People v. Perez

• Decision Date: 27 December 1989
• Docket Number: No. B037478,B037478
• Citation: 216 Cal.App.3d 1346,265 Cal.Rptr. 400
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Jose PEREZ, Defendant and Appellant.

Page 400

265 Cal.Rptr. 400

216 Cal.App.3d 1346

The PEOPLE, Plaintiff and Respondent, v. Jose PEREZ, Defendant and Appellant.

No. B037478.

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

Dec. 27, 1989.

Review Denied Mar. 14, 1990.

[216 Cal.App.3d 1347] Christopher D. McIntire, San Diego, under appointment by the Court of Appeal, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Edward T. Fogel, Jr., Sr. Asst. Atty. Gen., Donald E. De Nicola, Supervising Deputy Atty. Gen., and William R. Weisman, Deputy Atty. Gen., for plaintiff and respondent.

SUTTON, Associate Justice, Assigned. ^*

Jose Perez, defendant and appellant ("Perez"), appeals his jury trial conviction for selling marijuana in violation of Health and Safety Code section 11360, subdivision (a).

Two points are raised. The prosecution, by a supplemental "letter-brief," concedes an error in arithmetic in the computation of Perez' presentence credits. Perez claims entitlement to five days additional credit--the prosecution admits four days additional credit is due. The abstract of judgment allots 140 days custody credit and 70 days conduct credit. Both sides acknowledge Perez served 143 days in custody to the date he was sentenced, and he thus earned 71.5 days conduct credit. People v. Scroggins (1987) 191 Cal.App.3d 502, 508, 236 Cal.Rptr. 569, holds fractions of a day count as a whole day in the computation of presentence credits. 214.5 days rounded off to 215 days is the appropriate credit, and the judgment is modified to accord Perez a 215-day total time credit instead of the 210-day total credit he was accorded at sentencing. The abstract of judgment is ordered modified accordingly; otherwise, the judgment as modified is affirmed.

The substance of Perez' appeal centers on a single issue of whether it was error for the trial court to refuse to allow Perez to exhibit two tattoos to the jury. One tattoo was atop his left hand between thumb and first finger; the other was on the inside of his left arm near the elbow.

Perez was arrested in an "undercover buy." While Perez was standing on the sidewalk eating an ice cream bar, two undercover L.A.P.D. officers, Orton and Martinez, drove by slowly. Perez uttered "dime" loud enough to be heard by Officer Martinez through her rolled up window on the passenger side of the front seat of the unmarked vehicle driven by Officer Orton.

The car stopped; the passenger window was rolled down; Perez exhibited two one-inch by one-inch "baggies" of marijuana and one baggie was purchased by Martinez with a $10 bill. The serial number of the bill had been pre-recorded by the officers. Orton drove around the next corner and proceeded to mark the baggie while The description of Perez broadcast by Martinez was "male Mexican, [address] 602-606 Blythe, standing in a driveway ... walking southbound ... wearing a white long sleeve undershirt and brown cords ... [with] ... a [mustache]."

Martinez began a walkie-talkie radio transmission as they departed to their confederate officer, Larry Voelke, who was waiting nearby in another unmarked police vehicle.

Officer Voelke drove to the scene of the purchase within 30 to 45 seconds but it took him about ten minutes to locate and arrest the suspect. Within two minutes or so after arrest Orton and Martinez drove back by the point of arrest and both Orton and Martinez confirmed to each other and to Officer Voelke that Perez, who was then in Voelke's custody, was the vendor of the marijuana.

When arrested no other marijuana was found on Perez, nor was the $10 pre-marked bill recovered. Perez had $1.05 in his possession. At trial counsel stipulated the baggie purchased by Martinez contained 1.2 grams of marijuana, obviating the need for expert testimony concerning the contraband.

Defense counsel, out of the presence of the jury, argued to be allowed to have Perez exhibit his tattoos to the jury without being sworn or giving testimony or, if the court required Perez to be sworn, to have cross-examination limited to the subject of the tattoos, only. Officer Martinez testified at no time did she ever observe any tattoos on Perez.

At this point some note of certain void spots in the evidence must be discussed. The record is silent on whether Perez was right handed or left handed. He could easily have manipulated the sale entirely with his right hand. If the contraband was in the palm of his left hand and he took a baggie from his left hand with his right hand, the tattoo on the back of his left hand would have been out of sight and not observable. If it was the ploy of defense counsel to impeach Martinez, by implication, by showing it was not Perez who sold the marijuana because no tattoo was ever observed on his left hand by Martinez, defense counsel overlooked the opportunity to establish just how the physical act of the sale occurred; i.e., which hand was used, or if both hands were used, or whether Perez for that matter, ever exhibited his left hand palm down so the tattoo could never have been physically observed by Officer Martinez.

The evidence is abundantly clear Perez wore a long sleeve "thermal" type undershirt with the sleeves down at all times which would certainly have obscured any view of the tattoo on the inside of his left arm.

When the issue was raised the trial court voiced legitimate concerns about foundational evidence (discussed later), but it is clear from the record it would have been appropriate to sustain any objection to the arm tattoo as irrelevant since that tattoo was always covered by the long sleeve of Perez' shirt, and would have been unobservable under any circumstances.

The basis on which the trial court did rule, however, was that some foundation would have to be first established as to the length of time Perez had been tattooed. Defense counsel proposed and the court properly rejected the notion of an Evidence Code section 402 hearing outside of the jury's presence to have Perez testify to the age of and manner of acquiring the tattoos. The court correctly concluded the jury would still have to judge Perez' credibility in that regard. The trial court finally ruled that exhibition of the tattoo (presumably only the "relevant tattoo" on Perez' left hand) would be "testimonial" if offered to impeach Officer Martinez' testimony that she observed no tattoo on the hand of the vendor of the marijuana. This would have raised the question of whether Perez would be subject to cross-examination about this information. If viewed as "demonstrative" evidence, the tattoo would be irrelevant because there would have been no foundation first laid in accordance with the court's earlier expressed concerns.

Defense counsel suggests this is a case of first impression. However, there is "a California case" in the Federal Reports--a The Bay court noted the defendant argued and the government conceded a display of hands is "non-testimonial." (Bay, supra, 762 F.2d at p. 1315.) Federal law holds a defendant's being compelled to exhibit various types of physical characteristics to a jury does not infringe the defendant's Fifth Amendment rights against self-incrimination. (United States v. Dionisio (1973) 410 U.S. 1, 5-6, 93 S.Ct. 764, 767-768, 35 L.Ed.2d 67; Schmerber...