People v. Washington, A095924.

CourtCalifornia Court of Appeals
Writing for the CourtStevens
Docket NumberA095924.
PartiesTHE PEOPLE, Plaintiff and Respondent, v. JAMES WASHINGTON, Defendant and Appellant.
Decision Date28 July 2003

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THE PEOPLE, Plaintiff and Respondent,
JAMES WASHINGTON, Defendant and Appellant.
Court of Appeals of California, First Appellate District, Division Five.
Filed July 28, 2003.

Alameda County Super. Ct. No. 134330.

The judgment of conviction is affirmed.


Appellant James Washington was convicted after jury trial of the crime of being a felon in possession of a firearm. (Pen. Code, § 12021, subd. (a).) In a bifurcated portion of the jury trial, six prior felony convictions were found true, three of which were charged as convictions for which appellant had served a prison term, and three of which qualified as "strikes" under the terms of the three strikes law. (Pen. Code, §§ 667.5, subd. (b), 667, subd. (e)(2), 1170.12, subd. (c)(2)(A).) Appellant was sentenced to a total prison term of 28 years to life.

Appellant maintains his conviction and sentence

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must be reversed because: (1) errors by his trial counsel and the court allowed the introduction of prejudicial evidence of other criminal activities before the jury; (2) an additional jury instruction on unanimity was required to be given by the trial court, sua sponte; (3) the trial court did not properly instruct the jury sua sponte as to the element of intent in constructive possession; (4) trial counsel was ineffective in failing to object to certain opinion testimony; (5) the search warrant for the residence where the firearm was seized was defective; (6) prejudicial errors occurred during the bifurcated jury trial of the prior convictions; and (7) his prison sentence constitutes cruel and unusual punishment.


Warner Smith became appellant's parole officer in 1996. While appellant was on parole, he was told that both he and his residence would be subject to search without a search warrant; he was subject to drug testing; and he could not possess weapons including firearms. Appellant indicated he would be living with his father on Holly Street in Oakland, and Smith met with appellant at that location shortly after he was paroled, testing him

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for illegal drugs. Appellant always passed the agent's drug testing.

Later, appellant advised Smith he would be spending a few nights a week with his girlfriend Lisa Lewis (Lewis) who lived on Cary Court in Oakland. Appellant never told Smith that he had moved into the Cary Court residence, although Smith suspected this was the case.

In October of 1998, Smith was contacted by members of the San Francisco Police Department. The officers were interested in conducting a search of appellant's residence, as he was suspected of committing a crime in San Francisco. Smith contacted appellant and, without telling appellant that a search was being contemplated, asked if he was living with Lewis at Cary Court. In the tape recorded phone call, appellant admitted he was now living with Lewis at the Cary Court address. Smith then authorized a parole search of the Cary Court residence.

The officers feared appellant might be armed. For purposes of officer safety during the search, appellant was called into Smith's office for a routine appointment, and the search at Cary Court was conducted while he was at that location.

Inspector Anthony Camilleri (Camilleri), who was employed by the San

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Francisco Police Department, carried out the search of appellant's residence at Cary Court. Camilleri did not rely solely on the authorization from Smith to conduct a parole search; he also obtained a search warrant for the Cary Court residence, which he served in the company of other officers on October 28, 1998, at about 11:20 a.m. When the officers knocked on the front door, Lewis answered, and she let them in. The only other person present was a small child, appellant's daughter.

The officers recovered numerous items of evidence which indicated appellant lived at the premises, including a phone bill in his name addressed to the Cary Court address, and appellant's calendar year 1989 address book, both of which were in the master bedroom. The officers also found a traffic citation dating back to the previous April, which had been addressed to appellant at his father's Holly Street residence, and various other items belonging to him. Further, a box of Remington . 38-caliber ammunition was located in a nylon pouch on a shelf in a closet of the master bedroom. The pouch also contained an envelope bearing the name of appellant's friend, George Fitzpatrick. Inside the envelope was a

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copy of a driver's license and social security card of Charles Morris. The bedroom also contained adult male clothing and a stolen laptop computer. A firearm, a two-shot .38-caliber Derringer handgun, was retrieved from under the mattress of the bed in the master bedroom. The weapon was not loaded.

