People v. Singleton CA2/5

Filed 7/23/15 P. v. Singleton CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FIVE
THE PEOPLE, B257405
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA102861)
v.
STEVIE MARK SINGLETON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of the County of Los Angeles,
Douglas Sortino, Judge. Affirmed.
Greg Demirchyan, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Michael R. Johnsen,
Supervising Deputy Attorney General, Wyatt E. Bloomfield, Deputy Attorney General,
for Plaintiff and Respondent.
INTRODUCTION
A jury found defendant and appellant Stevie Singleton (defendant) guilty of sale of
a controlled substance (Health & Saf. Code, § 11352, subd. (a)) (count 1) and possession
for sale of a controlled substance (Health & Saf. Code, § 11351) (count 2).1 On appeal,
defendant contends that insufficient evidence supports his convictions for sale of a
controlled substance and possession for sale of a controlled substance. Defendant also
asserts that the trial court erred prejudicially by admitting expert narcotics-jargon
testimony without qualifying the testifying witness as an expert. If we conclude that his
challenge to the admission of expert testimony was forfeited by defense counsel’s failure
to object in the trial court, then defendant contends that he received ineffective assistance
of counsel. We affirm.
FACTUAL BACKGROUND
On August 16, 2013, City of Pomona Police Department Officer Jesus Cardenas
was working on a special two-week assignment to the U.S. Marshal Service. The
assignment entailed conducting undercover narcotics purchases as part of a task force.
An 11-year veteran of the Pomona Police Department, Officer Cardenas had been a
police officer for 16 years. Officer Cardenas had attended two 40-hour training courses
covering drug abuse recognition and narcotics sales, packaging, use, and influence. He
also had experience working in the major narcotics unit, had conducted 28 undercover
narcotics purchases, and had authored two narcotics search warrants resulting in home
confiscations. During his tenure with the Pomona Police Department, Officer Cardenas
had conducted thousands of narcotics sales as an undercover police officer.
About 4:07 p.m. on August 16, 2013, Officer Cardenas, dressed in civilian attire,
drove his undercover vehicle into the parking lot of the 99 Cent Store on Holt Boulevard
near Paloma Drive in Pomona to purchase narcotics. There were five individuals in the
area around his truck when he arrived. Two of them subsequently approached him.
1
Defendant was tried before the same jury as co-defendant Robert Johnson.
Johnson is not a party to this appeal.
2
Based on his training and experience with undercover operations, Officer Cardenas
concluded that the individuals who did not approach appeared to be acting as lookouts.
Officer Cardenas explained that narcotics sales were often conducted through a “team
approach” because those selling narcotics “try not to keep multiple items [i.e., narcotics
and money] on their person.”
Defendant was one of two individuals who approached Officer Cardenas and
initiated the following conversation:
“[Defendant]: What’s up?
“[Officer Cardenas]: I’m looking for a dub.[2]
“[Defendant]: What you want?
“[Officer Cardenas]: Rock.[3]”
Defendant responded to this conversation by using his cell phone to initiate what
Officer Cardenas assumed was a possible transaction. Subsequently, defendant
approached co-defendant Johnson, who was among the men standing outside the 99 Cent
Store. Defendant and Johnson had approximately a five second conversation before
walking over to a minivan parked outside the store. Johnson entered the van and closed
the door, but defendant remained outside. Officer Cardenas, who did not see anyone else
inside the van or approach the van, concluded that defendant was acting as a lookout.
When Johnson opened the minivan’s door, defendant walked over to Johnson, and
Officer Cardenas observed a hand-to-hand transaction between defendant and Johnson.
Officer Cardenas described the transaction: “Johnson’s right clenched fist met with
[defendant’s] open palm and a handshake or similar to a handshake occurred and Johnson
released. He had an open hand now and [defendant] had the clenched fist.”
Following the transaction, defendant, keeping his arm close to his body, walked
back to Officer Cardenas and opened his palm, producing $20 worth of narcotics. Officer
2
Officer Cardenas explained the etymology of the word “dub,” and that it is
“common street language for $20 worth of narcotics.”
3
Officer Cardenas explained that “rock” is street slang for rock cocaine.
