P. v. Mason

Filed 10/4/07 P. v. Mason CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

A jury convicted defendant Tommie Sylvester Mason, Jr., of possession of cocaine base for sale. He contends that the trial court erred in admitting evidence of a prior conviction for selling cocaine base to an undercover officer on the issues of his knowledge of the narcotic nature of the drug and intent to sell it. In the alternative, he argues that his trial counsel provided ineffective assistance by failing to enter into a stipulation removing those issues from the jurys consideration. We find no evidentiary error or ineffective assistance, and affirm the judgment.

I. BACKGROUND

Defendant was charged by amended information with possession of a firearm by a convicted felon (Pen. Code,  12021, subd. (a)(1); count one), and possession of cocaine base for sale (Health & Saf. Code,  11351.5; count two). The information also alleged that defendant had previously been convicted of possession of a controlled substance for sale (Health & Saf. Code,  11351), for which he received a prison term, and that the prior conviction came within the purview of Health and Safety Code section 11370.2, subdivision (a) (imposing three-year additional sentence), and Penal Code section 1203.07, subdivision (a)(11) (barring probation). Defendant pleaded not guilty to both counts and denied the previous conviction allegation.

Jury trial commenced on April 3, 2006.

A. Prosecution Case

On December 25, 2004, Oakland Police Officer Michael Tremkamp and his partner were on patrol in a marked, black-and-white police car traveling north on Market Street near West Grand Avenue. Tremkamp was familiar with the neighborhood and considered it to be dangerous based on the number of shootings and extensive narcotics-related activity that had taken place there during his five years on the Oakland police force.

As the officers were passing 21st Street, they saw defendant walking through a gas station. They pulled alongside of defendant, whom they both knew through prior contacts. Tremkamp, who was in regular police uniform, got out of the car and said something to defendant along the lines of, Hey, can I talk to you for a minute? As he closed the car door, Tremkamp made eye contact with defendant who then took off running through the gas station and eastbound on West Grand. The parties stipulated that Officer Tremkamps contact with defendant took place at approximately 3:00 p.m. on December 25, 2004, that the contact was lawful and justified, and that Tremkamp, for officer safety reasons, put his hand on his gun, which was holstered on his belt.

Tremkamp chased after defendant. A good distance opened up between them because defendant was a faster runner. As defendant reached 857-859 West Grand, he jumped a chain link fence into a rear yard. As the officer approached the yard, he heard voices yelling at him in a concerned and agitated tone, including one male voice yelling, Officer, officer, hes got a gun, repeated two or three times. There were about 10 or 12 people in the yard, including children. Tremkamp saw decorations and a picnic table covered by a table cloth in the yard. It appeared to him that this was a party event of some sort. When Tremkamp realized that defendant might have a gun, he stopped and decided to wait for other officers to arrive. He saw defendant run through the yard and jump over a wooden fence. Officer Tremkamp lost visual contact with defendant after he jumped over the wooden fence, but he could hear him trampling through the yards.

Gretchen I., who was eight years old at the time, was in the yard at 857 West Grand on December 25, 2004. She saw a man who she did not know jump over a chain link fence into the yard and run through the yard. The man was holding a black metal gun in his right hand, which was pointed in the air.

Matthew Fernandez, who was Gretchens uncle, lived at 859 West Grand on December 25, 2004. Approximately 11 adults and 15 children were attending a Christmas celebration in the backyard on that date. At about 3:00 p.m., Fernandez saw a man running from the police. The man jumped the fence into the backyard, ran past Fernandez, and jumped over a wire gate and then a wooden gate into the next yard. He was a holding a gun that Fernandez thought was a nine-millimeter handgun with a black handle. The barrel was facing down. Fernandez identified defendant as the man with the gun shortly after the incident, and again at trial.[1]

Officer Tremkamp formed a search team that included a canine unit. A path marked by bent blades of grass, footprints, and broken branches, as well as canine tracking, led the officers to the rear door of a residence at 868 22nd Street. The rear door was protected by an outer security gate. Once it was determined that defendants escape path led to 868 22nd Street, a close perimeter was set up around the building. Oakland Police Sergeant Kyle Thomas, who arrived after the perimeter had already been set up, knocked on the front door of 868 22nd Street to seek the owners permission to search the residence. Thomas estimated that he was present at the scene for at least 90 minutes before entering the residence. In addition to the owner and four other people in the apartment, there was a very large pit bull present, which the owner secured at Thomass request.[2] The owner consented to the search, and left the apartment while the search was conducted, along with the other occupants and the dog.