Camilleri later interviewed Lewis, after she agreed to speak with him at the Oakland Police Department. Camilleri told Lewis she was not under arrest, and was free to leave. Lewis told Camilleri that appellant had been living at Cary Court for several months, and was the only adult male living with her. At trial a redacted tape of this interview was played, in which Lewis said she did not know the gun was under her bed, and it could only have gotten there because appellant put it there. Lewis also stated that appellant's friend George Fitzpatrick had damaged one of appellant's cars in a chase.

Camilleri also interviewed appellant, after advising him of his Miranda1 rights. Appellant identified his calendar address book, and discussed a number of friends who had visited him at his Cary Court residence, including George Fitzpatrick, who had been driving a Hyundai car loaned

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to him by appellant when it was wrecked following a high speed chase.

Captain David Gingery (Gingery), Alameda County District Attorney's office, was assigned to perform investigative work on appellant's case in October 1998. Gingery also helped serve the search warrant at Cary Court. He found the .38-caliber two-shot Derringer handgun in the master bedroom, under the mattress. At trial, Gingery opined that this type of gun is small and easily concealable, and is only accurate at close range; this general type of gun is cheap, mass-produced, and relatively common. On cross-examination, Gingery testified he could not recall if he had ever heard this type of gun identified as a "lady's gun." He added the fact this type of gun was often used by criminals, because it was easily concealable.

Inspector Raymond Conner of the Alameda County District Attorney's office also assisted in the search at Cary

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Court, as well as with the interviews of appellant and Lewis. Appellant told Conner he lived at Cary Court where he entertained friends such as George Fitzpatrick. He also worked on cars at that location, including the Kia automobile appellant had loaned to George Fitzpatrick, which had been wrecked in a high speed chase following an armed robbery. A newspaper article covering that incident was located at the Cary Court residence, in the master bedroom, rolled up inside some clothing in the closet. Appellant also told Conner the handgun found under the mattress belonged to Lewis, admitting that he had seen the gun previously.

Deputy Joseph Stewart of the Alameda County Sheriff's office explained to appellant that his telephone calls while in custody at the Alameda County jail were subject to being monitored and recorded, with the exception of calls to attorneys. Persons making a call from the jail are also reminded of this recording by a prerecorded preamble before the call is placed.

Inspector Conner was familiar with the procedure for the monitoring or taping of telephone calls placed from the jail facility, and had requested that appellant's calls to Lewis, as well as his jailhouse

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visits with her, should be monitored and taped. In the various taped conversations, appellant and Lewis made comments indicating they were well aware they were being taped. Consequently, they used "guarded" language, such as referring to a gun as a "thing." Appellant instructed Lewis what she should say in order to provide him with a defense, suggesting Lewis should testify he had not been a resident of her home and had been merely staying or visiting there on an occasional basis. He also encouraged Lewis to testify the police had mistreated her, and that they had intimidated her into saying the gun under the mattress belonged to appellant. Appellant suggested Lewis should say she had been confused as between the .38-caliber Derringer found under the mattress and another gun, a .22-caliber handgun, which appellant had previously possessed. These taped conversations were played for the jury.

Regarding the .38-caliber Derringer, the taped conversations revealed that appellant directed Lewis to either say the gun belonged to her, or belonged to appellant's friend Ron Young, or belonged to Ron's wife Pam Young, or belonged to Ron Young's mother, Mildred Thompson. Lewis was to explain

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her prior inconsistent statements to the police as being the result of police pressure or fear that she could lose her federally subsidized section eight housing by admitting ownership of the gun.

Detective Curtis Selseth of the Piedmont Police Department, who assisted in the service of the Cary Court search warrant and subsequent interviews of Lewis and appellant, confirmed the recovery of a silver .38-caliber Derringer handgun with an ivory handle from under the mattress in the master bedroom, and that .38-caliber ammunition was located in the closet of the master bedroom. Wrapped up in a man's jumpsuit in the closet of the master bedroom, Selseth discovered the newspaper clipping concerning George Fitzpatrick, who had been arrested after an armed robbery and a high speed chase. Selseth described the closet in which these items were found as containing primarily male clothing.

Appellant had admitted to Selseth that he...

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