The People v. Dennis
| Decision Date | 12 July 2010 |
| Docket Number | B215124,No. BA343559,BA343559 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. ALVIN CRAIG DENNIS et al., Defendants and Appellants. |
Catherine Campbell, under appointment by the Court of Appeal, for Defendant and Appellant Alvin Craig Dennis.
Holly J. Jackson, under appointment by the Court of Appeal, for Defendant and Appellant James Ray Lee.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and G. Tracey Letteau, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from judgments of the Superior Court of Los Angeles County, Rand S. Rubin, Judge. Reversed with directions.
Defendants, Alvin Craig Dennis and James Ray Lee, appeal from their convictions for sale (Health & Saf. Code, § 11352, subd. (a)) and possession for sale of cocaine base. (Health & Saf. Code, § 11351.5.) Mr. Lee admitted: he was previously convicted of a serious felony (Pen. Code, §§ 667, subds. (a)(1), (b)-(i)); he served five prior prison terms (Pen. Code, 1 § 667.5, subd. (b)); and he had a prior conviction for controlled substance sale. (Health & Saf. Code, § 11370.2, subd. (a).) As to Mr. Lee, the trial court struck all of the section 667.5, subdivision (b) prior prison term and the serious felony enhancements. (§ 1170.12.) Mr. Dennis admitted that he served six prior prison terms (667.5, subd. (b)) and committed a prior serious felony. (§ 1170.12) As to Mr. Dennis, the trial court struck the prior serious felony and all but three of the prior prison term enhancements.
Mr. Lee argues the trial court improperly denied his motion to compel production of peace officer personnel records. Mr. Dennis argues the trial court improperly: denied his motion to compel production of peace officer personnel records; sustained the prosecutor's official privilege claim concerning an observation post; and admitted opinion testimony. Mr. Dennis further argues there was insufficient evidence to support the jurors' implied finding a usable amount of cocaine base was recovered. We conditionally reverse the judgments so the trial court may conduct an in camera hearing and review peace officer records for evidence of untruthfulness and determine if disclosure is necessary, whether there is sufficient prejudice to permit reversal. If the judgments are reinstated, the fines must be enhanced with additional assessments, a penalty, a surcharge and fees.
We view the evidence in a light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Elliot (2005) 37 Cal.4th 453, 466; Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) At approximately 3:50 p.m. on July 14, 2008, Los Angeles Police Officer George Mejia was working with the central narcotics enforcement detail in the skid row area. Officer Mejia and an individual identified only as Officer Alvarado were working in the area of San Julian Street between Fifth and Sixth Streets. The officers were watching for narcotics transactions. Officer Mejia was in an observation position approximately 20 feet from ground level on the east sidewalk of San Julian Street. Officer Mejia was using binoculars.
Officer Mejia saw Mr. Zappia on the west side of San Julian Street approximately 20 to 30 feet north of Sixth Street. Mr. Zappia, a white male approximately 35 to 40 years old, was wearing a white T-shirt and dark pants. Mr. Zappia approached Mr. Lee, who was wearing a black and brown shirt and blue shorts. After a brief conversation, Mr. Lee and Mr. Zappia walked northbound on San Julian Street. Mr. Zappia handed Mr. Lee some green paper currency. Officer Mejia observed this with his binoculars when they were approximately 60 to 70 feet away. Officer Mejia was able to see Mr. Lee's and Mr. Zappia's faces as they walked toward San Julian Street. Mr. Lee and Mr. Zappia walked further northbound to a black iron fence where they met Mr. Dennis. Mr. Lee handed the green paper currency to Mr. Dennis. Officer Mejia's binoculars allowed him to see this transaction from approximately 40 to 50 feet away. Mr. Dennis put the currency in his left front pants pocket. After a brief conversation, Mr. Dennis pointed across the street in an eastbound direction toward the mission.
Mr. Lee and Mr. Zappia walked across the street where they met another African-American male. After a brief conversation, the African-American male reached into his pants pocket and removed a plastic bindle. The unidentified man handed the plastic bindle to Mr. Lee. Officer Mejia was approximately 20 feet away from where thisactivity took place. With his binoculars, Officer Mejia could see the bindle to be clear plastic with numerous off-white solid rocks resembling cocaine base inside. Mr. Lee and Mr. Zappia walked back across the street to where Mr. Dennis stood. Mr. Lee ripped open the clear plastic bindle and gave one of the off-white solids to Mr. Zappia. Mr. Zappia took the off-white solid and placed his hand in his pocket. Mr. Zappia began walking southbound on San Julian Street. As soon as he saw the drug transaction, Officer Mejia alerted his team to make the arrest.
