Filed 8/28/26 P. v. Palmer CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D085702
Plaintiff and Respondent,
v. (Super. Ct. No. SCD274478)
FREDERICK JOSEPH PALMER,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Albert T. Harutunian, III, Judge. Affirmed.
Richard J. Moller, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant
Attorney General, Arlene A. Sevidal, Assistant Attorney General, Daniel
Rogers and Adrian R. Contreras, Deputy Attorneys General, for Plaintiff and
Respondent.
During a five-week surveillance operation of a convenience store, law
enforcement recorded Frederick Joseph Palmer conducting several apparent
hand-to-hand drug transactions. Four of his buyers were stopped by law
enforcement after the transactions were complete, and two were found in
possession of cocaine base.
Palmer was charged with 19 counts of selling cocaine base. To show
that all of his transactions involved this drug, the prosecution presented
evidence of more than 20 other sales involving different sellers that took
place at the same store during the same surveillance period. Following these
other sales, law enforcement stopped the buyer and seized a drug from their
person or vehicle, and in all but one instance the drug was confirmed to be
cocaine base.
A jury ultimately convicted Palmer of 10 counts of selling cocaine base.
On appeal, he contends the trial court abused its discretion in admitting
evidence of the other sales and relatedly claims his counsel was ineffective in
failing to request an instruction telling the jury the limited purpose for which
it could consider this evidence. For reasons we explain, we discern no error
or ineffective assistance of counsel and accordingly affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
According to a detective who testified at Palmer’s trial, cocaine base
comes in the form of a small rock about the size of a pea. Dealers might keep
several rocks together in a small plastic bindle. To hide the drug from law
enforcement, however, dealers often keep individual rocks in their mouths or
private areas. During a sale, the dealer will pinch the small rock between
their index finger and thumb and place it into the customer’s open palm.
Generally, a dealer will set up in an area that is known for cocaine base
sales—somewhere they have a customer base, that is outside the view of
surveillance cameras, and that is obscured from law enforcement observation.
Customers learn through word of mouth the places to go to buy the drug.
2
Between July 7 and August 15, 2022, law enforcement surveilled a
convenience store called Mike’s Market. During that time period, Palmer
was seen conducting what appeared to be 19 hand-to-hand transactions
outside the store. Many of these transactions featured the hallmarks of a
cocaine base deal—Palmer was reaching into his mouth, pinching something
between his fingers, or manipulating a plastic bindle containing an off-white
substance while the customer was extending their open palm toward him.
In addition to Palmer, law enforcement observed other men and women
conduct hand-to-hand transactions around Mike’s Market during the same
timeframe. Palmer was present in the background during many of these
sales.
A few days into the surveillance operation, law enforcement began
stopping some of the buyers after the transaction was complete. At least 24
buyers were stopped, four of them being Palmer’s buyers.
Many but not all of the stops led to the seizure of narcotics. Of the
narcotics seized, all but one sample tested positive for cocaine base.1 Two of
Palmer’s buyers were found in possession of cocaine base. The detective
explained that cocaine base is easily concealed or destroyed because it is so
small—it can be thrown, hidden in private areas, or swallowed.
The prosecution filed an amended indictment charging Palmer with 19
counts of selling cocaine base (Health & Saf. Code, § 11352, subd. (a)). As to
each count, it was alleged the offense was committed for the benefit of a
1 In one of the stops, law enforcement recovered a “white rock-like
substance” and a “white crystalline substance” from the vehicle. The
laboratory analyst only testified regarding the latter substance, which was
confirmed to be crystal methamphetamine.
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criminal street gang (Pen. Code,2 § 186.22, subd. (b)(1)) and while Palmer
was out on bail in another case (§ 12022.1, subd. (b)). The prosecution
further alleged that Palmer suffered one prior serious felony conviction
(§ 667, subd. (a)) and one prior strike (§§ 667, subds. (b)–(i)/1170.12). Several
aggravating sentencing factors were asserted as well (Cal. Rules of Court,3
rule 4.421(a)(8), (b)(1)–(3) & (5)).
The court entered a judgment of acquittal (§ 1118.1) on five counts
(counts 2, 6, 10, 13, 17) where the surveillance video evidence failed to show
an exchange of drugs or money between Palmer and the alleged buyer. The
jury convicted Palmer of 10 counts (counts 3, 4, 7, 8, 9, 12, 14, 16, 18, 19) and
found him not guilty of the remaining four counts (counts 1, 5, 11, 15).
In bifurcated proceedings, the court entered a judgment of acquittal
(§ 1118.1) on the gang allegation based on insufficient evidence that his drug
sales benefitted a gang and dismissed one sentencing factor allegation (rule
4.421(b)(5)) on the prosecution’s request. The jury found true that Palmer
suffered a prior serious felony and a prior strike, and that he was out on bail
when he committed the current offenses. It also found true that Palmer was
a serious danger to society, that his criminal convictions were numerous
and/or of increasing seriousness, and that he had previously served time in
prison (rule 4.421(b)(1)–(3)). But it found not true that the current offenses
were carried out with planning, sophistication, and professionalism (rule
4.421(a)(8)).
