P. v. Cummings

Filed 11/30/05 P. v. Cummings CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent, v. RANGEE TERRELL CUMMINGS, Defendant and Appellant.

F045913 (Super. Ct. No. MCR017287) OPINION

APPEAL from a judgment of the Superior Court of Madera County. Edward P. Moffat II, Judge.

Kenneth R. Carver, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Stan Cross and Julie A. Hokans, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

After a jury trial, Rangee Terrell Cummings (appellant) was convicted of one count of sale of a controlled substance, cocaine base, in violation of Health and Safety Code section 11352, subdivision (a). The court sentenced appellant to three years in state prison and ordered him to pay various fines.

Appellant contends the trial court improperly admitted two photographs. He also contends counsel was ineffective for failing to object to hearsay testimony and failing to argue for a grant of probation. Finally, appellant asserts the abstract of judgment should be amended to specifically designate the amount of certain fines, fees and penalties imposed. We agree only with this latter argument, and in all other respects affirm.

FACTS

In 2002, the Madera County Narcotic Enforcement Team (MADNET) instituted a “buy program” in response to an increase in drug activity in and around McNally Park in Madera. An undercover officer in an unmarked vehicle, equipped with a concealed video and audio recording system, would attempt to make contact and buy drugs from a dealer in the park. A cover team monitored the activities of the undercover officer.

On the morning of November 26, 2003, Special Agent Alfredo Fuerte, Jr. drove to the park and approached a Black male wearing red sweatpants, a “pendleton over shirt” and a “beanie.” Fuerte made eye contact with the man, who walked to the passenger side of the car. Through the open window, Fuerte asked the man in Spanish for “a 20,” a street term for a quantity of cocaine base. The man asked Fuerte to unlock the car door, and he got inside. The man asked Fuerte to drive away, but Fuerte refused. The man then asked Fuerte if he was a police officer; Fuerte stated that he was not. The man reached into the rear waistband of his sweatpants and retrieved a piece of plastic containing a “white, rocklike substance.” Fuerte exchanged a $20 bill for the substance, later determined to be cocaine base. The man exited the car, and Fuerte drove away. As he drove away, Fuerte gave a description into the audio record of the man as being six feet tall, 175 pounds.^[1]

Agent Fuerte then drove to a predetermined location and turned over the videotape of the drug buy and the cocaine to Special Agent Timothy Brackemyre. Within an hour, Brackemyre watched the videotape at the MADNET office. He recognized appellant as the person who sold Fuerte the drugs. Another agent obtained a photograph of appellant and showed it to Fuerte, who, in turn, identified the photograph as the person who sold him drugs.

At trial, Fuerte identified appellant as the person who sold him drugs. Brackemyre testified he had seen appellant “[m]any times” in his previous duties as a city police officer, and he identified him in court. Detective David Herspring testified that when he had been a patrol officer, he had seen appellant “quite frequently” in the area of the park. He had known appellant for approximately six years. He identified appellant in court. Officer Jason Valdez testified he had seen appellant “a lot” over the years and had met him “[s]everal times.” He also identified appellant in court. Fuerte, Brackemyre, Herspring, and Valdez all identified appellant as the person depicted in the video as it played for the jury. Two photographs of appellant, taken by law enforcement officers in 2001, were introduced into evidence.

DISCUSSION

1. Did the trial court err in admitting the two prior photographs of appellant?

Prior to trial, the prosecutor made a motion to admit two photographs of appellant into evidence. The photographs were taken during a consensual encounter with Officer Valdez in 2001. Defense counsel objected “under 352.” The prosecutor explained that his intent was to have Officer Valdez establish that he knew appellant and that appellant was the person in the photographs. The court allowed the photographs into evidence, finding “the probative value as to the identification is an issue as material in this case and it outweighs any undue prejudice in regards to the matter and that it is highly relevant.” Thereafter, at trial, Officer Valdez testified that he and another officer were together when the photographs were taken near the park in 2001. Officer Valdez testified the photographs were “true and accurate” depictions of appellant. The photographs were admitted into evidence.

Appellant contends the trial court’s ruling was prejudicial error because the photographs were inadmissible character evidence under Evidence Code section 1101, subdivision (a), and were more prejudicial than probative under Evidence Code section 352. We review any ruling by a trial court on the admissibility of evidence for an abuse of discretion. (People v. Alvarez (1996) 14 Cal.4th 155, 201.) This standard is applicable both to a trial court’s determination of the relevance of evidence as well as its determination under Evidence Code section 352. (See, e.g., People v. DeJesus (1995) 38 Cal.App.4th 1, 32.)

