People v. Heilman

• Decision Date: 21 August 2020
• Docket Number: B295703
• Court: California Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. JOSEPH HEILMAN, Defendant and Appellant.

THE PEOPLE, Plaintiff and Respondent, v. JOSEPH HEILMAN, Defendant and Appellant.

B295703

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE

August 21, 2020

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).

Los Angeles County Super. Ct. No. BA466367

APPEAL from a judgment of the Superior Court of Los Angeles County, Drew E. Edwards, Judge. Affirmed.

G. Martin Velez, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews and Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

A jury convicted defendant Joseph Heilman of felony possession of methamphetamine with the intent to sell. On appeal, defendant contends: (1) the court should have declared a mistrial after the arresting officer volunteered improper testimony about defendant's criminal history; and (2) the prosecutor committed prejudicial misconduct during closing argument. We affirm.

FACTS AND PROCEDURAL BACKGROUND

On February 23, 2018, defendant was driving near York Boulevard and North Avenue 50 in the Highland Park neighborhood of Los Angeles. Around 8:00 p.m., Jon Daymen, an officer with the Los Angeles Police Department (LAPD), and his partner, Officer Reyes,¹ stopped defendant's car because its registration tags were expired.

During the stop, defendant told the officers that he had a "scale, a black case, and his dope" underneath one of the seats of his car.² Reyes searched the car and found a black cartridge containing a bag holding nearly 21.5 grams of methamphetamine, a scale, and three empty sandwich bags. Defendant told the officers he had just purchased the methamphetamine.

Reyes also found two cellular phones on defendant, but defendant didn't have any money on him or inside his car. The officers didn't find any items for using methamphetamine, such as a pipe or a syringe, and defendant didn't appear to be under the influence of methamphetamine or any other substance.

Michael Geitheim, an LAPD officer, testified as the People's narcotics expert. According to Geitheim, the area of Highland Park where defendant was arrested has a lot of drug activity, including the sale of methamphetamine.

A usable dose of methamphetamine for a typical user is about 0.02 grams. The drug is typically sold in plastic sandwich bags, and users who come into contact with police often carry between .10 grams and 1 gram of methamphetamine. 21.5 grams of methamphetamine would provide a single daily user between 500 and more than 1,000 doses, and it would take about one year to consume. That amount of methamphetamine would sell on the street for between $850 to several thousand dollars. According to Geitheim, it is uncommon for someone to possess 21.5 grams of methamphetamine for personal use only, and he had never encountered anyone carrying that much methamphetamine solely for personal use.

The amount of methamphetamine defendant was carrying in his car could be divided nearly evenly into three 7-gram increments. Seven grams of methamphetamine is the equivalent of two "eight balls," or two eighths of an ounce. According to Geitheim, methamphetamine and other drugs are "commonly sold" in eight-ball units. Sellers of methamphetamine often use scales, like the one found in defendant's car. Sellers also may carry two phones—one for facilitating drug sales and the other for personal use.

When Geitheim was presented a hypothetical scenario based on the facts of this case, he opined that defendant intended to sell the methamphetamine found inside his car. Specifically, he based his opinion on the following factors: (1) the amount of methamphetamine—both the large quantity and that it was divisible into eight-ball units; (2) the presence of a scale and empty sandwich bags; (3) the lack of paraphernalia for using the drug; (4) defendant's lack of any symptoms of being under the influence of the drug; (5) the presence of two cellular phones; and (6) that the drug was hidden under the seat of defendant's car.

Defendant was arrested and charged with felony possession of methamphetamine with the intent to sell (Health & Saf. Code, § 11378). At trial, defendant conceded he possessed the methamphetamine and other items found during the search of his car. He contested only whether he possessed those items with the intent to sell the drug. A jury convicted defendant of possessing methamphetamine with the intent to sell, and the court sentenced him to two years in prison.³

Defendant appeals.

DISCUSSION

Improper Character Testimony

Defendant contends the court erred in denying his motion for a mistrial after Daymen volunteered testimony about defendant's criminal history. While we agree that Daymen'stestimony was improper, the court did not abuse its discretion in denying defendant's motion.

