People v. Fields, B112055

• Decision Date: 27 February 1998
• Docket Number: No. B112055,B112055
• Citation: 61 Cal.App.4th 1063,72 Cal.Rptr.2d 255
• Court: California Court of Appeals Court of Appeals
• Parties: , 98 Cal. Daily Op. Serv. 1453, 98 Daily Journal D.A.R. 1971 The PEOPLE, Plaintiff and Respondent, v. Elliot Lambert FIELDS, Defendant and Appellant.

Page 255

72 Cal.Rptr.2d 255

61 Cal.App.4th 1063, 98 Cal. Daily Op. Serv. 1453,

98 Daily Journal D.A.R. 1971

The PEOPLE, Plaintiff and Respondent, v. Elliot Lambert FIELDS, Defendant and Appellant.

No. B112055.

Court of Appeal, Second District, Division 5, California.

Feb. 27, 1998.

Certified for Partial Publication ^*

Linda Casey Mackey, under appointment by the Court of Appeal, Bonita, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Robert F. Katz, Supervising Deputy Attorney General, and Jason C. Tran, Deputy Attorney General, for Plaintiff and Respondent.

TURNER, Presiding Justice.

I. INTRODUCTION

Defendant, Elliot Lambert Fields, appeals after he was convicted of selling cocaine (Health & Saf.Code, § 11352) and found to have been convicted previously of five serious felonies. (Pen.Code §§ 667, subds. (b)-(i); 1170.12.) In the published portion of the opinion, we discuss defendant's contentions of first impression, whether: testimony concerning a telephone number on defendant's pager was hearsay evidence; there was sufficient foundation to permit evidence concerning a telephone number to be presented to the jury; and an experienced narcotics detective would testify concerning a code of defendant's pager. We reject these contentions concerning defendant's pager as well as that discussed in the unpublished portion of the opinion and affirm the judgment.

II. DISCUSSION

A. The Telephone Number On Defendant's Pager Was Not Hearsay

Defendant argues that testimony concerning a telephone number appearing on the pager in his possession was inadmissible hearsay. At the time of his arrest, defendant was found in possession of pager which displayed a telephone number. Over defense objection, the trial court permitted a detective to testify as to the telephone number displayed on defendant's pager. The facts leading up to the testimony concerning the telephone number displayed on defendant's pager were as follows. Two undercover Pasadena Police Department investigators approached a cocaine dealer named Myron McClain. Mr. McClain, not knowing he was dealing with police officers, agreed to assist the undercover investigators in the purchase of rock cocaine. Mr. McClain stated that it would be necessary to make a telephone call. An undercover investigator described Mr. McClain's statements as follows: "He told me that he was going to have to call a friend of his, and he had to use the pay phone at the market." Mr. McClain and the undercover investigators agreed to meet at a nearby store parking lot. Mr. McClain was given money to use for the pay phone by one of the investigators. Because the pay phone was being used, Mr. McClain decided to go to a nearby parking lot adjacent to a gas station in an effort to make the telephone call. As will be noted, it was the number for the public telephone in the parking lot next to the gas station that ultimately appeared on defendant's pager.

After arriving at the gas station parking lot, Mr. McClain placed a telephone call. He thereafter hung up the telephone. After he hung up, the telephone rang and Mr. McClain answered it. Mr. McClain spoke during the second telephone conversation which lasted less than "a minute or so." Mr. McClain then approached the undercover investigators. Mr. McClain stated that a friend was "on the way." Mr. McClain indicated he needed "the money." Mr. McClain was given $20 by an undercover investigator. Mr. McClain then walked away from the two undercover investigators with whom he had negotiated the narcotics transaction.

While all of this was occurring, Mr. McClain and the two undercover investigators were being watched by other Pasadena Police Department narcotics detectives. After he walked away from the two detectives, Mr. McClain met with another individual. The two men later met with the occupants of a gray Honda. This meeting occurred within several blocks of the waiting detectives who had negotiated the sale of the contraband with Mr. McClain. Mr. McClain was handed an "object" by the passenger in the gray Honda. Defendant was the passenger in the gray Honda. Mr. McClain then returned to the two undercover investigators who had negotiated the agreement to purchase the crack cocaine from him. He thereupon handed the waiting investigators some crack cocaine.

After the completion of the transaction, other Pasadena officers stopped the gray Honda in which defendant was a passenger. A substantial amount of cash, $179, was discovered when defendant was searched. One of the $20 bills was given to Mr. McClain by one of the undercover investigators. Additionally, in his waistband was a pager. A Pasadena police officer made a record of each of the phone numbers on defendant's pager. One of the numbers matched that of the pay telephone in the parking lot adjacent to the gas station used by Mr. McClain after he agreed to secure crack cocaine for the two undercover investigators.

