NOT TO BE PUBLISHED IN OFFICIAL REPORTS IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE A105693

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1 Filed 3/9/05 P. v. Ramirez CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE THE PEOPLE, Plaintiff and Respondent, v. ERNESTO RAMIREZ, Defendant and Appellant. A (San Francisco County Super. Ct. No ) Ernesto Ramirez (Ramirez) appeals from a judgment entered after a jury convicted him of possession of heroin and possession of heroin for sale. (Health & Saf. Code, 11350, ) He contends: (1) his motion to suppress evidence should have been granted, because he was detained and subsequently searched in violation of his Fourth Amendment rights; (2) the trial court erred in admitting hearsay testimony in violation of his Sixth Amendment right to confront and cross-examine adverse witnesses; (3) a police officer was permitted to testify that another officer s testimony was accurate; (4) the trial court misstated the facts and law in responding to the jury s questions; (5) the court erred in rejecting a defense instruction on the elements of Health and Safety Code section (CALJIC No ); (6) his trial lawyer rendered ineffective assistance of counsel; (7) cumulative errors require reversal; and (8) his conviction of Health and Safety Code section must be reversed because it is a lesser included offense of Health and Safety Code section

2 We agree that Ramirez s conviction under Health and Safety Code section must be stricken as a lesser-included offense. We otherwise affirm the judgment in all respects. I. FACTS AND PROCEDURAL HISTORY By information Ramirez was charged in count one with possession of heroin with intent to sell (Health & Saf. Code, 11351) and in count two with possession of heroin (Health & Saf. Code, 11350). As to count one, it was alleged that Ramirez possessed for sale more than grams of heroin (Pen. Code, , subd. (a)(1)). Ramirez filed a motion to suppress certain evidence pursuant to Penal Code section As we will discuss post, Ramirez claimed that the evidence seized from his person including heroin and related items was obtained as a result of an unlawful detention and search. His motion was denied, and the matter proceeded to trial before a jury. A. PROSECUTION EVIDENCE At approximately 6:00 p.m. on April 15, 1998, Inspector Lawrence Mack of the San Francisco Police Department s narcotics division, along with Inspector Martin Halloran, Sergeant Murphy and Officer Medina, arrived at the Ramada Inn on Seventh Street in San Francisco to serve warrants for the arrest of a man named Scott Stokes. The warrants were for burglary and possession of narcotics. Stokes was believed to be staying in Room 100. The officers entered Room 100 and found Stokes sitting on the bed, counting money. On Stokes s lap was a crinkled piece of aluminum foil with brown residue, suspected to be heroin. Heroin was also on the bed. In addition, Stokes had 20 American Express gift cards each with a $100 value, $711 in cash, a Rolex watch, and two Gucci watches. Room 100 is on the ground level of the hotel, set back from the street, with a bathroom window facing onto the hotel parking lot. While in Stokes s room, Inspector Halloran heard tapping on the bathroom window. The inspectors left Stokes s room and walked down the hotel hallway towards the pass-key door leading to the parking lot. As 2

3 soon as they opened the door, they saw Ramirez standing in the parking lot by the door, less than 20 feet from Stokes s bathroom window. It appeared he was attempting to enter the hotel through the pass-key door. No one else was in the parking lot. Inspector Mack asked Ramirez if he was staying in the hotel. Ramirez responded he was visiting a friend, Steve Reynolds, but stated he was not sure what room Reynolds was staying in. Inspector Mack found it odd that Ramirez did not know Reynolds s room number and was trying to enter the hotel from a side entrance without the required pass key. The officers identified themselves, and Ramirez stepped back and nervously looked around the parking lot. Ramirez consented to a search of his person. From a plastic bag in his rear pants pocket, six small baggies of heroin were seized that together weighed 2.53 grams. A bag with 22 bindles of heroin weighing a total of 9.7 grams was in his jacket pocket. Another bag with 28 bindles of heroin totaling grams of heroin was also found in his jacket. In his sock were two heroin bindles weighing 1.09 grams. In all, Ramirez was in possession of over 25 grams of heroin. Also in his possession were sandwich baggies, a pair of scissors, a plastic scale containing heroin residue, a pager, and $320. He did not have a syringe or other paraphernalia for ingesting heroin. The officers placed Ramirez under arrest and, when they attempted to place his arms behind his back, Ramirez resisted violently and broke free momentarily. In Ramirez s wallet, the police found two pieces of paper, each with six names and a number beside each name. At trial, Inspector Mack described the papers as pay-owe sheets, which narcotics dealers use to keep track of those who owe them money for drugs. The name Scott appeared on each sheet of paper. Across from that name was the number 755. Scott Stokes was counting out $711 when the police entered his room. Based on the evidence seized from Ramirez and from the hotel room, Inspector Mack believed Ramirez was at the hotel to deliver drugs rather than to receive drugs. Moreover, based on his experience with thousands of narcotics cases, Inspector Mack had never had a case where a user, as opposed to a dealer, had in his possession 56 bindles of 3

