P. v. Davis

Filed 8/21/08 P. v. Davis CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Charles G. Rogers, Judge. Affirmed.

A jury convicted Henry Davis of selling cocaine base (Health & Saf. Code,  11352, subd. (a)). In separate proceedings, the court found Davis had a prior prison conviction (Pen. Code,  667.5, subd. (b))^[1]and a prior conviction for selling cocaine base (Health & Saf. Code 11370.2, subd. (a)). In addition, the court found Davis had a 1981 conviction in New York for second degree assault (1981 conviction) that qualified

as a prior strike conviction under California law. ( 667, subds. (b)-(i), 668, 1170.12.)

The court sentenced Davis to a total of six years in prison, consisting of the lower term of three years for selling cocaine base doubled for the prior strike conviction. The court declined to impose sentence for the prior prison and prior drug sale conviction enhancements.^[2]

Davis appeals, arguing the court erred in denying his request for an entrapment instruction. He also argues the court erred in finding the 1981 conviction qualified as a prior strike conviction under California law. We affirm the judgment.

FACTUAL BACKGROUND

Prosecution Evidence

Posing undercover as a narcotics buyer, San Diego Police Detective Roberto Lemus approached a man walking along C Street in downtown San Diego and asked the man if he was "working," meaning selling drugs. The man replied he was not and directed Lemus to two men walking together behind him. Lemus approached the pair and asked one of them to sell him drugs. The man told Lemus he did not have any and does not sell to people he does not know.

Intentionally being persistent,^[3]Lemus asked the other man, Daniel Phares, to ask his companion to "hook me up," meaning sell Lemus drugs. Phares did not comply. Lemus then asked Phares, "Can you hook me up?" Phares said, "No." Lemus asked Phares once again. This time, Phares told Lemus to walk with him and they left Phares's companion.

While walking, Lemus and Phares encountered Davis. Phares asked Davis if Davis knew Lemus. Davis looked Lemus over and said Lemus looked familiar although Lemus had not encountered Davis previously. Davis then asked Lemus, "What are you looking for?" Lemus replied "a twenty," meaning $20 worth of cocaine. Davis told Phares to "give it to him" and asked Lemus for the money. Lemus gave Davis a $20 bill, which Lemus had previously photocopied for identification purposes.

Meanwhile, Phares walked away from Lemus and Davis. He stopped near a planter box and then reached into his mouth, extracted a small object, and dropped the object on the ground.

After Davis accepted Lemus's money, they walked over to where Phares was standing. When they were approximately five feet from Phares, Phares pointed to the ground and said, "There it is." Lemus asked, "Where?" Both Davis and Phares pointed to the ground at the small object and said, "Right there."

Lemus picked up the object and recognized it to be cocaine. He then signaled for uniformed officers to arrest Davis and Phares, who were walking away together. When the officers arrested Davis and Phares, one of the officers found the previously photocopied $20 bill on the sidewalk between Davis and Phares.

Defense Evidence

Davis testified he and Phares knew one another from being homeless together. When Phares approached him and asked him whether he knew Lemus, he started to say, "no." However, Phares went behind Lemus and signaled Davis to say, "yes." Davis "felt something wasn't right," but he was not thinking clearly because he had been drinking and was distracted by plans to enter a rehabilitation program. He thought Phares was planning to "rip off" Lemus and there would be something in it for him. Consequently, he followed Phares's cue and said he knew Lemus.

Davis then asked, "Why?" and Lemus said, "I want a twenty." Davis responded, "I do not sell drugs." Phares subsequently signaled that he had some drugs, so Davis asked Lemus if he had $20. Lemus said "yes," and snuck a ball of money into Davis's hand.

After giving Davis the money, Lemus asked Davis for the drugs three times. Each time, Davis replied he did not sell drugs and did not have any drugs. Davis suggested Phares might have the drugs and the two followed Phares, who had walked away.

Davis asked Phares, "Where's the man's stuff?" Phares said it was on the ground and pointed at the cocaine. Davis then pointed out the cocaine for Lemus, gave Lemus's money to Phares, and left. Officers arrested him a short while later. Davis testified he believes Phares was cooperating with Lemus to get African Americans to sell drugs to Lemus since all the men Lemus contacted, other than Phares, were African American.

DISCUSSION

I.

Entrapment Instruction

Defense counsel requested the court instruct the jury on the defense of entrapment. The court denied the request, finding there was insufficient evidence to support giving the instruction. Davis contends the court erred in denying this request because there was sufficient evidence of entrapment to warrant a jury determination of the issue. We disagree.

