IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Shasta)
February 4, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
STANLEY DANIEL ZAMORA, DEFENDANT AND APPELLANT.
Super. Ct. No. 07F926
The opinion of the court was delivered by: Robie , J.
P. v. Zamora CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury found defendant Stanley Daniel Zamora guilty of felony possession of methamphetamine and misdemeanor possession of narcotics paraphernalia.*fn1 The trial court denied defendant's motion for a new trial, suspended imposition of his sentence, and placed him on formal probation for three years with various terms and conditions.
On appeal, defendant contends his constitutional right to effective assistance of counsel was violated when trial counsel prejudicially failed to object to evidence that: (1) defendant refused consent to the search of his vehicle; (2) defendant had extramarital affairs; and (3) defendant was found in an area known for crime and drug transactions. We disagree and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On January 15, 2007, at approximately 5:30 p.m., Redding Police Sergeant Jeff Wallace approached a lone pickup parked in the farthest corner of a dark dirt parking lot down by some brush. Sergeant Wallace said he frequently patrolled these parking lots because they drew criminal activity at night, such as alcohol violations, drugs, and burglaries. As Sergeant Wallace's headlights illuminated the inside of the dark truck, he observed Michelle Heffley scooting rapidly from the driver's side towards the center portion of the seat. Sergeant Wallace got out of his patrol car and heard Heffley say, "Stan, don't" as Sergeant Wallace walked toward the passenger side with the window down. He saw defendant quickly and abruptly leave the truck from the driver's side and followed him to the rear of the truck.
As they encountered each other, defendant nervously and excitedly told Sergeant Wallace, "I didn't know who you were. I didn't know what you were doing. That's why I'm getting out to confront you." Sergeant Wallace, in uniform, identified himself as a police officer and defendant responded, "I'm a law enforcement agent just like you. We do the same thing." After a brief conversation, defendant explained he previously owned a security guard company.
Defendant suddenly reached toward the rear of his waistband, and Sergeant Wallace asked him to keep his hands in front of him. Defendant initially complied but soon reached towards the waistband again. Sergeant Wallace ordered him to keep his hands in front of him and noticed a folding knife clipped to defendant's pants. He asked defendant if he had any other weapons, took the knife from him, and conducted a weapons pat search. Sergeant Wallace found no other weapons.
Officer Kevin Kimple arrived and had Heffley get out of the truck. Sergeant Wallace looked into the truck through the driver's window opening and saw an open alcohol bottle containing some clear liquid. He asked defendant if he could search the truck and, although defendant denied the request, Sergeant Wallace conducted the search based on the open container violation. He found a glass methamphetamine smoking pipe, a residue-stained napkin, and a lighter under the front of the driver's seat. The bulb of the glass pipe had burnt black residue inside of it. Defendant was arrested for possession of the smoking pipe, and a search of his person revealed a brass tin in his inner jacket pocket. Sergeant Wallace opened the container and found a couple of pills and a coin-size Ziplock baggie with methamphetamine in it.
On cross-examination, Sergeant Wallace did not recall whether he drew his gun during the encounter. Sergeant Wallace did not smell any methamphetamine in the truck or alcohol on defendant, and he did not perform a drug abuse recognition exam or a finger inspection for drug burn marks on either defendant or Heffley. He did not take any pictures at the crime scene and he did not preserve the alcohol bottle as evidence.
The drugs were sent to the Department of Justice crime lab for testing. Mike Barnes, senior criminalist at the crime lab, testified he inspected the drugs, which were .57 grams of methamphetamine.
Defendant testified in his own defense and denied ever using methamphetamine. He testified about his education, employment, family, volunteerism as a fireman, certifications, service to the church, and blood donation. He said Heffley, his daughter-in-law's mother, lived in his furnished trailer until he evicted her for methamphetamine use.
On January 15, 2007, after defendant met Heffley in a "very, very busy" parking lot to return some of her belongings to her, Heffley said she wanted to talk. Defendant gave Heffley his parking spot and, because it was crowded in other parking areas, he drove them to the lower parking lot where Sergeant Wallace found them. Defendant recalled seeing a sign as he drove into the parking lot, "patrolled often." He believed "the city [was] telling [them] that it's safe."
