P. v. Johnson
Filed 6/26/12 P. v. Johnson CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
COREY JOHNSON,
Defendant
and Appellant.
E053453
(Super.Ct.No.
FVA900387)
OPINION
APPEAL
from the Superior Court
of
County. Stephan G.
Saleson, Judge. Affirmed.
Patrick
J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr. and
Randall D. Einhorn, Deputy Attorneys General, for Plaintiff and Respondent.
A
jury convicted defendant, Corey Johnson, of possessing
cocaine (Health & Saf. Code, § 11350, subd. (a)),
Code, § 11352, subd. (a)) and resisting/obstructing/delaying a police officer
(Pen. Code, § 148, subd. (a)(1)). The
jury found true allegations that defendant had suffered two strike priors (Pen.
Code, § 667, subds. (b)-(i)) and four priors for which he served prison
sentences (Pen. Code, § 667.5, subd. (b)).
He was sentenced to prison for 10 years and appeals, claiming the trial
court erred in allowing admission of taped phone conversations he had while in
jail and he was incompetently represented by trial counsel. We reject his contentions and affirm.
On
February 1, 2008, a Fontana
Police officer detained a stopped vehicle in which defendant was the front
passenger because it did not have a license plate. Defendant got out of the car and began
walking away. The officer talked to
defendant, who consented to be searched.
The officer found what he believed to be and what defendant said was
cocaine, wrapped in cellophane, in defendant’s pocket. The officer arrested and handcuffed defendant
and put the cocaine on the hood of the car.
Defendant bumped the officer to the side, threw himself onto the hood of
the car, sucked the bindle of cocaine off the car and swallowed it, despite the
officer attempting to prevent him from doing so. Defendant pulled away from the officer, the
two struggled and defendant eventually gave up and was placed in the officer’s
patrol car. A rock of cocaine, weighing
27.94 grams (almost an ounce) and having a street value of between $800 and
$1600 was found in the front passenger door panel area of the car.
The
prosecution introduced into evidence recordings of calls defendant had made
from the jail, which will be summarized below.
A
police officer with training and experience in narcotics testified that, during
the first of these calls, defendant’s acknowledgment that he knew that the
driver of the car had narcotics on her person was significant because it is
common both for drug dealers to have another person with no prior record carry
their drugs for them and for females to work with male drug dealers because
females have more places on their bodies where drugs can be secreted.
1.
Admission of Jailhouse Telephone Conversations
by Defendant
Before
trial, the People moved to have admitted into evidence recordings of three
phone conversations defendant had while in county jail. Defense counsel objected to the admission of
any of the taped conversations. The
trial court concluded that they were more probative than prejudicial. Defense counsel said if a portion of each
conversation was played, he wanted the entire conversation played. The trial court ruled it would admit the
recordings and instruct the jury that statements made on them by those other
than defendant were being admitted for the non-hearsay purpose of explaining
the effect their words had on defendant or to provide meaning to what defendant
said, but only defendant’s statements were being admitted for the truth of what
he asserted in them. The trial court
said it still wanted to redact portions of the conversations that were more
prejudicial than probative, for example, references to defendant being a third
striker. The trial court told defense
counsel to provide the court with the redactions he wanted made and counsel
agreed. During trial, the prosecutor
played the first two below-described tapes for the jury.
In
the first recording, defendant told a male friend that the police officer who
stopped the car said he found an ounce of narcotics in the passenger side door
of the car, but he was trying to set defendant up, because there were no
narcotics in the car, as they were inside the female driver’s vagina, where an
officer found them. Defendant told his
male friend that the officer let the driver go without even issuing her a
ticket and he inappropriately blamed defendant for the drugs. Defendant also told his male friend that when
the officer searched him, he found drugs on him, and, despite defendant’s
“explanation” that he put these drugs in a cigarette and smoked them, the
officer was going to book defendant for possessing them. Defendant admitted that he put these drugs in
his mouth and swallowed them.
