Santa Clara County Superior Court, Hon. Joyce Allegro. (No. CC950489).
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[166 Cal.Rptr.3d 399] Attorney for Appellant: Emry J. Allen, Sacramento, Under Appointment By the Court of Appeal.
Attorneys for Respondent: Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Sr. Assistant Attorney General, Masha Dabiza, Alisha M. Carlile and Michael Chamberlain, Deputy Attorneys General.
The Santa Clara County District Attorney charged Samuel Ghebretensae (appellant) with possession of cocaine base for sale (Health & Saf.Code, § 11351.5, count one) resisting arrest (Pen.Code, § 148, count two) and transportation of cocaine base (Health & Saf.Code, § 11352, subd. (a), count three). The information by which appellant was charged contained two prior conviction allegations within the meaning of Health and Safety Code section 11370, subdivision (c) and a prior prison term allegation within the meaning of Penal Code section 667.5, subdivision (b).
Following a jury trial, appellant was found guilty as charged and the jury found true the prior conviction allegations and the prior prison term allegation. Subsequently, the court sentenced appellant pursuant to Penal Code section 1170, subdivision (h) to a blended sentence of nine years— six years to be served in the county jail followed by three years of mandatory supervision by the probation department.
Appellant filed a timely notice of appeal. On appeal, appellant raises six issues, which we shall outline later. For reasons that follow we strike a supervision fee that the court imposed. As so modified, we affirm the judgment.
Facts and Proceedings Below
San Jose Police Officer Brian Winco testified that on July 25, 2009, he was assigned to patrol in downtown San Jose. At approximately 9:00 p.m. that evening he was conducting surveillance in Fountain Alley— an area well known for drug trafficking. Officer Winco was in plain clothes in an attempt to blend in with the surroundings. Officer Winco saw appellant loitering nearby. A bus pulled up close to appellant's location and a passenger got off the bus; this passenger was identified as [166 Cal.Rptr.3d 400] Allen Talton. Talton walked up to appellant; they spoke briefly. Appellant showed Talton something he had in his hand and then retrieved something from his pocket. Talton moved closer to appellant and they exchanged something that each of them held. Immediately, the two separated and walked away from each other. Based on his training and experience, Officer Winco believed that the two men had engaged in a hand-to-hand drug transaction.
Officer Winco put on his police vest and made contact with Talton. He handcuffed him and searched his pockets. Officer Winco recovered a prescription Vicodin pill during the search. Talton admitted purchasing the pill from appellant. During the time that it took to detain Talton, appellant had walked about 20 to 25 feet away across the light rail tracks. Appellant looked back; according to Officer Winco he appeared startled when he saw that Talton was being detained. Immediately, appellant began jogging away.
Officer Winco called for assistance; he left Talton with other officers and then set off to find appellant. When he failed to find him, Officer Winco returned to where Talton was being held. Ultimately, Officer Winco began driving around in his unmarked police car and continued to look for appellant. Shortly thereafter, he saw appellant outside a Jack-in-the-Box restaurant. Officer Winco radioed for assistance; Officer Rapp responded in his marked patrol car. Officer Rapp got out of his car and ordered appellant to stop; immediately, appellant turned and fled. Officer Rapp chased him as he fled through a parking lot. He did not follow appellant when appellant fled through a private backyard, rather, Officer Rapp used his police radio to inform other officers of appellant's position. A short time later Officer Winco saw appellant as he emerged onto a residential street; he ordered appellant to stop, but appellant climbed over a fence. Eventually, Officer Winco managed to detain appellant and force him to the ground while another officer handcuffed appellant. A search of appellant's person uncovered $241 in cash. At the time of his arrest, appellant was wearing a long-sleeved button-down checked shirt over a white t-shirt; at the time of the drug transaction appellant was wearing a white t-shirt and blue jeans.
While Officer Winco was chasing appellant he saw what he thought was a piece of plastic fall from appellant's pocket and hit the sidewalk. After he apprehended appellant, Officer Winco returned to the spot where he saw the object fall; he recovered a piece of plastic wrap tied in a knot. When it was examined, it was determined to contain 14 individually packaged " twists" of cocaine base.
I. Exclusion of Impeachment Evidence
At trial, appellant sought to introduce evidence of two incidents that involved Officer Winco for purposes of impeaching his credibility. Trial
counsel asserted that the incidents demonstrated Officer Winco's willingness to lie. After conducting several Evidence Code section 402 hearings, the court excluded the evidence pursuant to Evidence Code section 352. Appellant argues that the court abused its discretion in so doing.
Trial counsel sought to impeach Officer Winco with evidence that he had falsely [166 Cal.Rptr.3d 401] arrested a probationer by the name of Gary Arthur. Arthur was on felony probation for a drug conviction; as part of his probation he was participating in a rehabilitation program through the Salvation Army. According to Arthur, on January 24, 2008, Officer Winco and another officer took him out of the program and asked him to become an informant; they threatened to arrest him on a probation violation if he refused. Arthur said that when he was unable to provide the information they wanted, the officers took him into custody and obtained a probation hold. A few days later, the probation hold was dropped and he was released from custody.
Gustavo Sotelo was Arthur's probation officer at the time of Arthur's arrest in January 2008. Sotelo was not working on the day Arthur was arrested. However, Edna Thomas, a probation supervisor, responded to the officers' call about Arthur. She placed a probation hold on Arthur. Arthur's file did not reflect any information as to why Arthur was arrested and Thomas could not remember any of the circumstances leading to the probation hold. She testified that in general the arresting officer provides the probation department with background about the alleged violation. While she notes information about the probation hold in the case file, sometimes, if she gets busy she is unable so to do. Although Thomas could not recall any of the circumstances leading to the hold, she testified that she would not have authorized a hold if she did not believe it was legitimate.
