APPEAL from a judgment and a petition for habeas corpus of the Superior Court of San Diego County, Gregory W. Pollack, Judge. (Super. Ct. No. SCD220290)
The opinion of the court was delivered by: Benke, Acting P. J.
CERTIFIED FOR PUBLICATION
Judgment affirmed as modified; petition denied.
In this criminal case, by virtue of the untimely delivery of a criminal file to the prosecutor, the prosecutor belatedly discovered defendant's prior conviction for the sale of methamphetamine was based on defendant's use of a unique modus operandi and one observed in the drug transaction which gave rise to the instant proceedings: in both instances, methamphetamine was found in plastic bags which had been wrapped in cocktail napkins. Because of the similarity in modus operandi, the trial court permitted both the prosecution and a co-defendant to cross-examine the defendant with respect to the prior conviction.
We reject defendant's contention that admission of the prior conviction was erroneous or otherwise unfair to him. We also reject his contention, asserted by way of petition for writ of habeas corpus,*fn1 that his counsel was ineffective in failing to discover the similarity between the uncharged and charged offenses or that this alleged failure was prejudicial.
Appellant Kenneth Harvey Shockman was tried with an alleged confederate, Robert Edwin Peary III. While the jury was deliberating, Peary pled guilty under the terms of an agreement with the prosecution. The jury then convicted Shockman of transporting for sale, possessing for sale and possessing methamphetamine. (Health & Saf. Code, §§ 11377, 11378, 11379.)
In a bifurcated proceeding, the trial court found Shockman had previously suffered a conviction for possession of methamphetamine for sale and a prior "strike" conviction within the meaning of Penal Code*fn2 sections 667, subdivisions (b) through (i), and 1192.7, subdivision (c)(23). The trial court also found that Shockman had served a prior prison term within the meaning of section 667.5. The trial court struck the prior strike under section 1385 and sentenced Shockman to a term of 10 years in prison composed of: a three-year midterm on the transportation for sale count (count 1), a consecutive three-year enhancement on that count under Health and Safety Code section 11370.2, a consecutive one-year prior prison term enhancement and a consecutive three-year term for violating the terms of his probation in the prior case.
In April 2009 undercover narcotics officers employed by the San Diego Police Department arrested an individual named Collier on suspicion he was selling methamphetmine in the Old Town area of San Diego. The undercover officers recovered Collier's cellular telephone (cell phone) and searched the contact list stored in the phone's memory. One of the officers, Luke Johnson, sent a text message from Collier's cell phone to a number of contacts he found in its memory. Johnson's text stated: "Can you bring me some?" Within two minutes, Johnson received a text from one of the contacts, which stated: "You're ready already?" The text was sent from someone identified in the cell phone's memory as "Rob"; later, police were able to identify "Rob" as Robert Peary, Shockman's co-defendant.
Johnson and Peary then sent each other a series of text messages. Johnson sent Peary a text message which stated that he had a lot of customers waiting. Peary responded with a text message which stated: "From K or C. Does it matter? And how much? The usual?" Based on his training and experience, Johnson believed "K" and "C" referred to suppliers of methamphetamine and Peary wanted to know if Collier had any preference as to suppliers. Johnson sent Peary another text message which stated that he wanted to double his usual order and he wanted it from K. Peary responded with a text message which stated: "I will check for availability and price. Please hold." Five minutes later, Peary sent Johnson another text message: "K is going to be picking me up shortly. I'm hoping to be there in 45 or less." Peary then sent another text message which stated: "Me and K are coming to you." Then, by way of further text messages, Johnson and Peary agreed to meet on a bike path near an E-Z8 motel on Pacific Coast Highway.
Johnson and other police officers went to the location where Peary agreed to meet. Upon arriving Johnson sent Peary a text message: "Are you here and how much?" Peary responded by text message: "I'm here and it[']s 750." Shortly thereafter, undercover officers observed Shockman driving a gold BMW in the vicinity of an EZ8 motel on Pacific Coast Highway. A man, later identified as Peary, was in the passenger seat. After Shockman's car pulled into the motel parking lot and then pulled out, the officers observed someone walking to the bike path.
Officer Johnson followed Shockman and saw Shockman drive to the adjacent bike path three times. Officer Johnson stopped Shockman and then went to the bike path where he found Peary walking briskly along a ramp; Johnson stopped Peary and a small package dropped from Peary's shorts. The package was a small plastic bag wrapped with a rubber band, which was itself wrapped in a black cocktail napkin. The cocktail napkin appeared to have been cut with scissors. Inside the plastic bag Johnson discovered 13.94 grams of methamphetamine.