3
Cardenas handed defendant a $20 bill that the U.S. Marshal Service had given him, and
defendant handed the officer the narcotics. The narcotics were two “off-white colored
rocks,” each in a separate package of cellophane, with each rock about the size of a pencil
eraser. Officer Cardenas believed the rocks were consistent with two “dimes,” or $10-
sized rocks, of cocaine. According to Officer Cardenas, the cocaine rocks he received
were “typical use amounts” for personal use. He opined that each rock could be “hit a
few times,” meaning that each rock could be used a few times.
Officer Cardenas estimated that about four minutes elapsed from when he
specified that he wanted rock cocaine to when defendant handed him the narcotics. After
placing the narcotics on the front seat, Officer Cardenas drove away, called Officers
Edgard Padilla and Brad Paulson to notify them that a transaction had occurred, and
described the van and the men to be taken into custody. After Officers Paulson and
Padilla took into custody individuals matching the men Officer Cardenas described,
Officer Cardenas slowly drove by the scene in his undercover vehicle to confirm visually
the identification of the detained individuals. Officer Padilla searched defendant after
detaining him and found no money. When the arresting officers searched Johnson,
however, they recovered $541 in U.S. currency, including some $20 bills. Because
Officer Cardenas continued on with his U.S. Marshal Service detail after identifying the
men in custody and did not return to the scene, he did not know what happened to the $20
bill that he used to purchase the narcotics from defendant.
Officer Cardenas suggested, based on his experience conducting undercover
operations and narcotics investigations, that defendant likely would not have maintained
possession of the $20 from the transaction with Officer Cardenas so defendant could
claim that any drugs found on his person were for personal use rather than for sale.
Officer Cardenas conceded that a search of an individual that resulted in recovery of both
money and narcotics would solidify the prosecution’s case for possession for sale.
Robert Takeshita, a senior criminalist with 31 years of experience working for the
Los Angeles County Sherriff’s Department Crime Lab, had qualified as a controlled
substances expert in municipal, superior, and federal courts, and had tested substances for
4
narcotics on a daily basis during the last 20 years of his tenure with the crime lab.
Takeshita analyzed the substances Officer Cardenas purchased from defendant. He
testified that the crime lab received two items of sealed evidence, each of which
contained a solid substance that weighed 0.09 grams. Takeshita conducted two separate
chemical tests on each of the two solids: a preliminary cobalt spot test to determine the
type of chemical compound of each solid, and a confirmatory infrared spectrum test to
determine the chemical structure of each compound. Both solid substances tested
positive for cocaine base.
DISCUSSION
I. Sufficiency of Evidence
Defendant contends that his convictions for sale of a controlled substance and
possession for sale of a controlled substance each require a finding that he possessed a
usable amount, and that insufficient evidence supports the jury’s finding of a usable
amount. Assuming, without deciding, that both counts require possession of a usable
amount, sufficient evidence supports the jury’s finding and defendant’s convictions.
A. Standard of Review
“‘When considering a challenge to the sufficiency of the evidence to support a
conviction, we review the entire record in the light most favorable to the judgment to
determine whether it contains substantial evidence—that is, evidence that is reasonable,
credible, and of solid value—from which a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.’ (People v. Lindberg (2008) 45 Cal. 4th 1,
27 [82 Cal. Rptr. 3d 323, 190 P.3d 664].) We determine ‘whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.’ (Jackson v.
Virginia (1979) 443 U.S. 307, 319 [61 L. Ed. 2d 560, 99 S. Ct. 2781].) In so doing, a
reviewing court ‘presumes in support of the judgment the existence of every fact the trier
5
could reasonably deduce from the evidence.’ (People v. Kraft (2000) 23 Cal. 4th 978,
1053 [99 Cal. Rptr. 2d 1, 5 P.3d 68].)” (People v. Edwards (2013) 57 Cal. 4th 658, 715.)