Sotelo testified that when he returned to work a few days after Arthur's arrest, he decided to drop the probation hold because he wanted Arthur to continue in the Salvation Army program. Sotelo did not think finding a violation was necessary; he was concerned that Arthur would be cut from the rehabilitation program if he was found to be in violation of his probation.
The trial court excluded Arthur's testimony. The court explained, " The rule in a trial is that all relevant evidence should be admissible. But relevance requires more than some vague suggestion that an officer may have made a false arrest in the past. [¶] I don't think you have shown that. [¶] It would require a mini-trial to determine a matter of minimal importance. [¶] I think it would create a substantial danger of confusing the jury. [¶] I think it would definitely require undue time consumption. [¶] And I don't think it would establish anything— that Officer Winco did anything wrong."
In addition to the foregoing evidence, appellant sought to introduce evidence that during a recess in his preliminary hearing, Officer Winco engaged in a conversation about the facts of appellant's case with another officer and when confronted by appellant's attorney, lied about what he was doing.
Jessica Burt-Smith, a public defender, testified that she was sitting in the courtroom during a break in appellant's preliminary hearing. Annrae Angel, appellant's counsel, had stepped out of the courtroom. Ms. Smith saw Officer Rapp, who was designated as the investigating officer, approach Officer Winco; Officer Winco had just completed his testimony. Ms. Smith testified that she overheard Officer Rapp and Officer Winco talk about appellant's case. Ms. Smith could not remember specifics of the conversation, but believed the conversation was " something about Officer Winco's testimony and ... how the officers recalled that [appellant] was the person that they believed committed the crime." Ms. Smith saw the bailiff approach the officers and they began talking about something else. Ms. Smith alerted Ms. Angel about the conversation when Ms. [166 Cal.Rptr.3d 402] Angel reentered the courtroom. According to Ms. Smith, Ms. Angel approached the officers and told them she thought it was inappropriate for them to be discussing the case. Ms. Smith heard Officer Winco say " we hadn't been talking about the case" or something to that effect.
Ms. Angel testified that Ms. Smith did not alert her to the conversation that had been occurring; rather, it was still ongoing when she entered the courtroom. Although Ms. Angel knew that the court had not admonished the witnesses not to discuss the case, nonetheless, she approached the officers and told them not to discuss the case. Ms. Angel recalled that Officer Winco said that they were not talking about the case; she testified that she recalled him saying something about sports. She conceded that her contemporaneous notes reflected that Officer Winco's response was that the conversation was just about the deputy. She clarified that she may not have written down everything that was said; that it might have been about the deputy or sports. She acknowledged that she did not think it was important at the time, and she did not raise the issue with the court or with Officer Rapp on cross examination, as there was no court order not to discuss the case.
The trial court excluded the evidence about the conversation. The court explained, " I believe this testimony on this issue would just create confusion for the jury. [¶] The testimony is inconsistent. Apparently the fact that Officer Winco and Officer Rapp were discussing the case is not at issue. [¶] And they had a right to discuss the case. Miss Angel had no right to go up to them and tell them they couldn't talk about it. [¶] But neither Miss Smith nor Miss Angel can agree on what Officer Winco said to her. [¶] And without that I
simply don't find that it is probative of anything. [¶] I don't think it's relevant. [¶] I think it would be confusing to the jury and any amount of time that it would take up, and I am sure it would take up at least an hour, is simply outweighed by the fact that it is going to be confusing. [¶] It is basically somewhat speculative. [¶] It is speculative about what the officer said. And I'm not going to allow the testimony of Jessica Smith or Annrae Angel because under 352 I believe that it would be more prejudicial than probative and it is not a material issue in this case. There is simply not consistency between the two reports to make it useful to the jury."
Appellant demanded the opportunity to attack Officer Winco's credibility at trial using the foregoing evidence, which he asserted, indicated " that Officer Winco, the primary witness in the People's case has at least on one occasion shown a willingness to fabricate and to lie." Appellant argued that he had a " right to present a defense pursuant to the United States and California Constitutions."
Impeachment evidence is evidence that " calls into question the witness' veracity." ( Gallo v. Peninsula Hospital (1985) 164 Cal.App.3d 899, 904, 211 Cal.Rptr. 27.) To impeach a witness is to discredit the witness. (Witkin, Cal. Evid. (4th ed. 2000) Presentation at Trial, § 258, p. 329; see Howard Contracting, Inc. v. G.A. MacDonald Construction Co., Inc. (1998) 71 Cal.App.4th 38, 53, 83 Cal.Rptr.2d 590 [a broad definition of impeach is to dispute, disparage, deny, or contradict].) Evidence Code section 780 provides that a jury may " consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony...." It outlines a number of ways in which a witness may be impeached, including " his character for honesty or veracity or their opposites." (Evid.Code, § 780, subd. (e).)
[166 Cal.Rptr.3d 403] If the alleged impeachment evidence was erroneously excluded, we review errors in the application of the " ordinary rules of evidence" such as Evidence Code section 352 under the standard set forth in People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243. ( People v. Marks (2003) 31 Cal.4th 197, 226-227, 2 Cal.Rptr.3d 252, 72 P.3d 1222.) Under this standard, if a trial court erroneously excludes evidence, a defendant must show on appeal that it is reasonably probable he or she would have received a more favorable result had that evidence been admitted. ...