People v. Jaffe

Decision Date10 November 2004
Docket NumberNo. H026265.,H026265.
Citation122 Cal.App.4th 1559,19 Cal.Rptr.3d 689
CourtCalifornia Court of Appeals Court of Appeals
PartiesThe PEOPLE, Plaintiff and Respondent, v. Steven Robert JAFFE, Defendant and Appellant.

WALSH, J.**

Defendant Steven Robert Jaffe made a public spectacle of himself by passing out from drinking in a restaurant parking lot at dinnertime. Unfortunately for defendant, an ex-felon, he was the sole occupant of a car containing his clothing, his personal papers, and a briefcase with two handguns, a pellet gun, and loose ammunition inside. Methamphetamine was discovered in defendant's wallet. When informed of the pending charges, defendant asked if the police had found the cocaine in his jacket pocket in the car, which they subsequently did. Seven possession convictions resulted.

We will modify and affirm the judgment after concluding in the published part of this opinion that possession of cocaine is a lesser included offense of armed possession of cocaine, that California has prohibited gun possession by federal robbery convicts, that a pinpoint instruction on access to contraband was adequately covered by other instructions, and that sentencing defendant to an upper term based on his admission of certain aggravating factors and imposing a consecutive sentence do not violate Blakely v. Washington (2004) 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (Blakely). Our opinion addressing the remainder of defendant's contentions does not require publication. By separate order filed today we are disposing of defendant's habeas corpus petition, which we have considered together with this appeal.

TRIAL EVIDENCE

On Tuesday, January 15, 2002, at about 6:30 p.m., a passerby, Gaddi Ittah, found defendant unconscious in a parking lot at a strip mall in Sunnyvale. Defendant was face down on the ground with his feet in the open driver's door of a running BMW. Since defendant was unresponsive, Ittah called 911 on his cellular telephone. Other passersby tried to rouse defendant and determined that he was drunk.

Paramedics and Sunnyvale public safety police and fire officers responded to the emergency call. A fire official found defendant slumped over inside the car, which was no longer running. Defendant, who smelled strongly of alcohol, regained consciousness and vomited more than once.

Lieutenant Randal French, a fire officer, asked if anyone had the keys to the car. A bystander handed Lieutenant French the keys, saying they were taken from the car's ignition.

Officer David Miller, the crime scene investigator, retrieved defendant's wallet from defendant's back pocket. Officer Miller handed the wallet to Officer Kathryn Debeaubien, who looked through it for identification. She found defendant's driver's license and credit cards bearing defendant's name. Defendant's address was in Topanga in southern California. Officer Debeaubien did not look closely at the contents of the wallet, which was bulging with numerous papers. Officer Debeaubien handed the wallet to Officer Christopher Kassel, who quickly perused it before handing it back to Officer Miller.

Defendant was arrested for public intoxication and transported to a hospital in an ambulance. After searching the car, Officer Kassel gave the car keys to the company that towed the BMW.

The BMW was registered to a Thomas Miller who lived in southern California. Before the car was towed, Officers Debeaubien and Kassel did an inventory search. The car looked lived in, with numerous articles of clothing and papers strewn about the passenger compartment. In the car's trunk were more clothing and 12 to 15 pieces of mail addressed to defendant.

On the floor of the front passenger seat were empty vodka bottles and a briefcase. Opening the briefcase revealed that it contained a nine-millimeter semiautomatic handgun loaded with seven rounds in its magazine, a .25-caliber semiautomatic handgun loaded with six rounds in its magazine, a .177-caliber pellet gun, and 58 loose rounds of ammunition, consisting of 33 nine-millimeter rounds, 23 .25-caliber rounds, and 2 .22-caliber birdshot long bullets. Five of the rounds were hollow point, a type of bullet designed to do more damage on impact. The serial number was scratched off the nine-millimeter gun. Also in the briefcase were a sock and a wallet containing the business card of someone other than defendant. No paper identifying defendant was in the briefcase. All three guns were in evidence, secured with plastic straps by the police so that the guns could not be fired.

Defendant stipulated that he "has been convicted of an offense enumerated in Penal Code section 12021.1([b])."1

Officer David Miller's preliminary examination testimony was read to the jury. Officer Miller found a bindle containing .48 grams of methamphetamine in defendant's wallet. An expert testified that this was a usable amount of methamphetamine. Neither officer, Debeaubien or Kassel, had observed a bindle in the wallet. As the crime scene investigator, Officer Miller took the wallet and briefcase and their contents and booked them into evidence at the Sunnyvale Department of Public Safety.