Near the conclusion of their conversation, defendant was blinded by approaching headlights. He got out of the car to determine "whether it was a friend or a foe," and was "met with a Glock 40 caliber" pointed at him as he walked around his truck. He told the officer that he was "a good guy" and "a peace officer." The officer told him to "shut the fuck up" and they "got into a pissing contest."
A second officer arrived and Sergeant Wallace asked defendant if he could search his truck. Defendant replied, "absolutely not" because he "wanted to put an end to it." Sergeant Wallace informed defendant that he had a right to search the truck because he found an alcohol bottle in it. After searching the truck, Sergeant Wallace placed defendant under arrest and searched his person. Defendant saw some of the pills from his pill case, which he "always carried on [his] left [pants] pocket," scattered on the ground.
Defendant denied having alcohol in his vehicle and denied ever seeing the methamphetamine, the pipe, or the napkin. Further, he said Heffley had "minutes" unattended in the front seat of his truck.
On cross-examination, defendant admitted he is not a peace officer and said he was mistaken in the first trial when he testified the parking lot was full due to the Redding Marathon, because the marathon did not occur on that day. He admitted to having an affair with Heffley, but clarified that he "was being compassionate. One thing led to another and it got out of hand. And then [he] apologized to [his] wife. [He] prayed." He said no one else had access to his pill case, but said he took the pill case out for a moment when he was with Heffley because she said she had a headache.
Defendant presented three character witnesses. Laurel Carr-Rhyne*fn2 testified defendant was her neighbor for nine years and "assisted [her] tremendously with [her] husband," who was "very ill with Parkinson's and Alzheimer's." She described him as a "good friend and neighbor," a "good, honest man," and an "upstanding citizen." On cross-examination, Carr-Rhyne said she does not "consider somebody that uses methamphetamine to be a good, honest person." The prosecutor asked her, "And . . . I think you told me on the phone he has admitted to you that he's had affairs; correct?" Carr-Rhyne responded that defendant admitted to having multiple affairs, but she knew of only one. Then the prosecutor asked her, "And despite him having an affair do you believe him to be a good, honest person?" Carr-Rhyne said she did.
John Boshell, an operations director for Shasta County Fire Department, testified defendant "was a quite honest man." On cross-examination, Boshell said he would be surprised and shocked if he "had heard that [defendant] was found with methamphetamine on him by a police officer." The prosecutor asked Boshell, "have you heard that [defendant] has had an affair before?" Boshell responded he had not, but said his opinion would not change and he would "still think [defendant is] a good, honest person."
Randal Johnston, a barber, testified defendant is "an honest, trustworthy person." On cross-examination, Johnston said his opinion of defendant would change negatively if he "knew that [defendant] was found to be in possession of methamphetamine by a police officer." The prosecutor then asked Johnston, "would your opinion of him change if you knew that he had an affair?" Johnston said his opinion of defendant would change "in a negative way" if he believed defendant had an affair.
Closing Arguments, Verdicts, And Sentencing
During closing arguments, the prosecutor argued Sergeant Wallace had no reason to lie about the facts of the incident and pointed to defendant's inconsistent testimony about the marathon in the first trial. He reiterated defendant's affair with Heffley and Sergeant Wallace's testimony that the parking lot was "an area known for drug users" and "know[n] for crime." The prosecutor then said, "And what do we have in this case. We have two people in a vehicle and there's drugs and drug paraphernalia found on them." The prosecutor admonished the jury that to determine the credibility of the character witnesses' testimony, they should take into account that "every one of [the character] witnesses hesitated and didn't think that they would have necessarily the same opinion of [defendant] if they knew it to be true that he possessed methamphetamine and had an affair."
Defense counsel's theory was that Heffley planted the pipe, the napkin, and the lighter under the seat because she was a "known drug user" and she "was permitted to stay inside of that truck by herself, unattended, unsupervised, unwatched." Further, defense counsel argued Sergeant Wallace did not find the methamphetamine on defendant, pointing to the clothing defendant allegedly wore during the incident, which did not have an inner pocket in the vest.