“[E]vidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.” (Evid. Code, § 1101, subd. (a).) Nevertheless, subdivision (b) makes the “bad acts” evidence admissible if it is relevant to prove some fact other than the defendant’s propensity to commit the bad acts. “Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident …).” (Evid. Code, § 1101, subd. (b).)

We find appellant’s reliance on Evidence Code section 1101 misplaced. The photographs were not opinion evidence, evidence of reputation, or evidence of specific instances of conduct. (Cf. People v. O’Connor (1992) 8 Cal.App.4th 941, 948-949 [Evid. Code, § 1101 inapplicable in molestation trial where sketches admitted in evidence showed young boys engaging in sex].) Instead, the photographs were properly admitted as relevant evidence. (Evid. Code, § 351.) “‘Relevant evidence’ means evidence, including evidence relevant to the credibility of a witness …, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.)

There is no question that appellant’s identity was a material fact in this case. To establish the crime charged, the prosecutor had to prove that appellant was the person who sold drugs to the undercover officer. Appellant’s image in the video is not entirely clear, and it was pertinent that the officers who viewed the video and identified appellant in it also knew appellant from previous contacts. The photographs, taken two years before the drug buy, bolstered the officer’s testimony that appellant was familiar to him and he could identify him. In any event, even if the photographs can somehow be characterized as “bad acts” evidence under Evidence Code section 1101, admission of the photographs was not error under this same analysis. The photographs were therefore admissible.

We next consider whether admission of the photographs was more prejudicial than probative. Evidence Code section 352, subdivision (b) “is designed for situations in which evidence of little evidentiary impact evokes an emotional bias.” (People v. Olguin (1994) 31 Cal.App.4th 1355, 1369.) “Prejudice,” for purposes of Evidence Code section 352, subdivision (b), is not synonymous with “damaging. Instead, it refers to “‘evidence which uniquely tends to evoke an emotional bias against [the] defendant as an individual and which has very little effect on the issues.’” (People v. Bolin (1998) 18 Cal.4th 297, 320.)

Appellant claims the photographs were prejudicial because they showed appellant was previously “under police suspicion.” Appellant relies, in part, on this court’s opinion in People v. Vindiola (1979) 96 Cal.App.3d 370, in which the perpetrator’s identity was the central issue at the murder trial. To impeach a defense witness and to bolster the validity of an eyewitness’s identification, the prosecutor introduced three earlier “booking photographs.” (Id. at pp. 383-384.) The photographs had the “familiar and unmistakable appearance” of booking photographs:

“There is a blanked-over area at the bottom of the photographs which visibly shows that something has been blocked off. Moreover, the pose, the expressionless and wooden, enigmatic appearance of mug shots taken against a colorless background is familiar to most citizens from commonly viewed pictures of wanted criminals viewed at post office bulletin boards, in magazines and on television.” (Id. at p. 383, fn. 4.)

We found error in the admission of the mug shots because they carried “the inevitable implication that appellant suffered previous arrests and perhaps convictions.” (Id. at p. 384.) The admission of the booking photographs was but one of a number of errors cumulatively requiring reversal. (Id. at pp. 386, 388.)

Here, the photographs are not mug shots. While Officer Valdez testified the photographs were taken in the park when he and another officer were together, no mention was made of why the photos were taken. The color photographs show appellant outdoors in street clothing. He is not looking directly into the camera as if asked to pose. There is absolutely nothing on the photographs identifying appellant in any way, such as the booking information on a mug shot. The photographs do not carry with them the “inevitable implication that appellant suffered previous arrests and perhaps convictions.” (People v. Vindiola, supra, 96 Cal.App.3d at p. 384.) We do not find the admission of the photographs more prejudicial than probative.

Appellant also makes the argument, as he did at trial, that admission of the photographs was cumulative. Evidence may be excluded under Evidence Code section 352, subdivision (a) if its admission will necessitate an “undue consumption of time.” However, as stated earlier, the photographs bolstered the officer’s identification of appellant, and while it may have been cumulative, appellant cannot argue admission of the photographs and the very limited reference to them constituted an undue consumption of time.