B. Application of Relevant Principles
To sustain a conviction under Health and Safety Code section 11351 – possession
of a controlled substance for sale – the prosecution must prove that “1. The defendant
possessed a controlled substance; [¶] 2. [t]he defendant knew of its presence; [¶] 3. [t]he
defendant knew of the substance’s nature as a controlled substance; [¶] 4. [w]hen the
defendant possessed the controlled substance, he intended to sell it; [¶] 5. [t]he controlled
substance was [cocaine]; [¶] AND [¶] 6. [t]he controlled substance was in a usable
amount.” (CALCRIM No. 2302; People v. Montero (2007) 155 Cal. App. 4th 1170, 1175-
1176.) The only element defendant contests on appeal is the last one, which he says
requires that the controlled substance be in a usable amount.4
Whether the substance “exists in usable quantity is a factual question” for the jury,
and the burden rests with the prosecution to prove that the narcotics possessed by
defendant constituted a usable amount. (People v. Simmons (1971) 19 Cal. App. 3d 960,
966, fn. 2; People v. Leal (1966) 64 Cal. 2d 504, 512 (Leal).) In People v. Karmelich
(1979) 92 Cal. App. 3d 452, 456, the court clarified the definition of a usable amount by
setting the threshold for a usable amount at anything that exceeds “a residue unusable for
any purpose.” When the record contains no information suggesting that the substance in
question is only a useless trace or residue, and there is testimony supporting a finding of a
usable amount of a controlled substance, sufficient evidence exists to support a usable
amount. (People v. Simmons, supra, 19 Cal.App.3d at pp. 965-966 [holding that
sufficient evidence supported a usable amount of heroin based on a police officer’s
testimony that a balloon contained a “brownish powdery substance,” a “stipulation that
4
The parties disagree on whether defendant’s conviction on count 1 – sale of a
controlled substance in violation of Health and Safety Code section 11352 – requires a
finding that he possessed a usable amount. Even if count 1 requires a finding that
defendant possessed a usable amount, substantial evidence supports the jury’s finding
that there was a usable amount.
6
the powder in the balloon was heroin,” and the testimony of a station attendant that he
“thought [the balloon] contained something,” when nothing in the record suggested a
useless trace or residue].)
To support a finding of a usable amount, the prosecution is not required to
demonstrate that the substance is of a minimum purity or of sufficient potency to produce
a narcotic effect. (People v. Rubacalba (1993) 6 Cal. 4th 62, 66.) California courts have
rejected claims that a conviction for possession of a controlled substance requires “a
chemical analysis of the substance sufficient to determine the weight or volume” of the
controlled substance present in the material at issue. (People v. Camp (1980) 104
Cal. App. 3d 244, 248 [rejecting the defendant’s claim that her conviction for PCP
possession required a chemical analysis of the substance sufficient to determine the
weight or volume of the PCP in her cigarette]; People v. Carmical (1968) 258
Cal. App. 2d 103, 108 [“We do not take the Leal[, supra, 64 Cal. 2d 504,] decision to mean
that whenever heroin is possessed in a form that is not chemically pure it is incumbent
upon the prosecution to introduce in evidence the results of a quantitative chemical
analysis”].) In People v. Stafford (1972) 28 Cal. App. 3d 405, 413 to 414, the court held
that a police chemist’s testimony that four capsules found in the defendant’s possession
contained three to five percent heroin was sufficient to establish “a prima facie case that
defendant possessed a usable quantity,” even though the chemist did not weigh the
capsules.
Defendant argues that the prosecution did not present evidence that the substance
was in a usable amount rather than “residue ready to be discarded.” Defendant’s
argument is without merit because it focuses only on the criminalist’s testimony, and
ignores Officer Cardenas’s testimony that the cocaine rocks were usable. Although the
criminalist did not testify regarding the amount or purity of the cocaine in the rocks or
how the substance might be used, he testified that each rock had a net weight of 0.09
grams, and both rocks tested positive for cocaine base. This testimony, when considered
with Officer Cardenas’s testimony that each rock was the size of a pencil eraser, supports
a finding of a usable amount. (People v. Simmons, supra, 19 Cal.App.3d at pp. 965-966.)
7
Based on his training and experience, Officer Cardenas opined that the rocks he received
were typical use amounts for personal use, and that a user could “hit [each rock] a few
times,” depending on the severity of the user’s habit. This testimony supports the finding
that the cocaine rocks defendant sold to Officer Cardenas were usable, and the record
contains no information that suggests the rocks were a useless trace or residue. The
prosecution thus presented evidence beyond mere “chemical analysis” that directly
supports the usability of the substance defendant sold to Officer Cardenas. A reasonable
juror could have found, based on the criminalist’s testimony, that the substance defendant
sold to Officer Cardenas was cocaine, and, based on Officer Cardenas’s testimony, that it
was a usable amount.