A court is only required to instruct a jury on the defense of entrapment if there is substantial evidence to support the defense. (People v. Watson (2000) 22 Cal.4th 220, 222.) The test for entrapment is whether the conduct of law enforcement officers or their agents was likely to induce a normally law-abiding person to commit the offense. (People v. Barraza (1979) 23 Cal.3d 675, 689-690.) Merely offering a person an opportunity to act unlawfully is permissible. However, badgering, cajoling, importuning or otherwise pressuring a person by overbearing conduct is impermissible. (Id. at p. 690.)

Determining whether law enforcement conduct constitutes entrapment depends on the specific circumstances of a case. In making this determination, courts apply two guiding principles. First, entrapment occurs if law enforcement conduct induces a normally law-abiding person to commit a crime for a motive other than ordinary criminal intent, such as friendship or sympathy. (People v. Barraza, supra, 23 Cal.3d at p. 690.) Second, entrapment occurs if law enforcement conduct makes the commission of a crime unusually attractive to a normally law-abiding person. Such conduct includes offering exorbitant consideration, or guaranteeing an act is lawful or undetectable, but does not include steps reasonably necessary to gain a suspect's confidence. (Id. at p. 690 & fn. 4.)

Here, there is no evidence Lemus induced Davis to act out of sympathy or friendship or some other noncriminal motive. Davis testified he became involved in the transaction because he thought Phares was planning to "rip off" Lemus and Phares would reward him for his assistance.

There is also no evidence Lemus made the transaction unusually attractive to Davis. Both Lemus and Davis testified Lemus offered to buy $20 worth of cocaine for $20.

Although Lemus asked Phares three times to either sell cocaine to him or facilitate a sale, the evidence does not show Lemus's persistence was harassing, annoying, or overwhelming to Phares such that it was impermissibly overbearing. In fact, the evidence shows Phares did not sell Lemus cocaine until Davis vouched for Lemus, indicating it was Davis's conduct, not Lemus's conduct, that persuaded Phares to engage in the transaction. Moreover, Detective Zaldivar testified some persistence is occasionally necessary before a seller will feel comfortable selling drugs to an unknown buyer. Steps reasonably necessary to gain a suspect's confidence do not constitute entrapment. (People v. Barraza, supra, 23 Cal.3d at p. 690, fn. 4.)

Similarly, although Davis testified Lemus asked him three times for drugs, the evidence does not show these requests prompted Davis's participation in the transaction. Davis testified he participated because of Phares's signals and the prospect of personal gain, not because of Lemus's requests. He also testified Lemus's requests occurred after Lemus stated he wanted to buy cocaine, Phares signaled he had cocaine to sell, Davis asked Lemus for the money, and Davis received the money. This sequence of events indicates Lemus's requests were to prompt Davis to complete a transaction that had already begun rather than to commence a transaction.

Finally, the evidence does not show Phares was cooperating with Lemus to entice African Americans to sell drugs to Lemus. Lemus testified an African American directed him to Phares, not vice versa. In addition, Lemus testified Phares would not facilitate a drug sale between Lemus and Phares's first African American companion. Lemus also said he had not encountered either Phares or Davis previously and had not even noticed Davis until Phares called out to Davis to vouch for him. Moreover, after the parties completed their transaction, officers arrested both Phares and Davis.

Because there is no substantial evidence of entrapment in this case, we conclude the court properly denied Davis's request for an entrapment instruction. In light of our conclusion, we do not reach Davis's arguments regarding the appropriate standard for determining whether instructional error is reversible.

II.

1981 Conviction as a Strike

The prosecution alleged Davis's 1981 conviction qualified as a strike prior under California law. To prove this allegation, the prosecution submitted several certified documents from the record of conviction, including the indictment, the certificate of conviction and the transcript of the sentencing hearing.

The indictment charged Davis with violating New York Penal Law section 120.05, subdivision (2) (assault statute), which states in part: "A person is guilty of assault in the second degree when: [] . . . [] 2. With intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument." The indictment alleged Davis "while having a cast on his arm, did beat [the victim] about the head, face and body with his fists, feet and with the cast, thereby causing [the victim] to have a fractured right arm, fractured nose, and fractured ribs" in violation of the dangerous instrument prong of the assault statute. The certificate of conviction indicates Davis was convicted of the offense charged in the indictment.

At the sentencing hearing, Davis denied using the cast on his arm to beat the victim. However, the court replied, "Well, I am accepting the decision of the jury who heard all of the facts and after hearing the entire case."

