Opinion
C040462.
7-24-2003
THE PEOPLE, Plaintiff and Respondent, v. TIMOTHY ALLEN LINDSEY, Defendant and Appellant.
A jury convicted defendant Timothy Allen Lindsey of sale of marijuana. (Health & Saf. Code, § 11360, subd. (a).) He was sentenced to state prison for four years, and to a consecutive term of eight months on an unrelated case.
On appeal, defendant contends (1) the jury was erroneously instructed on reasonable doubt, (2) accomplice instructions were erroneously omitted, (3) accomplice testimony was not sufficiently corroborated, and (4) the prosecutor committed prejudicial misconduct. We affirm the judgment.
FACTS
Prosecution case-in-chief
On April 24, 2001, during his lunch break at approximately 12:24 p.m., 17-year-old Daniel F. saw defendant handing something to some adults across the street from Modoc High School. Daniel contacted defendant and asked if he was selling drugs. Defendant said, "no," and Daniel turned away. Daniel said, "Ive got a 20," and defendant told him to come back. Defendant pulled from his pocket a baggie containing green flaky material and a smaller empty baggie. He measured out some of the green material into the smaller baggie and handed it to Daniel, who gave him $ 20.
That evening, Daniel fashioned a smoking pipe from some copper pipe and smoked the marijuana in his bedroom. Around midnight on May 7, 2001, he smoked more of the marijuana. He became dizzy and dry-mouthed, and he could not breathe. He awakened his parents and told them he was sick. When they questioned him, he eventually stated that he was doing drugs and needed help. He gave the marijuana to his father, who called the sheriffs department.
On May 8, 2001, at about 11:00 a.m., Modoc County Sheriffs Sergeant Crutcher contacted Daniel at his home. Daniel recounted his purchase of marijuana, described defendant, and gave Crutcher the copper pipe and the remnants of the marijuana he had purchased. Crutcher cited Daniel for possessing marijuana.
The next day, May 9, 2001, at approximately 11:40 a.m., Crutcher and Daniel drove around and observed defendant, whom Daniel positively identified as the marijuana seller.
On May 12, 2001, Daniel identified defendant as the marijuana seller from a photographic lineup. Daniel identified defendant as the seller at trial.
Defense
Defense investigator Frank Skrah testified that he would not have used the photographic lineup used in this case because all but one person wore glasses; all but one person wore bandanas around their necks; all but one person had facial hair; their clothing was not alike; and the persons hair was "similar but not close enough."
Michael Hudson, a counselor at Modoc County Alcohol and Drug Services, testified that defendant was at a counseling session from 1:00 to 4:30 p.m. on April 24, 2001.
DISCUSSION
I
In his opening brief, defendant contended the trial court erred by misreading CALJIC No. 2.90 to the jury. However, on December 12, 2002, this court granted the Peoples motion to correct the reporters transcript in light of the reporters declaration that his shorthand notes had been mistakenly transcribed. The corrected transcript does not contain the error of which defendant complained. His contention is now moot.
II
Defendant contends the trial court erred by failing to instruct the jury sua sponte that Daniel F. was his accomplice, that Daniels testimony must be viewed with distrust, and that Daniels testimony must be corroborated by other evidence that tends to connect defendant to the crime. (CALJIC Nos. 3.11, 3.12, 3.18.) We disagree.
Penal Code section 1111 defines an accomplice as "one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given." (Further undesignated statutory references are to the Penal Code.)
It has long been the law that "one who merely purchases drugs is not guilty of furnishing as an aider and abettor of the seller." (People v. Edwards (1985) 39 Cal.3d 107, 114, fn. 5, 216 Cal. Rptr. 397, 702 P.2d 555, citing People v. Label (1974) 43 Cal. App. 3d 766, 770, 119 Cal. Rptr. 522.) The buyer is not the sellers accomplice. (People v. Label, supra, at p. 770; People v. Hernandez (1968) 263 Cal. App. 2d 242, 247-248, 69 Cal. Rptr. 448; People v. Mimms (1952) 110 Cal. App. 2d 310, 314, 242 P.2d 331; People v. Galli (1924) 68 Cal.App. 682, 684-685, 230 P. 20.)