II. Officer Cardenas’s Testimony
A. Officer Cardenas’s Qualification as an Expert
Defendant asserts that the trial court abused its discretion when it allowed Officer
Cardenas to testify regarding the meaning of “coded drug language without qualifying
him as an expert witness.” By failing to object to Officer Cardenas’s narcotics-jargon
testimony during trial, defendant has forfeited this assertion. Moreover, even if
defendant had not forfeited this claim, it is without merit.
1. Forfeiture
A timely objection is generally required to preserve evidentiary objections for
appeal. (Evid. Code, § 353, subd. (a); People v. Dowl (2013) 57 Cal. 4th 1079, 1087
[“We have long and repeatedly held that a defendant who fails at trial to object that a
witness lacks the qualifications to render an expert opinion may not on appeal contest the
opinion’s admissibility. [Citations.]”].) The forfeiture rule “ensures that the party
offering the evidence has an opportunity to address any objection and ‘“prevents a party
from engaging in gamesmanship by choosing not to object, awaiting the outcome, and
then claiming error.”’ [Citation.]” (People v. Dowl, supra, 57 Cal. 4th 1079, 1087-1088.)
8
A defendant’s failure to object to foundation for expert testimony precludes review of an
inadmissibility claim on appeal. (People v. Seaton (2001) 26 Cal. 4th 598, 642-643.)
Thus, defendant has forfeited appellate review of his claim that Officer Cardenas’s
testimony was inadmissible because he failed to raise an objection at trial.
2. Merits
Even if the issue was not forfeited, defendant would not prevail on the merits.
“The trial court is given considerable latitude in determining the qualifications of an
expert and its ruling will not be disturbed on appeal unless a manifest abuse of discretion
is shown.” (People v. Kelly (1976) 17 Cal. 3d 24, 39.) Under Evidence Code section 720,
“[a] person is qualified to testify as an expert if he has special knowledge, skill,
experience, training, or education sufficient to qualify him as an expert on the subject to
which his testimony relates.” (Evid. Code, § 720, subd. (a).) An expert’s opinion
testimony is limited to “subject[s] that [are] sufficiently beyond common experience that
the opinion of an expert would assist the trier of fact[,]” and it must be “based on matter
(including his special knowledge, skill, experience, training, and education) . . . that is of
a type that reasonably may be relied upon by an expert in forming an opinion.” (Evid.
Code, § 801, subds. (a), (b).) Police officers with significant “training in and experience
with narcotics” have been qualified as “expert[s] in the field of narcotics.” (People v.
Wesley (1990) 224 Cal. App. 3d 1130, 1135, 1146 [holding that a police officer was
properly qualified as an expert in the field of narcotics and could give opinion testimony
that a solid substance involved in an undercover transaction was cocaine when he had
attended two 40-hour narcotics training courses, had experience writing search warrants
for cocaine violations and making arrests, and had experience purchasing and selling
cocaine undercover].) “‘“Where a witness has disclosed sufficient knowledge of the
subject to entitle his opinion to go to the jury, the question of the degree of his knowledge
goes more to the weight of the evidence than its admissibility.”’ [Citation.]” (People v.
Bolin (1998) 18 Cal. 4th 297, 321-322.)
9
Defendant’s contentions that a witness’s “on-the-job experience isn’t enough” to
qualify the witness as an expert on narcotics jargon, and that the witness must also
“explain his applied methodology” to qualify as an expert lack support. Defendant has
neither identified any appropriate methodology for interpreting drug jargon nor cited any
binding authority in support of his assertion.5 Officer Cardenas’s experience with and
training in narcotics transactions qualified him as an expert in the field of narcotics.