Defendant’s male friend made a three-way call to a female who informed
defendant that he had been charged with transporting cocaine and possessing
cocaine for sale. Defendant told her
that the driver sold him out by telling the police that the cocaine in her car
was defendant’s. Then, the driver came
on the line and defendant asked her why she did that to him. She responded that she did not tell the
officer anything. Defendant asked her
what she meant by saying that. Defendant
told her that she had the drugs on her and he asked her how the drugs got put
into the door panel of the car. She
replied that she put them there. He
asked her why she put the drugs on his side of the car. She said that she put them under the
seat. He asked her why she did
that. He told her that the police have
her on tape. She responded that the
officer made her say things by threatening to arrest her if she did not. Defendant replied that if she had been
arrested, she would have bailed out. He
again accused her of selling him out. He
repeated that she could have bailed out immediately, like another female he had
previously bailed out. He told her that
the police have her on tape saying that she knows nothing about the drugs and
they were not hers. He appeared to say
that the police planted them on her. She
replied that they did not. She said she
initially tried to throw them. She added
that they were not found on her. She
said at first she was going to put them in her hair, but the female officer who
searched her did such a thorough job that it was a good thing she did not do
that. Defendant said that he told her,
while they were in the car, to put the drugs in her vagina and she acted like
she was going to. She replied that she
tried to, but she couldn’t. He accused
her of having the drugs on her when she was in the police car. She said she did not. She repeated that she did not tell the police
anything. Defendant asked her if the
police gave her a ticket and she responded that they did not, but they took her
contact information, told her they would be calling her and let her go. She repeated that she put the drugs in the
middle of the car (not on the passenger side).
He again asked her why she didn’t throw the drugs out of the car. He appeared to suggest that she should have
kept the drugs on her person and/or said the drugs were hers and she could have
gotten bailed out immediately. He
repeated that she sold him out, which she denied.
In
the second recording, defendant again talked to his male friend and he told him
that the driver had the drugs in her bra and he wanted his friend to listen to
what the driver was about to say so the friend could determine if the driver
was lying. When the male friend reminded
defendant that he had previously said that the drugs were in the driver’s
vagina, defendant acknowledged telling the driver, when she had been driving
the car, to put them there and he watched her do it. Defendant said that the driver had said that
she tried to put the drugs into her vagina, but they were too big. He said that she did not say where she was
when she tried to put it in her vagina (her car or the police car), but he
thought she had it on her and that’s where the police found it and they made
her say that it was his.
name="_ftnref2" title="">[2] Defendant directed his male friend to call
the driver because defendant had “to sweet talk [her] to
confessing . . . .”
When she came on the line, defendant asked her if she knew what he was
up against. The driver said that when
she was in the police car with the officer, he told her that she did not have a
record and she was not the one they wanted.
Defendant said that because she had no record, the police could not have
done anything to her other than having her undergo Proposition 36 treatment
even if she had told them that she was a drug user and the drugs were for her
personal use. She asked defendant whom
she had to call to do what he wanted her to do.
Defendant told her that she had to write a statement that she and he
were on the way to a party. He
interrupted his instructions by asking her if she had the drugs on her when the
police found them and said they were going to blame him for them. She replied that she had put the drugs in the
car when defendant had gotten out of the car.
She reminded defendant that when he had gotten out of the car, she had
asked him if he wanted her to keep the drugs, and she thought he had said yes,
but they were in her bra and they could not be secured there, so she had put
them in the car because she didn’t think the police were going to be able to
search the car. Defendant asked her why
she gave permission for her car to be searched and she said she did not—that
the police said they had to search it.
Defendant told her that the search of her car was illegal and she was to
say that she told the police that she did not want them to search it. He repeated that the police told him that
they had her on tape saying the drugs were his and she had to tell him exactly
what she told the police. She denied
telling the police that the drugs were defendant’s. She told defendant that the officer had asked
here where they had come from, she had responded that it was Los
Angeles, he had asked her what they were doing in Fontana,
she had said she brought defendant to pick up a rental car and the officer
questioned this, so she added that defendant had friends in the area. She continued that the officer asked her if
she saw defendant throw anything and she said no. The officer then asked her if she knew about
defendant dealing crack, she said no, but she volunteered that she and defendant
had smoked “a blunt” earlier. After the
officer found the drugs either on defendant or in the car, he asked her if she
had any on her and he told her that they were going to thoroughly search the
car and send a female officer to search her.
Defendant asked her if she had put the drugs under the armrest between
the seats and she said she had. He asked
her why she did not throw them outside the car and she said she did not do so
because the officer was right there by the time she got out of the car. He repeated that because the police could not
do anything to her, they were blaming him for the drugs. He told her twice that she would have to tell
the police that the drugs were hers. He
said the police expected the drugs to be crack cocaine, but they were not.
Defendant
here asserts, without any analysis whatsoever, that the tapes were prejudicial,
a notion with which we do not disagree.