Defendant relies on general principles of aider and abettor liability set forth in People v. Prettyman (1996) 14 Cal.4th 248, 259, 926 P.2d 1013. Prettyman cites People v. Edwards, supra, 39 Cal.3d 107 on an unrelated point, but it does not discuss or purport to overrule Edwardss observation that a drug buyer does not aid or abet a drug seller. (People v. Prettyman, supra, at p. 274.)
Defendant claims the Supreme Court upset this settled law last year in People v. Slaughter (2002) 27 Cal.4th 1187. We are not convinced.
In Slaughter, "Jeff DeRouen, Eddie Keith, and Djamal Littleton drove from Pittsburg, California, to Modesto in Keiths Mustang automobile to purchase two kilos of cocaine from defendant for $ 30,000. The deal had been arranged by Roland Mourning, a mutual friend of DeRouens and defendants, while Mourning was incarcerated in the Stanislaus County Jail. DeRouen, Keith, and Littleton had $ 45,000 they had obtained from a drug dealer known to them as `Jeest. They carried $ 30,000 in a small, gray Nike backpack or bag and placed the remaining $ 15,000 in a plastic bag under the rear seat of the vehicle. [P] At approximately 6:30 p.m., the three men picked up defendant in Modesto. . . . He got into the backseat with Littleton. At defendants direction, Keith drove the Mustang onto the freeway and entered the left lane, traveling approximately 60 miles per hour. Littleton was looking out the window when he heard a loud bang and felt his body go numb. He then saw two flashes at the back of DeRouens head." (People v. Slaughter, supra, 27 Cal.4th at pp. 1196-1197.) DeRouen and Keith were killed. The defendant used the victims cash to buy a new car. (Id . at pp. 1197-1198.)
The defendant in Slaughter contended that, "because Littleton assertedly was an accomplice, the trial court erred in failing to instruct the jury, sua sponte, that it should view Littletons testimony with caution. (CALJIC No. 3.18.)" (People v. Slaughter, supra , 27 Cal.4th at pp. 1201-1202.) The Supreme Court rejected this contention, explaining, "It is clear that Littleton was not an accomplice within the meaning of section 1111. Although he would have been an accomplice if defendant were being prosecuted for the planned cocaine transaction, he was not an accomplice in the present case, because he was not `liable to prosecution for the offenses charged — namely, his own attempted murder, the robbery of himself and his companions, and the murder of his companions. (§ 1111.)" (People v. Slaughter, supra, at p. 1202; italics added.)
The People do not cite or discuss People v. Slaughter, supra, 27 Cal.4th 1187. This was unhelpful.
"Language used in any opinion is of course to be understood in the light of the facts and the issue then before the court, and an opinion is not authority for a proposition not therein considered." (Hartwell Corp. v. Superior Court (2002) 27 Cal.4th 256, 281, quoting Ginns v. Savage (1964) 61 Cal.2d 520, 524, fn. 2, 39 Cal. Rptr. 377, 393 P.2d 689.) The facts before the court in Slaughter showed that a very large cocaine transaction had been "arranged by" Mourning, a mutual friend of a victim and the defendant. (People v. Slaughter, supra, 27 Cal.4th at p. 1196.) Were the defendant to be prosecuted "for the planned cocaine transaction," it could be on the theory that he and the victims conspired with their mutual friend who had arranged the deal. Littleton would thus be an accomplice, not because he was the buyer of drugs, but because he was a coconspirator of Mourning and the defendant. (People v. Stankewitz (1990) 51 Cal.3d 72, 90, 270 Cal. Rptr. 817, 793 P.2d 23 [coconspirators are accomplices].)
The issue of whether a narcotics buyer is necessarily the accomplice of the seller, even though both do not conspire with the same instigator, was not before the court in Slaughter. Slaughter is not authority for the proposition that the line of cases holding that buyers and sellers are not accomplices is no longer good law. (Hartwell Corp. v. Superior Court, supra, 27 Cal.4th at p. 281; Ginns v. Savage, supra, 61 Cal.2d at p. 524, fn. 2.) Because no evidence suggested that defendant and Daniel F. were coconspirators, or were anything more than mere buyer and seller, the trial court had no duty to give accomplice instructions on its own motion.
