P. v. Pinkett

Filed 1/29/09 P. v. Pinkett CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from judgments of the Superior Court of Los Angeles County. Patricia Titus, Judge. Affirmed.

Rachel Lederman, under appointment by the Court of Appeal, for Defendant and Appellant Gregory T. Pinkett.

Robert H. Pourvali, under appointment by the Court of Appeal, for Defendant and Appellant Roy L. Johns.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels and William H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.

__________________________

Gregory Todd Pinkett and Roy L. Johns appeal from their conviction of selling cocaine base. We affirm, holding that the jury instruction on evaluating circumstantial evidence was proper, there was sufficient evidence that Johns was involved in the drug sales transaction, and the trial court properly reviewed and evaluated the discoverability of certain citizen complaints against the arresting officers.

FACTS AND PROCEDURAL HISTORY

At around 6:40 p.m. on March 9, 2007, undercover Los Angeles Police Officer Michael Saragueta approached Gregory T. Pinkett in the area of Fifth Street and Gladys Avenue and asked if he could buy $20 worth of crack cocaine. As Saragueta started to walk past him, Pinkett said wait and signaled the officer toward him. Saragueta gave Pinkett four $5 dollar bills that had been photocopied earlier, and Pinkett handed Saragueta a 0.26 gram-sized rock of cocaine base. Pinkett had been standing near a tarp that had been hung up as a makeshift tent and, after the transaction was completed, Pinkett handed the money to Roy L. Johns, who Saragueta just then noticed had been under the tarp. Saragueta walked off and signaled several nearby police officers that a drug sale had just occurred so they could move in to arrest Pinkett and Johns.

Undercover Officer Alonzo Williams, who was standing five to 10 feet away, heard Pinkett tell Johns to put that stuff away. The police are coming. Johns was holding a white, plastic baby wipes container and Williams saw Johns close that container and stash it inside a red bag that was inside a nearby shopping cart. Williams also saw Johns place the money received from Saragueta on top of the tarp covering that cart. The police searched Pinkett and found he was carrying a glass pipe used to smoke cocaine. A search of Johns turned up $388 in cash that had been stashed throughout his clothing. The money Saragueta handed to Pinkett was recovered from the shopping cart where Johns had placed it. Inside the baby wipes box were two razor blades and a rock of cocaine base weighing more than 0.4 grams.

Pinkett and Johns were charged with one count each of selling cocaine base. (Health & Saf. Code,  11352, subd. (a).) Johns was charged with one count of possessing cocaine base for sale. (Health & Saf. Code,  11351.5.) Pinkett testified that he was at the scene in order to buy cocaine for personal use and to meet up with a friend. He denied having any involvement in a drug transaction with Saragueta. Johns did not testify. A jury convicted both of the cocaine sales count, but acquitted Johns of the possession count. They contend the trial court erred by instructing the jury with Judicial Council of California Criminal Jury Instructions (2006-2007) CALCRIM No. 224, which explains how to evaluate circumstantial evidence. Johns contends there was insufficient evidence that he took part in Pinketts transaction with Saragueta. Johns also asks us to review the sealed transcript of the trial courts Pitchess^[1]hearing and determine whether the court improperly withheld relevant documents from the personnel files of the arresting officers.^[2]

DISCUSSION

1.      CALCRIM No. 224 Is A Proper Instruction

The jury was instructed with CALCRIM No. 224, which explains how to evaluate circumstantial evidence: Before you may rely on circumstantial evidence to conclude that a fact necessary to find a defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt. [] Also, before you may rely on circumstantial evidence to find a defendant guilty, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that a defendant is guilty. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable.

This instruction was preceded by CALCRIM No. 223, which explained the differences between direct and circumstantial evidence: Facts may be proved by direct or circumstantial evidence or by a combination of both. Direct evidence can prove a fact by itself. For example, if a witness testifies he saw it raining outside before he came into the courthouse, that testimony is direct evidence that it was raining. Circumstantial evidence may also be called indirect evidence. Circumstantial evidence does not directly prove the fact to be decided, but is evidence of another fact or group of facts from which you may conclude the truth of the fact in question. For example, if a witness testifies that he saw someone come inside wearing a raincoat covered with drops of water, that testimony is circumstantial evidence because it may support a conclusion that it was raining outside. [] Both direct and circumstantial evidence are acceptable types of evidence to prove or disprove the elements of a charge, including intent and mental state and acts necessary to a conviction, and neither is necessarily more reliable than the other. Neither is entitled to any greater weight than the other. You must decide whether a fact in issue has been proved based on all the evidence.

