People v. Hill

Decision Date06 May 1992
Citation8 Cal.Rptr.2d 123,6 Cal.App.4th 33
CourtCalifornia Court of Appeals Court of Appeals
PartiesThe PEOPLE, Plaintiff and Respondent, v. Johnny Wayne HILL, Defendant and Appellant. A050670.

Daniel E. Lungren, Atty. Gen., State of Cal., George Williamson, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Aileen Bunney, and Stan M. Helfman, Supervising Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

SMITH, Associate Justice.

Sentenced to a midterm of two years in state prison, Johnny Wayne Hill appeals his jury trial conviction for selling a substance in lieu of the controlled substance cocaine (Health & Saf.Code, § 11355), 1 claiming error for failure to instruct on lesser related offenses, for misinstruction on eyewitness identification and for prosecutorial misconduct. We affirm.

BACKGROUND

The conviction is for a sale of something resembling rock cocaine to undercover officer Janine Bakker of the Vallejo Police Department on May 31, 1989. The sale was part of a two-week drug buy operation focusing on street sales on the 1000 block of Grant Street in South Vallejo. Bakker was used to make the buys because she was new to the department (having worked for years beforehand as a deputy sheriff in another county) and was not known to street dealers.

Bakker drove slowly onto the block in an unmarked car at about 9 p.m., near dusk, wearing plain clothes and a "body wire" which allowed other officers in the area to monitor her. She made eye contact with Hill, who stood at a driveway outside one of several apartment buildings on that side of the street. She stopped in the traffic lane. Hill walked up to the passenger side and tried to get in, but she motioned him to come around to her side, which he did. She said "[W]hat's happening," and Hill asked, "What do you want?" She said that she wanted a "2-O," a street term in that area meaning a $20 rock of cocaine.

Hill reached into his pants, pulled out a closed fist, held it up to the top, open part of Bakker's window, palm-side down, and asked to see the money. Bakker had a marked $20 bill which she held up "kind of away" from the window to show him. When he tried to reach in and grab it with his left hand, she pulled it away, saying, "[N]o, no, let me see it first." Hill, by now agitated and angry, demanded, "[C]ome on girl, hurry up, cops are around." Bakker held up her hand, into which Hill dropped "a white powdery, hard, compacted rock-like substance" which appeared to be rock cocaine. She then handed him the $20 bill. He left, walking around the rear of the car back toward the driveway.

Bakker uttered a code signal "Thank you" and drove off, radioing Hill's direction and a description of him as an adult male Negro, dark complected, in his late 20's or early 30's, tall, thin and wearing a black baseball cap with "Arizona" in red letters on it, a red long sleeved shirt, black pants and white tennis shoes. According to plan, she then drove on to a "meet spot," where she got into the back of an undercover car driven by Officer Kevin Cosgrove, who had monitored her.

Meanwhile, a "detention team" led by Officer Larry Giles moved in and, on the pretext of looking for a robbery suspect, stopped a man in front of a two-building apartment complex at 1007-1015 Grant. Giles had seen Hill standing in front of 1003 Grant as he arrived but went to the other address thinking that it was the one referred to by Bakker. On the pretext of doing a showup for a local robbery, Giles stopped the man and had Cosgrove drive Bakker to the scene. Seeing from the backseat of the car that the man was similarly dressed but older, heavier, capless Giles went to 1003 Grant, where he had seen Hill about four or five minutes earlier. Giles knocked, and a black woman known to him as Michelle answered. Asked if anyone had recently entered the apartment, she said only she and her two children were inside but that he could look anyway. Giles and two other officers (Jacksch and Ketchum) entered to find Hill lying awake on a bed in a bedroom. A search of other rooms disclosed no one but the children. Hill was pat-searched for weapons, but no further search was made. No effort was made to find the marked $20 bill. Hill was dressed like the person Bakker had described except for the black cap with "Arizona" in red. Such a cap was found lying out on top of other clothes in a plastic laundry basket next to the bed, as if tossed there. Hill denied that the cap was his. Again using the robbery pretext, officers got Hill's consent to go out on the front porch and put the cap on him. Bakker was driven by and made a positive identification from the car. Hill was falsely told that he was not the one they wanted (and was evidently arrested later).

and wearing black shoes, Bakker said he was not the one. Cosgrove drove her a block or so away to await further word.