III
Defendant contends the judgment must be reversed for lack of evidence corroborating Daniel F.s accomplice testimony. Our conclusion that Daniel was not defendants accomplice (part II, ante) makes it unnecessary to consider this contention.
IV
Defendant contends the prosecutor committed prejudicial misconduct when he questioned Daniel F. regarding a polygraph examination, and the trial court abused its discretion by considering Daniels answers when it ruled on defendants new trial motion. We are not persuaded.
Background
Defendant made a motion for a new trial on the ground of newly discovered evidence. According to a defense investigator, prior to defendants trial, Daniel F. told 14-year-old Jeremy L. that "the cops told [Daniel] if he said [defendant] sold him drugs, [Daniel] would not go to jail or do jail time or something like that . . . and he could get off probation." Jeremy further told the investigator that Daniel "has gotten `high" and that he smoked marijuana at least once a week.
At the hearing on the new trial motion, Jeremy testified that Daniel had told him he "told someone that . . . [defendant] sold him drugs so [Daniel] could get off probation."
The prosecutor then examined Daniel in relevant part:
"Q. Did you ever, at any time, make up the story about [defendant] selling you marijuana?
"A. No, sir.
"Q. You know who [defendant] is?
"A. Yes, sir.
"Q. Where is he?
"A. Right there.
"Q. And did [defendant] sell you marijuana as you testified in his trial?
"A. Yes, sir.
"Q. Did you lie in court about anything?
"A. No, sir, I did not.
"Q. Were you requested to take a polygraph whether or not you were telling the truth?
"A. Yes, sir, I was.
"Q. Did you agree?
"A. Yes, sir, I did."
The trial court denied the new trial motion, explaining, "The statement that Jeremy made regarding what [Daniel] told him, as Jeremy describes it in his own words, is very vague and nebulous. I believe he said he told someone that if he told someone sold him drugs, hes — he would get off probation or something like that. [P] Granted, when you ask him a leading question, he answered yes. In other words, you asked him is this what he said and he said yes. That was much clearer. But on the other hand, those werent his words. That wasnt his recollection. And, in fact, he testified that its been a long time ago, and I cant remember. [P] The standard, it seems, is that in order to support a new trial, the evidence must be such as to render a different result, probable on a retrial of the cause, and I dont think its my job to weigh the credibility at this hearing. But its my job to anticipate what a jury would do given this evidence or having this evidence placed before a jury, and I cant find, based on what Ive heard or read, that the result would probably be different if there were a new trial, and the jury heard this evidence. [P] Therefore, the motion for a new trial is denied."
Analysis
Defendants claim of prosecutorial misconduct is waived because he failed to object to the colloquy regarding the polygraph examination and a timely objection would have alerted the trial judge not to consider the evidence when ruling on the new trial motion. (E.g., People v. Hughes (2002) 27 Cal.4th 287, 392; People v. Staten (2000) 24 Cal.4th 434, 465.)
Evidence Code section 351.1, subdivision (a), provides in relevant part: "Notwithstanding any other provision of law, the results of a polygraph examination, the opinion of a polygraph examiner, or any reference to an offer to take, failure to take, or taking of a polygraph examination, shall not be admitted into evidence in any criminal proceeding, including . . . post conviction motions and hearings, . . . unless all parties stipulate to the admission of such results." (Italics added.) No such stipulation appears in the present record.
In any event, any prosecutorial misconduct was not prejudicial. (People v. Cunningham (2001) 25 Cal.4th 926, 1019.) The trial court made plain that it did not "weigh" the relative "credibility" of Daniel and Jeremy. Even if the polygraph evidence unduly bolstered Daniels credibility, the court did not use that false aura of credibility to detract from the weight it accorded to Jeremys testimony. Rather, the court found that Jeremys testimony was insufficient on its own. "The trial court may consider the credibility as well as materiality of the evidence in its determination [of] whether introduction of the evidence in a new trial would render a different result reasonably probable. [Citation.]" (People v. Delgado (1993) 5 Cal.4th 312, 329, 851 P.2d 811.) Because the court would not have found Jeremys testimony sufficient for a new trial but for the polygraph evidence, any prosecutorial misconduct was not prejudicial. (People v. Cunningham, supra, 25 Cal.4th at p. 1019.)
DISPOSITION
The judgment is affirmed.
We concur: RAYE, J., ROBIE, J.