Appellants contend CALCRIM No. 224 improperly directed the jury to apply the prosecutions burden of proof beyond a reasonable doubt, as well as the presumption of innocence, to circumstantial evidence only, leaving the jury free to evaluate and weigh direct evidence under some lesser standard of proof. They are wrong. As explained in People v. Anderson (2007) 152 Cal.App.4th 919, CALCRIM No. 224 does no more than explain that circumstantial evidence may be used to find a defendant guilty, but only if the only reasonable inference to be drawn from the underlying facts points to guilt. The same limitation does not apply to direct evidence. CALCRIM No. 224 is not a burden of proof instruction. (Anderson, at p. 931.) We agree with the Anderson court and, despite appellants contentions to the contrary, see no reason to depart from its reasoning. Appellants jury was properly instructed that the prosecution had to prove its case beyond a reasonable doubt, and we therefore hold that no instructional error occurred.

2.      There Was Ample Evidence That Johns Aided and Abetted Pinkett

Johnss guilt was based on the theory that he aided and abetted Pinketts drug sale to Saragueta. Johns contends there was insufficient evidence to establish that he did so. We disagree.

Aider-abettor liability exists when a person who does not directly commit a crime assists the direct perpetrator by aid or encouragement, with knowledge of the perpetrators criminal intent and with the intent to help him carry out the offense. (People v. Beeman (1984) 35 Cal.3d 547, 560-561.) Under the applicable substantial evidence standard of review, we must view the evidence on this issue in the light most favorable to the judgment, and will affirm if there is reasonable and credible evidence from which the jury could have relied in reaching its verdict. (People v. Barnwell (2007) 41 Cal.4th 1038, 1052.) There was evidence that Pinkett took $20 from Saragueta in exchange for a rock of cocaine base, then immediately handed that money to Johns, who was underneath the tarp where Pinkett was stationed. When Pinkett saw the police moving in for an arrest, he warned Johns to put that stuff away. Johns put the money from Saragueta atop his shopping cart, along with a baby wipes container that held a rock of cocaine base and two razor blades. Johns had $388 in cash stashed on his person, but Pinkett had no cash. A police officer testified that drug sales in the area where appellants were arrested often involve a third person who serves as an intermediary between the buyer and the actual seller. A reasonable jury could easily infer from this that Johns was working with Pinkett, with the latter acting as Johnss intermediary.^[3]

3.      The Trial Courts Pitchess Determinations Were Proper

Pursuant to Pitchess, supra, 11 Cal.3d 531, as codified in Evidence Code sections 1043 through 1047, Johns moved to discover complaints in the personnel files of the police officers involved in his arrest. The trial court granted that motion as to complaints that involved the officers credibility.^[4] It then reviewed the personnel files in camera, finding that various documents were relevant to the Pitchess motion, while others were not. Johns asks that we independently review the sealed transcript of the trial courts Pitchess document review and determine whether the trial court disclosed all relevant complaints. We do so under the abuse of discretion standard. (People v. Mooc (2001) 26 Cal.4th 1216, 1228-1232.)

The trial court adequately described the various documents it considered and we hold that it did not abuse its discretion when selecting or rejecting documents for discovery by Johns.^[5]

DISPOSITION

For the reasons set forth above, the judgments against appellants are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

RUBIN, Acting P. J.

We concur:

FLIER, J.

ONEILL, J.^*

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^[1]Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).

^[2] We will sometimes refer to Pinkett and Johns collectively as appellants.

^[3] Johns contends we should ignore evidence that he had been holding the baby wipes container because an officer named Jackson testified at the preliminary hearing that Officer Williams told him Pinkett had been holding the container. Jackson testified at trial that he had simply misspoken at the preliminary hearing, and Williams testified that he saw Johns holding the container. This did no more than raise a credibility issue for the jury to resolve.

^[4] The Pitchess motion is not in the record, but neither party has raised its absence as an issue on appeal.

^[5] One document that the court deemed not relevant was not described, however. Even so, because the trial court so fully described every other document and turned over several it deemed relevant, we cannot conclude that the absence of detail as to just one of the many documents reviewed could amount to an abuse of discretion.

^* Judge of the Ventura Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.