People v. Wesley

• Decision Date: 24 October 1990
• Docket Number: No. B045252,B045252
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Appellant, v. Christopher WESLEY, Defendant and Respondent.

Page 326

274 Cal.Rptr. 326

224 Cal.App.3d 1130

The PEOPLE, Plaintiff and Appellant, v. Christopher WESLEY, Defendant and Respondent.

No. B045252.

Court of Appeal, Second District, Division 7, California.

Oct. 24, 1990.

Review Denied Jan. 17, 1991.

[224 Cal.App.3d 1135] Ira Reiner, Dist. Atty., Harry B. Sondheim, Head Deputy Dist. Atty. and Rodolfo A. Aguirre, Deputy Dist. Atty., for plaintiff and appellant.

Wilbur F. Littlefield, Public Defender, Laurence M. Sarnoff, Michael Allensworth and Elizabeth Warner, Deputy Public Defenders, for defendant and respondent.

LILLIE, Presiding Justice.

The People appeal from order setting aside an information (§ 995, Pen.Code) charging defendant (respondent) with one count of possession of cocaine (§ 11350, subd. (a), Health & Saf.Code) and alleging an enhancement for a prior drug conviction (§ 11370, subds. (a),(c)), Health & Saf.Code).

FACTS

The following facts were adduced at the preliminary hearing. Since July 1988, Officer Qualls, Pasadena Police, had been working a "reverse sting" operation ¹ put together by the Neighborhood Crime Task Force, as an undercover narcotic seller. The operation involved about 10 officers. He had done this type of work approximately 10 times before.

Officer Qualls had training in and experience with narcotics specifically, cocaine. In 1983 he received 40 hours training re cocaine at the Police Academy; for 2 years he worked the streets as a patrolman where he made numerous cocaine arrests of sellers and users, and spoke with numerous informants. He then went to the Vice-Narcotics Section as a vice officer and made search warrants for cocaine violators, purchased cocaine undercover and spoke with numerous user and seller violators. He was trained by senior officers in the Narcotic Section and attended a 40-hour narcotics class in Sacramento put on by the state where he "rocked up cocaine." Subsequently, he went with the Drug Enforcement Administration in Los Angeles where he purchased kilogram quantities of cocaine, wrote federal search warrants and seized cocaine pursuant to search warrants. Two years later he returned to Pasadena to the Patrol Section and once again made numerous cocaine arrests; from there he was transferred to the Neighborhood Crime Task Force where he wrote search warrants for cocaine violations and purchased and sold cocaine undercover; during this time he has seen cocaine "at least 500 times."

On April 25 1989, Officer Qualls was given 15 suspect cocaine rocks in a ziplock baggie by Sergeant Kirkpatrick; he examined them and, based upon his training and experience, formed the opinion the substance was rock cocaine. He then went out to 1763 Newport taking a stereo radio as a prop; he placed the radio on the ground and the 15 cocaine rocks in the ziplock baggie on the ground behind it; four other undercover officers (Carter, Alaniz, Peinado, Banuelos) were nearby. While Officer Qualls was standing on the sidewalk, defendant drove a vehicle southbound on Newport and pulled to the curb in front of 1753 Newport, 20 or 25 feet away; as defendant exited the car and walked over to him, he said to Qualls, "I need a dime"; the officer responded by nodding his head. Officer Qualls was familiar with street terms for rock cocaine and knew the term used by defendant meant he wanted $10 worth of rock cocaine; he looked at defendant for a few minutes, then reached down behind the stereo where he had the baggie, took one of the cocaine rocks out of it and handed the rock to defendant who handed him a $10 bill. Defendant turned and walked 7 to 10 feet away, then was taken into custody by Officer Carter in Officer Qualls' presence; present also was Officer Alaniz; defendant had the rock in his hand and at the time of his detention, threw the cocaine rock to the street, and it fell beneath the rear portion of a parked car. The transaction took place 6 to 7 seconds before defendant was arrested; defendant had the rock cocaine in his hand about 3 seconds before he threw it down.

