People v. Barnes, H026137.

• Decision Date: 24 September 2004
• Docket Number: No. H026137.,H026137.
• Citation: 122 Cal.App.4th 858,19 Cal.Rptr.3d 229
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. James Dupree BARNES, Defendant and Appellant.

19 Cal.Rptr.3d 229

122 Cal.App.4th 858

The PEOPLE, Plaintiff and Respondent, v. James Dupree BARNES, Defendant and Appellant.

No. H026137.

Court of Appeal, Sixth District.

September 24, 2004.

Certified For Partial Publication.^*

Review Granted December 15, 2004.

Cindy A. Diamond, San Jose, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Catherine A. Rivlin, Supervising Deputy Attorney General, Ross C. Moody, Deputy Attorney General, for Plaintiff and Respondent.

WALSH, J.^**

From 3 a.m. to 5 a.m., two men lingered in a pedestrian walkway reputed to be the city's "Crack Capital." As a police officer approached, one of the men, Carlos Johnson, dropped a small baggie of cocaine base near his feet. The officer discovered that the other man, defendant James Dupree Barnes, was in possession of numerous plastic baggies and a small baggie of cocaine base was found near his feet. Each man was under the influence of cocaine and each had wadded up currency in most of his pockets. Johnson pleaded guilty to possessing cocaine base for sale and being under its influence. According to expert testimony, this combination of facts indicated that the two men were among the crack cocaine dealers who commonly deal in Fountain Alley. A jury found defendant guilty of the same crimes as his cohort.

We will affirm the judgment after concluding in the published part of this opinion that expert testimony profiling crack cocaine dealers was properly admitted and that defendant's sentence complied with Blakely v. Washington (2004) 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (Blakely) as it was within the statutory maximum authorized by the jury's verdict and facts admitted by defendant. In the unpublished part of this opinion, we will further conclude that defense counsel was not incompetent in failing to object to this evidence; defendant was not prejudiced by evidence that he was unemployed; no unanimity instruction was required; and the instructions concerning possession for sale were accurate.

TRIAL EVIDENCE

Fountain Alley is a pedestrian alley in downtown San Jose that runs between 1st and 2nd Streets, parallel to Santa Clara and San Fernando Streets. "No loitering" signs are posted at both ends of the alley. It is known to San Jose police officers as a mecca for drug dealing. According to San Jose Police Officer Jun Lee, who patrolled the area for 11 months, crack cocaine is the most popular drug in Fountain Alley. According to San Jose Police Officer Jim Lisius, who has conducted surveillance in the area as a member of the Narcotic Covert Investigations Team, Fountain Alley is the "crack capital of the City of San Jose. That's where our crack dealers operate." Dealing "goes 24 hours a day, seven days a week." Hand-to-hand sales occur every 15 minutes.

Lisius, a recognized expert in crack cocaine dealing in Fountain Alley, testified that a popular quantity of crack cocaine is a "20" or "twop," which weighs from .20 to .25 gram and sells for $20. Dealers in that area work in teams of two or more, with one person holding the drugs and the other serving as a lookout for police and buyers. Typically a dealer carries five or six rocks on him. When he runs out, he goes to another location to replenish his supply. Almost every dealer is also a user who is dealing to support his drug habit.

In the typical transaction, a buyer will ask a lookout, "`You got it?'" never naming the drug. The lookout will take the buyer to the dealer. The buyer will have bills wadded up and concealed in his hand. He passes the bills to the dealer in a quick handshake. Everyone in the drug subculture knows that Fountain Alley is a police target, so a person who buys cocaine for personal use does not linger in the area, but leaves after making a buy. The people who remain in the area are dealers.

Around 3 a.m. on Saturday, November 9, 2002, as Officer Lee was driving his marked patrol car on 1st Street, he saw defendant and Carlos Johnson standing together near the light rail benches at one end of Fountain Alley. No one else was around.

Officer Lee drove by again around 5:40 a.m. and saw defendant and Johnson standing together in the same well-lit location where he had first seen them. Defendant made eye contact with Lee. Johnson and defendant walked away down Fountain Alley after defendant said something to Johnson. As Lee circled the block in his patrol car, defendant and Johnson changed directions twice to head away from Lee. As they walked away from Lee, defendant kept looking back in his direction.