The robbery pretext, the in-car identification (with Bakker hunched down under a coat), the false assurance to Hill and the lack of any search for the marked bill were explained as measures taken to protect the ongoing buy program, which had evidently netted some 10 arrests by then. Officers testified that there was enough artificial lighting to allow a good look at both suspects.

Tests of the cocaine-like substance, it was stipulated, revealed no controlled substances.

The defense was alibi. Hill conceded being at the apartment and knowing of prevalent drug sales in the area but denied selling anything. He also contradicted the officers in some ways concerning what took place in the apartment. Defense counsel focused on possible misidentification, stressing lack of photos, videotape or the marked $20 bill.

APPEAL

I

Hill requested but was refused instructions on petty theft by false pretenses (Pen.Code, § 484) and distribution of an imitation controlled substance (§ 11680), both misdemeanors, which he urged were lesser related offenses requiring instruction under People v. Geiger (1984) 35 Cal.3d 510, 199 Cal.Rptr. 45, 674 P.2d 1303 (Geiger ). We find no error.

Geiger established three prerequisites to receiving requested instruction on lesser related offenses. First, there "must be the existence of some basis, other than the unexplainable rejection of prosecution evidence, on which the jury could find the offense to be less than that charged. [p] Second, the offense must be one closely related to that charged and shown by the evidence.... [p] Finally, the instruction must be justified by the defendant's reliance on a theory of defense that would be consistent with a conviction for the related offense." (Geiger, supra, 35 Cal.3d 510, 531, 199 Cal.Rptr. 45, 674 P.2d 1303.)

Petty theft by false pretenses

The crime of theft for obtaining property by false pretenses requires (1) a false pretense or representation, (2) made with intent to defraud the owner and (3) the owner parting with the property in reliance on the misrepresentation. (Perry v. Superior Court (1962) 57 Cal.2d 276, 282-283, 19 Cal.Rptr. 1, 368 P.2d 529; People v. Smith (1984) 155 Cal.App.3d 1103, 1146, 203 Cal.Rptr. 196, cert. den. (1985) 469 U.S. 1160, 105 S.Ct. 910, 83 L.Ed.2d 924.)

We hold that this offense was not "closely related" to the charged offense under Geiger. Geiger 's discussion of this element explored the watershed case, United States v. Whitaker (D.C.Cir.1971) 447 F.2d 314 (Whitaker ), which inspired much of the opinion. Rejecting a more restrictive approach taken in Whitaker, Geiger concluded: "[T]he offense must be one Geiger thus declined to adopt the full restrictive language of Whitaker (fn. 2, ante ). It did not, however, shun the requirement that, to be "closely related," a lesser related offense must serve a societal interest like the one served by the charged crime. This is clear from the court's holding that the defendant in that case was entitled to instruction on vandalism as a lesser related offense to the charged crime of burglary: "The offense of vandalism is related to burglary since it is made an offense to protect the same societal interest--security of property--as burglary. It is often proven by the evidence that is offered to prove burglary." (Geiger, supra, 35 Cal.3d 510, 532, 199 Cal.Rptr. 45, 674 P.2d 1303.)

                closely related to that charged and shown by the evidence.  The District of Columbia Circuit and the courts adopting the Whitaker approach have limited instructions to those on offenses having an 'inherent relationship' with the charged offense in order to prevent 'abuse' by defendants seeking to appeal to the jury's sense of mercy by requesting instructions on every offense that is arguably shown by the evidence.[  2  We agree that the right to instructions on related offenses is not without limit.  The purpose of the rule, however, serves to define its limits.  The right to instructions on related offenses exists only to enable the jury to determine fairly the issues presented by the evidence and in so doing to avoid any incentive to convict the defendant of a greater offense than that which he committed.  The issues presented by the evidence are those related first to the defendant's guilt or innocence of the charged offense.  Although some evidence offered by the People or the defendant may indicate that the defendant has committed a crime other than that charged, instructions regarding that crime need not be given unless the evidence is also relevant to and admitted for the purpose of establishing whether the defendant is guilty of the charged offense."  (Geiger, supra, 35 Cal.3d 510, 531, 199 Cal.Rptr. 45, 674 P.2d 1303.)
                

Divergent societal interests defeated any right to lesser related offense instruction in People v. Boyd (1985) 167 Cal.App.3d 36, 212 Cal.Rptr. 873. "Attempted possession of cocaine is not closely related to the charge of armed robbery. ...

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