4 heroin that were individually wrapped, along with a scale, pay-owe sheets, and no drug paraphernalia. There was heroin residue on the scale seized from Ramirez, Inspector Mack explained, because narcotics dealers commonly weigh their drugs on a scale before selling them. In addition, Inspector Mack testified, to his knowledge no one executed a search warrant for Ramirez s home and he did not recall Ramirez s car being searched. In Mack s experience, narcotics dealers normally will not tell users where they live or let users visit their homes because they are afraid of being ripped off. Inspector Halloran testified as an expert as to possession of heroin for sale. After agreeing that Inspector Mack s testimony accurately described what Halloran had seen as well, Halloran opined independently that Ramirez had possessed heroin for purposes of sale. The factors considered in this determination, Halloran explained, include the weight of the heroin in the suspect s possession, whether the heroin was individually wrapped in preparation for street sales as opposed to bulk form, and whether the suspect also had paraphernalia for ingesting the narcotic, a large amount of cash in small denominations, pay-owe sheets, a communication device such as a pager, or material for packaging the narcotics. By way of elaboration, Halloran added that street dealers commonly package narcotics in clear plastic bindles for easy concealment and ingestion by their customers. Dealers also typically carry a scale, to provide a consistent amount of narcotic for each package. Based on these criteria, Halloran opined that Ramirez possessed the heroin for sale. The fact that the heroin on his person weighed over 25 grams indicated possession for sale. While an individual wanting that much heroin for personal use would more likely purchase it in bulk form to minimize the cost, Ramirez s heroin was separated into bindles. The heroin was similarly and consistently packaged, placed in clear plastic bindles, and tied off at the top, with the top cut off. The fact that Ramirez did not have any paraphernalia for ingesting narcotics also indicated that he possessed the heroin for sale. His possession of a pair of scissors and clear plastic baggies suggested he was packaging the heroin on the street and cutting off the plastic bindles at the top. The two 4

5 pieces of paper in Ramirez s wallet were pay-owe sheets commonly used by narcotics dealers to show who owes them money for narcotics. In addition, Halloran noted, the fact that Stokes had heroin on his lap, there was a knock on Stokes s window, and Ramirez was the only person in the parking lot, pointed to Ramirez as a dealer as well. B. DEFENSE EVIDENCE Ramirez testified that he was not a drug dealer. Rather, he was working as a painting contractor when he became addicted to heroin about seven months before his arrest. He had purchased a large quantity of heroin, because he was going to visit his mother in Texas for a month. At the time of his arrest, he was using about a gram of heroin each day. On April 14, 1998, Ramirez explained, his friend Steve Reynolds promised to hook him up with a dealer who could give him a better deal on heroin. Reynolds, like Ramirez, was a heroin addict. Reynolds said his source would sell him a Mexican ounce (25 grams) for the bargain price of $550. Although Ramirez usually purchased heroin every day, this deal would save him about $450, and the heroin would last him throughout his stay in Texas. They agreed to meet the next morning at the Ramada Inn parking lot. The next morning (the day of his arrest), Ramirez met Reynolds at the Ramada Inn. Reynolds was staying there with some friends, but the room was not registered in his name. Reynolds connected Ramirez with Jose, from whom Ramirez bought the 25 grams of heroin. Ramirez borrowed a scale and a pair of scissors from Reynolds, and went to a friend s house to weigh and separate the heroin into sandwich baggies, so he would not overdose. Ramirez had arranged to meet with Reynolds again that evening at the Ramada Inn parking lot, so they could bid on a construction and painting job. Ramirez stored two little bags of heroin in his socks because he planned to share it with Reynolds after bidding for the job. Ramirez was late due to traffic, however, and by the time he arrived Reynolds was not in the parking lot. He looked around for Reynolds but did not know his room number. He decided to knock on a window, thinking, wondering or 5

6 hoping it would be Reynolds s room, so he could return Reynolds s scissors and scale. Four undercover police officers came out of the hotel and asked if they could search him. He refused, but they searched him anyway. He resisted when one of the officers grabbed him by the neck. Contrary to the inspectors recollection, Ramirez testified that the officers searched his car as well. Ramirez claimed that the two pieces of paper with names and numbers indicated the amounts of money he had loaned to people who helped him with his painting jobs. Coincidently, one of his employees who owed him money was named Scott. C. JURY QUESTION, VERDICT, AND SENTENCE The day after the case was submitted to the jury, the jury sent a question to the court inquiring how it should reconcile the differences in testimony regarding the search of Ramirez, the [l]ack of search of car/home, and whether the jury should consider these issues in reaching their verdict. The court reread certain instructions and further directed the jurors that the search issues had been resolved by the court and were not for them to consider. The jury resumed deliberations, and within 30 minutes returned a verdict of guilty on both counts. Ramirez was granted probation for three years on the condition that he serve 99 days in county jail, with credit for time served, participate in drug testing and counseling, and obey all laws. Sentence on count two was stayed pursuant to Penal Code section 654. This appeal followed. II. DISCUSSION We consider each of Ramirez s arguments in turn. A. MOTION TO SUPPRESS EVIDENCE Ramirez argues that the evidence seized from his person was the result of an unlawful search and detention, because the police lacked reasonable suspicion to detain him. He therefore contends the trial court erred in denying his motion to suppress. In reviewing the denial of a suppression motion, We defer to the trial court s factual findings, express or implied, where supported by substantial evidence. In 6

