People v. Wiley, No. F057133 (Cal. App. 5/6/2010), F057133.
| Decision Date | 06 May 2010 |
| Docket Number | No. F057133.,F057133. |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. ODIS WILEY, JR., Defendant and Appellant. |
Appeal from a judgment of the Superior Court of Kern County, No. BF22997A, Kenneth C. Twisselman, II, Judge.
John Steinberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Kathleen A. McKenna and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
The United States Drug Enforcement Administration (DEA) identified appellant as a suspected cocaine base trafficker and obtained authorization to wiretap his phone. More than 1,300 of appellant's calls, both incoming and outgoing, were recorded during a 30-day span from mid-February to mid-March of 2008. The DEA agent in charge of the investigation testified that 276 of these 1,300-plus calls pertained to drug sales. A jury found appellant guilty of transporting cocaine base (Health & Saf. Code, § 11352, subd. (a); count 1),1 three counts of possession of cocaine base for sale (§ 11351.5; counts 2, 4 and 6), and seven counts of selling or offering to sell cocaine base (§ 11352, subd. (a); counts 3, 5, 9, 10, 11, 12 and 13). The jury acquitted appellant on one count of selling or offering to sell (count 7) and on one count of possession for sale (count 8). The court sentenced appellant to a total prison term of 10 years and four months. This consisted of a five-year upper term on count 1, plus four 16-month terms (one third of the four-year middle term) on counts 5, 9, 12 and 13. The terms imposed on other counts were either ordered to be served concurrently or stayed under Penal Code section 654.
Appellant's jury heard (and had written transcripts of) several recorded telephone conversations between appellant and his alleged customers. Although some of these recorded conversations were found by appellant's jury to include offers by appellant to sell cocaine base (also known as rock cocaine or crack cocaine), a conclusion which certainly seems reasonable given the content of those conversations (as we shall explain in more detail below), in some instances appellant's purported customers were stopped by police shortly after meeting with appellant and no cocaine base was found in their possession. On this basis appellant challenges the sufficiency of the evidence to support his convictions on five counts of selling or offering to sell cocaine base. As we shall explain, however, the law is well established that the crime of offering to sell cocaine base is committed when the offer to sell is made, and a subsequent actual sale need not be proven in order for a defendant to be convicted of offering to sell.
Appellant first contends that his convictions on counts 9 through 13 for selling or offering to sell cocaine base are not supported by substantial evidence. Second, he contends that admission into evidence of a hearsay statement of one of his purported customers (Shirley Sanders) violated his constitutional right to confront a witness against him, or alternatively that his trial counsel's failure to object to Sanders's hearsay statement violated his federal constitutional right to the effective assistance of counsel. Third, he contends that his five-year upper term on count 1violated his federal constitutional right to a jury trial. As we shall explain, applicable law does not support any of these contentions.
On February 15, 2008, DEA agents intercepted phone calls between Shirley Sanders and appellant, and between Bridget Vaughn and appellant. Vaughn said she was "tryin[g] to see some [] CDs." Sanders asked for "DVDs." No specific CD or DVD was mentioned. The DEA case agent opined CD and DVD were coded talk for cocaine base. Appellant arranged to meet Vaughn and Sanders at a fitness club/gym.
DEA agents and Bakersfield police officers then set up surveillance of the location. They observed the following: appellant exit the gym; Vaughn drives up and parks next to the gym; appellant gets into her car and stays inside for about 30 seconds to a minute; then, he gets out and goes back inside the gym. About five to 10 minutes after Vaughn left, the surveillance team observed the following: Sanders drives up and parks by the gym; appellant exits the gym and walks to Sanders's car; appellant reaches into his waistband and removes an object; he then gets into Sanders's car; after a few minutes, he gets out.
A marked Bakersfield police vehicle stopped Sanders's car though no drug was found, Sanders later admitted — after being arrested on July 13, 2007 — that she ate the plastic baggie of cocaine base prior to the officer walking up to her car during the February 15, 2008, stop. She also admitted buying user quantities of cocaine base from appellant for about one year.
A DEA agent recalled Vaughn's car was stopped as well, but no drugs were found in her possession.