A blood sample was taken from defendant at the hospital at 10:23 p.m. The blood test revealed a blood alcohol level of .23 and the presence of cocaine metabolites, which meant that defendant had consumed cocaine sometime between six to 72 hours earlier. No methamphetamine was found in his blood.

Officer Debeaubien stayed with defendant at the hospital from about 7:30 p.m. until 1 a.m. Defendant asked her what he was being charged with. She said possessing firearms and methamphetamine and being drunk in public. Defendant asked if she had found the cocaine. She said she had not. Defendant said it was in his jacket. She said there were several jackets in the car. Defendant specified a black sport coat on the front seat. Officer Debeaubien called this information in to Lieutenant Tim Davis, who asked Officer Miller to check it out.

Officer Miller found a bindle containing 2.89 grams of cocaine in the pocket of a jacket that was draped over the driver's seat and covered with vomit. An expert testified that this was a usable amount of cocaine.

The parties stipulated, "David Miller was an officer with the Sunnyvale Department of Public Safety. On July 23rd, 2002 he was fired for his alleged involvement in helping houses of prostitution in the City of Sunnyvale. Charges have been filed against him, but they do not include the allegations of fabrication of evidence. The charges against him are allegations and are not evidence."

Defendant made a telephone call from the hospital to someone named "Tom." Officer Debeaubien dialed the number for him and recognized the area code as from southern California.

TRIAL ARGUMENT

Defense counsel conceded that defendant had access to the car and its contents. He argued to the jury that others also had access to the car and they abandoned their efforts to help defendant when they heard the police had been called, because they knew what the briefcase contained. Among these "fair weather friends," he asserted, was the car's registered owner, Tom Miller. He further argued that the jury should distrust the hearsay evidence of fired Officer David Miller about finding the methamphetamine in defendant's wallet and the cocaine in his jacket.

Based on defendant's hospital telephone call to "Tom," the prosecutor argued that defendant had called Tom Miller, the car's owner, in southern California, so Tom Miller could not have been among those present when defendant was discovered intoxicated in the car. We summarize additional argument where relevant to the discussion.

JURY DELIBERATIONS AND VERDICT

During deliberations the jurors asked for and received readbacks of the testimony of Officers Debeaubien, Kassel, and Miller, focusing on Officer Debeaubien's hospital time with defendant and Officer Kassel's description of the vehicle tow sheet and his examination of the wallet. The jurors also asked for and received the three guns in evidence.

The jury convicted defendant of seven counts arising out of his simultaneous possession of five items, methamphetamine (Health & Saf.Code, § 11377, subd. (a) — count 1), cocaine (Health & Saf.Code, § 11350, subd. (a) — count 2), a nine-millimeter handgun, a .25-caliber handgun (§ 12021.1, subd. (a) — counts 5 & 6), and ammunition (§ 12021-count 7). Possessing cocaine while armed with a loaded, operable nine-millimeter handgun and a loaded, operable .25-caliber handgun (Health & Saf.Code, § 11370.1 — counts 3 & 4) were his remaining convictions.

THE SENTENCE

The probation report recommended "the aggravated term of eight years as to Count Three, since [defendant] was on United States Probation at the time of the offenses" following a robbery conviction. Defendant responded by letter in which he admitted his prior bank robbery, but argued that it involved "no actual violence." He asserted that the federal probation should be converted to state specifications. "It would be `parole' (post prison) — I was placed on this `probation' (parole) in Oct of 1999 — I reformed well untill [sic] my 1st violation in Dec 2000." At sentencing defense counsel conceded the robbery conviction, acknowledging that defendant was on federal parole and asserting the "robbery conviction was not one of violence.... It was a note. Nobody was hurt."

The court sentenced defendant, then age 42, to nine years, four...

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2 cases
  • People v. White
    • United States
    • California Court of Appeals Court of Appeals
    • December 15, 2004
    ... ... Picado (2004) 123 Cal.App.4th 1216, 20 Cal.Rptr.3d 647; People v. Fernandez (2004) 123 Cal.App.4th 137, 20 Cal.Rptr.3d 54; People v. Jaffe (2004) 122 Cal.App.4th 1559, 1583, 19 Cal.Rptr.3d 689.) ...          2. Upper Term Sentencing ...         With regard to upper ... ...
  • People v. Ackerman, H026899.
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