7 determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. (People v. Glaser (1995) 11 Cal.4th 354, 362.) 1. Evidence at the Motion to Suppress Hearing Inspector Mack s testimony at the hearing was similar to his later testimony at trial. He and Inspector Halloran went to the Ramada Inn to arrest Stokes, who was staying at the motel, on an outstanding burglary warrant. They entered his Room 100 and observed him sitting on the bed counting money. Also on the bed were needles, suspected heroin, and other ingestion paraphernalia. Stokes claimed the heroin on the bed was all he had. According to Inspector Mack, the officers went outside to the hotel parking lot as a result of something Inspector Halloran said. Specifically, Halloran told Mack that he had just heard a knock on the bathroom window, and he wanted to go outside to investigate. 1 As soon as the officers opened the door to the parking lot, Inspector Mack observed Ramirez standing by the door. To gain entrance to the motel through this door, a pass key was required. The door was about 20 feet from Room 100 s bathroom window, and there was no one else in the parking lot other than Ramirez. The parking lot was not fully enclosed. The officers asked Ramirez where he was going, and he responded by saying he was seeing a friend, Steve Reynolds. Ramirez added that he was not sure what room Reynolds was in. According to Inspector Mack s testimony, the officers at that point detained Ramirez: Q. What happened next [after Ramirez said he was not sure what room Reynolds was in]? [ ] A. At this point myself and Inspector Halloran, who s with me, detained the defendant. [ ] Q. And, Officer Mack, prior to this time, had you 1 Only Inspector Mack testified at the hearing. His testimony as to Inspector Halloran s statement was tentatively admitted under the present sense impression exception to the hearsay rule. (See Evid. Code, 1241 [contemporaneous statements].) Subsequently, the court indicated the statement was not admitted for its truth. 7

8 identified yourselves as police officers? [ ] A. No. [ ] Q. Were you in plainclothes or uniform? [ ] A. Plainclothes. [ ] Q. And so prior to that time, when you detained him, had you done anything to displayed any weapons, stars, or any kind of identification? [ ] A. No. [ ] Q. And, Officer, why is it that you and when you say detained the defendant, what did you actually do? [ ] A. We prevented the defendant from going through that door, and identified ourselves as police officers. (Italics added.) In identifying themselves, the officers produced their police stars as well. At that point, Ramirez took a step back and looked around the parking lot in different directions. One of the inspectors then asked Ramirez for his identification. When Ramirez quickly reached into his jacket pocket, Inspector Halloran grabbed Ramirez s arm. Inspector Mack testified that this was done out of concerns for officer safety. After Inspector Halloran grabbed Ramirez s arm, Inspector Mack asked Ramirez if he had any weapons or drugs. Ramirez said no. Inspector Mack asked Ramirez if he would consent to a search of his person. Ramirez consented by saying, Yeah, go ahead. Inspector Mack then walked behind Ramirez and noticed a plastic bag sticking out of one of Ramirez s rear pants pockets. He pulled the bag out of Ramirez s pocket. The bag contained suspected heroin. Continuing the search of Ramirez s person, the officers found other suspected narcotics. On cross-examination, Inspector Mack confirmed the sequence of events and the point at which Ramirez was detained: Q. Okay. The first thing you asked Mr. Ramirez was what he was doing there, right? Just in terms of the order of how things went? [ ] A. Yes. Something to that effect, yes. [ ] Q. He told you he was visiting a friend; correct? [ ] A. Correct. [ ] Q. You asked him who he was visiting? [ ] A. Yes. [ ] Q. And he told you Steve Reynolds? [ ] A. Correct. [ ] Q. You asked him in what room Steve Reynolds was staying? [ ] A. I believe so, yes. [ ] Q. He told you he didn t know which room he was in? [ ] A. Correct. [ ] Q. At that point you detained him? [ ] A. Yes. [ ] Q. And after you detained him, you asked him for identification? [ ] A. Correct. [ ] Q. And after you asked him for identification, he went to produce 8

9 identification, and that was when Officer Halloran put his hands on him? [ ] A. Correct. (Italics added.) When asked why they decided to detain Ramirez, Inspector Mack testified: Well, it seemed his response to who he was seeing was delayed. And it seemed odd that two things he didn t know what room this person was staying in; and, two, why wasn t he going through the front part of the hotel, as opposed to going through this parking lot entrance, without a pass key? That seemed odd. [ ] We were in the midst of a burglary investigation on a wanted subject. Later, Inspector Mack testified: Well, again, I found it kind of odd that he didn t know the defendant did not know which room this Steve Reynolds was staying in. He did not have a pass key to go through this door, which I found would be odd to go through unless you re staying in one of the rooms down in that immediate hallway. [ ] And it was apparent to me that since he didn t have a key, he wasn t a guest there, and he admitted he was just visiting somebody, I would think he would normally go through the front door of the hotel, call the person up, or have a prearranged meeting of some sort. I found that kind of odd. When asked why he thought it suspicious that Ramirez was trying to enter through the back of the Ramada Inn, he explained: For one, you need a pass key to get through that door; he didn t have one. In fact, he didn t know what room his alleged friend was staying in, and it s just an odd entrance from that hotel to enter. 2. Was There a Detention? For purposes of the Fourth Amendment to the United States Constitution, a citizen is detained (or seized ) by police if he is physically held or submits to a display of authority that would indicate to a reasonable person he is not free to leave. (California v. Hodari D. (1991) 499 U.S. 621, (Hodari D.); People v. Harris (1986) 184 Cal.App.3d 1319, 1321.) An officer s request for identification, other routine inquiry, or even a request for consent to a search does not necessarily transform a consensual encounter into a detention. (See, e.g., People v. Daugherty (1996) 50 Cal.App.4th 275 (Daugherty); People v. Galindo (1991) 229 Cal.App.3d 1529, 9

