P. v. Pressley

Filed 8/7/09 P. v. Pressley CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Madera County. Edward P. Moffat, Judge.

Karen Anslinger, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.

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A jury convicted Susan Gail Pressley of possession of methamphetamine for sale (Health & Saf. Code,  11378) and of using a scanner to intercept a public safety radio signal with the intent of assisting a criminal offense (Pen. Code,  636.5). Pressley claims the trial court erred in refusing to quash the search warrant that resulted in the charges and in admitting evidence of her prior criminal act and her interviews with the investigating officers. We reject her contentions and affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY

Madera Police Officer Brian Esteves served a search warrant at Pressleys residence. The residence consisted of two bedrooms and one bath and was approximately 800 square feet. When Esteves arrived, he observed Renee Davis walking out the front door of the residence. Upon entering the residence, Esteves observed Pressley sitting on the bed in her bedroom. Pressley put her hand underneath the blankets as Esteves approached. When Esteves searched the bed, he found a clear plastic sandwich bag that contained a substance that appeared to be methamphetamine.

The substance weighed 8.63 grams, well in excess of a usable amount of methamphetamine. The typical dose of methamphetamine is .1 grams. Twenty dollars typically will purchase anywhere from .2 to .6 of a gram of methamphetamine. Esteves opined that the methamphetamine was possessed for sale based on the quantity and the other facts set out in the following paragraphs. Laboratory tests on the substance established that the substance contained methamphetamine.

Esteves also found a cell phone on the bed that Pressley admitted was hers. A baby monitor was found on the nightstand next to the bed. The transmitter for the monitor was found on the front porch of the house. Such items commonly are used by sellers of narcotics to provide advance notice of who was at the front door. A police scanner was found that was monitoring the Chowchilla Police Departments radio frequency, which can be used to monitor police frequencies and provide advance warning of police activity. Esteves did not locate any scale that could be used to weigh packages of illegal narcotics. Nor did he find any cutting agents.

Madera County Deputy Sheriff Tyson Pogue searched the pockets of a pair of Pressleys pants after she was detained and found $421 in currency. Madera County Deputy Probation Officer Feliciano Manzano located some small plastic baggies in a jewelry box in the bedroom. Special Agent Cesar Sanchez located some plastic bags in a garbage can in the living room. The plastic bags were torn in a manner (a corner removed) consistent with narcotics sales.

In 1988 Timothy Barker was employed by the City of Chowchilla Police Department. At that time he utilized a confidential informant to purchase methamphetamine from Pressley. After retrieving the substance from the informant, Barker determined the substance was methamphetamine. The informant bought additional methamphetamine from Pressley two days later. A search of Pressleys residence in the following days located 1.2 grams of methamphetamine and $716. Barkers search did not locate any pay/owe sheets or any scales. He found a baby monitor hanging outside the front door.

Deputy Probation Officer Linda Perez testified that in 1989 Pressley admitted selling methamphetamine within the past year.

Sue Van Tassel was a friend of Pressleys. Van Tassel testified that she and her husband owned a police scanner, and that she and Pressley listened to the police scanner as a form of entertainment.

Pressley testified that on the date in question she was awakened when Davis came by to talk. When Davis went outside to get a cigarette, Pressley heard over her baby monitor someone say, what are you doing here, Brian? Shortly thereafter, the police were inside the residence. She denied having methamphetamine in her bed. She did not know there was methamphetamine in her house. She denied that Esteves had found any methamphetamine in the house.

Pressley claimed that she had the baby monitor because she could not hear anything in the front of the house when she was in the back of the house. She has used a baby monitor for that purpose for approximately 13 years. She claimed she obtained a police scanner to save her cars. She explained that her former husband was always in trouble and, if she heard he got arrested on the scanner, she could go to the scene and retrieve her vehicle before it was towed. Although she is divorced, she has kept the scanner because its interesting.

Pressley denied selling methamphetamine. The small plastic bags in her bedroom were used for her jewelry. The sandwich bags were used by her live-in boyfriend to take his lunch to work. She had never before seen the sandwich bags that appeared to have a corner cut off of them. On cross-examination, Pressley admitted she had sold methamphetamine in the past.

The information charged Pressley with possession of methamphetamine for the purpose of sale (Health & Saf. Code,  11378) and interception of a public safety radio signal with a scanner with the intent of assisting a criminal offense (Pen. Code,  636.5).^[1] The jury found Pressley guilty of both offenses. The trial court sentenced Pressley to the midterm sentence of two years on count 1 and one day on count 2.

