Filed 8/9/12 P. v. Condon CA5
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE
OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
JULIE A. CONDON,
Defendant and
Appellant.
F062801
(Super.
Ct. No. CRF34625)
APPEAL
from a judgment of the Superior Court of
County. Eleanor Provost, Judge.
Kari
E. Hong, under appointment by the Court of Appeal, for Defendant and Appellant.
Office
of the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.
-ooOoo-
On February 18, 2011,
criminal complaint with possession for
sale of heroin (Health & Saf. Code, § 11351, count I),
(§ 11378, count II), possession for sale of hydrocodone, morphine, and
codeine (§ 11351, count III), possession for sale of diazepam
(§ 11375, subd. (b)(1), count IV), transportation of heroin (§ 11352,
subd. (a), count V), and transportation of methamphetamine (§ 11379, subd.
(a), count VI). There was a special
allegation on count I that Condon possessed 14.25 grams or more of heroin
within the meaning of Penal Code section 1203.07, subdivision (a)(1). The information also alleged three prior drug
conviction enhancements pursuant to section 11370.2, subdivisions (a) and
(c).
On May 5th, at the conclusion of a jury trial, Condon was found guilty
of possession of heroin for sale (count I), transportation of heroin (count V),
and transportation of methamphetamine (count VI). The jury found true the allegation in count I
that Condon possessed 14.25 grams or more of heroin. Condon was found guilty of the lesser
included offenses of possession of methamphetamine (count II), possession of
hydrocodone, morphine, and codeine (count III), and possession of diazepam
(count IV). In a bifurcated proceeding,
Condon waived her constitutional rights and admitted the allegations that she
had three prior convictions for drug offenses.
On June 29th the trial court sentenced Condon to the upper term of five
years on count V, to a consecutive term of eight months on count III, and to a
consecutive term of one year on count VI.
The court stayed Condon’s sentence on counts I and II pursuant to Penal
Code section 654.
name="_ftnref4" title="">[3] The
court enhanced Condon’s sentence by nine consecutive years, comprised of three
3-year enhancements imposed pursuant to section 11370.2. Condon’s total prison term is 15 years 8
months. The court imposed a restitution
fine of $3,200. The court granted 147
days of actual custody credits and 147 days of conduct credits for total
custody credits of 294 days. Condon’s
counsel has filed a brief pursuant to People
v. Wende (1979) 25 Cal.3d 436 (
The trial court denied defense
counsel’s motion to unseal the search
warrant because there was no exculpatory evidence. On May 4th, just prior to the commencement of
the trial, defense counsel raised a discovery issue to the trial court. Defense counsel sent a discovery letter to
the prosecutor on February 17th. The
prosecutor replied on February 25th, explaining that defense counsel had
received everything he was supposed to receive.
On April 14th, the prosecutor sent defense
counsel a copy of a police report setting forth law enforcement
surveillance activity that occurred on January 27th. The day before trial started, the prosecutor
sent a witness list that included Kyna Kulp.
In response to defense counsel’s query concerning the identity of this
witness, the prosecutor explained that Kulp was mentioned in the police report
produced on April 14th.
In an exchange of emails just before
trial, defense counsel asked the prosecutor whether Kulp had a rap sheet. Defense counsel conceded that he had received
information regarding the surveillance of Condon by officers from the police
report produced on April 14th. The
prosecutor replied that Kulp had no rap sheet and she agreed to truthfully
testify against Condon in exchange for not having charges brought against her.
first time that defense counsel learned that Kulp had a deal from the
prosecution was at the beginning of the trial.
The trial court ruled that there had been no withholding by the
prosecutor of exculpatory evidence and denied the defense motion to continue
the trial for further discovery.
On January 27th, the Tuolumne County Sheriff’s Office Narcotics Team
was conducting surveillance of Condon after receiving information that she was selling
heroin. Detective Jarrod Pippin was part
of the surveillance team. Pippin saw
several transactions occur, and later contacted the people who had met with
Condon in the parking lot of the post office, which was located directly across
the street from Condon’s home.
During the January 27th surveillance, a small silver sedan drove into
the post office parking lot. Matthew
Klunis and Kyna Kulp were seated in the car.
Condon exited her home and walked toward the front of the post
office. Klunis made the arrangements to
meet with Condon to purchase heroin from her.
When Condon left her home, Klunis exited his car and walked to the front
of the post office, which was out of the view of Pippin and Kulp. After two minutes, Condon returned to her
home and Klunis returned to his car.
Klunis told Kulp that he had purchased heroin.
Pippin learned from the dispatcher that the license plate to Klunis’s
car had expired so he initiated a traffic stop.
Klunis told Kulp to hide the heroin.
Kulp was scared and put the heroin in her pants. After Pippin asked for the heroin several
times, Kulp handed it to him. Pippin
arrested Kulp and told her that if Kulp testified against Condon the case would
be over that night. Kulp did not discuss
her agreement with Pippin with anyone in the district attorney’s office.
