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People v. Lewis

April 13, 2009

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
MARCEL LEWIS, DEFENDANT AND APPELLANT.



(San Francisco City & County Super. Ct. No. 203311) Trial Judge: Hon. Charles F. Haines.

The opinion of the court was delivered by: Ruvolo, P.J.

CERTIFIED FOR PUBLICATION

I. INTRODUCTION

Appellant was convicted of selling rock cocaine, and possessing it for sale, based in part on what a police officer observed from a surveillance location. At trial, the prosecution declined to identify the location, citing the government information privilege codified in Evidence Code section 1040.*fn1 After a brief in camera hearing at which neither appellant nor his trial counsel were present, the trial court permitted the prosecution to assert the privilege, without striking the officer‟s testimony or making any finding adverse to the prosecution‟s case under section 1042.

On appeal, appellant argues that the identity of the location from which the officer made his observations was material. He contends the trial court therefore made an error of constitutional dimensions in permitting the prosecution to keep the location secret without excluding the officer‟s testimony, or making some other adverse finding, as a consequence.

We conclude that the surveillance location was not material because the police officer‟s testimony about observations from that location was sufficiently corroborated by independent evidence that there was no realistic possibility that disclosing the location would have enabled appellant to raise a reasonable doubt as to the veracity or accuracy of the officer‟s testimony. Therefore, we affirm appellant‟s conviction.

II. FACTS AND PROCEDURAL BACKGROUND

On April 30, 2007, at 1:45 p.m., San Francisco police officer Bryant was watching the area where Market Street intersects with Sixth Street and Taylor Street, from a location in or on a building, elevated above street level. Bryant was using "pretty powerful" binoculars to look for narcotics transactions on the street. He saw a man, later identified as appellant, standing on Market at the corner of Market and Taylor, about 50 to 100 feet away from Bryant‟s location. A woman approached appellant, holding money. After a brief conversation, appellant pulled out a plastic baggie, from a location that Bryant did not recall. Appellant reached into the baggie, took out an object,*fn2 and handed it to the woman; she then gave him some money, the denominations of which Bryant could not discern. Bryant testified that he had an unobstructed view of the transaction, and that his ability to observe it was not diminished by any weather conditions.

After the transaction was complete, Bryant transmitted a description of the woman to officers Yick and Mackenzie by police radio, and watched as they arrested her. Yick and Mackenzie drove up to the woman from behind as she walked north on Taylor. When their car was a few feet away from her, she dropped an object, which the officers retrieved, and which they believed, based on their experience, was a small rock of cocaine.*fn3 The object was not wrapped in anything when the woman dropped it. After the officers detained the woman and picked up the object, Yick reported to Bryant by radio that they had recovered what they thought was a narcotic. At that point, Bryant quickly turned his attention back to appellant. Appellant was still where he had been when his transaction with the woman occurred, but he soon crossed Market and began walking south along the east side of Sixth. Bryant‟s view of appellant was still unobstructed.

Bryant then transmitted appellant‟s description, location, and direction of movement to officers Pedroza and Forneris. Forneris saw more than one person wearing clothing matching the description Bryant had given, and asked Bryant for clarification. Bryant responded that the seller was bald or had a shaved head, and Pedroza then knew that it could not be the other person in similar clothing, because that person had dreadlocks.*fn4 Bryant continued to watch and direct Pedroza and Forneris as they followed appellant, who began to run when he saw the officers, discarding an empty plastic bag as he fled. Appellant was farther away from Bryant when he was arrested than he had been during his transaction with the woman, but Bryant could still see him clearly.

Within three or four minutes after the transaction occurred, Pedroza and Forneris caught up with appellant, on Sixth Street between Market and Stevenson, and detained him. Bryant then left his surveillance location and went to meet up with Pedroza and Forneris.

A search revealed that appellant had some rock cocaine hidden in his sock, later determined to weigh 2.25 grams.*fn5 A police expert witness testified, based on the circumstances of the case, including the amount of the cocaine, that appellant possessed the drug for sale. The expert conceded, however, that a quantity of 2.25 grams could be possessed for personal use. Appellant apparently did not have a significant amount of money on him when he was arrested, but there was evidence that sellers of illegal drugs sometimes discard or dispose of their cash if they think they are about to be arrested. The record showed that appellant could have done this, without Bryant seeing him, within the approximately two minutes that passed while Bryant was watching Yick and Mackenzie follow and arrest the woman.

Appellant was charged with one count of selling cocaine, and one count of possession of cocaine for sale. (Health & Saf. Code, §§ 11352, subd. (a); 11351.5.) Appellant made a pretrial motion for the disclosure of Bryant‟s surveillance location, and reiterated it outside the jury‟s presence after Bryant invoked the privilege during his testimony. After a brief in camera hearing, the trial court denied the motion.

A jury found appellant guilty on both counts. At a bifurcated court trial on appellant‟s two prior convictions, appellant admitted both convictions. One of them was incorrectly charged, however, so the trial court found that only one of the priors was proven. On February 5, 2008, appellant ...


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