People v. Shoals

• Citation: 8 Cal.App.4th 475,10 Cal.Rptr.2d 296
• Decision Date: 28 July 1992
• Docket Number: Nos. H008493,H009169,s. H008493
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. James Irving SHOALS, Defendant and Appellant. In re James Irving SHOALS on Habeas Corpus.

Page 296

10 Cal.Rptr.2d 296

8 Cal.App.4th 475

The PEOPLE, Plaintiff and Respondent, v. James Irving SHOALS, Defendant and Appellant In re James Irving SHOALS on Habeas Corpus.

Nos. H008493, H009169.

Court of Appeal, Sixth District, California.

July 28, 1992.

As Modified on Denial of Rehearing Aug. 26, 1992.

Review Denied Nov. 10, 1992.

Gregory Marshall, San Diego (Court-appointed), for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Mark S. Howell, Supervising Deputy Atty. Gen., and Matthew P. Boyle, Deputy Atty. Gen., for plaintiff and respondent.

PREMO, Associate Justice.

James Irving Shoals appeals from judgment after a jury convicted him of two narcotics offenses. He admitted three prior felony convictions and the court found a fourth true. The court imposed a 12-year state prison sentence. Appellant raises numerous points including prosecutorial misconduct, sufficiency of the evidence, sufficiency of the jury instructions, and erroneous denial of his Marsden ¹ motion and new trial motions. We affirm in part and reverse in part.

Appellant also petitions this court for a writ of habeas corpus based on ineffective assistance of trial counsel for failing to move to suppress evidence seized in the search of the motel room, and for failing to proffer the codefendant's guilty plea at trial. We will discuss these contentions in connection with this appeal.

1. FACTS

Around 9 a.m. on September 27, 1990, four state parole officers went to the Executive Inn in San Jose to arrest appellant and search his room and a car he had been seen driving. When the parole agents arrived, there were two occupants in the room; appellant was in the shower and a woman named Jackie Levell opened the door.

The search of the room yielded 21 small baggies; 2 were tested and contained cocaine base. Two baggies were found on a nightstand near a man's watch, a ring, and a pager, and the rest were in the open drawer of the nightstand. There was $533.32 in cash hidden under the mattress and in a suitcase which also contained women's and children's clothes. With the exception of the clothes appellant put on when he got out of the shower, the only clothing in the room was women's and children's. However, men's cologne was on the dresser in the bedroom and deodorant and razors were found in the bathroom.

Parole Officer Donald McLellan searched the wallet that was removed from appellant's pants and found a California driver's license in the name of Michael Dean Lampley. McLellan also learned that appellant had rented the room on September 5, 1990, using the name "Chooks." Either he or Levell paid the rent daily in cash; appellant paid two-thirds of the time. The motel manager reported that appellant responded when addressed as "Mr. Chooks." The 24-hour switchboard handled heavy telephone traffic to and from appellant's room day and night, with callers asking for "Chooks," for "the Black gentleman," for "room 219," and for Levell.

McLellan searched the trunk of a 1990 Chrysler parked nearby, which was one of the cars appellant had been seen driving. He found clothing (mostly women's and children's, but some men's), and about 25 papers in the trunk. The name Kenneth Nunn was on an application for cash aid, food stamps, and medical assistance, and the name Anita Nunn was on a magazine wrapper. The first name Edward was on another document.

The name Vonceil Belfield appeared on numerous papers, including a traffic citation issued on September 7, 1990, for being under the influence of cocaine. The citation described a four-door 1990 Chrysler with the license plate No. 2SPJ652 which matched the license plate and description of the Chrysler McLellan searched.

The Chrysler belonged to General Rent-a-Car, and was last rented on July 15, 1990, to a person named Lasou. General Rent-a-Car had no record of the car being missing between July and October, or that anyone using the names Shoals, Nunn, or Belfield rented the car or had access to the keys.

At trial, the parties stipulated that appellant knew the narcotic nature of cocaine, that the search was legal, and that the pager was owned by "another person," not appellant.