10 ; People v. Gonzales (1985) 164 Cal.App.3d 1194, ; People v. Juarez (1973) 35 Cal.App.3d 631, 635.) According to Inspector Mack s testimony, the officers detained Ramirez at the point they prevented the defendant from going through that [hotel] door, and identified [themselves] as police officers. However, an officer s state of mind as to when a detention began is immaterial, except insofar as his overt actions would communicate this state of mind to the defendant. (People v. Ross (1990) 217 Cal.App.3d 879, 884.) Notwithstanding Inspector Mack s conclusion, the evidence demonstrates that Ramirez was not detained for Fourth Amendment purposes until later, if at all. Even if, colloquially speaking, the officers detained Ramirez by preventing him from entering the hotel, there is no evidence of any display of authority at that time which would lead a reasonable person to believe he could not leave the premises or the officers presence, as by simply turning around and walking out the parking lot. The evidence does not establish a detention at the time of the officers initial contact with Ramirez outside the hotel door. Arguably, a detention occurred when Inspector Halloran subsequently grabbed Ramirez s arm. By that time, the inspectors had identified themselves as police officers and requested to see his identification. Under those circumstances, a reasonable person in Ramirez s position grabbed by someone who has identified himself as a police officer might consider himself not free to leave. (See Hodari D., supra, 499 U.S. at p. 626 [Fourth Amendment seizure occurs when an officer intentionally applies physical restraint to a suspect].) On the other hand, Inspector Halloran held Ramirez s arm for only about five seconds to keep him from reaching into his jacket. While the extremely short duration of Halloran s grasp leaves some doubt whether there was a detention even at this juncture, we will assume for purposes of analysis that a detention occurred when Inspector Halloran grabbed Ramirez s arm. 3. Was the Detention Reasonable Under the Fourth Amendment? For a detention to be lawful under the Fourth Amendment, the officer must be able to point to specific and articulable facts that, giving due weight to the reasonable 10

11 inferences the officer may draw from those facts in light of experience, reasonably warrant the intrusion. (See generally Terry v. Ohio (1968) 392 U.S. 1, 21; People v. Souza (1994) 9 Cal.4th 224, 230.) In particular, an officer may stop and briefly detain a person for questioning or limited investigation if the officer has a reasonable suspicion, based on specific and articulable facts, that (1) some activity relating to crime has taken place or is occurring or is about to occur, and (2) the person he intends to stop or detain is involved in that activity. (United States v. Sokolow (1989) 490 U.S. 1, 7-8; In re James D. (1987) 43 Cal.3d 903, 914; Daugherty, supra, 50 Cal.App.4th at p. 285.) In the matter before us, Inspector Mack found Stokes counting money and possessing heroin and ingestion paraphernalia. A fellow officer said he heard a tapping on the window, at which point the officers went out to investigate and found Ramirez standing outside the locked side door to the hotel, about 20 feet from Stokes s window. There was no one else in the parking lot. Ramirez was trying to enter the hotel through a side entrance, without a pass key, and claimed to be visiting a friend without knowing the room number. When they identified themselves as police officers, Ramirez appeared nervous by taking a step back and looking around the parking lot. When they asked him for identification, Ramirez quickly reached into his jacket pocket, at which point Inspector Halloran grabbed Ramirez s arm for purposes of officer safety. Based on these circumstances, it was reasonable for Inspector Mack to conclude a sale of narcotics or related criminal activity had occurred or was about to occur, and Ramirez was involved in that activity. It was also reasonable for the inspector to grab Ramirez s arm briefly for purposes of officer safety. Ramirez argues that the tapping on Stokes s window should not be considered because the evidence of Inspector Halloran s statement was not admitted for its truth. We do not agree. It is true that the evidence was not admissible for the truth of the matter that there really was a tap on the window but for the non-hearsay purpose of the effect it had on Inspector Mack, in connection with his own observations, by the time he detained Ramirez. In other words, Inspector Halloran s statement about a tap on Stokes s window contributed to Mack s subjective belief that Ramirez was involved in a 11

12 crime that was about to occur, and it also provided an additional articulable fact contributing to the objective reasonableness of his belief. The reasonableness of a detention under the Fourth Amendment may be based on hearsay statements that an officer receives from others, including other officers. (See, e.g., United States v. Hensley (1985) 469 U.S. 221, 232; People v. Ramirez (1997) 59 Cal.App.4th 1548.) Inspector Mack testified to specific and articulable facts sufficient to justify a detention of Ramirez. 4. Ramirez s Consent No unlawful detention precipitated Ramirez s consent to the search of his person. Nor was there evidence at the hearing that the search was not, in fact, consensual. Accordingly, the search of Ramirez s person was lawful, the evidence was lawfully seized, and the motion to suppress was properly denied. B. HEARSAY TESTIMONY REGARDING THE NATURE OF STOKES S WARRANTS In order to bolster its argument that the drugs on Ramirez s person were for purposes of sale, Ramirez argues, the prosecutor elicited evidence that Stokes was wanted for drug possession. In particular, the prosecution queried Inspector Mack about the nature of the warrants for Stokes s arrest: [PROSECUTOR] Why, what specifically was Scott Stokes wanted for? [ ] A. He had a couple of warrants. The primary warrant was a [ ] [DEFENSE COUNSEL]: Objection, relevance. [ ] THE COURT: Overruled. [ ] You can answer. [ ] THE WITNESS: The primary warrant was a burglary warrant. [ ] And in addition to the burglary warrants, he had 2 narcotics warrants. Both those violations was [sic] for possession. [ ] [THE PROSECUTOR]: And when you say possession, do you mean straight possession or possession for sale? [ ] [DEFENSE COUNSEL]: Objection, calls for hearsay. [ ] THE COURT: Overruled. [ ] You may answer. [ ] THE WITNESS: The charges listed on the warrant were only possession charges. Ramirez contends the trial court erred in admitting this testimony. We disagree. 12