Officer Gysin located defendant in a closet in the back bedroom, perched in a squatting position on top of a clothing rack, with his head against the ceiling. Gysin ordered defendant to show his hands and climb down. He complied, and was handcuffed when he came out of the closet. Gysin began searching the room for the gun and ammunition. Eventually, he went back to search the closet, starting at the bottom and working his way up. He found an opening in the ceiling to a shallow crawl space between the ceiling and the subfloor above. By climbing up into the closet, he was able to reach into the opening and within half an arms reach, found a plastic bag that he believed contained about 15 rocks of cocaine base. No drug paraphernalia was found on defendants person. Gysin and other officers searched the entire apartment for a gun, but did not find one. No gun was found along the route defendant followed to the apartment either. The plastic bag recovered in the crawl space was not preserved for fingerprints.

The total weight of the rocks found in the plastic baggie was 2.17 grams. Police Officer Francisco Rojas, who was qualified as a drug expert, testified that such a quantity, broken up into several individual rocks, was possessed for sale. Rojas also opined that the possession of a gun by a hypothetical person found with that weight and quantity of cocaine rocks would be consistent with his opinion that the cocaine was possessed for sale since dealers frequently carry guns to protect themselves from rival drug dealers.

Oakland Police Sergeant Ersie Joyner testified that in 1993, while working as an undercover narcotics officer, defendant sold him one rock of cocaine base. Defendant was arrested and convicted of possession of drugs for sale (Health & Saf. Code,  11351) as a result of that transaction.

B. Defense Case

The parties stipulated that a defense private investigator went to 868 22nd Street in Oakland and measured the opening in the closet, which was 15 inches by 15 and one-quarter inches, and the height between the closet ceiling and the plywood subfloor above was five and one-half to six inches.

The defense offered Sergeant Joyner as an expert on narcotics trafficking in the City of Oakland. He testified that narcotics dealers would sometimes hide their stash of drugs in a house or a backyard, so that they would not have the drugs on them if contacted by the police or if another drug dealer attempted to rob them. He further testified that it was common for drug dealers to throw their drugs away when being chased by the police.

C. Verdict, Judgment, and Appeal

The jury acquitted defendant of count one and convicted him of count two. The trial court struck the prior conviction allegations and sentenced defendant to the middle term of four years in prison.

This timely appeal followed.

II. DISCUSSION

Defendant contends that his conviction resulted from: (1) trial court error in admitting evidence of defendants prior conviction for possession of a controlled substance for sale; or, alternatively, (2) ineffective assistance of counsel in not entering into a stipulation concerning the factual issues on which the prior conviction evidence was found admissible.

A. Admission of Prior Conviction Evidence

Before trial, the prosecution moved under Evidence Code section 1101, subdivision (b) to admit evidence of the facts pertaining to defendants 1993 conviction for possession of cocaine for sale.[3] The prosecutor asserted that the evidence was relevant to prove that defendant knew the substance found in the closet was cocaine and that he intended to sell it.[4] Over defendants objection, the prosecution was allowed to put in evidence, including testimony by a police officer, that defendant was convicted of possession of drugs for sale in 1993 after selling one rock of cocaine base to the officer when he was posing undercover as a drug buyer. After the close of evidence, the trial court instructed the jury under CALJIC No. 2.50 that the evidence that defendant had committed a prior crime was admissible solely to prove knowledge and intent and could not be considered as evidence to prove that defendant had bad character or a disposition to commit crimes.