2. Was defense counsel ineffective for failing to object to the admissibility of testimony by Valdez and Herspring?

After asking that the two photographs be admitted, the prosecutor stated he would introduce Officer Valdez to authenticate the photographs and establish that he knew appellant. Defense counsel made no objection. At trial, Officer Valdez testified that he met appellant “[s]everal times … throughout the years” and identified him in court, in the videotape, and from the photographs. Detective Herspring also testified, without objection, that he was familiar with appellant, had seen him “quite frequently,” had known him for approximately six years, and identified him in the video and in court.

Appellant now contends defense counsel’s failure to object to the testimony of Valdez and Herspring, as neither witnessed the drug buy and neither was involved in the MADNET undercover drug buy program, resulted in ineffective assistance of counsel requiring reversal of his conviction. We find no prejudice.

“To show ineffective assistance of counsel, [the] defendant has the burden of proving that counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms, and that there is a reasonable probability that, but for counsel’s unprofessional errors, the result would have been different.” (People v. Kelly (1992) 1 Cal.4th 495, 519-520; Strickland v. Washington (1984) 466 U.S. 668, 687-688, 693-694.)

As we noted earlier, appellant’s identity was at issue, and evidence of his identity was therefore relevant. Defense counsel has no obligation to object to relevant evidence. (People v. Price (1991) 1 Cal.4th 324, 387.) Furthermore, “failure to object is a matter of trial tactics as to which we will not exercise judicial hindsight.” (People v. Kelly, supra, 1 Cal.4th at p. 520.)

We recognize appellant’s concern is more than just Officers Valdez and Herspring’s identification of appellant in court, in the video, or in the photographs. Appellant’s concern is that the officers, by virtue of their positions and prior contacts with appellant, negatively implicated appellant.

An error or omission by counsel which causes his or her representation to fall below prevailing standards of professional competence is prejudicial if it is reasonably probable that the outcome would have been more favorable to the appellant in the absence of the error or omission. (People v. Ledesma (1987) 43 Cal.3d 171, 217-218; Strickland v. Washington, supra, 466 U.S. at pp. 693-694.) But, a reviewing court need not reach the question whether counsel’s performance was deficient if the record demonstrates that it is not reasonably probable that the outcome would have been more favorable in the absence of the alleged deficiency. (Strickland v. Washington, supra, at p. 696.)

Agent Fuerte identified appellant at trial as the person who sold him the drugs. Agent Brackemyre testified he had seen appellant “[m]any times” in his previous duties as a city police officer, and also identified him in court. Both Fuerte and Brackemyre identified appellant as the person depicted in the video. The jury viewed the videotape a number of times. In addition, the jurors had the opportunity to personally view appellant in the courtroom with a stocking cap, or beanie, on his head.

Appellant has not demonstrated that there is a reasonable probability of a more favorable result but for defense counsel’s failure to object to the testimony of Officer Valdez and Detective Herspring. We therefore reject appellant’s ineffective assistance of counsel argument.

3. Was counsel ineffective for failing to argue for a grant of probation?

The court sentenced appellant to the mitigated term of three years in state prison. Appellant contends defense counsel was ineffective for failing to argue for a grant of probation. We disagree.

The record shows the following. Following conviction, appellant was released from custody on his own recognizance and ordered to make and keep appointments with the probation officer. Appellant failed to make or keep such appointments. At sentencing, appellant claimed he “didn’t even know,” and stated he “didn’t do it denying the whole thing to begin with.” The court revoked appellant’s release and set bail.

At a subsequent sentencing hearing, the probation report recommended probation be denied due to the seriousness of the offense, appellant’s prior record, his lack of stable employment and his denial of culpability. A four-year midterm in prison was recommended.

At sentencing, the trial court stated it had read and considered the probation report. Both counsel were asked if they had any “additions or corrections or comments on it.” Defense counsel made no objection or request. The prosecutor asked that the recommendation of the probation department be followed. The court then stated:

“The court’s going to deny probation in this case. This is a case involving a very serious offense in terms of the distribution of drugs and probation which doesn’t appear to be appropriate in this case. [¶] [Appellant]’s prior record is rather insignificant to tell you the truth in regards to this matter.… [¶] So but Probation is denied due to the seriousness of the offense, his prior record, his lack of stable employment and all. So in relationship to the sentence, I disagree with the Probation Department as to Count One. They talked about his prior convictions being numerous. I mean, there’s three convictions. One for a hit and run, one for petty theft, one for disturbing the peace. And apparently he completed probation satisfactory. [¶] I find the circumstances in mitigation to preponderate and will impose three years state prison, the mitigated term.”

