People v. Clarida

• Court: California Court of Appeals
• Writing for the Court: CHANNELL; POCHE
• Citation: People v. Clarida, 249 Cal.Rptr. 363, 197 Cal.App.3d 547 (Cal. App. 1987)
• Decision Date: 18 December 1987
• Docket Number: No. A037098,A037098
• Parties: The PEOPLE, Plaintiff and Respondent, v. Staccato Tony CLARIDA, Defendant and Appellant.

Page 363

249 Cal.Rptr. 363

197 Cal.App.3d 547

The PEOPLE, Plaintiff and Respondent, v. Staccato Tony CLARIDA, Defendant and Appellant.

No. A037098.

Court of Appeal, First District, Division 4, California.

Dec. 18, 1987.

Certified for Partial Publication ^*

Eric Liberman, Law Offices of Eric Liberman, Burlingame, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., David D. Salmon, Peter Crook, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

CHANNELL, Associate Justice.

A jury convicted appellant Staccato Tony Clarida of possession and sale of cocaine. (Health & Saf.Code, §§ 11350, 11352.) Sentenced to state prison, Clarida appeals his conviction, challenging (1) the sufficiency of evidence of possession of cocaine; and (2) his impeachment with a prior conviction. We affirm the judgment.

I. FACTS

On June 26, 1986, ¹ a confidential informant told San Mateo Deputy Sheriff Kenneth George that he could purchase narcotics at an apartment on Clark Street in East Palo Alto. Appellant Staccato Tony Clarida had told the informant a week or two earlier that he could "come there and buy dope." The informant had a criminal record, but had provided accurate information to George before, providing the basis of many search warrants and leading to many arrests. At 8 p.m. that evening, the informant was searched, given county money, and outfitted with a transmitter. After completing an unrelated purchase nearby, George saw the informant drive up to 2387 Clark Street. At 9 p.m., officers observed him enter apartment 4 and heard the cocaine purchase being made. Conversation heard over the transmitter led the officers to believe that people in the apartment were freebasing cocaine and that a police scanner was in use. Scanners monitor police radio communications and are commonly used by narcotics dealers.

As the informant was leaving the apartment, the seller saw Michael Pugliese, a narcotics officer, parked outside the building. The seller would not allow the informant to leave until the officer was gone. Pugliese, who was also listening to the informant's transmission, moved their car out of sight. The informant was allowed to leave and the other occupants of the apartment were hurried out by the seller. The officers and the informant met at a prearranged site, a dead-end street in a deserted industrial area a few blocks from Clark Street. The informant gave George what he had purchased--.14 grams of cocaine, a usable amount--and the officer began to "debrief" him. Suddenly, the officer noticed a car with two or three black men in it driving toward them from the direction of Clark Street. The occupants of the car looked at the informant and the officers, made a U-turn and sped off. While other officers attempted to follow the car, George followed the informant out of the area.

As a result of this incident, the "debriefing" was shortened and hurried. The informant's description of events matched what George had heard over the transmitter. He also described the seller as a 33-year-old black man, 5 feet 10 inches tall, weighing 160 pounds, with long hair and a light mustache. The informant was paid $50 for this purchase. The officers did not attempt to determine who had leased apartment 4, as it was their experience that a narcotics dealer would not lease an apartment under his name.

On the basis of the information he did have, George obtained a warrant to search apartment 4 at 2387 Clark Street. At 3 p.m. on July 10, Pugliese executed the warrant. After twice knocking and announcing their status as police officers and hearing no response, Pugliese and other officers forced open the door to apartment 4. Pugliese saw two people in the apartment: a partially-clad woman lying across the doorway and, five feet away from her, Clarida sitting on a couch. The woman was under the influence of narcotics at the time of execution of the warrant; the officer did not know whether Clarida was awake or asleep. A bowl containing 0.2 grams rock cocaine, pipes, and a razor blade was at Clarida's feet. A further search of the apartment turned up a traffic citation, dated July 3, with Clarida's name on it; a police scanner; and a man's clothing. Clarida did not appear to be under the influence of narcotics, nor did the officers find any drugs or paraphernalia on him at the time of his arrest. However, he did have over $200 in cash in his bag, which Pugliese believed was from the sale of narcotics. Clarida was arrested on July 10.

Later, the informant identified Clarida as the seller in a photographic lineup, a pretrial physical lineup, and in court. The informant testified that he had no doubt about the accuracy of his identifications. Clarida was charged with one count of selling cocaine and one count of possessing it. At trial, Clarida testified in his own defense. He denied committing both offenses. He testified that he did not live in the apartment--that it was occupied by some friends and he was helping them move on July 10 when he fell asleep there. When he went to sleep, he was alone in the apartment and there was no cocaine there. When a police officer woke him, the woman and the cocaine had appeared. Clarida testified that his mother had given him $200 to pay a bill for her and that his traffic citation was in his wallet, not in the apartment. He explained that he was not at the apartment at all on June 26. His family testified that Clarida did not live on Clark Street and was working at his mother's home on June 26. His mother testified that she had given her son $200 on July 10; his sister testified that when she saw him on July 10 at the apartment, Clarida was about to go to sleep.