13 1. Hearsay Ramirez claims Inspector Mack s testimony that a warrant was issued for the arrest of Stokes for possession of drugs was hearsay, since the warrant was an out-of-court writing by a judge, based on a declaration from another person. (See Pen. Code, 817, subds. (a)(1), (f).) The testimony concerning the arrest warrant, however, was not offered for the truth of the matter asserted. That is, the evidence was not elicited to show there was probable cause to arrest Stokes for possession of drugs, but merely as circumstantial evidence of the officers state of mind, including their reasons for initially going to the Ramada Inn and subsequently investigating the tap on Stokes s window. Because the statement was not offered for its truth, it was not hearsay. (Evid. Code, 1200, subd. (a).) Ramirez relies on People v. Wheeler (1992) 4 Cal.4th 284, (Wheeler), contending that the court in Wheeler upheld the rule that misdemeanor convictions constitute inadmissible hearsay when offered to prove the underlying criminal conduct. Here, however, the prosecutor was not attempting to prove Stokes had possessed heroin on a prior occasion. Wheeler is inapposite and unhelpful to our analysis. 2. Confrontation Clause Ramirez claims the evidence that the warrants were for narcotic possession violated his rights under the confrontation clause, as a testimonial statement under Crawford v. Washington (2004) 541 U.S. 36 [124 S.Ct. 1354] (Crawford). As explained ante, however, the evidence was not admitted for a hearsay purpose. Nor has Ramirez demonstrated that a search warrant against a third party is testimonial evidence against a defendant within the meaning of Crawford. Ramirez fails to establish a confrontation clause violation. 3. Relevance Ramirez next argues it was irrelevant that Stokes s warrant was for straight possession, since it did not tend to prove Stokes was not selling drugs at the time of Ramirez s arrest. 13

14 As discussed, however, the fact that Stokes had warrants for burglary and possession of narcotics was relevant. It explained why the police went to the Ramada Inn and entered Room 100. Further, it was significant that two of the warrants were for narcotics possession, because it suggested Stokes was waiting for his supplier when they observed him counting his money. This, in turn, explained why the officers considered the knock on Stokes s window to be worthy of investigation. Similarly, Ramirez s reference to Evidence Code section 1101, subdivision (a), is unavailing. That section precludes evidence of a person s prior acts if offered to prove he acted on a specified occasion in conformity with those acts. The evidence of the nature of Stokes s arrest warrants, however, was not offered to prove that Stokes possessed narcotics on April 15, but to explain why the police acted as they did. Ramirez has failed to demonstrate error in the admission of evidence concerning the charges underlying Stokes s arrest warrants. 4. Harmless Error Ramirez contends that the facts were equivocal as to whether Stokes was a buyer or seller of narcotics. Whether Stokes was a buyer or seller, however, could not have made the slightest bit of difference to any reasonable juror in light of the mountain of evidence indicating Ramirez indeed possessed heroin for sale. Ramirez had six baggies of heroin (2.53 grams) in his pocket, 50 bindles of heroin (21.91 grams) in two bags in his jacket, and two heroin bindles (1.09 grams) in his sock, for a total of over 25 grams, along with sandwich baggies, scissors, a plastic scale with heroin residue, a pager, $320 cash, and no paraphernalia for ingestion. In his wallet were two pay-owe sheets, one of which just happened to list Scott and 755. (Stokes was counting out $711 when the police entered his room.) Expert testimony, based on thousands of narcotics cases, explained that the amount of heroin Ramirez possessed, its individual wrapping in preparation for street sales, the absence of paraphernalia for his own ingestion, his possession of a large amount of money, and his pay-owe sheets, pager, and packaging material, all led to the conclusion he was possessing the heroin for 14

15 purposes of sale. By any harmless error standard, admitting evidence that Stokes was sought for possession of narcotics would be harmless. C. INSPECTOR HALLORAN S TESTIMONY APPROVING OF INSPECTOR MACK S TESTIMONY Ramirez contends that Inspector Halloran was improperly permitted to testify that Inspector Mack s testimony was accurate. Designated as the investigating officer in the case, Inspector Halloran sat at counsel table during Inspector Mack s testimony. During the direct examination of Halloran, the following exchange occurred: [PROSECUTOR]: Q. Were you on duty on April 15th, 1998? [ ] A. Yes, I was. [ ] Q. And were you in the vicinity of the Ramada Hotel on 7th Street here in San Francisco? [ ] A. Yes. [ ] Q. About 6:00 o clock p.m.? [ ] A. Yes. [ ] Q. Did you hear the testimony today of Inspector Mack? [ ] A. Yes, I did. [ ] Q. And is that an accurate recitation of the facts that you witnessed on the date of this incident regarding the defendant? [ ] [DEFENSE COUNSEL]: Objection, improper question. [ ] THE COURT: It s proper. [ ] You can answer. [ ] THE WITNESS: Outside of comments regarding my weight, it was all correct. (Italics added.) Ramirez challenges Inspector Halloran s testimony on several grounds. First, he contends that Halloran s opinion of the accuracy of Mack s testimony was an inadmissible lay opinion. Not so. Inquiring whether Mack s testimony accurately set forth the facts that you witnessed merely asked Halloran whether he saw the same things that Mack had described. Thus, to the extent Mack had testified about the events of April 15, Halloran was not opining as to Mack s veracity, but merely agreeing with Mack s account of what happened from his own personal knowledge. To the extent Mack had given an expert opinion on whether Ramirez possessed the narcotics for purposes of sale, Halloran was also qualified as an expert in the area. Halloran s 15

