People v. Hall CA2/6 ( 2015 )

Filed 5/12/15 P. v. Hall CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B252260
(Super. Ct. Nos. 2012031834, 2012024033)
Plaintiff and Respondent, (Ventura County)
v.
ERIC MONTIEL HALL,
Defendant and Appellant.
Eric Montiel Hall appeals a judgment following his conviction after jury
trial of possession for sale of a controlled substance, methamphetamine (Health & Saf.
Code, § 11378), and transportation of a controlled substance (id., § 11379, subd. (a)). He
had five prior felony convictions and was subject to the sentencing enhancements of
Penal Code section 667.5, subdivision (b). The trial court sentenced him to an aggregate
sentence of nine years, with six of those years in the county jail followed by three years
of mandatory supervision. We conclude, among other things, that the trial court did not
err by: 1) admitting a 1992 prior conviction for possession of marijuana for sale, 2)
excluding evidence about a remark Hall made to a probation officer, or 3) allowing the
prosecutor to impeach Hall's testimony with a prior statement he made while he was in
jail. But a $2,000 fine imposed under Health and Safety Code section 11350, subdivision
(d) was unauthorized. We strike the fine. In all other respects, we affirm.
FACTS
On September 2, 2012, Police Officer Brandon Ordelheide saw a car with a
broken tail light. He "initiated a traffic enforcement stop." Hall was in the front
passenger seat of the vehicle. Hall told Ordelheide that he was on "probation with search
terms" and that he had a methamphetamine pipe. Ordelheide arrested him "for being in
possession of narcotics paraphernalia."
When they arrived at the police station, Ordelheide opened the door of the
police car. Hall "stuck his right leg out of the vehicle [and] shook his leg." Ordelheide
saw "a black plastic bag fall from the bottom of [Hall's] blue jean pant leg." Inside the
black bag were "13 clear plastic bags" containing "a white crystalline substance."
Testing showed these bags contained methamphetamine.
The "total gross weight" of the bags was "9.01 grams." Nine of the bags
weighed 0.5 grams, two weighed 0.6 grams, one weighed 1.2 grams, and one weighed 1.9
grams. The bags weighing 0.5 and 0.6 grams are called "40's" because they are packaged
to be sold for "$40 on the street." The bag weighing 1.2 grams would sell for $60 to $80.
The bag weighing 1.9 grams is called a "teener" and would sell for "[$]100 to $120 street
value."
Police Officer Enrique Alvarez testified "most users" buy 0.5 gram bags.
"It's very common." He said, "Based on the weight and the amount of baggies, it is my
opinion the subject who possessed it was [in] possession for sales." He said it is
"common" for drug dealers to hide drugs in their "pants."
Hall testified he did not sell methamphetamine. He used methamphetamine
from June to September 2012 and was "smoking daily." He used two to "three grams a
day." On September 2, he bought $20 worth of methamphetamine at an apartment
complex. He got in the car "to take a hit off [his] pipe."
Hall testified that he saw Jose, a person he knew to be a "dope dealer," put
"something down" between two cars in the carport of the apartment complex. Hall
believed this was a "stash spot," a place where people stash "dope."
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Hall testified, "I was hoping it was dope" in the stash spot. After Jose
walked away, Hall went to the carport "between the two cars" and found the "black
plastic bag." He tucked it in his "waistband" and walked back to the car. He did not
know what was in the bag. He did not tell Ordelheide he had "a bag in [his] pants"
because he believed it contained "something illegal."
During his testimony, Hall said he had a "useable quantity of
methamphetamine" in his pipe, which he had transported from the apartment complex to
the traffic stop. He admitted that this conduct was a crime.
In rebuttal, Alvarez testified a drug stash spot would not be located in a
carport. Drug dealers only use a "secured area," not a place where the public would have
access to it.
DISCUSSION
Admission of a 1992 Prior Conviction
Hall contends the trial court erred by allowing the prosecutor to admit
evidence of his 1992 prior conviction for possession of marijuana for sale. He claims
that prior conviction did not involve moral turpitude and it was too remote and
prejudicial.
A defendant may be impeached by "the use of any felony conviction which
necessarily involves moral turpitude, even if the immoral trait is one other than honesty."
(People v. Castro (1985) 38 Cal. 3d 301, 306.) Courts have long held that "possession of
marijuana for sale involves moral turpitude." (People v. Standard (1986) 181 Cal. App. 3d
431, 435.) Hall contends this rule is outdated and should no longer apply given
"prevailing social mores." But courts have rejected this claim and have held the current
legal standard remains the same as in the past. (People v. Gabriel (2012) 206
Cal. App. 4th 450, 459.) The "potential for promoting drug trafficking[] demonstrates a
readiness to do evil," and such conduct consequently involves moral turpitude. (Ibid.)
Hall contends the prior conviction was too remote to be admitted. We
disagree.
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Hall was convicted of possession for sale of marijuana in 1992.