DISCUSSION

I. Motion to Quash the Warrant

Pressley filed a motion with the trial court seeking to have the warrant issued to search her residence quashed and all evidence obtained as a result of the search suppressed. She argued the warrant was issued without probable cause. The arguments asserted in the trial court are identical to those here.

The statement of probable cause on which the warrant was issued was prepared and executed by Esteves. After listing his qualifications, which were not challenged, Esteves stated that in July 2006 he received information from a confidential reliable informant (hereafter informant one) that Pressley was selling methamphetamine from her residence. This informant had not purchased methamphetamine from Pressley recently, but drug users with whom this informant was acquainted continued to purchase methamphetamine from her. Esteves also explained why he considered this informant to be reliable, an assertion that is not challenged.

In December 2006, Esteves spoke with another individual who was facing criminal charges. This informant (hereafter informant two) requested consideration on the charges being faced before providing information to Esteves. Esteves did not promise this informant leniency. Nonetheless, this informant showed Esteves several houses where narcotics were being sold. One of the houses was Pressleys residence. Informant two stated that Pressley sold methamphetamine and that he or she had purchased methamphetamine from Pressley. This informant also stated that Pressley was paranoid and that she monitored the Chowchilla Police Departments radio frequency.

In late February 2007, Esteves spoke with another informant (hereafter informant three) who also was facing criminal charges. This informant also requested consideration on the pending charges, but Esteves did not promise any leniency. Nonetheless, this informant showed Esteves two houses out of which methamphetamine was being sold. One of the houses was Pressleys residence. Informant three told Esteves that Pressley sold methamphetamine out of her residence and that he or she had taken his or her significant other to Pressleys house to buy methamphetamine. This informant had seen digital scales and packaging material in plain view while in Pressleys residence.

Esteves spoke with informant three within 10 days of the date the execution of the statement of probable cause. In that conversation, informant three stated that he or she and his or her significant other went to Pressleys residence to purchase methamphetamine. Together, the two then ingested the methamphetamine obtained from Pressley. Because this informant admitted that he or she had committed a crime, Esteves considered the statement to be reliable.

Finally, Esteves checked the CLETS (California Law Enforcement Telecommunications System) network and discovered that Pressley had been convicted of violating Health and Safety Code section 11379 in 1989. Based on this information, and his experience and training,^[2]Esteves opined that Pressley was selling methamphetamine from her residence and that evidence of sales could be obtained from her residence.

Pressley argues that the warrant should have been suppressed because it was not supported by probable cause to believe a search of her residence would uncover evidence of wrongdoing. The question facing a reviewing court asked to determine whether probable cause supported the issuance of the warrant is whether the magistrate had a substantial basis for concluding a fair probability existed that a search would uncover wrongdoing. [Citations.] The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. [Citation.] (People v. Kraft (2000) 23 Cal.4th 978, 1040-1041 (Kraft).)

The magistrates conclusions are entitled to deference. (Kraft, supra, 23 Cal.4th at p. 1041.) We review factual determinations, both express and implied, to determine if they are supported by substantial evidence. (People v. Lim (2000) 85 Cal.App.4th 1289, 1296.) We exercise our independent judgment to determine if the facts supported by substantial evidence demonstrate probable cause for issuance of the warrant. (Ibid.) Our review is based on the totality of the evidence, and not pieces of evidence. (Ibid.)

Pressleys analysis must be rejected because she focuses on specific items of evidence, without considering the totality of the evidence. Pressley points out that the information from informant one was stale. The search warrant was issued on March 15, 2007. The statement of probable cause indicated that the information from informant one was obtained in July 2006, eight months before the warrant was issued. According to Pressley, this information was stale and not worthy of consideration.

Information that is remote in time may be deemed stale and thus unworthy of consideration in determining whether an affidavit for a search warrant is supported by probable cause. Such information is deemed stale unless it consists of facts so closely related to the time of the issuance of the warrant that it justifies a finding of probable cause at that time. The question of staleness turns on the facts of each particular case. [Citations.] If circumstances would justify a person of ordinary prudence to conclude that an activity had continued to the present time, then the passage of time will not render the information stale. [Citation.] (People v. Hulland (2003) 110 Cal.App.4th 1646, 1652.)

The information from informant onethat Pressley was selling methamphetamine from her home in July 2006, by itself, was stale. The statement of probable cause, however, contained additional information that would justify a person of ordinary prudence to conclude that the activity had continued to the present time. Specifically, informant two confirmed that in December 2006 Pressley continued selling methamphetamine from her home. Informant three confirmed that in February 2006, and within two weeks of issuance of the search warrant, Pressley was selling methamphetamine from her home. This information shows a pattern of continuous sales of methamphetamine from Pressleys home. A person of ordinary prudence could conclude that informant ones information was not stale because the activity reported continued to the time period shortly before the search warrant was issued.