After recovering the methamphetamine from Peary, narcotics officers searched Shockman's residence, where they found further incriminating evidence. On Shockman's bed they found pieces of black cocktail napkins, black rubber bands, small plastic bags and a pair of scissors. The cocktail napkins, rubber bands and plastic bags were similar to the items used to wrap the methamphetamine which dropped from Peary's shorts. On a nightstand they found a spoon with residue that was consistent with methamphetamine, a scale with a black cocktail napkin on it and a prescription bottle that contained .96 grams of methamphetamine. The narcotics officers also found a business card with a pricelist for methamphetamine.
Officer Johnson testified that although he had participated in the investigation of over 500 narcotics cases, he had never seen or heard about a practice of packaging methamphetamine in cocktails napkins.
At trial Shockman testified on his own behalf. According to Shockman, Peary was a friend who called and asked Shockman for a ride while Shockman was not at home. According to Shockman, he told Peary to wait inside Shockman's home and that he would pick him up in about 30 minutes. Shockman then picked Peary up, took Peary to where Peary wanted to go and was stopped by police. Shockman testified he did not know Peary was carrying methamphetamine and did not know Peary was involved in other drug transactions.
Shockman claimed he uses the scale narcotics officers found in his home to measure medical marijuana. Shockman also admitted there were black cocktail napkins in his home, but he testified he did not cut or alter them. Finally, Shockman testified he did not know there was a small amount of methamphetamine in his home.
In addition to his testimony and over the strenuous objections of both the prosecution and Peary, the trial court permitted Shockman to play for the jury an audio recording of a conversation between Shockman and Peary. The conversation took place while Shockman and Peary were in the back of a police car. According to Shockman, he did not know the conversation was being recorded. In the clearly audible portions of the recording, Shockman expresses surprise Peary was carrying any methamphetamine and Peary responds by admitting he had a small amount for his personal use. In the recorded conversation, Peary also tells Shockman that he told police that Shockman was merely giving him a ride and that Shockman had no clue about what Peary was doing.
Shockman's portrayal of the conversation as one which neither he nor Peary knew was being recorded was substantially undermined by one whispered statement Peary made near the beginning of their conversation. After Shockman asked Peary "[w]hat the hell were you doing anyway?" Peary, in a clearly audible voice, stated: "I just went down and had to fucking, meet somebody." However, immediately after this audible statement, Peary can be heard on the recording whispering: "They found it."
The trial court permitted Peary's counsel to cross-examine Shockman with respect to a prior conviction Shockman suffered for the sale of methamphetamine and Shockman's prior use of cocktail napkins as a means of wrapping the methamphetamine. The trial court also permitted the prosecution to cross-examine Shockman in some detail with respect to the prior conviction.
In his principal arguments on appeal, Shockman contends: the trial court erred in permitting Peary to introduce Shockman's 2002 methamphetamine sales conviction in his cross-examination of Shockman; and then erred again in permitting the People to introduce details of the prior conviction in its cross-examination of Shockman. In the alternative, and by way of his petition for a writ of habeas corpus, Shockman argues his counsel was ineffective in failing to discover the similarity between his prior conviction and the instant offense, which similarity caused the trial court to admit evidence of the prior conviction. We find no error and no ineffective assistance of counsel which prejudiced Shockman.
1. Adversity Between Defendants
The record suggests that in important practical respects, the trial court's ultimate decision to permit Peary and the prosecution to use Shockman's 2002 conviction grows out of litigation choices Shockman himself made and his co-defendant's response to those choices. First, it appears that prior to trial the prosecution offered Peary and Shockman a plea bargain which Peary wanted to accept and which Shockman would not agree to accept. The prosecution's offer required that both defendants accept the plea and Shockman's unwillingness to accept the plea prevented Peary from getting the benefit of the prosecution's offer.