Appellant contends defense counsel was deficient because he made “no argument for a grant of probation, even though facts relating to both the crime and to appellant were favorable towards a grant of probation in lieu of a commitment to prison.” Specifically, appellant argues counsel (1) “made no comment on the probation report’s characterization that appellant’s prior convictions qualified as numerous,” (2) failed to object to the court’s characterization of the offense as being serious, (3) failed to point out the court’s inconsistent reasoning in denying probation on a prior record the court characterized as “rather insignificant,” and (4) failed to argue that appellant’s lack of current stable employment should not preclude him from probation.

As noted, a reviewing court “‘need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies …. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.’” (In re Fields (1990) 51 Cal.3d 1063, 1079.) We therefore proceed directly to appellant’s inability to demonstrate prejudice.

The sentencing court read the probation report and was aware of all sentencing factors. The court’s statement that appellant’s prior record was “rather insignificant” resulted in its decision to sentence appellant to the lower term, rather than the midterm recommended by the probation department. The decision to do so does not result in “inconsistent” reasoning by the trial court as alleged by appellant. Also, as explained in the probation report, appellant’s offense was described as “serious” because the facts of the case showed “an increased level of bravado” when appellant approached the undercover officer in a public park, got into the car, and asked him to drive away. Appellant showed “a degree of knowledge of wrongfulness” when he asked if the undercover officer was a police officer, showing him to be “a streetwise drug dealer.” Further, the court appropriately considered appellant’s lack of stable employment as one of the factors in denying probation. (Cal. Rules of Court, rule 4.414(b)(4).) According to the probation report, appellant stated his last stable employment was from 1995 to 1996, eight years before the present offense. Finally, appellant denied culpability and failed to follow through on the requirement that he meet with the probation office after he was convicted. The court stated several times that probation was not warranted in this case. Based on this record, appellant cannot demonstrate a reasonable probability of a more favorable result had defense counsel taken the steps appellant suggests should have been taken. Accordingly, the claim of ineffective assistance of counsel fails.

4. Must the abstract of judgment be amended to specifically reflect the fines, fees and penalties imposed?

The probation report recommended a:

“$650 Fine per 672 PC, which includes a State penalty assessment per 1464 PC, a County penalty assessment per Government Code 76000, and a State Court Construction penalty per SB 1732, a surcharge per 1465.76, and a Court Security Fee of 1465.8(a) PC. [¶] $177.50 Laboratory Analysis Fee per 11372.5 H&S, which includes a State penalty assessment per 1464 PC, a County penalty assessment per Government Code 76000, and a State Court Construction penalty per SB 1732, a surcharge per 1465.76 and a Court Security Fee of 1465.8(a) PC.”

At sentencing, the trial court followed the recommendation of the probation officer and ordered appellant to pay a “$650 fine under 672 of the Penal Code; [and a] $177.50 laboratory-analysis fee under 11372.5 of the Health & Safety Code which includes penalties and assessments.” The separate fines, fees and penalties were not enumerated.

Appellant does not contest imposition of the fees, but contends the court should have specified how the fines, fees, penalties and assessments were calculated. Respondent agrees, as do we. (People v. High (2004) 119 Cal.App.4th 1192, 1200 [“Although we recognize that a detailed recitation of all the fees, fines and penalties on the record may be tedious, California law does not authorize shortcuts. All fines and fees must be set forth in the abstract of judgment”].)

We will remand with directions to the trial court to separately list all fines, fees, and penalties imposed and to prepare an amended abstract of judgment. (People v. High, supra, 119 Cal.App.4th at p. 1201.)

DISPOSITION

The matter is remanded for the trial court to separately list all fines, fees, and penalties imposed. An amended abstract of judgment shall be prepared and forwarded to the appropriate authorities. In all other respects, the judgment is affirmed.

DAWSON, J.

WE CONCUR:

_______________________________

ARDAIZ, P.J.

_______________________________

VARTABEDIAN, J.

Courtesy of California Legal Resource Directory, a source for providers and consumers of legal resources. Because we know legal.

Escondido Lawyers are available and standing by to help you.

^[1]Fuerte does not testify to these specifics, but they are mentioned by the prosecutor in closing and are included in the transcript of the videotape. (Exhibit 2.)