Pressley attacks the information from informants two and three as unreliable because they did not provide verified information in the past to establish their reliability, and they were each seeking concessions in pending criminal cases. Moreover, the information from these informants was not corroborated through independent means. Esteves did not conduct a controlled purchase of methamphetamine, nor did he cause officers to conduct surveillance of Pressleys home.

Again, Pressley focuses on this item of evidence, ignoring the entire picture. While these confidential informants were seeking assistance in their pending criminal cases, no promises were made for their cooperation. That these two informants corroborated each other added reliability to their statements. (People v. Terrones (1989) 212 Cal.App.3d 139, 149.) When the information provided by informant one is taken into consideration, the information provided appears even more reliable. Moreover, informant three provided information that exposed him to criminal charges. This indicates the informant was being truthful. (Ibid.) Finally, these two informants provided information based on personal observations, again adding to their credibility. (People v. Rochen (1988) 203 Cal.App.3d 684, 688.)

Finally, Pressley attacks Estevess statement that she had been convicted of selling methamphetamine in 1989. Esteves stated in the statement of probable cause that he had checked Pressleys criminal history through the CLETS network and learned she had been convicted of selling methamphetamine, in violation of Health and Safety Code section 11379. In subsequent proceedings in this case, Pressley established that while she initially pled guilty to violating section 11379, she was permitted to withdraw her plea and instead plead to violating section 11377, possession of methamphetamine. While the People concede that Pressley was allowed to withdraw her plea and enter a new plea, they also provided to the trial court a copy of the abstract of judgment that was filed on August 29, 1989, showing that Pressley had been convicted of violating section 11379.

Pressley attached nefarious motives to this mistake, alleging that Esteves knew she was not convicted of violating Health and Safety Code section 11379. There is nothing in the record, however, that would indicate that the CLETS network indicated that Pressley had been convicted of violating Health and Safety Code section 11377 when it was checked by Esteves. Therefore, it would appear that Estevess statement in the statement of probable cause was truthful. Pressleys arguments to the contrary are rejected.

Moreover, Pressley admits that she was convicted of violating Health and Safety Code section 11377. Had the magistrate been provided with this information, it would support an inference that there would be evidence of methamphetamine in her house.

When all of the circumstances are considered, and not just pieces of evidence in isolation, it is clear that there was a substantial probability that evidence of wrongdoing would be found in Pressleys house. The magistrate was justified in so concluding, and the trial court properly denied Pressleys motion to quash the warrant.

II. Admission of Prior Offense

Prior to trial, the trial court granted the Peoples motion to admit Barkers and Perezs testimonies that Pressley was selling methamphetamine in 1989. The prosecution offered the evidence to show Pressleys knowledge of methamphetamine and her intent to sell the methamphetamine. Pressley objected to the introduction of the evidence, arguing that because the events occurred 20 years ago, the prejudicial effect of the evidence outweighed its probative value. (Evid. Code,  352.) Pressley also offered to stipulate that she had knowledge of the nature of the substance. The People rejected the proffered stipulation. The trial court determined the evidence was relevant and that its probative value outweighed its prejudicial effect.

Pressley makes two arguments to support her contention that the evidence was erroneously admitted. First, she contends that the trial court should have required the prosecution to accept her offer to stipulate to her knowledge of the substance. Second, she asserts that the evidence should have been excluded because it was too old to be probative.

We reject Pressleys first argument because her stipulation was incomplete. She offered to stipulate that she knew what methamphetamine was and presumably would recognize it if it were presented to her. The prosecution, however, offered the prior act evidence to establish not only that Pressley knew what methamphetamine was, but also that she intended to sell the methamphetamine that the prosecution argued was found in her residence. Accordingly, the proposed stipulation was irrelevant, and the prosecution could not be compelled to accept it.^[3]

Therefore, the trial court was faced with deciding whether it should admit evidence of a criminal act committed 19 years before the trial to prove that Pressley knew what methamphetamine was and that she possessed the methamphetamine with the intent to sell it under Evidence Code section 1101.^[4] Since the prior act evidence has a tendency in reason to prove these elements of the crime, it was relevant. (Id.,  210.) Relevant evidence, however, may be excluded if its probative value is substantially outweighed by its prejudicial effect. (Id.,  352.)