The adversity between Shockman and Peary was heightened at trial when Shockman took the stand and stated that he did not know what Peary was doing. The adversity reached a peak when Shockman offered the recording of his conversation with Peary. In objecting to the recording, Peary's counsel told the trial court: "[I]f you play the entire tape -- it buries both of them. I know Mr. Shockman does not feel that way, but I think the whole context is they are both very slick and both very knowledgeable about drugs." In warning Shockman's counsel about the hazards of relying on the recording, the trial court agreed with Peary's assessment of the impact of the recording: "I think the whisper comment is very harmful to Mr. Shockman."*fn3
2. The Trial Court's Evolving View of Shockman's Prior Conviction
Before the adversity between Shockman and Peary reached its peak, the prosecutor moved in limine to admit Shockman's prior conviction. The prosecutor represented the conviction grew out of a "sting" operation in which Shockman was first subjected to a parole search and found in possession of 6.98 grams of methamphetamine. In a search incident to his 2002 arrest, police found 151.41 grams of methamphetamine and over $20,000 in cash in Shockman's house. In the 2002 case, Shockman admitted possessing drugs for sale.
The trial court denied the prosecutor's in limine motion. The trial court found that although the prior conviction was relevant on the issues of Shockman's knowledge of the nature of methamphetamine and his intent to sell it, the prejudice created by the conviction outweighed its probative value. However, the court advised the parties that if Shockman took the stand and testified he did not know anything about methamphetamine, the conviction would be admitted.
After the People rested their case-in-chief, Shockman took the stand and, as we have indicated, denied knowing Peary possessed or was selling methamphetamine. He did admit he possessed black napkins, but stated that he did not cut or alter them.
Before Shockman's direct testimony was complete and outside the presence of the jury, counsel and the trial court then discussed two outstanding and related evidentiary issues: Shockman's request that the recorded conversation between Shockman and Peary be admitted and the prosecutor's renewed effort, in light of new information, to use Shockman's 2002 methamphetamine sales conviction. As we have indicated, Shockman was successful in convincing the trial court to permit him to play the recording. In particular, the trial court rejected Peary's counsel's vigorous objection that Peary's statements on the tape were hearsay which substantially harmed him and implicated his rights under People v. Aranda (1965) 63 Cal.2d 518 and Bruton v. United States (1968) 391 US 123 [88 S.Ct. 1620]. In overruling Peary's objection, the trial court concluded Shockman, who was testifying, could use Peary's statements against Peary.
The trial court then took up the prosecutor's renewed request to introduce evidence of Shockman's 2002 conviction. According to the prosecutor, during the course of trial her office was able to retrieve from storage its file on the previous conviction, including police reports. The police reports disclosed that in investigating the 2002 crime, police discovered Shockman had wrapped methamphetamine in blue cocktail napkins.
Initially, the trial court indicated that notwithstanding the similarity between the modus operandi employed in both instances, it would not permit the prosecution to use the prior conviction either as substantive evidence or as impeachment. The trial court found that although the use of cocktail napkins was a unique modus operandi and therefore clearly admissible under Evidence Code section 1101, subdivision (b), because the prosecution had closed its case-in-chief and Shockman had begun testifying on the assumption he would not be confronted with the prior conviction, it would not be fair to permit the prosecution to introduce the conviction. The trial court further found that because Shockman had not denied using cocktail napkins to package methamphetamine, the prosecution could not use the prior conviction to impeach his testimony. The trial court, however, noted that if Shockman testified in a manner which indicated that he knew nothing about the use of napkins as a means of packaging methamphetamine, the prosecution could use the prior conviction to impeach his testimony.
Next, Peary's counsel, having received a ruling Shockman could use the damaging recording of her client's statement against him, turned the tables, so to speak, on Shockman: Peary's counsel argued that if Shockman could use Peary's recorded statements against Peary, Peary should be permitted to use Shockman's conviction against him. The trial court agreed with Peary's counsel's argument. The trial court noted Peary had not put on his defense case-in-chief and that the use of cocktail napkins was classic modus operandi evidence admissible under Evidence Code section 1101. The trial court emphasized that the difference between the prosecution's ability to use the prior conviction and Peary's was the fact that Peary had not yet put on his case-in-chief.
Having obtained the right to use the prior conviction in her client's case-in-chief, Peary's counsel then asked for permission to use the conviction in her cross-examination of Shockman. The trial court again agreed with Peary's counsel.
Shockman then resumed the stand, and while he was on the stand his counsel played the recording of his conversation with Peary. Peary's counsel then conducted her cross-examination in which she confronted him with his prior conviction and the use of cocktail napkins in that case. Shockman admitted he used cocktail napkins in the 2002 case, but denied he used the napkins for the purposes of selling methamphetamine. According to ...