(People v. Nunn (1956) 46 Cal. 2d 460, 466-467 [holding that a police officer’s
knowledge, “gained through experience . . . and study, not possessed by the average
man[,]” qualified him as an expert on the causes of narcotics addiction].) At the time of
the incident, Officer Cardenas had 16 years’ experience as a police officer, had attended
two 40-hour courses on drug abuse recognition and sales, packaging, use, and influence,
had worked the major narcotics unit, and had participated in thousands of narcotics sales
as an undercover police officer. He had also authored two narcotics search warrants
resulting in home confiscations for narcotics sales and participated in 28 previous
undercover narcotics buying operations. By concluding that Officer Cardenas was not
qualified to testify as an expert, defendant discounts the officer’s experience with
narcotics transactions, which gave the officer knowledge beyond common experience and
qualified him as an expert in the field of narcotics. The trial court did not commit
5
Defendant has cited one federal case from the Ninth Circuit finding error when
“[t]he district court relied solely on [an officer’s] general qualifications without requiring
the government to explain the method [the officer] used to arrive at his interpretations of
words he had never encountered before” in the narcotics context. (United States v.
Hermanek (9th Cir. 2002) 289 F.3d 1076, 1094.) “Decisions of lower federal courts
interpreting federal law are not binding on state courts.” (People v. Williams (1997) 16
Cal. 4th 153, 190.) The court in Hermanek held the error to be harmless and limited its
holding, noting, “We do not hold that a government expert . . . can never be qualified to
interpret coded drug conversations using words and phrases experienced for the first time
in the prosecution at issue[,]” and that “[t]he advisory committee’s note to Rule 702 . . .
approves such expert testimony where the ‘method used by the agent is the application of
extensive experience to analyze the meaning of the conversations.’” (Hermanek, supra,
289 F.3d at p. 1096.)
10
prejudicial error when it admitted Officer Cardenas’s testimony without qualifying him
as an expert.
3. Prejudice
Even if the trial court erred in admitting Officer Cardenas’s testimony, any error
was harmless. “The erroneous admission of expert testimony only warrants reversal if ‘it
is reasonably probable that a result more favorable to the appealing party would have
been reached in the absence of the error.’ (People v. Watson (1956) 46 Cal. 2d 818, 836
[299 P.2d 243] (Watson); see also People v. Venegas (1998) 18 Cal. 4th 47, 93 [74
Cal. Rptr. 2d 262, 954 P.2d 525] [applying Watson standard to the erroneous admission of
expert testimony].)” (People v. Prieto (2003) 30 Cal. 4th 226, 247.)
And if the trial court excluded Officer Cardenas’s expert testimony and allowed
only his percipient lay testimony, it is not reasonably probable that the jury would have
reached a result more favorable to defendant. A reasonable jury would have relied on the
criminalist’s testimony that the solid substances received in the crime lab tested positive
for cocaine base, and on Officer Cardenas’s lay testimony that he was working
undercover conducting narcotics purchases in one of the Pomona Police Department’s
“known narcotics areas.” Without Officer Cardenas’s expert testimony as to the meaning
of “dub” and “rock,” the jury would still have heard his testimony that he stated he was
“looking for a dub” and wanted “rock,” and that defendant sold him two solid substances,
each the size of a pencil eraser, in response to his request. Based on this evidence from
Officer Cardenas and the criminalist, the jury would reasonably have concluded that
defendant possessed narcotics and sold them to Officer Cardenas. The lack of testimony
regarding the meaning of the terms “dub” and “rock” would not likely have changed the
outcome as is required for a finding of prejudicial error under People v. Watson, supra,
46 Cal. 2d 818. The jury likely would have figured out the meaning of those terms.
B. Defendant’s Instructional Error Claim
Defendant also contends on appeal that the trial court erred when it failed to
instruct the jury sua sponte on the differences between Officer Cardenas’s expert and lay
11
testimony. A court has a sua sponte duty to “instruct on general principles of law
relevant to the issues raised by the evidence and necessary for the jury’s understanding of
the case.” (People v. Martinez (2010) 47 Cal. 4th 911, 953.) Defendant cites dicta in
People v. Housley (1992) 6 Cal. App. 4th 947, 958 for the assertion that expert testimony,
in particular, “may require special treatment because jurors may too readily accept expert
or scientific evidence.” The trial court did not have a sua sponte duty to give a special
instruction, in addition to CALCRIM No. 332,6 to aid the jury in evaluating Officer
Cardenas’s testimony. The statement defendant cited is a paraphrasing of language in
People v. Reeder (1976) 65 Cal. App. 3d 235, 241, which held that the trial court erred
when it failed to advise the jurors that they were “not bound to accept the opinion of any
expert as conclusive” or that they “may . . . disregard any such opinion, if it shall be
found by them to be unreasonable,” as Penal Code section 1127, subdivision (b) requires.