Officer David Chapman was working with the narcotics team as a "plain clothes" chase officer. Officer Chapman and an officer identified only as Officer Avila were working in an unmarked police car on July 14, 2008. They were directed to detain and arrest a white male, Mr. Zappia, who was involved in the transaction. Within 30 seconds, Officers Chapman and Avila detained Mr. Zappia at Sixth and San Julian Streets. Officer Mejia confirmed they had detained the right person. Officer Avila searched Mr. Zappia. Officer Avila found an off-white solid resembling rock cocaine in Mr. Zappia's left pants pocket.
Officer Thomas Brown and another officer identified only as Officer Trejo were also working as narcotics team chase officers on July 14, 2008. Officer Mejia gave the officers a description of Mr. Lee. Officer Mejia informed them that Mr. Lee was involved in a narcotics transaction. Officers Brown and Trejo detained Mr. Lee on San Julian Street between Fifth and Sixth Streets across from the mission. Mr. Lee was handcuffed. Officer Brown noticed Mr. Lee's hand held an object. Officer Brown took the item, a clear plastic object that contained white solids that were consistent with rock cocaine. Officer Trejo recovered currency totaling $34 from Mr. Lee's breast pocket, including a 10-dollar bill, 3 five-dollar bills, and 9 one-dollar bills. A glass rock cocaine pipe was also found in Mr. Lee's front waistband area. The small bills were consistent with denominations recovered from those arrested for drug possession in the area. It was also common for those who engage in narcotic sales in the area to also use drugs.
Officer Paul Valencia was also working as a chase officer with the narcotics enforcement team on July 14, 2008. Officer Valencia was wearing a uniform and driving a black and white patrol car. Officer Mejia signaled Officer Valencia to apprehend Mr. Dennis. Mr. Dennis was detained on San Julian Street north of Sixth Street near a black iron gate. Officer Valencia confirmed with Officer Mejia that the correct individual had been detained. Officer Valencia searched Mr. Dennis. Officer Valencia recovered: a plastic container from Mr. Dennis's right front pocket; $116 from Mr. Dennis's left front pants pocket, including five 20-dollar bills, a single 10-dollar bill, and six one-dollar bills; and two glass pipes from Mr. Dennis's sweatshirt front pocket. Officer Valencia had been a police officer for 15 years. In Officer Valencia's experience, the items in Mr. Dennis's possession were consistent things possessed by traffickers involved in street level drug sales.
Detective Arthur Gamboa was an undercover narcotics detective assigned to the central division narcotic enforcement detail. Detective Gamboa and a partner, identified only as Detective Kitsmer, were working undercover on July 14, 2008 in an unmarked police car. Detective Gamboa received a signal from Officer Mejia to detain Mr. Bishop, who was on the east sidewalk in front of the Union Rescue Mission. Detective Gamboa detained Mr. Bishop. Detective Gamboa then searched Mr. Bishop. Detective Gamboa recovered $9 from Mr. Bishop in the denominations of one, five, and four one-dollar bills.
Officer Mejia believed that Mr. Dennis was working in concert with others to sell cocaine base. Officer Mejia based that opinion on the fact that Mr. Dennis received money from Mr. Lee, who had accepted the cash from the buyer. Mr. Dennis then directed the buyer and Mr. Lee to another individual. That person handed Mr. Lee the cocaine base. Thereafter, there was an exchange of narcotics between Mr. Lee and Mr. Zappia. Although Mr. Dennis never touched the cocaine, he did take the currency used to purchase it. Officer Mejia believed Mr. Lee possessed the cocaine base purchased from Mr. Bishop for purposes of sales. Mr. Lee accepted the narcotics from Mr. Bishop and then gave the drugs to the buyer who had initially provided the money. In his experience in the area of the Fifth Street corridor, Officer Mejia was aware that those who sell drugs often also use narcotics. Oftentimes, narcotics dealers involve those who use drugs to sell the contraband to others. In return, the dealers give the individuals narcotics for their own use. It is also common for those the police stop for drug sales in the area to have cocaine pipes in their possession. Those who sell narcotics on skid row often wrap their cocaine rocks in clear plastic. The parties stipulated that the single white solid item recovered from Mr. Zappia's pocket was found to contain cocaine base, weighing 0.13 grams net. The parties also stipulated that the white...
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