Remoteness is a factor the court may consider in deciding whether to exclude a prior
conviction. (People v. Green (1995) 34 Cal. App. 4th 165, 182.) Where a defendant's sole
prior conviction occurred 20 years before trial, a court may exercise its discretion to
exclude it. But where a defendant has committed additional offenses after that prior
conviction, a trial court may admit it "because [defendant] did not subsequently lead a
blameless life." (Id. at p. 183.)
In 1995, Hall pled guilty to three felony counts of theft. In 2005, he pled
guilty to possession of a controlled substance. In 2006, he pled guilty to "unlawfully
taking a vehicle" and "fleeing" from police. In 2010, he pled guilty to possession of a
controlled substance. In 2011, he was convicted of petty theft with priors. Because of
his pattern of committing multiple subsequent offenses, the trial court could reasonably
find his 1992 conviction was not too remote. (People v. Green, supra, 34 Cal.App.4th at
p. 183.)
Hall claims the admission of the 1992 prior conviction was unduly
prejudicial because it "was for the same sort of offense as the current one," and it should
have been excluded under Evidence Code section 352.
But "[p]rior convictions for the identical offense are not automatically
excluded." (People v. Green, supra, 34 Cal.App.4th at p. 183.) Moreover, here the trial
court found the probative value of admitting this evidence outweighed "the prejudicial
effect." It said "crimes of possession for sale . . . [are] no more serious than what is
charged here," and that the jury would not "respond emotionally" or be inclined to
"disregard the evidence in the case." "[T]he admission of multiple identical prior
convictions for impeachment is not precluded as a matter of law" and "a series of crimes
may be more probative than a single crime . . . ." (Ibid.) Hall has not shown an abuse of
discretion.
Hall notes the trial court admitted "five other priors" for "impeachment
purposes." He claims the admission of the 1992 prior was error because it was
"cumulative." "However, there is no limitation on the number of prior convictions with
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which the defendant's credibility can be impeached." (People v. Mendoza (2000) 78
Cal. App. 4th 918, 927.) The court carefully weighed the potential prejudicial impact of
this evidence. Hall has not shown an abuse of discretion.
Excluding A Prior Consistent Statement
Hall contends the trial court erred by excluding evidence about a prior
statement he made to a probation officer. He claims it was admissible to support his
testimony in the defense case.
Hall's trial counsel intended to call a probation officer to testify that Hall
said "he was regularly using methamphetamine." Counsel said this testimony would
show "what's evident from the nature of [Hall's] previous convictions is that he is a
chronic drug user and abuser." She claimed the statement is admissible "as a prior
consistent statement." The trial court sustained the People's objection to this testimony.
Evidence Code section 791 provides, in relevant part, "Evidence of a
statement previously made by a witness that is consistent with his testimony at the
hearing is inadmissible to support his credibility unless it is offered after: [¶] (a)
Evidence of a statement made by him that is inconsistent with any part of his testimony at
the hearing has been admitted for the purpose of attacking his credibility, and the
statement was made before the alleged inconsistent statement . . . ." (Italics added.) A
prior consistent statement may also be admitted where there is a claim that the witness's
testimony has been "recently fabricated or is influenced by bias or other improper
motive . . . ." (Id., subd. (b).)
The People contend Hall's "statement to his probation officer regarding his
personal methamphetamine use was not offered to counter a prior inconsistent
statement." We agree. The prosecutor said the People did not challenge the fact that Hall
is "a methamphetamine user." In ruling on the objection, the trial court found Hall's
claim about using methamphetamine "was not contradicted by the People."
The trial court also found the probation officer's evidence was not relevant.
It said, "[T]he way the defendant's testimony stands is that he didn't know what was in
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that bag and he was hoping it was dope or methamphetamine but he didn't know and so
therefore . . . his amount of use is irrelevant . . . ."
Hall contends, "[E]ven though he didn't know what was in the package,
evidence that he was an avid user of the narcotic was relevant to what--if anything--he
intended to do with the stuff if it turned out to be what he hoped."
But the offer of proof to support Hall's position was largely general and
incomplete. There were no facts showing how Hall's conduct or state of mind when he
talked to the probation officer were connected to the time period of the charged offenses.
The trial court said, "I can't see why his state of mind at the time he made statements to a
probation officer at some point before this incident would be relevant." (Italics added.)
In response, Hall's counsel did not offer specific facts to connect the gap in time the court
mentioned. Hall has not shown error.
In any event, Hall has not shown prejudice. He has not demonstrated how
the probation officer's testimony would change the result. The People note that Hall's
testimony about his use of methamphetamine was "uncontested." There was also
uncontradicted evidence he possessed the methamphetamine pipe. Hall had prior
convictions for possession of a controlled substance. The trial court could reasonably
infer the probation officer's testimony would not add anything because the jury knew Hall
was a methamphetamine user. (People v. Ervine (2009) 47 Cal. 4th 745, 784 [exclusion
of defendant's prior consistent statements was not prejudicial where "they were
duplicative of his trial testimony" and much of that testimony was not "contested"].)
