California Court of Appeals, Second District, Fourth Division
Order Filed Date: 6/9/15
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BA408648 Rand Rubin, Judge.
Davina T. Chen, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Mary Sanchez and David Zarmi, Deputy Attorneys General, for Plaintiff and Respondent.
It is ordered that the opinion filed herein on June 4, 2015, be modified as follows:
The Introduction section on page 2 is to be included for publication.
There is no change in the judgment.
Defendant Helen Chung appeals from her conviction by jury on three counts of offering narcotics for sale, with special allegations regarding prior narcotics convictions. She was sentenced to a total term of 16 years and four months and was ordered to pay various fines and fees. Chung raises a number of contentions on appeal: first, that the prosecutor improperly struck the only African-American prospective juror from the panel during voir dire; second, that evidence of her prior convictions was improperly admitted at trial; third, that one of the police officer witnesses gave improper and unqualified expert testimony; and fourth, that the consecutive sentences she received violated the bar on multiple punishment for a single act under Penal Code section 654. We reverse the judgment with respect to the consecutive sentences imposed on counts five (offer to sell methamphetamine) and six (offer to sell cocaine) and remand to the trial court for proceedings consistent with this opinion. We affirm the judgment in all other respects.
FACTUAL AND PROCEDURAL HISTORY
A. Procedural Background
An information charged Chung (aka Thuy Pham) with the following six counts: possession of methamphetamine for sale (Health & Saf. Code, § 11378; count 1), possession of cocaine base for sale (Health & Saf. Code, § 11351.5; count 2), possession of cocaine for sale (Health & Saf. Code, § 11351; count 3), offer to sell cocaine base (Health & Saf. Code, § 11352; count 4), offer to sell methamphetamine (Health & Saf. Code, § 11379; count 5), and offer to sell cocaine (Health & Saf. Code, § 11352; count 6). The information further alleged that Chung had suffered five prior felony narcotics convictions and had served five prior prison terms (Health & Saf. Code, § 11370.2; Pen. Code § 667.5, subd. (b)).
Chung pleaded not guilty and denied the special allegations. Following trial, the jury found Chung not guilty on the possession counts (counts one through three), but guilty on the offer to sell counts (counts four through six). Chung waived jury trial on, and then admitted, the five prior conviction allegations.
On November 13, 2013, the court sentenced Chung to a total term of 16 years and four months. On count four, the court imposed the upper term of five years, plus nine years for three prior felony convictions. (Health & Saf. Code, § 11370.2, subd. (a)). The court imposed one-third of the middle term for count five (equaling one year) and count six (equaling one year and four months), both sentences to run consecutively to count four. Chung timely appealed.
B. Evidence at Trial
1. Narcotics Sale
On the afternoon of March 5, 2013, Los Angeles Police Department (LAPD) Officers Hiroshi Uehara and Phillip Chan were conducting surveillance of Sergio Moran, who they believed was involved in narcotics trafficking. They observed Moran drive a gray Chevrolet Suburban south on Bixel Street in Los Angeles, pass Fourth Street, and then park behind a black Dodge Charger. Within seconds, Chung exited the Charger from the front passenger seat and entered the front passenger seat of the Suburban. Moran and Chung remained in the Suburban for “maybe a minute or two, ” then Chung exited the vehicle and re-entered the front passenger seat of the Charger. Moran followed “shortly thereafter” and entered the rear passenger seat of the Charger, directly behind Chung. The officers testified that they were looking at Chung’s and Moran’s hands and clothing as they walked between the vehicles and did not observe them carrying anything. 
Once Moran entered the Charger, the officers decided to approach the vehicle. Officer Uehara approached the passenger side of the Charger and saw Moran holding and examining a “large off-white, crystal-like substance” in his hand, which proved to contain methamphetamine. When Moran noticed the officers, he threw the methamphetamine onto the floor. Officer Uehara then took Moran into custody, while Officer Chan removed Chung and the driver of the Charger, Angela Suh, from the front seats and took them into custody.
In addition to the methamphetamine Moran dropped on the floor of the Charger, the officers recovered a large, gallon-size Ziploc bag from the back seat of the vehicle. That Ziploc bag held four smaller plastic baggies-one containing powder cocaine, two containing methamphetamine, and one containing cocaine base. There also was a folding scale of the type commonly used to measure narcotics on the back seat. The scale was working, open and ready for use. The officers also recovered a purse containing Chung’s identification and $870 in a variety of denominations from the floor of the front passenger seat, and a purse containing Suh’s identification, two baggies of methamphetamine, and $20 in cash from the driver’s seat. The officers found nothing in the Charger that could be used to ingest the narcotics and neither Suh, Moran, nor Chung appeared to be under the influence of narcotics when arrested. The officers searched Moran and recovered $2, 317, in a variety of denominations, and a baggie of heroin between his buttocks.
The LAPD analyzed the recovered narcotics and found that the methamphetamine dropped by Moran weighed 21.8 grams, the baggie of cocaine in the back seat weighed 44.8 grams, the baggie of cocaine base in the back seat weighed 2.86 grams, the baggie of heroin found on Moran weighed 5.97 grams, and the methamphetamine found in Suh’s purse weighed 31.6 grams.
2. Expert Testimony
Officers Uehara and Chan testified as both percipient witnesses and narcotics experts. Officer Uehara testified that he had been a police officer for almost 11 years and assigned to narcotics enforcement for over three years. He received 40 hours of narcotics training in the academy and attended a five-day, 40-hour narcotics school, both of which included instruction as to the “identification, manufacturing, distribution, and types of usage” of all three drugs recovered here. His work in the narcotics unit “deals extensively with narcotics on a daily basis – surveillance, identification, interviewing arrestees, users, buyers of narcotics.” He had posed undercover as a street dealer and a buyer, authored search warrants related to narcotics, and “talked to more experienced detectives and officers.”
Officer Uehara testified that in his experience, the large amount of cash in various denominations carried by Chung and Moran suggested they were involved in a narcotics transaction, because buyers and sellers carry that type of cash to make change and to buy and sell the product. He testified that he saw drug transactions occurring inside a vehicle “all the time, ” but had never seen an instance where a seller brought all the drugs to the buyer’s vehicle. This was an unlikely scenario because “the dealer wants to minimize risk, risk of being caught, risk of being robbed.” Instead, typically, the buyer enters the seller’s vehicle and exchanges money for the narcotics.
When the prosecution posed a hypothetical based on the facts of the case, Officer Uehara opined that the front female passenger (in Chung’s position) possessed the narcotics for sale. He based his opinion on the large amount and different types of narcotics found, the large amount of money seized, the lack of any smoking paraphernalia at the scene, and the absence of signs of narcotic use by the suspects. He also opined that the “lack of small individual baggies... suggests to me that this is a mid-level size dealer as opposed to a street dealer.”
Officer Chan testified that he had been a police officer for 20 years and on narcotics assignment for 11 years. He opined that the evidence in the case was consistent with a mid-level sale, as opposed to a street-level sale, based on the amounts of narcotics and money involved and the use of the scale. He testified that, in his experience, a seller would not take his drugs into a buyer’s vehicle. Both officers acknowledged that it would be ...