Based on this undeniable premise, defendant asserts, that just because
the evidence was prejudicial, the trial court abused its discretion in
admitting it into evidence. This is
insufficient. It is not enough to say
that the tapes were prejudicial and if they had not been introduced, it is
possible, depending on the standard that is applied, that defendant would not
have been convicted. This does not mean
that the trial court acted unreasonably in admitting them. Moreover, the tape the defense introduced at trial,
defendant attempted to persuade the driver that he had been set up by the
police and she should submit a writing saying that the drugs were hers, for her
personal use, because nothing would be done to her if she did. We fail to see how the tapes that were
introduced by the prosecution could have been substantially more prejudicial to
defendant than this, in light of the other strong evidence of his guilt. The fact that defendant used profanities
often in speaking during the recordings that were introduced by the prosecutors
did not, as defendant here asserts, substantially prejudice him compared with
his struggling with the arresting officer and swallowing the drugs that were
found on his person.
In
another recording, which was made before the second recording, and was
introduced as evidence by the defense, defendant accused the arresting officer
of being physically and verbally abusive towards him and suggested that there
had to be some video of the encounter.
The call became a three way between defendant, his male friend and the
mother of his child and defendant said he was thinking about getting the driver
to write a letter saying what the police told her to do and what she did. Defendant said that he had to put some
pressure on the driver and he told the mother of his child to call her. Defendant said that the police had the driver
on tape at the scene of the stop and the whole thing was a set-up. The driver came on the line and defendant
told her that he had been beaten up, presumably, by the police, and had his jaw
broken. Defendant told the driver that
he needed to know everything that she told the officer because he had been set
up. She said that the officer wanted her
to say that she saw defendant swallow the drugs. She said she told the officer that she did
not see defendant do that, so then the officer told her she was to say that she
saw defendant throw the drugs. She added
that when she told the officer that she did not know that defendant had been
sitting on the passenger side of her car, the officer told her that she did not
know where he had found the drugs.
Defendant asked the driver if all this was on the tape and she replied
that she thought it was. Defendant
repeated that he needed to know exactly what the officer had asked her on the
tape. She said he asked her where she
and defendant were coming from and she had told the officer that she was
bringing defendant to rent a car. The
officer asked her why they had come all the way out to Fontana to do that. The officer then asked her whether they were
going to McDonald’s and she replied that they were on their way to use a
bathroom and get a cup of coffee for defendant.
She continued that the officer told her that he knew that defendant had
crack and he suggested that she knew nothing about a crack problem. She said she told him that she and defendant
smoked marijuana, but she knew nothing about crack. Defendant again said that the police were
trying to set him up and asked her if the police told her that defendant had
thrown something.
title="">[4] She said that the officer told her that he
had seen defendant throw the drugs, but he found them. She told the officer that she did not see
defendant throw the drugs. She said the
officer asked her if she had seen him put the drugs on the hood of the car and
she said she had. She said the officer
told her that defendant tried to swallow the drugs that that had been placed on
the car. Defendant asked her if she
meant the larger quantity of drugs that were found in the car and she said she
guessed that the officer said that there was a separate amount found in the
car. Defendant asked her if she had a
record and she said she did not.
Defendant told her that the police had her do and say what she did to
make it look like he was the guilty party because they knew they would not have
been able to do anything to her—that she would have been out of jail that
night. Defendant told her that the
police could not do anything to her and she should write a statement describing
everything that happened, including what the police told her to say, and that
she told the police that the drugs were hers, but they didn’t even give her a
ticket.
physically abused at the scene of the stop, the driver said she saw the police
push defendant to the ground. Defendant
told her that she had to tell the police that she used drugs and she intended
to use the drugs that were found. He
repeated that she should write everything down.
2.
Prosecutor of the Existence of the Jailhouse Telephone Call Recordings
In
his self-authored motion for a new trial, defendant personally asserted that
his trial attorney improperly disclosed, in an email, confidential information
to the prosecutor which had been communicated to counsel during the course of
the attorney-client relationship.
Specifically, that information was the existence of the recorded
jailhouse telephone calls between defendant and others. At the hearing on the new trial motion, the
trial court summarized defendant’s allegation in this respect as follows,
“[Defense counsel] . . . t[old] the [prosecutor], either
through an e-mail or otherwise, that there were various jailhouse phone calls
made by [defendant] and that he made the [prosecutor] aware of
these . . . .” The
prosecutor recalled a conversation he had had with trial counsel concerning
this and he represented to the court that trial counsel would say that he had
been directed by defendant to obtain the recording of these calls because
defendant believed they would exonerate him.