The jury found defendant*fn3 guilty of felony methamphetamine possession and misdemeanor drug paraphernalia possession. The trial court denied defendant's motion for a new trial, suspended imposition of his sentence, and placed him on formal probation for three years with various terms and conditions.
Defendant filed a timely notice of appeal.
Ineffective Assistance Of Counsel
Defendant contends his trial counsel, Michael G. Sharpe, was ineffective for failing to object to: (1) the prosecutor's questioning of Sergeant Wallace regarding defendant's refusal to consent to a search of his vehicle; (2) the prosecutor's questioning of defendant's character witnesses regarding his marital infidelity; and (3) the prosecutor's statements during opening and closing arguments, and Sergeant Wallace's testimony, that defendant was found in an area known for crime and drug interactions.
The standard for establishing ineffective assistance of counsel is well settled. The burden of proving ineffective assistance of counsel is on the defendant. (People v. Babbitt (1988) 45 Cal.3d 660, 707.) To carry this burden, the defendant must show that: (1) his counsel's performance fell below an objective standard of reasonableness under prevailing professional norms; and (2) he was prejudiced by counsel's deficient performance because there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been more favorable to the defendant. (Strickland v. Washington (1984) 466 U.S. 668, 688, 694.) A reasonable probability is a probability sufficient to undermine confidence in the outcome. (Ibid.)
Defendant claims he was prejudiced because the "jury was invited to infer": (1) defendant's "guilt based on his assertion of a constitutional right" without an instruction to the jury that "it could not use that evidence to find [defendant] had a consciousness of guilt"; (2) "the suggestion that [defendant] had deceived his wife by engaging in multiple ongoing affairs" for which the prosecutor did not have a good faith basis and "which did not actually show [defendant's] character for dishonesty"; and (3) defendant's guilt "based on the prior conduct of others" because defendant "was in an area where many prior crimes had been committed by others." We are not persuaded.
The Issue Of Consent To Search
With respect to Sergeant Wallace's testimony regarding defendant's refusal to consent to the search of his truck, "admission of evidence of the defendant's refusal to consent to a warrantless [search] violate[s] the privilege to be free from comment upon the assertion of a constitutional right" (People v. Wood (2002) 103 Cal.App.4th 803, 808, citing People v. Keener (1983) 148 Cal.App.3d 73, 78). However, that testimony was very brief and defendant fails to consider the ample other evidence from which the jury could have inferred his "consciousness of guilt." Such evidence includes the location of the dark truck at night (a lone vehicle parked in the farthest corner of a dark dirt parking lot down by some brush), defendant leaving the driver's side of his truck rapidly and abruptly when Sergeant Wallace arrived, and defendant's nervous and excited behavior when he spoke to Sergeant Wallace and said he was a "law enforcement agent," which defendant admitted he was not. Based on these facts taken together, it is unlikely the jury's verdict would have been different if his trial attorney had objected to Sergeant Wallace's testimony of defendant's refusal to allow the officer to search the vehicle. Therefore, defendant has not shown prejudice.
Question About Marital Infidelity
As for the prosecutor's questioning of the character witnesses about defendant's marital infidelity, defendant misstates the facts on that subject. The prosecutor's cross-examination of Carr-Rhyne contains the only mention of "multiple affairs," when he asked her, "And . . . I think you told me on the phone he has admitted to you that he's had affairs; correct?" We agree with the People that the prosecutor had a good faith belief that defendant had engaged in multiple affairs from the prosecutor's "telephone conversation with Ms. Carr-Ryne just before the start of [defendant's] retrial." After Carr-Rhyne said she knew of only one marital indiscretion, the prosecutor changed his questioning to refer only to "an affair." During cross-examination of both Boshell and Johnston, the prosecutor also referred to only "an affair." On this record, we find no evidence that the prosecutor suggested defendant engaged in "multiple ongoing affairs." Moreover, even if defendant can be understood to argue his attorney should have objected to the prosecutor's questioning about defendant's single affair -- on the theory that a single incident of marital infidelity does not show a dishonest character -- we do not agree.