2 Further undesignated statutory references are to the Penal Code.
3 Further undesignated rules references are to the California Rules of
Court.
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At sentencing, the court struck the prior strike in the interest of justice.
It then sentenced Palmer to one term of four years (count 3), five consecutive
terms of one year four months (counts 4, 7, 8, 9, 12), four concurrent terms of
four years (counts 14, 16, 18, 19), and one consecutive term of two years for
the on-bail enhancement.4
DISCUSSION
A. Evidence of Sales By Others
Palmer primarily claims the trial court abused its discretion by
admitting evidence that others sold cocaine base at Mike’s Market during the
surveillance period. We conclude the court reasonably admitted the evidence.
1. Additional Background
Before trial, the court granted Palmer’s related motions to bifurcate
trial on the gang allegations and to exclude all gang evidence from the first
phase of trial.
Palmer also moved to exclude evidence of drug sales by anyone else as
irrelevant, unduly prejudicial, and unduly time consuming. At the hearing
on motions in limine, defense counsel elaborated that any probative value in
the evidence that other people were selling cocaine base at Mike’s Market
would be far outweighed by its prejudicial effect, since it would not
necessarily follow that Palmer was selling cocaine base as well. Moreover, it
would be unduly time consuming to examine every video, picture, officer, and
4 At the same time Palmer was sentenced in this case, he was
resentenced in the case on which he had been out on bail (SCD292521). In
that case, the court imposed a consecutive term of two years for an assault by
means likely to produce great bodily injury (§ 245, subd. (a)(4)) plus one year
for a great bodily injury enhancement (§ 12022.7, subd. (a)) and stayed
punishment for a battery with serious bodily injury (§ 243, subd. (d)). The
total sentence for both cases was 15 years 8 months.
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lab analyst regarding each transaction, of which there were more than 100.
In counsel’s view, this would open “a huge Pandora’s box of having this trial
last a long, long time.”
In response, the prosecutor explained that although there was
surveillance video of Palmer allegedly selling cocaine base 19 separate times,
drugs were seized from the alleged customer on just two occasions. As
further circumstantial evidence that the remaining 17 transactions also
involved cocaine base, the prosecutor sought to present evidence of other
sales that took place at Mike’s Market around the same time period. She had
evidence of roughly 175 transactions and more than 20 seizures of the
purchased drug, which turned out to be cocaine base virtually every time.
She theorized that Mike’s Market was functionally an open air farmers
market for cocaine base. As to the time consumption, she noted that one
detective would testify regarding all of the surveillance evidence, most of the
officers that executed the seizures conducted more than one, and one lab
analyst examined all of the samples.
The court decided the evidence was admissible, finding its probative
value was not outweighed by the consumption of time or prejudicial effect. In
the court’s view, it was permissible for the prosecutor to argue that “every
known transaction law enforcement has had at that location has been cocaine
base. So it’s circumstantial evidence that everybody sells cocaine base when
they’re selling drugs at that location.” By the same token, the defense could
argue that was “guesswork or something like that,” but any weakness in the
inference to be drawn from the evidence of the other sales went to its weight,
not its admissibility. The court limited the evidence, however, to the 20-
something sales that resulted in seizure of the cocaine base. Presenting the
other 100-plus sales would effectively be asking the jury to make an inference
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upon an inference—to infer from the sales where the drug was confirmed to
be cocaine base that the other sales also involved cocaine base, and to infer
from the latter that Palmer also sold cocaine base—which was too tenuous.
The next day, Palmer orally asked the court to reconsider its ruling,
emphasizing that evidence of the other sales was unnecessary because the
evidence that two of his own sales resulted in the seizure of cocaine base
allowed the jury to infer that all of his sales involved that drug. Moreover, he
urged the court to consider the danger that the jury would assume “this is a
group activity, this is a conspiracy,” and “something more nefarious is going
on than just Mr. Palmer selling drugs 19 times,” which undercut the purpose
of excluding the gang evidence. In the alternative, Palmer asked the court to
limit the other-sales evidence to testimony, because videos or pictures could
be unduly prejudicial to the extent the other sellers were dressed “like gang
members” or appeared “thuggish.”
The court declined to change its ruling or limit the evidence to
testimony only. It was not persuaded that it would be unduly prejudicial for
the jury to learn that other people were selling cocaine base at the same
market, noting such conduct was no more serious than what Palmer was
charged with. The court further reasoned it was common knowledge “that
there are areas of town where people go to if they want to partake” in certain
“vices” and that does not necessarily mean that everyone doing the same
criminal activity in the same area works for some “master boss or something
like that.”
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2. Admitting Evidence of Sales By Others Was Not an Abuse of Discretion
Only relevant evidence is admissible. (Evid. Code, § 350.) Evidence is
relevant if it has “any tendency in reason to prove or disprove any disputed
fact that is of consequence to the determination of the action.” (Id., § 210.)