Pippin obtained a search warrant on
Condon and her residence. On February
3rd, he saw Condon driving a white Volvo sedan and pulled her over in a parking
lot. Pippin told Condon that he was
going to search her because he had a search warrant. Condon exited the car and Pippin conducted a
search. Pippin asked Condon if she had
any needles. She replied that she was
not sure if she had needles, but she did have heroin inside her bra. Pippin asked Condon to reach up her shirt,
pull her bra away from her person, and let the contents fall out. Condon did so and several items fell from her
shirt, including a large chunk of what appeared to be brown to black heroin,
several packages of what appeared to be heroin, and a small, coin-sized baggie
containing what appeared to be methamphetamine.
Later testing showed that Condon had
18.7 grams of heroin in these packages with a street value of $1,870. The large chunk of heroin alone weighed 15.2
grams. There was a small baggie that
contained 1.9 grams of methamphetamine with a street value of $340. Both of these drugs were usable
quantities. Another baggie contained a
number of pills that were later identified as morphine sulfate, codeine,
hydrocodone, and diazepam.
After her arrest, Pippen read Condon
her Miranda
Pippen told Condon that she had a large quantity of drugs and he knew
she had been dealing drugs. Pippen
invited Condon to tell him about it.
Condon replied that she had a history of controlled substance abuse, had
been in a Proposition 36 program, and had been selling drugs, including
heroine, methamphetamine, and pills.
Condon would purchase a “piece,” also known in the narcotics trade as a “Mexican
piece,” which is approximately just less than an ounce of heroin (25 grams),
worth about $800. Condon also purchased
an eight ball of methamphetamine at a time, or 3.5 grams, for $100.
Condon justified herself, saying
that she was trying to take care of her family and she was a good person. Pippen replied that she was a “no-good piece
of trash” who sold drugs to kids. Condon
responded that the people she sold drugs to were already addicted to them.
Pippin testified that he believed
Condon possessed heroin for sale not just based on the quantity alone, but also
because of the packaging that she used.
Pippin also believed that Condon possessed methamphetamine for sale
based on the quantity in her possession.
Pippin explained that drug dealers often maintain businesses to recycle and
protect profits from drug trafficking, or maintain bank deposit profits for the
storage of profits from drug trafficking.
Pippen found no evidence of cash deposit boxes or sales records for her
narcotics activity. Condon also did not
have packaging materials or scales in her possession. Pippin stated that heavily addicted heroin
addicts consume no more than 2.5 grams of heroin a day.
Condon testified that she was using
at least six grams of heroin a day and also used methamphetamine. Condon denied selling either drug. She had purchased a piece of heroin the day
before her arrest for $800. Condon’s
possession of both drugs was for her personal use. Condon denied selling any drugs to anyone and
had no intention to sell drugs to anyone.
Condon also denied telling Pippin that she sold heroin, methamphetamine,
or pills.
COURT REVIEW
Condon’s appointed
appellate counsel has filed an opening brief that summarizes the pertinent
facts, raises no issues, and requests this court to review the record
independently. (Wende, supra, 25 Cal.3d
436.) The opening brief also includes
the declaration of appellate counsel indicating that Condon was advised she
could file her own brief with this court.
Appellant’s counsel stated in the brief that appellant requests this
court to address whether the prosecutor engaged in
trial to disclose to the defense that witness Kyna Kulp had received a promise
not to have felony charges brought against her in exchange for her promise to
testify against Condon.
By letter on January 11,
2012, we invited Condon to submit additional briefing. On July 11, 2012, this court filed a letter
from Condon in which she is seeking information concerning the status of her
appeal and stating that her request for a copy of the record led to her
appellate counsel being relieved as her attorney. We initially note that Condon’s request for a
copy of the record did not relieve her appellate counsel, Kari E. Hong, as
appellant’s counsel of record in this case.
Ms. Hong has not formally withdrawn as counsel, and has not been
relieved by this court as Condon’s appellate counsel.
Penal Code section 1054.1
mandates that the prosecutor shall disclose to the defendant and to the
defendant’s counsel all: names and
addresses of witnesses the prosecution intends to call at trial, statements by
defendants, relevant evidence seized as part of the investigation of the
charged offenses, felony convictions of witnesses, and
prosecution must disclose evidence that is favorable to the defendant and
material on either guilt or punishment.
(Pen. Code, § 1054.1; People
v. Superior Court (
47.) Evidence is favorable if it either
helps the defendant or hurts the prosecution.
(Id. at p. 51.)
It appears that the
witness in question was known to the defense prior to trial when the prosecutor
produced an additional police report.
Presumably the information in the police report identified Kulp and the
facts surrounding her detention by investigators. Kulp did not provide any exculpatory
information for the defense. The defense
was aware that law enforcement had conducted surveillance of Condon and
obtained a search warrant prior to her arrest.
Even if we presume the witness list was produced later than it should
have been, and that the defense did not learn of a deal not to prosecute Kulp in
exchange for her testimony until the beginning of the trial, there is nothing
in this record to demonstrate that the delay prejudiced Condon or in any way
impeded her right to a fair trial.
After independent review
of the record, we have concluded there are no reasonably
DISPOSITION
The judgment is
affirmed.
name="_ftn1" title="">* Before Gomes, Acting P.J., Detjen, J., and
Franson, J.
name="_ftn2" title="">[1] Hereinafter,
all date references are to the year 2011.