We review such rulings to determine whether the trial court abused its discretion in admitting evidence under Evidence Code sections 1101 and 352. (People v. Cole (2004) 33 Cal.4th 1158, 1195.) Evidence that a defendant committed crimes other than those for which he is on trial is admissible when it is logically, naturally, and by reasonable inference relevant to prove some fact at issue, such as motive, intent, preparation or identity. [Citations.] The trial court judge has the discretion to admit such evidence after weighing the probative value against the prejudicial effect. [Citations.] When reviewing the admission of evidence of other offenses, a court must consider: (1) the materiality of the fact to be proved or disproved, (2) the probative value of the other crime evidence to prove or disprove the fact, and (3) the existence of any rule or policy requiring exclusion even if the evidence is relevant. [Citation.] Because this type of evidence can be so damaging, [i]f the connection between the uncharged offense and the ultimate fact in dispute is not clear, the evidence should be excluded. [Citation.] [Citation.] (People v. Butler (2005) 127 Cal.App.4th 49.)

The probative value of the proposed evidence was reduced by its remoteness. Nineteen years had passed since the prior acts, and there was no evidence that Pressley had sold methamphetamine continuously in the intervening years. Therefore, there was not a strong connection between the uncharged offense and the issue of whether Pressley intended to sell the methamphetamine found in her residence.

We need not decide, however, whether the trial court erred in admitting the evidence because, even if we assume the evidence should have been excluded, Pressley cannot establish that admission of the evidence resulted in a miscarriage of justice. (Cal. Const., art. VI,  13.) A miscarriage of justice occurs only if it is reasonably probable that the result would have been more favorable to the defendanthad the error not occurred. (In re Celine R. (2003) 31 Cal.4th 45, 60.)

The prosecution presented evidence that during the search of Pressleys residence, in an area Pressley had occupied immediately before the search, officers found 8.63 grams of methamphetamine. The People also established that the typical dose of methamphetamine is .1 gram. Based on this evidence, and the other evidence presented at trial, including the use of the baby monitors and the police scanners, Esteves opined that the methamphetamine was possessed for sale.

Pressleys defense consisted of attempting to establish innocent uses for the baby monitor and the police scanner, and her claim that Esteves planted the methamphetamine in her bed. The issue was not whether Pressley possessed the methamphetamine for the purpose of sale, but whether she possessed the methamphetamine found in her bed. The self-serving nature of Pressleys testimony and the complete lack of evidence that Esteves had a motive to fabricate evidence against Pressley make it unlikely that, had the evidence been excluded, Pressley would have received a more favorable result. Accordingly, no miscarriage of justice occurred.

III. Admission of Recorded Interviews

After Pressley testified, the People recalled Esteves. Pressleys counsel requested to speak with the trial court out of the presence of the jury before Esteves began testifying. Outside the presence of the jury, counsel informed the trial court that he anticipated Esteves would testify to certain statements made by Pressley while in custody in an attempt to rebut Pressleys testimony. Citing the Best Evidence Rule (Evid. Code,  1520), counsel requested that the recording of the interviews be played instead of permitting Esteves to testify to what was said. Counsel stated that the prosecution failed to provide a copy of the recorded interview in discovery, and he had not had an opportunity to hear the recording. He also acknowledged that there was no transcript of the recording. The prosecutor informed the trial court that the recording was pretty garbled. Nonetheless, counsel and the prosecutor stipulated to admission of the recording and that it could be played to the jury in its entirety.

There were two interviews that were recorded. The first interview occurred at Pressleys residence shortly after she was detained. The second interview occurred at the police station a short while later. The first interview was played for the jury without objection. After the recording of the second interview was started, counsel objected, claiming the recording was inaudible and requested it be stricken pursuant to Evidence Code section 352. A short while later, counsel again objected, claiming he could not understand the recording and that the information being provided was inadmissible because it did not impeach Pressley.

Pressley now argues that the trial court abused its discretion in admitting the recording into evidence. Pressley claims the trial court had an obligation to determine before admitting the recording that the information on the recording was relevant and that the recording could be heard by the jury.

The right to object to the recording was waived by Pressley. Counsel stipulated to the admission of the recording. In asking the trial court to admit the tape, counsel expressly gave up the right to object to its admission. The relinquishment of a known right constitutes a waiver. (Cowan v. Superior Court (1996) 14 Cal.4th 367, 371.)