Finally, Officer Lee waited until the men were near 2nd Street before driving up to them and getting out of his car. They stopped about 30 feet away. Johnson's right hand was clenched when he took it out of his pocket. As Officer Lee approached, Johnson dropped a small plastic baggie on the ground. It proved to contained .26 gram of cocaine base. Johnson made no other dropping or throwing motion.

As Officer Lee continued to approach, defendant walked about six to ten feet away from Johnson. At Lee's requests, defendant came back to them. Lee talked with the men while he waited for a cover officer whom he had requested by radio. Lee asked what they were doing there. Defendant said he was waiting for the light rail. Lee pointed out that he had just seen a train go by. He asked if they had light rail passes. Defendant said he had no pass and then admitted that he was just hanging out. Lee asked if defendant knew what kind of area he was in. Defendant said he knew people bought and sold drugs there. Officer Lee noticed that defendant exhibited several symptoms of being under the influence of crack cocaine.¹

San Jose Police Officer Rea Cramer arrived and kept an eye on defendant as Lee requested. Defendant complied with Lee's request to stand near Cramer about six feet from Johnson. Before Lee directed defendant to this position, Lee looked at the ground to make sure there was nothing on the ground.

Lee arrested Johnson for loitering with intent to buy or sell drugs. Before putting Johnson in his patrol car, he searched him. Johnson had a wadded $20 bill in his right front pants pocket and another one in his left front pants pack. A wadded $5 was in a back pocket and a $1 was in the other back pocket. Johnson had a cell phone in a box.

Officer Cramer noticed another plastic baggie on the ground within 30 seconds of walking up to defendant. It was about a foot from where defendant was standing and about six feet from the other baggie.² After Officer Lee put Johnson in his patrol car, Cramer called Lee's attention to this baggie. The baggie proved to contain .18 gram of crack cocaine. Lee did not see defendant throw or drop anything.³ When Lee picked up the baggie, defendant exclaimed, "`Man, that ain't my crack, dog. I'm just fixin' to catch the light rail. You feel me?'" Lee had said nothing about crack.

According to Lee, one does not find drugs abandoned on the ground in Fountain Alley. Crack is like gold or cash. People walk around the area looking for anything that might have been dropped.

Lee arrested defendant. A search revealed that defendant had a cell phone in his jacket pocket. Two wadded $20 bills were in his right front pants pocket. Two wadded $10s were in his left front pants pocket. A $5 was in his back left pocket. A $5 and a $1 were in his back right pocket. Defendant had no wallet. He had 52 Ziploc plastic baggies.⁴ Defendant said he had the baggies for separating meat.

Defendant and Lee talked more after Lee gave defendant his Miranda⁵ rights. Defendant said that Johnson had asked him for help in selling cocaine. Johnson dropped the bag at Johnson's feet when they saw Lee coming. Defendant said that he was unemployed.

A urine sample taken from defendant established that defendant had used cocaine within the past 48 to 72 hours.

Officer Lisius concluded, based on hypothetical facts similar to those in evidence, that defendant and Johnson were cocaine dealers. He relied on the following factors. They remained in the Fountain Alley area and repeatedly attempted to avoid Officer Lee. They were in possession of wadded bills typical of cocaine sales in that area. Defendant was in possession of drug packaging material. The cocaine bindles found at their feet were typical of the amounts sold in Fountain Alley.

Lisius conceded that the small quantities of cocaine alone did not prove the drugs were possessed with intent to sell. He had never before testified that such small quantities were possessed for sale.

Carlos Johnson pleaded guilty to possession of cocaine for sale and being under the influence.

VERDICT AND SENTENCE

After trial, a jury convicted defendant of possessing cocaine base for sale (Health & Saf.Code, § 11351.5) and of being under its influence (Health & Saf.Code, § 11550, subd. (a)).

Before trial defendant successfully asked for bifurcated proceedings regarding enhancement allegations that he had twice before been convicted of possession for sale (Health & Saf.Code, § 11370.2) with one conviction resulting in a prior prison sentence (Pen.Code, § 667.5, subd. (b)). After trial of the underlying charges, in the bifurcated proceedings defendant waived jury trial and admitted these allegations.

At the sentencing hearing defense counsel submitted the matter for sentencing based on an unreported in camera discussion. The court advised defendant that he had "discussed this at great length with the probation officer, your attorney, and the district attorney." According to the probation report, in October 2000 defendant was placed on probation after being convicted of possession for sale. In June 2001 he was sentenced to prison for three years after another conviction of possession for sale. Defendant's new offenses occurred "in the same exact location" as his prior offenses and less than one month...