, supra, 27 Cal.4th 778, the court addressed the mens rea for felony child abuse involving indirect infliction of harm[.] (Id. at p. 781; italics added.) The court noted with approval that a line of appellate decisions had found criminal negligence to be the normal mens rea under section 273a, subdivision (a). (Valdez, supra, 27 Cal.4th at pp. 784-785, and cases cited; see Walker v. Superior Court (1988) 47 Cal.3d 112, 136-138.) The court also noted, however, that in People v. Sargent (1999) 19 Cal.4th 1206 (Sargent), it had held that where direct infliction of unjustifiable physical pain and mental suffering is alleged, felony child endangerment is a general intent crime. (Valdez, supra, 27 Cal.4th at p. 786, citing Sargent, supra, 19 Cal.4th at pp. 1219-1220, 1224; italics added.)

Distinguishing Sargent, the court held that where indirect infliction of harm on the child is charged under section 273a, subdivision (a), criminal negligence remains the standard: The conduct found to require a general intent mens rea in Sargent was direct infliction of unjustifiable physical pain or mental suffering. This prong of the statute, unlike the other three, does not expressly require the conduct to be willful. . . . Moreover, use of a general intent standard is appropriate when the statute criminalizes commission of a battery, or direct infliction of unjustifiable pain or suffering. By contrast, criminal negligence is the appropriate standard when the act is intrinsically lawful, such as leaving an infant with a babysitter, but warrants criminal liability because the surrounding circumstances present a high risk of serious injury. Criminal negligence is not a lesser state of mind; it is a standard for determining when an act may be punished under the penal law because it is such a departure from what would be the conduct of an ordinarily prudent or careful person under the same circumstances. . . . ( 273a, subd. (a).) (Valdez, supra, 27 Cal.4th at pp. 789-790; italics added.)

Assuming for the sake of argument the trial court erred in failing to instruct on criminal negligence, the error is harmless beyond a reasonable doubt. Detective Hutchinss testimony about the dangers faced by children in the midst of a drug deal was unrefuted. To put small children at risk of unknowingly ingesting potentially lethal substances, or of becoming involved in violence in the midst of a drug deal, surely comes within the definition of criminal negligence set out in CALJIC No. 16.170: Criminal negligence refers to negligent conduct which is aggravated, reckless or flagrant and which is such a departure from the conduct of an ordinarily prudent, careful person under the same circumstances as to be contrary to a proper regard for danger to human life or constitute indifference to the consequences of that conduct. (See fn. 3, ante.)

Thus, contrary to defendants position, we think any error by the trial court was harmless beyond a reasonable doubt. The jury necessarily found that defendant knowingly went out to sell drugs with two small children in his car. Given Detective Hutchinss undisputed testimony, these facts established criminal negligence. Thus we see no possibility of a different verdict on count 3 had the jury been properly instructed.

III

Defendant contends the trial courts exclusion of Pete Turners guilty plea and admission that he sold the controlled substances to Shim rendered the trial fundamentally unfair and requires reversal on all counts. We conclude the contention is forfeited, and, if it is not, there is no prejudicial error.

Background

The People moved orally in limine to exclude the fact that co-defendant Turner had pled guilty to one count of selling cocaine base. The prosecutor said she believed the defense would try to introduce the plea as evidence of third-party culpability, which it was not. However, there is no defense motion in the record which seeks the pleas admission, on that theory or any other.

Defense counsel said (just for the courts edification) she had heard Turner made an unsworn statement during the entry of his plea in which he claimed sole possession of the drugs he sold to Detective Shim and purported to exonerate defendant. Counsel did not argue that the unsworn statement should be admitted, however. Nor did counsel make any argument to show why the plea itself was admissible on any theory.^[8]

The prosecutor asserted that Turners plea was irrelevant and CALJIC No. 2.11.5 can be used to tell the jury not to speculate about why a person other than the defendant is not on trial. After the trial court asked whether Turner would testify and was told he would not, the court granted the Peoples motion to exclude the evidence.