Defendant argues that the testimony concerning the number that appeared on defendant's pager constituted inadmissible hearsay. The number was for the telephone in the parking lot adjacent to the gas station used by Mr. McClain to make the phone call. Shortly after that call was completed, the same telephone in the parking lot adjacent to the gas station rang and Mr. McClain spoke with the caller. Thereafter, the crack cocaine was delivered to Mr. McClain. It is argued that the phone number displayed on the pager was circumstantial evidence defendant had called Mr. McClain back at the telephone in the parking lot adjacent to the gas station and, hence, constituted inadmissible hearsay. ¹

In reviewing the trial court's order overruling the hearsay objection, we apply the deferential abuse of discretion standard of review. (People v. Edwards (1991) 54 Cal.3d 787, 820, 1 Cal.Rptr.2d 696, 819 P.2d 436; People v. Frierson (1991) 53 Cal.3d 730, 744-745, 280 Cal.Rptr. 440, 808 P.2d 1197; People v. Tahl (1967) 65 Cal.2d 719, 725, 56 Cal.Rptr. 318, 423 P.2d 246; cf. People v. Mayfield (1996) 14 Cal.4th 668, 740-741, 60 Cal.Rptr.2d 1, 928 P.2d 485.) We agree with the Attorney General that the phone number of the public telephone in the parking lot adjacent to the gas station used by Mr. McClain which appeared on defendant's pager was not hearsay. Evidence Code section 1200, subdivision (a) defines hearsay as follows: " 'Hearsay evidence' is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated." The word "statement" is defined in Evidence Code section 225 in the following manner: " 'Statement' means (a) oral or written verbal expression or (b) nonverbal conduct of a person intended by him as a substitute for oral or written verbal expression." The Law Revision Commission comment to Evidence Code section 1200 describes the extent of the hearsay rule and the definition of the term statement as follows: "'Hearsay evidence' is defined in Section 1200 as 'evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.' Under this definition, as under existing case law, a statement that is offered for some purpose other than to prove the fact stated therein is not hearsay. Smith v. Whittier, 95 Cal. 279, 30 P. 529[ ] (1892). See Witkin, California Evidence §§ 215-218 (1958). [p] The word 'statement' used in the definition of 'hearsay evidence' is defined in Section 225 as 'oral or written verbal expression' or 'nonverbal conduct ... intended ... as a substitute for oral or written verbal expression.' Hence, evidence of a person's conduct out of court is not inadmissible under the hearsay rule expressed in Section 1200 unless that conduct is clearly assertive in character. Nonassertive conduct is not hearsay." (See Cal. Law Revision Com. com., Deering's Ann. Evid.Code, § 1200 (1986) p. 339.) At another point, the comment notes: "Under the Evidence Code, nonassertive conduct is not regarded as hearsay for two reasons. First, one of the principal reasons for the hearsay rule--to exclude declarations where the veracity of the declarant cannot be tested by cross-examination--does not apply because such conduct, being nonassertive, does not involve the veracity of the declarant. Second, there is frequently a guarantee of the trustworthiness of the inference to be drawn from such nonassertive conduct because the actor has based his actions on the correctness of his belief, i.e., his actions speak louder than words." (Id., p. 340; e.g., People v. Snow (1987) 44 Cal.3d 216, 227-228, 242 Cal.Rptr. 477, 746 P.2d 452 [the defendant's passive response to news of the decedent's death constituted nonassertive conduct and outside the scope of hearsay rule].)

Similar nonassertive conduct has been described in varying ways by commentators. One commentator describes this form of evidence as follows: "A declarant's statement may become relevant on some issue in a case merely because the words were spoken or written, and irrespective of the truth or falsity of any assertions contained in the statement. If a fact in controversy is whether certain words were spoken or written and not whether the words were true, evidence that these words were spoken or written is admissible as nonhearsay evidence." (1 Jefferson, Cal. Evidence Benchbook (3d ed. 1997) § 1.45, p. 31.) Often, such evidence is referred to as "'operative facts."' (1 Witkin, Cal. Evidence (3d ed. 1986) § 588, p. 562; e.g., Kunec v. Brea Redevelopment Agency (1997) 55 Cal.App.4th 511, 524, 64 Cal.Rptr.2d 143 [redevelopment agency minutes as to conflict of interest not hearsay]; People v. Dell (1991) 232 Cal.App.3d 248, 258, 283 Cal.Rptr. 361 [statements by prostitutes to undercover vice officers were operative facts and not...