Neither Officer Qualls nor the police department ever had any intention of allowing defendant to get away with the rock cocaine. Officer Qualls saw Officer Carter immediately retrieve the rock from under the vehicle, examined it and identified it as the same one he had given to defendant Based on his background and training, Officer Qualls testified that in his expert opinion the substance given to him by Sergeant Kirkpatrick was rock cocaine; he estimated its size as a quarter of an inch and its weight at about .20 grams which would sell on the street as a $20 increment of rock cocaine. He did not return any of the cocaine to Sergeant Kirkpatrick; asked on cross-examination how many sales he made during the evening, Officer Qualls responded, "Myself I think I made 13"; the other officers were in the immediate area, the closest standing 7 to 10 feet away; they were all about the same distance; neither Officer Qualls nor any other officer waved defendant over to the location to get him to pull over or park nor did Officer Qualls make any kind of signal to indicate to people on the street that he was dealing, but "Once [defendant] got out of the car and said he needed a dime I nodded my head."

Officer Carter gave the rock to Officer Alaniz who put it into a baggie then showed it to Officer Qualls who initialed it; the content of the baggie was identified by Officer Qualls at the preliminary hearing as the same rock he saw defendant throw to the ground.

MOTION TO SET ASIDE INFORMATION

Prior to the hearing before Judge Gilbert C. Alston in superior court, a People's motion under section 170.6, Code of Civil Procedure was filed, but stricken as untimely. After brief argument by the defense on its written motion to set aside information, Judge Alston granted the same and dismissed the matter finding first that the "reverse sting" program "is fatally flawed" and the Health and Safety Code prohibits "reverse sting" practices; second, "My colleague, Judge Tso, has felt that the most important point in this is the lack of dominion and control by the prospective defendant" because the police never intended to give nor did it ever give defendant "uncontested possession" of the cocaine rock; and third, there is no competent testimony that the substance was cocaine.

I PEOPLE NOT BARRED FROM RAISING ISSUES ON APPEAL

The defense began argument on the motion to set aside information when Judge Alston interrupted to state the reasons he believed the motion should be granted; when he concluded, he addressed the prosecutor who, up to that time, had not been given an opportunity to speak against the motion, "So, for all those reasons, I do believe that the motion is well taken; however, we will hear from the prosecution, if the prosecution has anything to point out to the court that the court overlooked." The prosecutor's response thereto, "I think the court's analysis is on point. I'll submit it," respondent contends, bars the People from raising any issue on appeal because the prosecutor conceded, and did not object to or argue against, the granting of the motion.

Clearly, Judge Alston had already made up his mind to grant the motion, and all he really asked the prosecutor was if she had anything to point out that he had overlooked in his analysis. We do not interpret her response as a concession his analysis was correct; we do interpret it to be, "No, you have not overlooked any point in your analysis according to the written motion to set aside information, but I do not agree it is correct, however, inasmuch as you have already made up your mind to grant it, I will submit it." Of course, what a submission means depends on the context in which it is made, and we conclude in the circumstances here that the submission without argument or objection was in no manner a concession the motion was well taken. We find nothing in the record that would serve to bar the People from raising the issues argued in their opening brief. Further, this is not a case in which respondent is required, for the first time on appeal, to defend against a new issue or theory. There could be no element of surprise to respondent, for these are hardly new issues. They are the very ones he raised on his written motion--insufficiency

of the evidence, possession and due process; it was on his findings on these issues Judge Alston based his order, the same issues argued by the People on this appeal.

II PROSECUTION OF DEFENDANT FOR POSSESSION OF COCAINE NOT VIOLATE HIS CONSTITUTIONAL RIGHT OF DUE PROCESS

Raised by the defense on written motion to set aside information, was the due process issue. Although Judge Alston did not articulate this specifically in granting the motion and dismissing the matter, it is clear from his comments that due process was part of the basis for his order. While "outrageous governmental conduct," as asserted by defendant in his written motion and urged by respondent here, is identified in most cases as a "defense" it is not, strictly speaking, a defense because, if successful, it results in the dismissal of the information whatever its merits. (United States v. Bogart (9th Cir.1986) 783 F.2d 1428, 1432, fn. 1.) Thus, if established, it bars prosecution and is more than a denial of a "substantial right" during the preliminary process itself which would render the commitment by the magistrate unlawful within the meaning of section 995, Penal Code, which must be set aside upon timely motion. (People v. Chi Ko Wong (1976) 18 Cal.3d 698, 714-715, 135 Cal.Rptr. 392, 557 P.2d 976; Jennings v. Superior Court (1967) 66 Cal.2d 867, 874-875, 59 Cal.Rptr. 440, 428 P.2d 304.) Defendant has always contended, and contends here, that the use of the contraband and the activity of the police in this "reverse sting" practice precluded his prosecution for possession of cocaine on due process grounds. We do not agree.

A. Use Of The Cocaine

While Officer Qualls' possession of the...