1. Relevant Background

While cross-examining Daymen, defense counsel asked the officer whether he knew "how long [defendant] has been using drugs." The prosecutor objected to defense counsel's question, which the court overruled. Daymen initially responded, "[Defendant] is a chronic offender in Northeast Division. I can answer the question."

Defense counsel and Daymen then engaged in the following exchange:

"Q: Do you know how long [defendant's] been using? Do you have personal knowledge of how many years he's been using?

[¶] ... [¶]

"A: [Defendant] is a chronic offender in Northeast Division which he has come in contact with many officers and I have had contact with [him] in the past. [¶] During the stop, I recognized him, but I didn't remember where because I had been out of the field for some time because I had a cardiac issue on the job where I had been out for almost 11 months. So during the traffic stop, I recognized him from the past. I just didn't know from where. So either I stopped him in the past or in a pedestrian stop or a traffic stop or I arrested him in the past. [¶] We were talking when he was in the back of the car, and I was telling himabout my medical issue. So I don't know how long he's been using meth, but he is a known narcotics user to officers in Northeast Division. Which officers, I don't know.

"Q: [H]e is a known narcotics user, correct?

"A: Yes. On this chronic offender list that was at the station which he was taken off of after being arrested, he was listed on there of being an offender of 10851 which is driving without owner consent, basically driving a stolen car.

"Q: You've never arrested him for selling drugs, correct?

"A: That I don't know.

"Q: So the answer to the earlier question, to make it short, you don't know how long he's been using methamphetamine?

"A: I guess the answer to that would be 'no.' "

After Daymen's cross-examination, defense counsel moved for a mistrial, arguing Daymen improperly testified about defendant's criminal history, including prior contacts with the police and an arrest for driving a stolen vehicle. The court denied the motion, reasoning that "counsel opened the door, and the officer simply gave the reasons why, what his knowledge was as to [defendant] in his prior judgment. In [the court's] view, thedefense counsel opened the door for the officer to give his honest answer regarding [defendant's] prior drug use." The court then instructed the prosecutor not to question Daymen about defendant's prior convictions and contacts with the police, but it told the prosecutor he could ask Daymen to define what a "chronic offender" means.

During Daymen's redirect examination, the prosecutor asked the officer to explain what he meant when he testified that defendant is a "chronic offender." Daymen replied, "There is a sheet that is given to us by our detectives. There is a whole bunch of individuals. It could be a variety of different types of crimes that occurred. We are only given that list. If we ever come in contact with that person, that we are aware of whatever the circumstances may be. I wasn't saying he was guilty right then and there. I didn't even know he was at York and Avenue 50. [¶] A chronic offender means there is a list of individuals that have come in contact with the police, and it could be a variety of different reasons. If an officer comes into contact, hey we want to let you know this is A through Z, a safety issue, or if the public says blah, blah, blah, blah."

During closing argument, the prosecutor referenced Daymen's testimony, telling the jury that defendant "is a chronic offender, a law breaking offender."

2. Applicable Law and Standard of Review

A court should grant a mistrial if it " 'is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.]' " (People v. Ledesma (2006) 39 Cal.4th 641, 683 (Ledesma).) In other words, a mistrial is warranted "when defendant's ' " ' "chances of receiving a fair trial have been irreparably damaged." ' " ' [Citation.]" (People v. Williams (2016)1 Cal.5th 1166, 1185 (Williams).) A witness's volunteered statement can provide a basis for a mistrial when it causes incurable prejudice. (Ledesma, at p. 683.) But it is only in the "exceptional case" that improper testimony is of such a character that its negative effect cannot be cured by the court's admonitions. (People v. Olivencia (1988) 204 Cal.App.3d 1391, 1404 (Olivencia).)

"Whether an incident is prejudicial and requires a mistrial is 'by its nature a speculative matter,' and the ' "trial court is vested with considerable discretion in ruling on mistrial motions." ' [Citation.]" (Williams, supra, 1 Cal.5th at p. 1185.) We therefore review a court's denial of a mistrial for abuse of discretion....