By giving CALCRIM No. 332 in this case, the trial court properly instructed the jury on
the appropriate weight to assign to expert testimony, and instructed that the jury was
permitted not to believe an expert’s testimony if it did not find the testimony credible.
The trial court thus fulfilled its duty to instruct the jury on the relevant principles of law
and was not required to give any additional special instruction.
C. Ineffective Assistance of Counsel Claim
Defendant contends that his attorney’s failure to object to Officer Cardenas’s
expert testimony at trial constituted ineffective assistance of counsel. “‘To prevail on a
6
CALCRIM No. 332 states in relevant part, “Witnesses were allowed to testify as
experts and give opinions. You must consider the opinions, but you are not required to
accept them as true or correct. The meaning and importance of any opinion are for you to
decide. In evaluating the believability of an expert witness, follow the instructions about
the believability of witnesses generally. In addition, consider the expert’s knowledge,
skill, experience, training, and education, the reasons the expert gave for any opinion, and
the fact or information on which the expert relied in reaching that opinion. . . . You may
disregard any opinion that you find unbelievable, unreasonable, or unsupported by the
evidence.”
12
claim of ineffective assistance of counsel, defendant “must establish not only deficient
performance, i.e., representation below an objective standard of reasonableness, but also
resultant prejudice.”’ (People v. Hart (1999) 20 Cal. 4th 546, 623 [85 Cal. Rptr. 2d 132,
976 P.2d 683].) Prejudice occurs only if the record demonstrates ‘a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.’ (Strickland v. Washington (1984) 466 U.S. 668, 694 [104
S. Ct. 2052, 2068, 80 L. Ed. 2d 674].) ‘When . . . the record sheds no light on why counsel
acted or failed to act in the manner challenged, the reviewing court should not speculate
as to counsel’s reasons. . . . Because the appellate record ordinarily does not show the
reasons for defense counsel’s actions or omissions, a claim of ineffective assistance of
counsel should generally be made in a petition for writ of habeas corpus, not on appeal.’
(People v. Diaz (1992) 3 Cal. 4th 495, 557-558 [11 Cal. Rptr. 353, 834 P.2d 1171].)”
(People v. Lucero (2000) 23 Cal. 4th 692, 728-729.) Claims of ineffective assistance of
counsel should not be raised on direct appeal “except in those rare instances where there
is no conceivable tactical purpose for counsel’s actions.” (People v. Lopez (2008) 42
Cal. 4th 960, 972.) “‘[D]eciding whether to object is inherently tactical, and the failure to
object will rarely establish ineffective assistance.’ [Citation.]” (Ibid.)
The record in this case does not indicate why defense counsel failed to object to
Officer Cardenas’s expert testimony during trial. Defendant’s claim of ineffective
assistance of counsel is thus appropriately brought in a habeas corpus proceeding.
(People v. Seaton, supra, 26 Cal.4th at p. 643 [holding that when defense counsel failed
to object to testimony and “the record does not reveal why counsel did not object, [an
ineffective assistance of counsel] claim rests on facts outside of the record, and may only
be raised on habeas corpus”].)
In any event, the record permits an inference of a conceivable tactical purpose for
defense counsel’s failure to object to Officer Cardenas’s expert testimony. Defense
counsel may have decided not to object to Officer Cardenas’s expert testimony because
she wished to emphasize flaws in the undercover purchase procedure rather than detract
from that argument with an attack on Officer Cardenas’s qualifications. Moreover,
13
defense counsel may not have objected because she did not want to give the officer the
opportunity to supply any perceived gap in his qualifications or methodology. When
defense counsel cross-examined Officer Cardenas at trial, she elicited testimony from
him that he did not note defendant’s clothing in his report and that he did not know what
happened to the $20 bill he handed to defendant. The questions asked on cross-
examination, along with defense counsel’s closing argument emphasizing procedural
flaws in the undercover operation, suggest a possible tactical purpose for defense
counsel’s failure to object to Officer Cardenas’s expert testimony.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
MOSK, J.
We concur:
TURNER, P. J.
KIRSCHNER, J.

Judge of the Superior Court of the County of Los Angeles, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
14