Clarida admitted his prior felony conviction for battery on a peace officer, specifically of Michael Pugliese. During rebuttal, Pugliese testified about Clarida's prior conviction, which stemmed from an incident in which Clarida kicked him in the head. For the most part, the defense attempted to discredit the informant's identifications and veracity. Clarida testified that at the time of his arrest, he was 26 years old, 6 feet 2 inches tall, weighed 185 to 190 pounds, and wore his hair short--different from the man that the informant described to George. In argument, defense counsel pointed out these discrepancies again.

The jury found Clarida guilty of both charges. The trial court found that the prior conviction allegation was true. His motion for new trial was denied and he was sentenced to state prison for five years, eight months. Clarida filed a timely notice of appeal.

II. SUFFICIENCY OF EVIDENCE ^**

III. IMPEACHMENT WITH PRIOR CONVICTION

Clarida also contends that the trial court erred by allowing the People to use his prior conviction to impeach him. Before trial, Clarida moved to preclude the People from using his prior battery conviction (Pen.Code, § 243, subd. (b)) for impeachment purposes. At the hearing on the motion, Clarida's counsel explained that if the trial court found the crime to be one of moral turpitude, the court was required to weigh the probative value of the evidence against its prejudicial effect. Immediately thereafter, the matter was submitted and the motion denied without comment.

First, Clarida suggests that battery on a peace officer is not a crime of moral turpitude. A defendant may be impeached by a prior conviction only if it involved a crime of "moral turpitude." (People v. Castro (1985) 38 Cal.3d 301, 315-316, 211 Cal.Rptr. 719, 696 P.2d 111; see People v. Collins (1986) 42 Cal.3d 378, 389-390, 228 Cal.Rptr. 899, 722 P.2d 173.) Attempted battery with a deadly weapon (People v. Cavazos (1985) 172 Cal.App.3d 589, 593-595, 218 Cal.Rptr. 269 [assault with deadly weapon] ) and battery of a jail inmate (People v. Williams (1985) 169 Cal.App.3d 951, 957, 215 Cal.Rptr. 612) are crimes of moral turpitude; a fortiori, battery on a peace officer must also be a crime of moral turpitude. (See People v. Castro, supra, 38 Cal.3d at p. 314, 211 Cal.Rptr. 719, 696 P.2d 111 [moral turpitude as "readiness to do evil"].)

In the alternative, Clarida claims that reversal is required because the trial court failed to state on the record that it balanced the probative value of the evidence against its prejudicial effect. Under Castro, the trial court must exercise its discretion under Evidence Code section 352 to admit or exclude evidence of the prior conviction. (People v. Castro, supra, 38 Cal.3d at pp. 316-317, 211 Cal.Rptr. 719, 696 P.2d 111; People v. Hunt (1985) 169 Cal.App.3d 668, 675, 215 Cal.Rptr. 429.) In Castro, the trial court erroneously believed it had no discretion to exclude evidence of a defendant's prior conviction. (See People v. Castro, supra, 38 Cal.3d at p. 317, 211 Cal.Rptr. 719, 696 P.2d 111.) Here, the trial court, after hearing Clarida's counsel explain its duty to exercise its discretion, promptly denied the motion to preclude impeachment use of the prior conviction without stating whether or not it engaged in this balancing process.

Recently, the Fifth District Court of Appeal held that the trial court commits Castro error if the record does not affirmatively show that it engaged in this weighing process. (See People v. Flanagan (1986) 185 Cal.App.3d 764, 771, 230 Cal.Rptr. 64.) Flanagan bases its conclusion on the California Supreme Court decision in People v. Green [ (1980) 27 Cal.3d 1, 25, 164 Cal.Rptr. 1, 609 P.2d 468]. ( People v. Flanagan, supra, 185 Cal.App.3d at p. 771, 230 Cal.Rptr. 64; see also People v. Parrish (1985) 170 Cal.App.3d 336, 347-348, 217 Cal.Rptr. 700.) Clarida urges us to apply Flanagan and find error in his case. (See also People v. Frank (1985) 38 Cal.3d 711, 731-732, 214 Cal.Rptr. 801, 700 P.2d 415 [error].)

The Second District Court of Appeal considered and rejected Flanagan. (See People v. Johnson (1987) 193 Cal.App.3d 1570, 1576-1577, 239 Cal.Rptr. 190, review...