Defendant argues that the evidence should not have been admitted because the issues of his knowledge of the narcotic nature of the cocaine rocks found in the crawl space and of his intent to sell them were not really at issue and were sufficiently proven by other credible evidence. He asserts that the prosecution was easily able to prove through the testimony of a police criminalist and of Officer Rojas, its drug trafficking expert, that the substance found in the crawl space was rock cocaine and of a sufficient quantity that it must have been possessed for sale. Evidence of a prior drug conviction was neither necessary to prove knowledge or intent, nor was it particularly probative, since the facts of this case were not sufficiently similar to the prior act, 11 years earlier, of selling a single rock of cocaine to an undercover officer. At the same time, such evidence was highly prone to misuse by the jury as evidence of defendants bad character or propensity to engage in drug dealing. Thus, according to defendant, the evidence should have been excluded under Evidence Code sections 1101 and 352.[5]

We are not persuaded. By pleading not guilty to count two, defendant placed all elements of the possession-for-sale charge in issue. At trial, the prosecution carried the burden of demonstrating every element of the offense beyond a reasonable doubt to all 12 jurors. Defendants 1993 conviction in fact constituted highly probative evidence as to both the knowledge and intent to sell elements that was important to the prosecutions case-in-chief.

Short of an in-court admission, the 1993 sale and conviction was the strongest possible evidence of defendants knowledge in 2004 of the narcotic nature of the substance found with him. While that knowledge might have been established by much weaker inference from other evidence, the court cannot be faulted for allowing the side carrying the burden of proving that fact beyond a reasonable doubt to put its strongest evidence of it forward.

The same is true of the intent evidence. As the trial court pointed out, the probative value and importance of the 1993 cocaine sale might have been viewed differently had defendant been observed in the act of selling cocaine in 2004. But there was no such evidence in this case. There was also no evidence that defendant was carrying an unusual amount of cash or that other indicia of dealing were present. Absent the 1993 conviction, the prosecutions intent case would have rested entirely on the number of cocaine rocks found near defendant and Officer Rojass opinion testimony interpreting that information. From the prosecutions point of view, it was no certainty that such a showing would have been sufficient to produce a unanimous verdict on possession for sale. As discussed below, defendant had a plausible defense on the issue of whether the cocaine found in the apartment belonged to him. But even if that barrier could be overcome, the jury would have the option of finding defendant guilty of the lesser included offense of simple possession. Denying the prosecution evidence that defendant had been observed in 1993 in the act of selling the very same narcotic substance that he was found with in 2004 would have tilted the scales measurably against the prosecution on the issue of possession for sale.

On the other side of the balancing test, evidence concerning the 1993 conviction did not risk consuming undue amounts of time or of introducing extraneous or confusing issues into the case. There was no dispute about the underlying facts, the evidence could be and was presented succinctly, and there was no risk that jurors would confuse the facts concerning the 1993 controlled buy with the evidence underlying the current charges. Since the jury was informed that defendant was convicted in 1993, there was little risk that it would be tempted to use the current proceedings to punish defendant again for his past transgression. Although there was undoubtedly some risk that jurors could take the 1993 conviction as evidence of a continued propensity by defendant to sell drugs, the jury instructions included a specific admonishment on this point and the age of the conviction, 11 years, would tend to dampen that risk somewhat.

We must decide whether admitting the evidence under Evidence Code section 1101, and determining that its probative value was not greatly outweighed by the potential for unfair prejudice to the defense was an abuse of the trial courts broad discretion over the admission of evidence. (People v. Cole (2004) 33 Cal.4th 1158, 1195; People v. Kipp (1998) 18 Cal.4th 349, 371.) In view of the record before us, we cannot hold that the trial courts ruling [fell] outside the bounds of reason. (People v. Kipp, at p. 371.)

B. Ineffective Assistance

Defendant argues in the alternative that his trial counsel was ineffective in failing to offer a stipulation to the effect that if the jury found him to be in possession of the rock cocaine, he knew of its narcotic nature and possessed it for sale. According to defendant, such a conditional stipulation would have reserved the defendants right to contest the possession element but satisfied the prosecutions burden of proof on the knowledge and intent issues, thereby eliminating any justification for allowing the prosecution to bring in evidence of the 1993 conviction.[6] Defendant maintains that there was no arguable tactical reason for his trial counsel to have failed to offer such a stipulation since the jurys knowledge that defendant had previously been convicted of possessing rock cocaine for sale ensured his conviction.