Count 12
On February 20, 2008, DEA agents intercepted phone calls between Shabazz Muhammed and appellant. Appellant asked Muhammed if he wanted "one of them movies." Muhammed said he wanted "two." No specific movie was mentioned. The DEA case agent opined "movies" was coded talk for cocaine base. Appellant arranged to meet Muhammed at the fitness club/gym.
DEA agents and Bakersfield police officers then set up surveillance of the location. They observed the following: appellant arrives in his truck; he gets out and walks into the gym; Muhammed arrives in his car; Muhammed gets out and walks into the gym; a few minutes later, Muhammed exits the gym and gets back into his car and drives off.
A marked Bakersfield police vehicle stopped Muhammed's car. No drugs were found on Muhammed or in his car.
Count 11
On February 23, 2008, DEA agents intercepted phone calls between Donte White and appellant. Appellant asked White, "how many of them outfits you trying to get?" White said, "two of them." No specific type of outfit was mentioned. The DEA case agent opined "outfits" was coded talk for cocaine base. Appellant arranged to meet White at a Wing Stop fast food restaurant.
DEA agents then set up surveillance of the location. They observed White's car drive into the restaurant parking lot. As appellant's truck approached the area, DEA agents intercepted another phone call wherein appellant and White changed the meeting place to a nearby McDonald's. The surveillance team followed White's car. DEA agents observed appellant's truck parked in McDonald's parking lot. White pulled into the parking lot. White then got out of his car, walked to appellant's truck, opened the passenger side door, and got into the truck. A few minutes later, White got out of the truck and walked back to his car and drove away.
Due to unavailability then of a marked police vehicle, White's car was not stopped.
Count 13
DEA agents intercepted phone calls between Misty Garcia and appellant. Appellant asked Garcia if she wanted "that same outfit." Garcia replied," Yea, yea, yea." Again, the reference to outfit was nonspecific. On February 24, 2008, they agreed to meet at the Valley Plaza Mall.
DEA agents and Bakersfield police officers set up surveillance of the location. They observed appellant's truck parked in the mall parking lot. Garcia walked toward and got into the truck. About five minutes later, she got out of the truck and went back into the mall.
A uniformed Bakersfield police officer stopped and searched Garcia. Though no drugs were found on her, inside her purse were a scale and a large sum of money.
On February 25, 2008, DEA agents intercepted phone calls between Milton Harling and appellant. Harling said to appellant, "[S]ee I don't want to spend it, that's what I'm saying, I'm ready for you ...." the DEA case agent explained that Harling was indicating that he had money to spend for cocaine base, that he did not want to spend the money on anything else but the drug, and that he wanted the drug now. Appellant arranged to meet Harling at a car shop.
DEA agents and Bakersfield police officers set up surveillance of the location. They observed Harling's car arrive. Harling got out and walked to appellant's truck. He went into the truck. About 10 to 15 seconds later, Harling got out and got back into his car. Harling then drove away.
A marked Bakersfield police vehicle stopped Harling's car. The officers approached, and then asked Harling to step out of the car. The officers searched Harling and located a small amount of marijuana. When the officers tried to arrest Harling, Harling put something into his mount. A struggle ensued. The officers saw a substance inside Harling's mount, and a white film covered Harling's lips. Harling eventually spat the substance onto the driver side seat and floorboard.
The substance was tested and determined to be cocaine base.
DEA agents intercepted phone calls between John Porter and appellant. In one call, Porter asked appellant if he had "three of them DVDs." Appellant replied, "So is that what you want, three of them movies." In another call, Porter asked, "[H]ow many DVDs you got with you?" Appellant replied, "[A]ll I got is — with me is ... one of them DVD and one of them little small CDs." In another call, Porter said to appellant, "I'm just gonna grab ... two of those DVDs." Again, the references to CD and DVD were nonspecific. They arranged to meet on February 27, 2008, at a side street by a park.
DEA agents and Bakersfield police set up surveillance of the location. They observed appellant's truck park on the street. A few minutes later, Porter's car drove by. Appellant and Porter then drove their vehicles in tandem into a cul de sac. Three to four...
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