16 evaluation of Mack s conclusion in this regard was not, therefore, an inadmissible lay opinion. 2 Next, Ramirez argues that Inspector Halloran s testimony was irrelevant and should have been excluded under Evidence Code section 352 as unduly prejudicial. We question whether defense counsel s assertion at trial that the prosecutor was asking an improper question preserved these specific objections. In any event, Inspector Halloran s testimony was relevant, because it disclosed Halloran s recollection of the key events, albeit in summary form. To the extent Mack s recollection of the events had been challenged on cross-examination, it was certainly relevant for Halloran to testify that he too observed the same thing. Nor was the question unduly prejudicial. Although Ramirez claims it improperly buttressed Mack s credibility, we doubt that the jury would have been prejudicially swayed by the fact that Mack s partner agreed with him. Moreover, it was only one question and answer, compared to the extensive explanation Halloran proceeded to give for his independent conclusion that Ramirez possessed the heroin for purposes of sale. Ramirez additionally argues that Halloran s statement took away the jury s ability to judge the credibility of either witness. We disagree. As mentioned, Halloran did not opine on Mack s truthfulness or the veracity of Mack s testimony, but simply stated that he perceived the same events. Moreover, the jury was not instructed that Mack s testimony was true or accurate; to the contrary, the jury was free to accept or reject the testimony of both Mack and his partner Halloran. 2 The matter before us is distinguishable from People v. Zambrano (2004) 124 Cal.App.4th 228, 238 (Zambrano). In Zambrano, the court held it was improper for a prosecutor to ask a defendant on cross-examination whether the police officers were lying, because the question merely forced defendant to opine, without foundation, that the officers were liars. (Id. at pp. 241, 243.) In the matter before us, Inspector Halloran was not opining, without foundation, on whether Mack was testifying truthfully. Inspector Halloran merely agreed with Mack s descriptions, based on his own personal knowledge and observation, of the events at issue. 16

17 Lastly, Ramirez contends he was deprived of his right to confront and cross-examine Inspector Halloran because, by merely adopting Inspector Mack s testimony as his own, Halloran, in effect, was not examined and, therefore, there was no testimony by Inspector Halloran which could be subjected to cross-examination. This contention is frivolous. Halloran took the stand. Ramirez through defense counsel had the opportunity to cross-examine Halloran on his testimony including his adoption of his partner s testimony. Ramirez s counsel did, in fact, conduct an extensive cross-examination of Inspector Halloran (as well as Inspector Mack). There was no confrontation clause violation. Ramirez asserts that the result here is analogous to the result in In re Kentron D. (2002) 101 Cal.App.4th 1381 (Kentron). Kentron, however, is not even close to the matter at hand. There, at a juvenile probation revocation proceeding, the prosecution submitted evidence solely in the form of a written report, which contained probation officers written descriptions of alleged misconduct. (Id. at pp ) The probation officers were available as witnesses, but did not take the stand; as a result, neither they nor their statements were subject to cross-examination. (Id. at pp ) Here, Inspectors Halloran and Mack were actually cross-examined. The prosecutor s question of Inspector Halloran was technically improper in form, in that it was compound and appeared to call for a narrative response. These particular objections, however, were not specifically made. And even if they had been, any error in permitting the question and answer would have to be considered harmless in light of the overwhelming evidence against Ramirez, which we set forth ante. Ramirez has not established reversible error. D. TRIAL COURT S RESPONSE TO THE JURY S QUESTIONS Ramirez next maintains the trial court misstated facts and law in responding to the jury s questions during deliberations. At trial, Mack testified that Ramirez consented to a search of his person, while Ramirez testified he did not. In addition, defense counsel elicited testimony that the police did not conduct a search of Ramirez s house, which led to his argument that 17

18 Inspectors Mack and Halloran would have conducted such a search if they really thought Ramirez was a drug dealer. Further discrepancies were elicited as to whether Ramirez s car was searched. After deliberations began, the jury sent a note to the court asking: How do we reconcile: [ ] 1) Differences in testimony (i.e. Mack and Ramirez testimony regarding consent for search)? [ ] 2) Lack of search of car/home? [ ] 3) Are questions 1 & 2 allowed in our final consideration? After conferring with counsel, the trial court told the jurors: Regarding the search issues, there was a prior hearing in court on these issues, and the matter was analyzed and resolved. Those issues were resolved by the court. Those issues are not issues for this jury to consider. The court then reread CALJIC Nos (reasonable doubt), 2.62 (adverse inferences from defendant s testimony), (Health & Saf. Code, 11351), (Health & Saf. Code, 11350), 3.31 (concurrence of specific intent), and 2.20 (believability of witnesses). The court added: So hopefully this will get you back to focusing on the issues of the case and possibly you will be able to proceed with that. So we will send you out for further deliberations. Outside the presence of the jury, defense counsel and the trial court engaged in the following colloquy: [DEFENSE COUNSEL]: Good afternoon, your honor. [ ] I wanted to address the question raised by the jurors. And I have a problem with one thing that the court told them. [ ] THE COURT: Yes. [ ] [DEFENSE COUNSEL]: And I wanted to put it on the record in terms of my objection [ ] THE COURT: Sure. [ ] [DEFENSE COUNSEL]: As follows, the issue about how [do] we reconcile the lack of search of the car and home. [ ] Without intending to, I think the court may have ever so slightly misled the jurors because the issue of the fact that there was no search of Mr. Ramirez s car or home was not something that was ever dealt with in a suppression hearing. It certainly wasn t an issue because I think we both agreed there was no evidence at that time of a search of the car. [ ] The first time that there was evidence of the search of the car was when my client testified, which he didn t do at the suppression hearing. [ ] I understand that that might seem like a sub-issue of other things, but the fact of the matter is that that issue was never resolved in any way, shape or form. [ ] And the 18