To demonstrate ineffective assistance of counsel, a defendant must show that: (1) counsels performance was deficient under prevailing professional norms; and (2) but for counsels failings, it is reasonably probable that the result of the proceeding would have been more favorable to him. (People v. Seaton (2001) 26 Cal.4th 598, 666.) Defendants ineffective assistance claim falls short on both counts.

The defense had a very respectable argument that the drugs found in the crawl space did not belong to defendantan argument that would have been thoroughly undermined by the stipulation he now faults his trial counsel for not offering. The drugs had been found in a small crawl space above a closet. The space was accessible only through a nearly square hole in the ceiling that was not easily visible to a person who did not already know it was there. A hole cut in that location arguably served no purpose other than to provide access to a hiding place. The apartment was located in an area known for drug dealing, and the defense had established through Sergeant Joyner that drug dealers would sometimes hide their drug stash in their house. These facts enabled the defense to argue that it was as reasonable to infer from the evidence that a resident of the apartment had hidden the drugs in the crawl space as that defendant had done so. Defense counsel skillfully emphasized the instruction given to the jury that if two reasonable inferences could be drawn from the evidence, one of which pointed to his innocence, the jury was required to find him not guilty. The possible inference that defendant could not have put the drugs where they were found was sufficiently worrisome to the prosecution that it sought to argue from circumstantial evidence that he knew about the closet and the crawl space because the residents of the apartment must have let him in and given him refuge there until the police showed up.[7]

Defendant thus had a viable defense to the prosecutions theory that the cocaine hidden in the crawl space was his. The fact that defendant had once sold a rock of cocaine 11 years earlier did not substantially undermine that defense. But stipulating to his knowledge and intent if the jury found the possession element satisfieda stipulation defense counsel would have been unable to explain to the jurywould likely have been seen by jurors as virtually an admission by defendant that this defense was not viable. The stipulation would have also eliminated the jurys ability to find defendant guilty of the lesser included offense of simple possession. Such a defense strategy would have been entirely self-defeating.

Trial counsel was not ineffective for failing to offer the proposed stipulation and, had he done so, there is no reasonable prospect that defendant would have obtained a better result. Defendants ineffective assistance claim fails.

III. DISPOSITION

The judgment is affirmed.

_________________________

Margulies, J.

We concur:

_________________________

Marchiano, P.J.

_________________________

Stein, J.

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[1] Fernandez admitted on direct examination that he had suffered two prior felony convictions, and was on felony probation on December 25, 2004. He admitted on cross-examination that he was on disability for mental illness at the time of trial.

[2] Another officer present, Officer Frank Gysin, testified that there were two other occupants besides the owner, both teenaged males.

[3] Evidence Code section 1101 provides in relevant part: (a) Except as provided in this section . . . evidence of . . . specific instances of [a persons] conduct . . . is inadmissible when offered to prove his or her conduct on a specified occasion. [] (b) Nothing in this section prohibits the admission of evidence that a person committed a crime . . . or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, . . .) other than his or her disposition to commit such an act.

[4] The jury was instructed under CALJIC No. 12.01 that the prosecution had the burden of proving beyond a reasonable doubt that the defendant: (1) exercised control over or the right to control, an amount of cocaine base, a controlled substance; (2) knew of its presence; (3) knew of its nature as a controlled substance; (4) possessed an amount of the substance sufficient to be used for sale or consumption as a controlled substance; and (5) possessed the controlled substance with the specific intent to sell it.

[5] Evidence Code section 352 provides: The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.

[6] Defendant acknowledges that his counsels offer or agreement not to argue the absence of proof of knowledge and intent to the jury would have been insufficient. (See People v. Thornton (2000) 85 Cal.App.4th 44, 4749 [criminal defendant may not limit the prosecutions ability to put in evidence on an element of an offense by promising not to argue that issue to the jury].) To affect the admissibility of evidence on an issue, counsel must take an action that eliminates the prosecutions burden of proof on the issue. (See People v. Daniels (1991) 52 Cal.3d 815, 857858 [defendant must take some action to narrow the prosecutions burden of proof].)

[7] The prosecution argued that defendant had to have been let in to the house by the residents because of the security door, the presence of the pit bull, and the fact that he was in the house for approximately 90 minutes before the police entered.