The court thereafter orally instructed the jury pursuant to CALJIC No. 2.11.5: There has been evidence in this case indicating that a person other than the defendant was or may have been involved in the crimes which [sic] the defendant is on trial. There may be many reasons why that person is not here in [sic] trial, therefore, do not speculate or guess as to why the other person is not being prosecuted in this trial or whether he or she has been or will be prosecuted. Your duty is to decide whether the [P]eople have proved the guilt of the defendant on trial.^[9]

Analysis

Defendant asserts: Both the fact of Turners conviction and Turners claim that he, and not [defendant], was the person who sold drugs to Shim were admissible. We conclude defendants argument is forfeited as to both items of evidence.

To win reversal for the wrongful exclusion of evidence, its proponent must show on appeal (with exceptions not relevant here) that he made known to the trial court [t]he substance, purpose, and relevance of the excluded evidence[.] (Evid. Code, 354, subd. (a); see People v. Morrison (2004) 34 Cal.4th 698, 711.) As we have explained, the record fails to show that defendant made any affirmative argument, in either oral or written form, for the admission of either Turners plea or his unsworn statement. Nor did defendant make an offer of proof. (See Morrison, supra, 34 Cal.4th at p. 711.)

Only the prosecutors statement to the court that defense counsel had indicated she wanted to offer the plea for third-party culpability gives any hint of what the defense theory

might have been. So far as the record shows, counsel never explained to the court how the plea was relevant, on that theory or any other. And counsels offhand remark for the courts edification about Turners unsworn statement was her only reference to it: counsel did not formally request its admission or explain its relevance on any theory. Under these circumstances, defendants arguments are forfeited.

Defendant tries to turn the forfeiture problem on its head, asserting that the People may not argue the evidence was inadmissible because such claims . . . were not raised and litigated in the trial court. But defendant has the initial burden of showing he raised the claims. (Evid. Code, 354, subd. (a).) The People had no obligation to litigate claims in the trial court which defendant did not raise there.

Assuming that defendant preserved these claims for appeal, consistent with Evidence Code, section 354, we see no prejudicial error.

We begin with Turners plea of guilty itself (apart from any accompanying explanations he made).

Under the prosecutors theory of the case, Turner was an accomplice who was the middle man between defendant, the seller, and Shim, the buyer. Because Turner was guilty of sale of cocaine as an accomplice, his plea of guilty did not tend in reason to prove that defendant was not guilty of the sale. Thus, the plea was irrelevant and inadmissible for the purpose of showing defendants innocence. (Evid. Code, 210.) The

plea tended to show Turner committed the crimes and, because he assisted defendant, the plea reinforced defendants guilt. The plea was, perhaps, relevant as tending to prove defendants guilt. But the exclusion of this evidence was harmless as to defendant, because Turners guilty plea would have hurt defendant, not helped him.

As for Turners purported statement that he alone was responsible for the sale of cocaine, it was not admissible under the declaration against penal interests exception to the hearsay rule (Evid. Code, 1230)^[10]for two separate reasons: (1) no showing was made that Turner was unavailable to testify, and (2) in any event, the statement that he alone was responsible, made at or after the time he entered his plea, does not qualify as a declaration against his penal interest. Turner was guilty regardless of whether he was defendants accomplice or Turner acted alone. Because his guilt was established by his involvement in a hand-to-hand sale of cocaine to an undercover officer, he had a readily apparent reason to take the whole

blame, without any jeopardy to himself, in order to get his accomplice off the hook. Thus, when it was made, Turners statement that he was solely responsible for the sale of cocaine was not so far contrary to [his] pecuniary or proprietary interest, or so far subjected him to the risk of civil or criminal liability, . . . or created such a risk of making him an object of hatred, ridicule, or social disgrace in the community, that a reasonable man in his position would not have made the statement unless he believed it to be true. (Evid. Code, 1230; fn. 10, ante.) In other words, it was not a declaration against interest within the meaning of Evidence Code section 1230.