Recognizing that the issue probably was waived, Pressley insists that the decision to stipulate to the admission of the recording resulted in her receiving ineffective assistance of counsel. Establishing a claim of ineffective assistance of counsel requires the defendant to demonstrate (1) counsels performance was deficient in that it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsels deficient representation prejudiced the defendant, i.e., there is a reasonable probability that, but for counsels failings, defendant would have obtained a more favorable result. [Citations.] A reasonable probability is one that is enough to undermine confidence in the outcome. [Citations.] [] Our review is deferential; we make every effort to avoid the distorting effects of hindsight and to evaluate counsels conduct from counsels perspective at the time. [Citation.] A court must indulge a strong presumption that counsels acts were within the wide range of reasonable professional assistance. [Citation.] Nevertheless, deference is not abdication; it cannot shield counsels performance from meaningful scrutiny or automatically validate challenged acts and omissions. [Citation.] (People v. Dennis (1998) 17 Cal.4th 468, 540-541.)

The record establishes that counsel stipulated to admission of the recording because the prosecution was poised to impeach Pressleys testimony with statements made during the interrogation by asking Esteves about those statements. Counsel concluded that it would be better for the jury to hear the entire recording rather than permit the prosecution to question Esteves only about the portions of the statement that were incriminatory. Our task is to determine whether the explanation demonstrates that counsel was acting as a reasonably competent, conscientious, and diligent advocate, and, if not, whether there was a reasonable probability that Pressley would have obtained a more favorable result had the recording not been admitted. (People v. Cudjo (1993) 6 Cal.4th 585, 623.) We conclude that Pressley cannot prevail on either point.

Counsel was faced with the choice of having Esteves testify to statements made by Pressley during the interrogations or having the jury hear both interrogations in their entirety. It was reasonable for counsel to want the recording heard in its entirety because it confirmed much of Pressleys testimony. Therefore, hearing the recordings permitted counsel to reinforce her testimony to the jury. While it would have been a better practice to listen to the recording before making the request, that was not an option in this case. Counsel had a difficult choice to make, but he made the one that he felt would best serve his clients interests. Under the circumstances of this case, we cannot say counsels decision fell below the standard of a reasonable, competent advocate.

We also reject Pressleys implied contention that the trial court had an obligation to listen to the recording before allowing it to be played to the jury. It is not the trial courts duty to examine every piece of proffered evidence and determine if it will be relevant. The prosecution and Pressley presented evidence to the jury. Generally, it is only when one party objects that the trial court makes a determination about the admissibility of proposed evidence.

Here, the parties stipulated to the admission of a recording in which Pressley made incriminating statements. The evidence obviously was relevant, and the trial court had no reason or basis for questioning the stipulation. We also have listened to the recording. While parts of it were difficult to understand, we were able to determine what was being discussed and understood most of what was being said. The trial court properly overruled Pressleys tardy objections to the recording.

Finally, Pressley cannot establish that it is reasonably probable that she would have obtained a better result had the recording been excluded. If the recording had not been played, Esteves would have testified to the incriminating statements made by Pressley during the interviews. The jury would have heard that Pressley admitted buying the methamphetamine but would not have heard her explanation for the baby monitor and the police scanner, which were identical to her testimony at trial.

To the extent that the recording could not be understood, it could not have caused Pressley prejudice. If the jury could not understand what was said in the recording, it simply would ignore that portion of the recording. We also reject Pressleys claim that she was cast in a bad light by the statements made in the recording regarding her drug use, where she obtained her drugs, and the identity of the person who sold her methamphetamine. Pressley admitted in her testimony that she used methamphetamine. It is obvious that one who uses methamphetamine must obtain it from some source. Therefore, Pressleys admission in her testimony put before the jury every issue of which she now complains.

Simply stated, Pressley was not convicted because of her counsels ineffectiveness, but because of the overwhelming evidence of her guilt.

DISPOSTION

The judgment is affirmed.

_____________________

CORNELL, J.

WE CONCUR:

_____________________

ARDAIZ, P.J.

_____________________

VARTABEDIAN, J.

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^[1]The information also charged Pressley with possession of marijuana (Health & Saf. Code,  11357, subd. (b)), and count 1 included an enhancement for a prior conviction of Health and Safety Code section 11379. The trial court granted Pressleys Penal Code section 995 motion as to the marijuana count, and the People dismissed the enhancement for reasons that shall become clear in the following sections.

^[2]Estevess experience and training were set out at length in the statement of probable cause.

^[3]We accept, only for the purposes of this argument, Pressleys assertion that in specific circumstances the People may be required to accept a stipulation offered by a defendant in lieu of providing testimony on the topic. We offer no opinion on this issue, nor do we suggest that if Pressley had offered a complete stipulation, the People would have been required to accept it.

^[4]Evidence Code section 1101 states: (a) Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a persons character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her 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, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act. [] (c) Nothing in this section affects the admissibility of evidence offered to support or attack the credibility of a witness.