P. v. Floyd

Filed 9/15/08 P. v. Floyd CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, Harvey Giss, Judge. Affirmed in part, reversed in part, and remanded.

Karyn H. Bucur, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and David Zarmi, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________

Robear Floyd, Jr. appeals from his conviction of possession of methamphetamine in violation of Health and Safety Code section 11377, subdivision (a). His sole argument on appeal is that the trial court impermissibly precluded cross-examination of one of the arresting officers about general police practice in conducting parole searches. We find no abuse of the trial courts discretion and affirm. We grant respondents request that we remand to correct a sentencing omission raised by respondent because the trial court lacked jurisdiction to correct the omission by nunc pro tunc order during the pendency of this appeal.

FACTUAL AND PROCEDURAL SUMMARY

On the night of March 20, 2007 appellant was smoking a cigarette outside the rear entrance to the Classy Lady bar in the San Fernando Valley when he was approached by Los Angeles Police Officer Anthony Smith. Both Officer Smith and his partner, Officer Albert Shinfeld, were dressed in raid jackets which were clearly labeled with police insignia which identified them as police officers.

Officer Smith asked appellant how he was doing and what he was doing. Appellant said he was smoking a cigarette. When asked whether he was on parole or probation, appellant said he was on parole for forgery. Officer Smith asked whether appellant had any weapons or narcotics on his person. Appellant immediately spun around, put his hands behind his head, spread his legs, and turned his back toward the officer, assuming a search position. He told the officer to go ahead and search him, I know youre gonna do it anyways.

Following his usual practice, Officer Smith began searching appellant at his waistband, starting with the right front change pocket. The officer felt a semi-small hard object, recovered it, and put it in his pocket. It was a balled up or folded piece of cellophane like a cigarette wrapper with an off-white crystal like substance which later testing revealed to be methamphetamine. As Officer Smith removed this item, appellant said: Fuck. Thats gonna be a year violation. Officer Shinfeld also heard appellants comment that he would have another year to serve. Appellant was handcuffed and arrested.

He was charged with one count of possession of a controlled substance in violation of Health and Safety Code section 11377, subdivision (a). The information also alleged a prior conviction and prison term within the meaning of Penal Code section 667.5, subdivision (b). A prior strike serious or violent felony was also alleged pursuant to Penal Code section 1170.12, subdivisions (a) through (d) and section 667, subdivisions (b) through (i). Appellant testified in his own behalf, saying that he did not know he had methamphetamine in his pocket. He was found guilty as charged, and the prior strike conviction and prior prison term allegations were found true. This timely appeal followed.

DISCUSSION

I

Appellants sole issue on appeal is whether the trial court improperly circumscribed appellants examination of Officer Shinfeld. At trial, Officer Smith testified to the search and arrest of appellant. He said that it was not standard for an officer to search a persons pants pockets when conducting a search. Officer Smith said often the officer does not search pants pockets.

Then Officer Shinfeld was called. On cross-examination, defense counsel asked whether he previously had conducted searches of people who were on parole. The prosecutor objected on grounds of relevance. The judge and counsel retired to chambers. Defense counsel explained that he intended to ask Officer Shinfeld whether he always searches pants pockets when conducting a parole search. He argued the answer would be relevant [b]ecause I think its reasonable people on parole can have their pockets searched; and the previous officer testified he doesnt always search a persons pants pockets. I would tend to think that a person when conducting a parole search, that one of the places when youre looking for other weapons or potential narcotics or contraband would be the pants pockets of an individual.

The trial court observed: I dont think that goes to the proposition that youre going to use it for. When your defendant takes the stand he says I know Ill be searched everywhere, including my orifices; and I would have never left it in my pocket if I put it there to begin with. That would be the last place Id put it. You can do it that way. I think its not relevant as to what this officer does. You cant extrapolate from that what you want to establish. Defense counsel responded that he expected the prosecutor to argue that appellants testimony should not be believed, and that the testimony of another officer who describes his common practice would be relevant. He submitted on that argument and the trial court sustained the relevance objection.

On appeal, appellant argues that the trial court abused its discretion in precluding him from questioning Officer Shinfeld whether he routinely searches coin pockets during a parole search. He contends: Counsel sought to introduce this evidence both to impeach Anthony Smith, the officer who had conducted the search of appellant and testified that most officers would not search a persons coin pocket during a parole search (2 RT 114-116), and to support appellants theory that appellant, a parolee, would not hide drugs where he knew the police would search. (2 RT 138-139.)

[A]ll relevant evidence is admissible at trial and . . . the trial court has broad discretion in determining the relevance of evidence [citations] but lacks discretion to admit irrelevant evidence. (People v. Carter (2005) 36 Cal.4th 1114, 1166-1167; see Evid. Code, 351.) Relevant evidence includes all evidence . . . having any tendency in reason to prove . . . any disputed fact that is of consequence to the determination of the action. (Evid. Code, 210.) (People v. Riggs (2008) 44 Cal.4th 248, 289-290.) On appeal, we review the trial courts rulings concerning the admissibility of evidence for abuse of discretion. (Id. at p. 290.)