If a defendant presents evidence of "good character," the prosecution may rebut with evidence of the defendant's "bad character." (People v. Hughes (1954) 123 Cal.App.2d 767, 769.) The "rebuttal evidence or cross-examination concerning defendant's 'bad character' must respond specifically to particular 'good character' evidence presented by [the] defense witness." (People v. Tate (2010) 49 Cal.4th 635, 703.) Here, defendant presented evidence through his three character witnesses that he was an honest man. The prosecutor's questions regarding defendant's marital infidelity were thus proper rebuttal to this specific aspect of defendant's personality: his honesty and truthfulness.
Defendant claims his infidelity does not show a dishonest character because "no evidence suggested that [defendant] actually deceived his wife. He 'immediately' went to her, told her what he had done, and apologized. This behavior does not indicate dishonesty, but rather honesty." We disagree. The evidence indicates that defendant did not inform his wife of his infidelity until later, suggesting that he initially deceived his wife. Under the circumstances, the prosecutor's questions were relevant to defendant's honesty, and defendant's trial attorney was not ineffective for failing to object to those questions.
The Nature Of the Area Of the Arrest
Finally, with respect to the evidence of the criminal nature of the area where Sergeant Wallace found defendant, defendant argues that "the fact that other people engaged in drug activity in that location was not relevant" and "[a]n objection under Evidence Code section 352 would have been well-taken" because "any possible relevance of the fact that other crimes had occurred in the parking lot was clearly outweighed by the possibility that . . . the jury would use evidence of other people's criminal activity to determine [defendant's] guilt."
In response to the prosecutor's question of whether he could "describe what happened as [he was] driving past th[e] lower parking lot" where he encountered defendant, Sergeant Wallace volunteered that he "patrol[s] the river parking lots frequently" because in his "experience as . . . a Redding Police Officer these parking lots in the nighttime and the darkness hours tend to . . . draw in criminal activity," and "[i]n [his] experiences [he has] found numerous alcohol violations, drug arrests," and car break-ins. He "regularly patrol[s]" those lots because "there's crimes that takes [sic] place in [them]."
We disagree with defendant that his attorney was ineffective in failing to object to Sergeant Wallace's testimony. Although not specifically solicited by the prosecutor, Sergeant Wallace's explanation of the nature of the area in which he encountered defendant was relevant both to explain Sergeant Wallace's actions -- why he was patrolling "the farthest corner you can reach in this dirt parking lot" -- and to counter defendant's story that he was there for an innocent purpose. (See Evid. Code, § 210 ["'Relevant evidence' means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action"].) Given that defendant was found with drugs on him, and all the other evidence that tended to support the conclusion that defendant and Heffley were using, or going to use, methamphetamine, when Sergeant Wallace encountered them, Sergeant Wallace's testimony that drug activity tended to occur in that location at the time of the encounter (i.e., after dark) had some tendency in reason to prove defendant was there to engage in drug activity, rather than in some innocent activity that could have been conducted in a less out-of-the way part of the parking lot. Moreover, an objection that the probative value of this testimony was "substantially outweighed by the probability that its admission [would] . . . create substantial danger of undue prejudice . . . or of misleading the jury" (Evid. Code, § 352) likely would have failed. By itself, the probative value of this evidence may have been small, but taken together with all of the other evidence it strongly tended to prove the prosecution's case. Additionally, "undue prejudice" for purposes of Evidence Code section 352 is not synonymous with "damaging to a litigant's position," which is what this testimony was. (O'Mary v. Mitsubishi Electronics America, Inc. (1997) 59 Cal.App.4th 563, 575.) On this record, there was little, if any, risk that the jury found defendant guilty just because other people had engaged in criminal activity where he was found. Accordingly, defendant's trial attorney could have reasonably determined that any objection to (or, more properly, motion to strike) Sergeant Wallace's testimony would have been futile. Thus, counsel's conduct did not fall below an objective standard of reasonableness under prevailing professional norms.
The judgment is affirmed.
NICHOLSON , Acting P. J.
MAURO , J.