Moreover, there was strong evidence of Hall's guilt. A defendant's
concealment of a large amount of drugs individually packaged for sale constitutes
"strong" evidence of possession for sale. (People v. Velasquez (1970) 3 Cal. App. 3d 776,
787-788.) The black bag containing the 13 clear plastic methamphetamine bags fell from
Hall's pants. They contained the quantities of methamphetamine drug dealers sell. Hall
told Ordelheide about the pipe, but he did not mention the black bag hidden in his pants
which showed his consciousness of guilt. Jurors could reasonably find Hall's action of
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shaking his leg when he got of out the police car was an attempt to dislodge the
incriminating black bag because he knew it was evidence showing his possession for sale.
The large amount of methamphetamine Hall possessed was not consistent
with his prior pattern of possession for personal use. In his prior convictions for
possession of controlled substances he had only small user amounts. In his 2010
conviction for possession of a controlled substance, he possessed only 1.5 grams of
methamphetamine. When asked about a prior arrest for possession of cocaine, Hall
testified the amount he possessed "was never a whole bunch." (Italics added.)
In addition, Alvarez's testimony showed Hall's story about finding the black
bag in an open area carport "stash spot" was not credible. Hall said he bought drugs from
Jose. But he was not able to provide Jose's "real name." When asked how old Jose was,
he said, "I'm not sure." Jurors could infer Hall's testimony showed a motive to sell
drugs. Hall said he did not know the contents of the black bag. But he also testified,
"Whatever it was it would have turned into methamphetamine because I would have sold
it or bartered it or traded it for some dope." (Italics added.) Hall was asked, "Have you
ever sold anything you found at a stash spot?" Hall: "Yeah . . . I have sold stolen
property." His testimony about not selling drugs was impeached by his prior conviction
for possession of marijuana for sale.
Proper Impeachment
Hall contends the trial court erred by allowing the prosecutor to ask him
whether he told a probation officer that he was a drug "mule." He claims there was no
"foundation laid for the probation report" that contained this remark, and asking this
question constituted improper cross-examination.
At trial, the prosecutor showed Hall's trial counsel a probation report which
indicated that during an interview in the county jail, Hall said he "acts as a mule." Hall's
counsel said, "I don't see the relevance of questioning him about being a mule." The trial
court overruled the objection. It found this was "an appropriate area of cross-
examination." It said, "[I]n terms of confronting the defendant with a prior statement, the
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People have to have a good faith belief that he made the statement and you can either
deny it or not. But it appears to be an appropriate area of confrontation . . . ."
During cross-examination, the prosecutor asked Hall, "Back in 2000 when
speaking with a probation officer, isn't it true that you had said that in addition to stealing
and many of these other things you acted as a mule?" Hall: "Never said that."
Prosecutor: "A mule is somebody who transports drugs for people involved in narcotics
trafficking, correct?" Hall: "That's . . . the term--yeah."
The trial court correctly said the foundation for asking this question was the
prosecutor's good faith belief that Hall made this statement. It could reasonably find that
belief was properly supported by the probation report. Courts have rejected claims that
the People must present evidence to prove impeachment facts before they can ask the
defendant the question. (People v. Williams (1991) 228 Cal. App. 3d 146, 152 ["As long
as the prosecution has a good faith belief in the existence of a prior, it may seek to use the
conviction for the purpose of impeachment. A proper basis for establishing good faith is a
witness's rap sheet"].) "Moreover, the requisite 'good faith' can be inferred from the
record because 'the factual specificity of the prosecutor's questions implies that they were
based on information obtained during the prosecution's review of records available to the
defense . . . .'" (People v. Friend (2009) 47 Cal. 4th 1, 80-81.) That is the case here. The
People had the right to impeach Hall with this prior statement which tended to contradict
his trial testimony. (People v. Macias (1997) 16 Cal. 4th 739, 756; People v. Crow (1994)
28 Cal. App. 4th 440, 452.) He has not shown error.
The $2,000 Fine
Hall notes that the trial court's minute order includes the statement:
"Pursuant to Section 11350(d) of the Health and Safety Code, you shall pay a fine of
$2000.00 . . . ." But at the sentencing hearing, the court did not impose any fine under
this section. The People agree that the record shows the court "did not orally impose the
fine."
Hall claims the $2,000 fine is unauthorized and must be stricken. He is
correct. (People v. Mesa (1975) 14 Cal. 3d 466, 472 [the oral pronouncement of sentence
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governs].) The People agree that the $2,000 fine must be stricken. They claim "[s]ince
appellant was not convicted under section 11350, the fee provision in section 11350 does
not apply to him."
We have reviewed Hall's remaining contentions and we conclude he has not
shown any other error.
The $2,000 fine is stricken. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P.J.
We concur:
YEGAN, J.
PERREN, J.
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Patricia M. Murphy, Judge
Superior Court County of Ventura
______________________________
John Derrick, 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, Senior Assistant Attorney General, Margaret E.
Maxwell, Supervising Deputy Attorney General, Eric E. Reynolds, Deputy Attorney
General, for Plaintiff and Respondent.
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