19 fact of whether or not there was a search of Mr. Ramirez s home, I think we both agree there was no search of his home. [ ] So that issue was never resolved in front of the court or anything else. [ ] THE COURT: Uh-huh. [ ] [DEFENSE COUNSEL]: I understand why the court gave the instruction it did. [ ] THE COURT: Okay. [ ] [DEFENSE COUNSEL]: But I object to it. [ ] THE COURT: Anything else? [ ] [PROSECUTOR]: No. [ ] THE COURT: Those were not issues for this jury to decide. [ ] [T]he search of the house and car, which had no relationship to the issues of this case. So obviously there is no error. The court s response to the jury s questions may have been inapt, but it did not constitute reversible error. The jury asked, essentially, (1) how to reconcile differences in testimony and (2) whether they could consider differences in testimony and the lack of a search of Ramirez s house in reaching their verdict. The court addressed how to reconcile differences in testimony by reading CALJIC No The court also addressed what could be considered in reaching a verdict by re-reading the instructions on reasonable doubt, burden of proof, and the elements of the charged crimes. Re-reading instructions responsive to the jury s question, without elaboration, was permissible under these circumstances. (See People v. Moore (1996) 44 Cal.App.4th 1323, 1331; People v. Hill (1992) 3 Cal.App.4th 16, ) As Ramirez points out, the trial court stated that the search issues had already been considered by the court and were not to be considered by the jury, suggesting that the absence of a search of Ramirez s house and discrepancies surrounding a purported search of his car could not be considered in deciding whether Ramirez was guilty. It is this instruction that Ramirez contends was factually inaccurate and deprived him of his defense. For example, he suggests, the jurors could have found that the inspectors decision not to search his house supported an inference that they were not convinced he possessed heroin for sale. Although what the inspectors believed is generally immaterial 3 We might have added CALJIC No , which pertains specifically to discrepancies in testimony. No objection was made to the absence of this instruction. Under the circumstances of this case, the omission, if erroneous, was harmless. 19

20 to whether he is guilty of the crime, their decision not to search his house might arguably detract from their testimony that the drugs and related items on Ramirez s person indicated he was a drug dealer: i.e., if they didn t search his house, they must not have thought he was possessing drugs for sale, so how could they now testify to that conclusion at trial? Ramirez did not object on this specific ground at trial. Although defense counsel disagreed with the court s statement that all the search issues had previously been resolved by the court, counsel did not assert that the court s instruction precluded the jury from considering his defense. We will, however, proceed to evaluate his arguments on the merits. (See Pen. Code, 1259.) Under any harmless error standard, we conclude that the trial court s error, if any, in dissuading the jury from considering matters pertaining to a search of Ramirez s house or car was harmless. 4 The defense argument in this regard was weak: whether the officers searched his car, and their reasons for not searching his house, by no means undermine the significance of the heroin and other incriminating evidence found on his person. Indeed, the logical inference to be drawn from the evidence is that the inspectors did believe Ramirez possessed the heroin for purposes of sale (since they booked him on that charge, as well as others, and the quantity of heroin and packaging materials supported it), and they opted not to search his house simply because he had the tools and supplies of a drug dealer on his person. Moreover, whatever the reason for the inspectors decisions, the evidence against Ramirez was so overwhelming that we find no reversible error in the court s response to the jury s questions. 4 Ramirez argues that the court s instructional error was reversible per se. We disagree. The error, if any, did not infect the entire trial: he was tried before an impartial judge and jury, under the correct standard of proof, with the assistance of counsel. (See Neder v. United States (1999) 527 U.S. 1, 9.) 20