We see no reversible error in the trial courts exclusion of Turners plea or his accompanying statements.

IV

Defendants Pitchess motion was ruled on by Judge Marlette.

Defendant asks us to examine the sealed records of the trial courts hearing on his Pitchess motion to obtain discovery of the personnel records of Officer Chandler. (People v. Mooc (2002) 26 Cal.4th 1216, 1232.) The court informed defendant after the hearing that it had not found anything discoverable.

Having reviewed the sealed records, we find that the court did not abuse its discretion. The hearing disclosed no evidence that Officer Chandler had falsified reports, evidence, or testimony, or that he had engaged in excessive force.

DISPOSITION

The judgment is affirmed.

SIMS , J.

We concur:

SCOTLAND , P.J.

MORRISON , J.

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^[1] The prosecutor also said Chandler could be recalled to the stand, but then noted that his wife was in the process of having a baby at that time.

^[2] Section 273a, subdivision (b), provides: Any person who, under circumstances or conditions other than those likely to produce great bodily injury or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be endangered, or willfully causes or permits that child to be placed in a situation where his or her person or health may be endangered, is guilty of a misdemeanor. (Italics added.)

^[3] CALJIC No. 16.170, the standard CALJIC instruction on misdemeanor child endangerment, provides in part (italics added):

Every person who . . . [w]illfully causes or willfully and as a result of criminal negligence permits a child to be placed in a situation where his or her person or health may be endangered is guilty of violating section 273a, subdivision (b),  . . . a misdemeanor.

The word willfully, as used in this instruction, means with a purpose or willingness to commit the act or make the omission in question. The word willfully does not require any intent to violate the law, or to injure another, or to acquire any advantage.

In the crime charged, there must exist a union or joint operation of act or conduct and either general criminal intent or criminal negligence.

[] . . . []

Criminal negligence refers to negligent conduct which is aggravated, reckless or flagrant and which is such a departure from the conduct of an ordinarily prudent, careful person under the same circumstances as to be contrary to a proper regard for [human life] [danger to human life] or constitute indifference to the consequences of that conduct. The facts must be such that the consequences of the negligent conduct could reasonable [sic] have been foreseen and it must appear that the [death] [danger to human life] was not the result of inattention, mistaken judgment or misadventure but the natural and probable result of aggravated, reckless or flagrantly negligent conduct.]

[] . . . []

In order to prove this crime, each of the following elements must be proved:

[] . . . []

[1. A person had care or custody of a child and

[] . . . []

[b. Willfully caused or willfully and as a result of criminal negligence permitted the child to be placed in a situation where his or her person or health may be endangered].

^[4] The court noted that there was also evidence a child was not wearing a seat belt, which might show criminal negligence; however, the prosecutor said she had not decided whether to argue that theory. In the end, she did not.

The court also stated it did not see the need to consult Valdez, supra, 27 Cal.4th 778, because counsel had said that decision concerns felony child endangerment.

^[5] The oral instruction is patently incomplete. However, the written instruction in the record includes this language before the last sentence, missing from the reporters transcript: In order to prove this crime, each of the following elements must be provided [sic].

^[6] The definition of felony child endangerment is identical in this respect except that the offender has placed the child in a situation where his or her person or health is endangered[.] ( 273a, subd. (a); italics added.)

^[7] The information actually states defendant willfully cause[d] and permit[ted] the children to be endangered. (Italics added.)

^[8] When the trial court asked counsel whether it would not further contaminate your clients chance in front of the jury if they knew he associated with individuals that sold drugs[,] counsel replied, Not necessarily, Your Honor. However, counsel did not elaborate on that answer.

^[9] This instruction does not appear in the clerks transcript.

^[10] Evidence Code section 1230 provides: Evidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made, was so far contrary to the declarants pecuniary or proprietary interest, or so far subjected him to the risk of civil or criminal liability, or so far tended to render invalid a claim by him against another, or created such a risk of making him an object of hatred, ridicule, or social disgrace in the community, that a reasonable man in his position would not have made the statement unless he believed it to be true.