Of the six counts charged against appellant, he was found guilty of possession of cocaine base for sale (count one, Health & Saf.Code, § 11351.5) and maintaining a place for selling or using a controlled substance (count 4, Health & Saf.Code, § 11366). The other counts were dismissed. ² Appellant admitted two enhancements which authorized additional three-year consecutive terms for prior drug convictions. (Health & Saf.Code, § 11370.2, subd. (c).) He also admitted a prior felony conviction for which he had served a prison term. (Pen.Code, § 667.5, subd. (b).) He agreed to a court trial on another charged prior, which was found to be true.

After his conviction, appellant filed a motion for a new trial. The court denied it and then imposed a four-year term on count one, two years concurrent on count four, three years consecutive for each of the two prior drug convictions, and one year consecutive for each of the two prior prison terms. This appeal ensued.

2. CONTENTIONS ON APPEAL

First, appellant contends that it was reversible error for the trial court to deny his motion for a new trial. He asserted that Levell's availability to testify constituted newly discovered evidence.

Second, appellant asserts that the evidence on count 4 was insufficient to prove that the motel room was "opened or maintained for the purpose of unlawfully selling, giving away, or using controlled substances," and that the court failed to define the "non-obvious terms of Health and Safety Code section 11366 [count 4, 'the "maintaining" offense']."

Appellant also challenges the court's refusal of the jury's request for the written version of the instruction on the elements of count 4, and the court's response to the jury's request without notifying defense counsel and giving her an opportunity to be heard.

Appellant asserts further instructional error in the court's failure to give sua sponte CALJIC No. 2.71 on admissions, which contains the warning that evidence of a defendant's oral admission should be viewed with caution.

Next, appellant claims that the prosecutor engaged in misconduct requiring reversal when he "repeatedly and relentless [sic ] ... made reference to the 'fact' that appellant was unemployed at the time he was arrested." Actually, as respondent admits, there was no evidence before the jury on appellant's employment status.

Appellant complains of further misconduct when the prosecutor argued to the jury, "You're going to say, well, wait a minute, someone else was in that room. Miss Levell.... The court has instructed ... that you can't consider that." Appellant interprets this statement as an "assertion that the law required the jury in effect to disregard the defense theory, ... that the drugs were in the exclusive possession of Jackie Levell...."

Next, appellant declares that reversal is required for the court's error in denying the Marsden motion he made on the second day of trial in which he claimed that defense counsel was unprepared and that she had counseled codefendant Jackie Levell to refuse to testify in his behalf. ³

Next, appellant claims that, in regard to the contested prior conviction, the prosecution failed to prove that he committed an offense or was in prison custody during the five years between his completion of a prison term on August 20, 1985, and the commission of the offenses in this case in September 1990.

Finally, appellant contends that the cumulative effect of the "numerous errors" requires reversal.

3. MOTION FOR A NEW TRIAL

At trial, the defense planned to elicit from Jackie Levell testimony that the cocaine belonged to her and that she hid it from appellant when he visited her so that he would not know she had it. However, in a hearing outside the presence of the jury, Levell, with sentencing pending on the plea of guilty she had entered on the first day of trial, invoked her privilege against self-incrimination as to all questions. She did not appear in front of the jury.

The defense then proffered one complete letter and two fragments of letters in different handwriting which it claimed Levell sent to appellant. Defense counsel represented that Levell personally wrote one letter, but that she had vision problems and would often dictate her letters. The letters contained admissions that the motel room and the cocaine rocks were Levell's. However, defense counsel was unable to lay a foundation for the admission of any of the letters. Levell had invoked her privilege against self-incrimination, and no witness was available to authenticate the handwriting of the letter purportedly handwritten by Levell. (Appellant had not provided counsel with the letters until that morning.) Accordingly, the letters were not admitted into evidence. Appellant presented no further defense.

When appellant's motion for a new trial came to hearing on May 22, appellant produced a declaration under penalty of perjury from Levell which stated: (1) that she had invoked her Fifth Amendment right against self-incrimination on the advice of her attorney; (2) that she had since been sentenced and was serving her sentence; (3) that 60 days had elapsed since she was sentenced and that she was not appealing the matter; and (4) that she told a probation officer who interviewed her in connection with appellant's presentencing report that she and two others bought the crack cocaine for $200 for their personal use and not for sale, that appellant did not know about it, and that she had hidden it and appellant did not know it was in her room. She also stated that she would testify to these facts if appellant were granted a new trial.

Appellant intended to present Levell's live testimony at the hearing on the motion; however,...