21 E. INSTRUCTIONS ON HEALTH AND SAFETY CODE SECTION (CALJIC NO ) Ramirez contends the court erred in refusing to instruct the jury on Health and Safety Code section (CALJIC No ), which pertains to possession of drug paraphernalia. Acknowledging that he was not charged with a violation of Health and Safety Code section 11364, Ramirez nevertheless asserts that the court should have granted his request for the instruction because he had been booked under that section and at trial cross-examined Inspector Halloran on the meaning of paraphernalia. His argument is specious. The relevant portion of defense counsel s cross-examination of Inspector Halloran was as follows: [DEFENSE COUNSEL] Q. You wouldn t have put that he was being booked on if that wasn t true. [ ] [INSPECTOR HALLORAN] A. No, I wouldn t have done that. He was booked on 11364, Health & Safety Code section. [ ] Q. And again, so the jury is clear, you know what Health & Safety Code is? [ ] A. I have a general knowledge of it, yes. [ ] Q. You have read it before. [ ] A. Yes. I have read parts of it before. [ ] Q. You are familiar with it? [ ] A. I have a general knowledge of it. [ ] Q. Okay. You know that Health & Safety Code says it s unlawful to possess an opium pipe or any device, contrivance, instrument or paraphernalia used for unlawfully injecting or smoking a controlled substance. [ ] A. Yes. That is part of [ ]... [ ] Q. You couldn t inject or smoke a controlled substance with empty baggies, could you? [ ] A. Not to my knowledge. [ ] Q. You couldn t [ ] [PROSECUTOR]: Your honor, object 352. This is [ ] THE COURT: The objection is sustained. It s a legal conclusion anyway, whether or not paraphernalia includes a scale. You are just reading the literature of the statute. There might be indications that would rule otherwise. [ ] So your objection is sustained. [ ] [DEFENSE COUNSEL] Q. You don t know of any case that holds [ ] THE COURT: He is not a legal expert. [ ]... [ ] [DEFENSE COUNSEL] Q. When you wrote this report and you wrote 11364, you weren t referring to a scale? [ ] A. When I wrote in 21

22 regards to this incident report, I was referring to the scale, the packaging material and the scissors, all paraphernalia used for the possession for sales. Defense counsel subsequently requested the jury instruction on paraphernalia. The trial court refused the request. 5 The trial court was correct. Ramirez was not charged with a violation of Health and Safety Code section None of the counts with which he was charged pertained to paraphernalia, such that Health and Safety Code section would be germane. Nor was the legal definition of paraphernalia relevant to Inspector Halloran s credibility as a witness. Whether the inspector was mistaken in believing that the legal definition of paraphernalia includes a scale had no bearing on his capacity to perceive, recollect, and accurately relate what he observed at the scene or whether the items Ramirez was carrying suggested he possessed heroin for sale. Nor was there any evidence that Ramirez was, in fact, in possession of any paraphernalia for ingesting his narcotics. In this context, including an instruction on Health and Safety Code section would have likely confused the jury, not assisted it. The court s refusal to instruct the jury with CALJIC No was not error. Nor could Ramirez have been prejudiced by the absence of the instruction. Defense counsel was still free to argue his defense theory to the jury, based on Halloran s admission of the relevant text of Health and Safety Code section In fact, defense counsel emphasized that very point in closing argument: But maybe what bugs you [about the prosecution s case] is this. Why, in the police report, did Officer Halloran write paraphernalia? Why did he write H&S 11364? And why did he get up on the stand 5 The trial court explained: First of all, paraphernalia, it is my belief, could include the scale which was testified to by the defendant as being used to measure things for ingestion. [ ] Number 2, it was never charged in the complaint or information I m not sure the complaint, at least the information. [ ] And number 3, it s the type of matter where a police officer on the street tries to include the various charges that might be available. It s up to the district attorney to review that information to see that they are applicable in this case. [ ] The district attorney obviously reviewed it and felt it was not an applicable charge and did not charge it. So there is no need to give that particular instruction. 22

23 and tell you that meant a scale, when the other officer, Officer Mack agreed that, no, a scale wouldn t be an ingesting device. Nobody could ingest any kind of drugs using a scale. That wouldn t be possible. [ ] Maybe that bugs you. Maybe that is a reasonable doubt in this case that makes you think maybe these officers report may [not] be completely honest. And maybe what bugs you is that, you know, that police officers are trained to write reports. [ ] Maybe you know that police officers, like these police officers, with 30 years of experience, both of them thought that the law would involve the scale being something it s not supposed to be. Maybe it bothers you that these police officers wrote the report with a code section. And then both of them got up on the stand and flubbed what that code section meant. 30 years of experience. [ ] Maybe it bugs you that these 2 officers, who have had 5 years to look over their report and who knew they were going [to] testify at this trial, didn t say something or do a supplemental report that said no paraphernalia was found for ingesting drugs. [ ] Maybe that bugs you because you want police officers to be following the law, and you want them to know the law, and you want them to know the law when they have 30 years of experience between them. 6 6 On related points, defense counsel offered the somewhat fanciful argument: Maybe what bugs you is the fact that these police officers wrote in their police report, 2 separate code sections that can t be reconciled. [ ] Because I ll tell you something. That s the one that bugs me most of all, the facts that don t make sense to me. [ ] Here is the one that really bugs me. Why in the police report did they charge him with simple possession in their booking charges, what they were going to book him on, and then possession with the intent to sell? Why would they do that? [ ] Either they were trying to front load and put on more than they were told to, trying to say, well, we know he possessed but we will really want to throw more facts in there and say he possessed with intent to sell. Either they are lying then or they are lying now. Either he possessed with the intent for his own personal use, or he intended to sell. How could it possibly be both. Maybe they didn t know so they put them both in the report. And maybe they are asking you to sort out what they couldn t figure out after 5 years ago. Maybe that s what bugs you, because it can t possibly be both. [ ] And maybe it bugs you when you think about what bugs her, that they wrote in the report that there was paraphernalia. How could there be paraphernalia for personal use to ingest, right, because that is his issue, the issue of ingesting. [ ] How could they put that in there and still think that it was for sale. God, maybe they are confused. Maybe they are asking you to clean up the mess in their report because they didn t know. [ ] And if they didn t know just based on what they arrested 23