The trial court pointed out to defendant that he had no reasonable
expectation of privacy in the calls and that they “could be listened to by the
prosecutor, whether [defense counsel] said something or not, or the jail could
have given them to the prosecutor[.] . . . [¶]
. . . [¶]
[W]hether [defense counsel] said to [the prosecutor, ‘T]here’s some
calls there[’] . . . doesn’t
matter . . . or how [the prosecutor] came by those calls
because he could have gotten them himself without talking to anybody. The jail could have given them to [the
prosecutor] or some other prosecutor. . . . [T]here’s no
privilege in the actual calls. [¶] What [defendant] talked about with [defense
counsel] about the calls probably is priviledged. . . .
[¶] . . . [¶]
There [were] . . . some calls that may have been
arguably favorable to you and to your presentation. But there were some that were very
incriminating . . . [b]ut it has nothing to do with what
you said to [defense counsel] about the calls, nothing.” Defendant said,
“ . . . [I]f [my attorney] wanted to get the calls for
whatever reason, he didn’t explain it to me.
He didn’t tell me nothing about getting the
calls. . . . [¶]
Next thing I know, . . . he’s telling me that he
just got through listening to the [tapes] with the
[prosecutor]. . . . It wasn’t about the calls, him getting
the calls. It was about the information
that was obtained from the calls. It was
about the information that I gave him, and it was about the information that
was retrieved outside of our conversation.”
In this assertion, defendant appears to be all over the place—saying
that he was not objecting to the fact that the prosecutor had the recording of
the calls, but it was about what was on the calls, which the trial court had
just told defendant were not privileged.
Then, he states that his attorney disclosed information to the
prosecutor that defendant gave the attorney, then, he immediately asserts that
it was information “retrieved outside our conversation.” The trial court concluded that defense
counsel had not disclosed confidential communications. The court also concluded that the existence
of the tapes were not discovered by disclosure of confidential attorney-client
communications. The trial court
disabused defendant of his notion that the tapes could not have been obtained
by the prosecutor outside formal discovery—they could be obtained by the
prosecutor or defendant’s investigator.
The court ruled that anything defense counsel would have to say about
the matter was irrelevant to the motion.
Finally, the court said, “Your ground is, at best, [that defense
counsel] told [the prosecutor] about the calls.
[The prosecutor] never would have known about them and he never would
have found them. That’s the best thing
you can say, and I’m saying that won’t form the basis for a motion for a new
trial . . . .”
Rather
than contest the denial of his new trial motion, defendant here assumes that
defense counsel disclosed the existence of the tapes to the prosecutor and he
asserts that this constituted ineffective assistance of counsel, for which
there is no reasonable tactical basis.
First, there is nothing in the record before us demonstrating that the
prosecutor was unaware of the recordings outside of defense counsel telling him
that they existed.
title="">[6] If defense counsel had subpoenaed the tapes,
or informally obtained them from the jail, nothing would have prevented jail
personnel from notifying the prosecutor that this had been done and alerting
him to the possible significance of the tapes.
Second, if defense counsel had, in fact, notified the prosecutor about
the existence of the tapes, there is nothing in the record about the
circumstances under which he did this.
For example, if he notified the prosecutor after deciding to use one or
more of the tapes at trial, the prosecutor would necessarily have found out
about the tapes regardless of what defense counsel did. Third, defendant ignores the fact that his
trial attorney introduced one of the recordings, believing that it helped his case. As the trial court observed, there may have
been some calls that were arguably favorable to the defense and the one that
the counsel played for the jury was, at least, in part, favorable. As to the latter, in the third tape
summarized above, defendant insisted that he had been set up by the police and
he appeared to genuinely be unaware of the fact that the driver had no criminal
background, which undermined the testimony of the narcotics officer that
dealers chose people with no criminal records to carry their drugs for
them. The fact that defense counsel
initially attempted to keep all three of the above-summarized recordings out of
evidence does not change this. There is
simply no basis in the record before us to conclude that even if trial counsel
alerted the prosecutor to the existence of the tapes, and the prosecutor would
not have otherwise been made aware of them, that this constitutes a performance
by counsel that fell below an objective standard of reasonableness under these
circumstances. This matter would best be
addressed in a petition for writ of habeas corpus where the pertinent facts,
and not mere speculation on the part of defendant and his appellate counsel,
may
serve as the
basis for action by the trial or this court.
The
judgment is affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
MILLER
J.
CODRINGTON
J.
name="_ftn1" title=""> [1] We refer in our discussion to the redacted
versions of the tapes, which were played for the jury, not the unredacted versions
that the trial court considered in making its ruling.
name="_ftn2" title=""> [2] Defendant appeared to say that he told the
driver to take the drugs out of her bra and put them into her vagina.