“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.” (Id.,
§ 352.) In this context, prejudice “ ‘refers to evidence that uniquely tends to
evoke an emotional bias against the defendant as an individual, and has little
to do with the legal issues raised in the trial.’ ” (People v. Miles (2020) 9
Cal.5th 513, 587.) We review the trial court’s decision to admit evidence for
abuse of discretion. (Ibid.) We will not disturb a court’s exercise of discretion
“ ‘ “ ‘ “except on a showing that the court exercised its discretion in an
arbitrary, capricious or patently absurd manner that resulted in a manifest
miscarriage of justice.” ’ ” ’ ” (Id. at pp. 587–588, italics omitted.)
Here, the trial court reasonably exercised its discretion to admit
evidence of the other sales. The prosecution was required to prove that the
drugs Palmer sold were, in fact, cocaine base. (See CALCRIM No. 2300.)
Since cocaine base was seized from only two of his buyers, the fact that the
remaining 17 transactions involved cocaine base needed to be shown
circumstantially. Evidence that more than two dozen other sales took place
at the same location around the same time and virtually all of them involved
cocaine base tended to show that Palmer was selling this specific drug as
well. This is especially true in light of the expert testimony that dealers of a
certain drug tend to “set up” in a particular area so their customers will know
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where to buy that drug. The fact that the jury could infer that Palmer was
selling cocaine base in every transaction based on the evidence that two of his
sales resulted in the seizure of cocaine base did not extinguish the relevance
of the other sales. (See People v. Scheid (1997) 16 Cal.4th 1, 16 [“Subject to
the trial court’s authority to exclude cumulative evidence . . . , it is
immaterial for purposes of determining the relevance of evidence that other
evidence may establish the same point.”].)
We see nothing arbitrary, capricious, or absurd in the trial court’s
determination that the probative value of the other-sales evidence was not
outweighed by any undue prejudice. Palmer insists the evidence should have
been excluded because the jury might have assumed he was part of a gang or
a conspiracy. But there was no basis from which the jury could infer that he
was involved in some broader operation, as opposed to just one of many
sellers at this “open air drug market,” as the prosecutor put it. Beyond the
fact that these several individuals sold the same drug at the same place,
sometimes on the same day and sometimes on different days, there was no
evidence of any relationship or agreement between them. The prosecutor
never suggested to the jury that the sellers were connected to each other in
any way, much less involved in a gang.
The court also sensibly limited the evidence to the 20-something sales
that resulted in the seizure of cocaine base, instead of the 100-plus sales the
prosecution offered. Palmer maintains this limitation was insufficient. He
notes that presenting evidence of the 20-something sales took at least as
much time as the evidence of his own sales. In his view, the court should
have further limited the evidence to sales that took place on the days he sold
as well, or to the two sales made to undercover officers. To be sure, the time
it took to present evidence of each transaction, the stop of each buyer, and the
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seizure of the cocaine base from each buyer was substantial. But the court
fairly found this consumption of time was warranted. The sheer number of
times law enforcement stopped someone who engaged in a hand-to-hand sale
at Mike’s Market and found cocaine base on their person or in their vehicle is
what tended to show this particular location was the place to buy cocaine
base. Further limiting the number of sales would not have had the same
effect.
B. Ineffective Assistance of Counsel
Palmer also claims he received ineffective assistance of counsel insofar
as his attorney did not request a limiting instruction “informing the jury that
it could consider the evidence of sales of cocaine base by other people only for
the purpose of establishing [he] was selling cocaine base, and not to conclude
he had a bad character or was part of a gang or conspiracy.”
“When challenging a conviction on grounds of ineffective assistance, the
defendant must demonstrate counsel’s inadequacy. To satisfy this burden,
the defendant must first show counsel’s performance was deficient, in that it
fell below an objective standard of reasonableness under prevailing
professional norms. Second, the defendant must show resulting prejudice,
i.e., a reasonable probability that, but for counsel’s deficient performance, the
outcome of the proceeding would have been different. When examining an
ineffective assistance claim, a reviewing court defers to counsel’s reasonable
tactical decisions, and there is a presumption counsel acted within the wide
range of reasonable professional assistance. . . . On direct appeal, a
conviction will be reversed for ineffective assistance only if (1) the record
affirmatively discloses counsel had no rational tactical purpose for the
challenged act or omission, (2) counsel was asked for a reason and failed to
provide one, or (3) there simply could be no satisfactory explanation. All
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other claims of ineffective assistance are more appropriately resolved in a
habeas corpus proceeding.” (People v. Mai (2013) 57 Cal.4th 986, 1009 (Mai).)
Here, it would have been very reasonable for counsel to decide that
such an instruction would not be helpful to the defense. As noted, there was
no evidence suggesting the sellers at Mike’s Market had any relationship or
agreement with one another, and the prosecutor made no suggestion to that
effect. She explicitly argued that the other sales constituted circumstantial
evidence that Palmer was selling cocaine base. An instruction telling the
jury not to consider the other sales as evidence that Palmer “had a bad
character or was part of a gang or conspiracy” risked emphasizing to jurors
the precise inference he wanted to avoid.
DISPOSITION
The judgment is affirmed.
DATO, J.
WE CONCUR:
O'ROURKE, Acting P. J.
KELETY, J.
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