The defense theory was that appellant did not put the methamphetamine in his pocket and did not know it was there. Appellant argues: The testimony of [Officer Shinfeld] stating that the police routinely search pants pockets during parole searches would have supported appellants theory that appellant, a parolee, would not have hidden drugs where he knew the police would search. . . .  The excluded evidence would have tended to show that appellant lacked knowledge of the presence of the drugs in his coin pocket and that appellants state of mind was inconsistent with guilt.

Later in the trial, appellant testified in his own defense. He testified that he did not use the coin pocket where the drugs were found because it is too small for his fingers to get into. (Appellant is six feet seven inches tall and said he had big hands.) He said he knew he could be searched at any time as a condition of parole, and that he was not allowed to have weapons or drugs. He did not testify that he would not have put drugs in his pants pockets because he knew that his pockets would be checked in a parole search. Instead, appellant testified that he often held items in his pockets for employees at the clubs where he worked as a security guard, and, on two prior occasions, had found narcotics in his pockets. The defense theory was that someone else had put the methamphetamine in his pocket, although he was not working as a security guard at the time of his arrest. While appellant testified that he had been subjected to a parole search before this arrest, he was not asked, and did not say, whether his pockets were searched at that time.

We conclude the trial court did not abuse its discretion in ruling that Officer Shinfelds testimony about parole search procedures was irrelevant. Appellants theory that Officer Shinfelds testimony would have supported his defense that he would not have put narcotics in his pockets because he knew they could be searched is attenuated and speculative. There is no evidence that appellant avoided putting contraband in his pants pockets because he was subject to search. Instead, his testimony was that he let others put items in his pockets, and that, on two occasions, he had found narcotics in his pockets.

Alternatively, appellant contends the excluded evidence was relevant to Officer Smiths credibility by impeaching his testimony that coin pockets are not usually searched during a parole search. As respondent points out, this mischaracterizes Officer Smiths testimony. After testifying about the training he had received about conducting searches of a person, Officer Smith said: Everybodys technique is different. If you lined up ten officers, tell them to search ten different people, theyll search them ten different ways. After saying that it is not his standard practice to search pants pockets, Officer Smith clarified: Once again, every officer is going to be different. Even if Officer Shinfeld testified that his routine practice was to search pants pockets, including the coin pocket, this would not have impeached Officer Smiths testimony. A trial courts limitation on cross-examination pertaining to the credibility of a witness does not violate the confrontation clause unless a reasonable jury might have received a significantly different impression of the witnesss credibility had the excluded cross-examination been permitted. (People v. Quartermain (1997) 16 Cal.4th 600, 623-624.) Here, a reasonable jury would not have received a significantly different impression of Officer Smiths credibility even if the excluded evidence had been permitted. (See People v. Whisenhunt (2008) 44 Cal.4th 174, 208.)

We find no abuse of the trial courts discretion in precluding the defense from questioning Officer Shinfeld about his parole search practices.

II

In its brief, respondent asks us to remand because the trial court failed to impose any sentence on the prior prison term enhancement under Penal Code section 667.5, subdivision (b). The court was required to either impose the enhancement or strike it with a statement of reasons. (People v. Bradley (1998) 64 Cal.App.4th 386, 390-391.) The failure to do so thus created an unauthorized sentence subject to reversal on appeal. The remand would be for the limited purpose of sentencing on the prior prison term enhancement (Pen. Code, 667.5, subd. (b).) In his reply brief, appellant informs us that his trial and appellate counsel had jointly prepared an ex parte motion to the trial court to correct the omission nunc pro tunc.

We are in receipt of a minute order issued by the trial court on April 28, 2008. The trial court acknowledged the inadvertent omission. It ruled: The court now exercises its discretion and strikes the section 667.5(B) allegation pursuant to Penal Code section 1385 in that the court used said conviction to double defendants prison term. Further, the underlying conviction was for a nonviolent crime and 4 years was deemed sufficient punishment for what normally would have been a 180 day county jail sentence for a first time conviction (Proposition 36 aside).

The trial court was without jurisdiction to issue the nunc pro tunc order. The filing of a valid notice of appeal transfers jurisdiction of a cause to the appellate court until the issuance of the remittitur. (People v. Perez (1979) 23 Cal.3d 545, 554.) . . . [R]emittitur ensures in part that only one court has jurisdiction over the case at any one time. (Ibid.) (People v. Saunoa (2006) 139 Cal.App.4th 870, 872.) Further, a nunc pro tunc order may not be used to correct judicial error. (See Craven v. Crout (1985) 163 Cal.App.3d 779, 782; 7 Witkin, Cal. Procedure (4th ed. 1997) Judgment,  67, p. 594.)

DISPOSITION

Appellants conviction is affirmed, his sentence is reversed, and the case remanded for resentencing.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

EPSTEIN, P. J.

We concur:

WILLHITE, J.

SUZUKAWA, J.

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