In addition to the previously described documents, the prosecution submitted certified documents from the record of a 1999 California conviction for selling cocaine base (1999 conviction) to show Davis has previously admitted the 1981 conviction qualifies as a prior strike conviction. Davis did not submit any conflicting evidence.

After considering both the record of the 1981 conviction and the record of the 1999 conviction, the court found the 1981 conviction qualified as a prior strike conviction. Davis contends the court erred because there is insufficient admissible evidence to show the 1981 conviction involved the personal use of a deadly or dangerous weapon. We conclude this contention is without merit.

A foreign conviction qualifies as a strike under California law if it involves conduct that would constitute a serious felony in California. ( 667, subd. (d)(2), 1170.12, subd. (b)(2); People v. Warner (2006) 39 Cal.4th 548, 552-553.) To determine whether a foreign conviction meets this requirement, a fact-finder may examine and draw reasonable inferences from certified documents from the record of conviction. The fact-finder may presume an official government document, prepared contemporaneously as part of the record of conviction, and describing the prior conviction, is truthful and accurate. Unless rebutted, the document is sufficient evidence of the facts it recites about the nature and circumstances of the prior conviction. If the record of conviction does not reveal how the offense was committed and the offense can be committed in multiple ways, a fact-finder must presume the conviction was for the least serious form of the offense. On review, we examine the record in the light most favorable to the judgment to determine whether a rational fact-finder could have found the prosecution sustained its burden of proving the elements of the sentence enhancement beyond a reasonable doubt. (People v. Miles (2008) 43 Cal.4th 1074, 1082-1083.)

Here, the parties agree the 1981 conviction would only qualify as a prior strike conviction if Davis personally used a dangerous or deadly weapon to commit the offense. ( 1192.7, subd. (c)(23).) However, Davis contends there is insufficient evidence on this point because the certified documents from the record of the 1981 conviction constitute inadmissible hearsay. This contention is incorrect. These documents fall within the official records exception to the hearsay rule. (Evid. Code, 1280.) Moreover, because Davis did not rebut the information in these documents, the information is presumptively truthful and accurate. (People v. Miles, supra, 43 Cal.4th at p. 1082.)

Davis further contends it is unclear from the record of the 1981 conviction whether he committed the offense with a cast or with his hands and feet. Because a fact-finder must presume a conviction was for the least serious form of the offense and because hands and feet are not "dangerous or deadly" weapons under California law, he contends there is insufficient evidence to establish the offense was a serious felony under California law.

Davis's argument mistakenly assumes New York law allows a person to be convicted under the assault statute for physical injuries inflicted by hands and feet. Under applicable New York law, " 'dangerous instrument' " means "any instrument, article or substance . . . which, under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing death or other serious physical injury." (N.Y. Pen. Law,  10.00, subd. (13).) As interpreted by New York courts, " 'dangerous instrument' " is limited to objects external to the human body. The term does not include hands, feet or any other body part. (People v. Owusu (1999) 93 N.Y.2d 398, 399, 402.) Consequently, although the indictment alleged Davis beat the victim with his hands, feet, and the cast on his arm, the jury could not have convicted Davis of violating the assault statute unless the jury found Davis committed the assault with the cast on his arm as well as with his hands and feet. This result is consistent with the discussion between Davis and the court at the sentencing hearing.

Davis does not dispute that the use of an arm cast constitutes the personal use of a dangerous or deadly weapon within the meaning of section 1192.7, subdivision (c)(23). Accordingly, we conclude the court could have rationally found the prosecution established the 1981 conviction qualified as a prior strike conviction beyond a reasonable doubt. As the record of the 1981 conviction provided sufficient evidence to support the court's finding, we do not reach Davis's additional contention that the court improperly relied on the record from the 1999 California conviction.

DISPOSITION

The judgment is affirmed.

McCONNELL, P. J.

WE CONCUR:

HUFFMAN, J.

NARES, J.

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^[1] Further statutory references are to the Penal Code unless otherwise indicated.

^[2] At the sentencing hearing, the court stated it was both striking and staying the punishments for these enhancements as may be required so that the punishments were not imposed. The abstract of judgment does not list these enhancements, which is an indication the court struck them rather than stayed them. Neither party raises this ambiguity as an issue in this appeal.

^[3] San Diego Police Narcotics Detective Jesse Zaldivar testified it is sometimes necessary for unknown buyers to make multiple requests and have multiple people vouch for them before a seller will feel comfortable selling drugs to them.