The People v. George

THE PEOPLE, Plaintiff and Respondent, v. RAY SEAN GEORGE, et al., Defendant and Appellant In re KENYATTA JOMO CAMPBELL on Habeas Corpus.

D056821

Super. Ct. No. FSB800289

D057432

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

FILED: May 20, 2011

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

CONSOLIDATED APPEAL from judgments of the Superior Court of San Bernardino County, Bryan Foster, Judge, and petition for writ of habeas corpus. As to Ray George, judgment affirmed as modified with directions. As to Kenyatta Campbell, judgment affirmed and petition denied.

A jury convicted Ray George and Kenyatta Campbell of possession of marijuana for sale, possession of MDMA (ecstasy) for sale, and possession of a firearm by a felon, with true findings on gang and other enhancements. Campbell challenges the judgment on grounds of ineffective representation based on counsel's failure to renew a suppression motion. Defendants raise several instructional errors, and challenge the sufficiency of the evidence to support the MDMA possession for sale conviction and the gang enhancements. They also argue improper curtailment of cross-examination of a witness, and two sentencing errors.¹

The Attorney General concedes one sentencing error concerning George. Apart from this error, we find no reversible error. With respect to George, we modify the judgment to correct the sentencing error and, as so modified, affirm the judgment. With respect to Campbell, we affirm the judgment. We deny the petition for writ of habeas corpus.

FACTUAL AND PROCEDURAL BACKGROUND

The offenses were based on the police discovery of marijuana, MDMA, and guns at an apartment occupied by Campbell, George, and a third defendant, RoderickMitchell.² Defendants are members of the East Coast Crips gang, which engages in drug sales as one of its primary activities, including the sale of marijuana, MDMA, cocaine base and PCP.

The discovery of the contraband occurred on January 16, 2008, after the police went to an apartment rented by Campbell in response to a request by Child Protective Services (CPS) to check on the welfare of two young children reported to be at the apartment where there were guns and drug usage. When the police arrived at the apartment shortly after 10:16 a.m., Campbell and Mitchell were in the living room, and George was lying on a mattress in the northeast bedroom. There were three bedrooms in the residence. When interviewed by the police, defendants stated that George stayed in the northeast bedroom, Campbell stayed in the northwest bedroom, and Mitchell stayed in the southwest bedroom.

The police did not find the children at the apartment, but they observed marijuana and indicia of drug sales in plain view. Based on these observations, the police obtained a search warrant, searched the apartment, and found numerous other items reflecting drug sales.

In the northeast bedroom used by George, the police found about four and one-quarter pounds of marijuana that appeared to be packaged for sale. There was a shoebox on the floor containing empty plastic baggies and about 20 "nickel bags" of marijuana which would sell on the street for about $5.00 each. Forensic testing showed Campbell'sfingerprints on the outside of the shoebox and on an empty baggie inside the box. Next to the shoebox there was a backpack containing a loaded revolver and about two pounds of marijuana in 13 bags of essentially the same size and weight, which appeared to be packaged for sale to dealers. In the closet of the northeast bedroom, the police found six bullets that fit the gun in the backpack; three envelopes addressed to George; and a dry cleaning receipt with George's name on it attached to a bag containing dress clothes.

In the common areas of the apartment, the police found a smaller amount of marijuana and some MDMA. On the kitchen table there was a small baggie containing marijuana and seeds, and small pieces of marijuana scattered about the table as if someone had cut marijuana on the table. There were two black plastic bags containing marijuana, one on a barstool by the table and the other on a kitchen counter by the stove. In kitchen drawers, there were three weighing scales, numerous baggies in a box, and loose marijuana in a dominos game lid. It appeared that marijuana had been cut for packaging in the kitchen. On top of a stereo cabinet in the living room, there were two baggies of marijuana in a small shoebox and about 15 MDMA pills in a jewelry box.

In the northwest bedroom used by Campbell, there was a small baggie containing marijuana on top of a television. There was a loaded semiautomatic gun between the mattress and box springs of the bed in the room. Right next to the gun, there were several papers, including a gas bill with Campbell's name on it and the apartment's address.

In Mitchell's pockets, the police found an MDMA tablet and $580 cash, including numerous bills in small denominations. George had $280 dollars in his possession, also including small denominations.³ Campbell had three cell phones in his pockets.

A heavy odor of unburned marijuana permeated the entire apartment. Prosecution experts opined that the marijuana found in the apartment was possessed for sale based on the large amount, the indicia of packaging activity in the kitchen, the type of packaging, the scales, the guns, the cell phones, and the currency. The combined weight of all the marijuana was about four and one-half pounds, which had a street value of about $2,000 if sold in nickel bags. The other indicia of sales included the firearms which dealers generally carry to protect themselves; the small denominations of cash used for sales transactions; and the multiple cell phones on one person to conduct business. There was no marijuana smoke in the apartment, no "joints" lying around, and no drug paraphernalia typically possessed by personal users. A prosecution witness opined that the MDMA (which had a street value of about $20 per pill) was also possessed for sale because of the large quantity of pills, the firearms, and the cash.

Mitchell told the police that all the contraband in the apartment was his and that he was selling drugs. Campbell and George denied ownership of the contraband, except for the marijuana on top of the television in the northwest bedroom which Campbell told the police belonged to him.

The prosecution's theory was that all three defendants were engaged in a joint drug sales operation on behalf of their gang. Mitchell testified at trial, again claiming that virtually all the contraband was his, but stating that he did not possess the drugs for sale.⁴Mitchell, age 22, was younger than Campbell (age 32) and George (age 37), and (unlike Campbell and George) did not have gang-related tattoos that are earned by "putting in work" for the gang. A prosecution expert testified that in the gang culture younger gang members can be expected to keep the older gang members out of trouble by taking the blame for offenses when they are caught by the police.

The charges against defendants included (1) possession of marijuana for sale, with a gang enhancement allegation, and (2) possession of MDMA for sale, with a gang enhancement allegation and an allegation that the offense was committed within 1,000 feet of an elementary school. Additionally, George and Campbell were charged with possession of a firearm by a felon. The jury found defendants guilty of these charges.

All three defendants were sentenced to a two-year term for the MDMA possession for sale offense (see fn. 6, post), plus a three-year term for the gang enhancement. George and Campbell received an eight-month sentence for possession of a firearm by a felon. George received a four-year sentence for the elementary school allegation, whereas the court struck this allegation for Campbell and Mitchell because they hadadmitted guilt early in the proceedings.⁵ Campbell received a three-year sentence for a prior drug-related conviction enhancement and two years for two prior prison term enhancements, and George received three years for three prior prison term enhancements. Sentences on the remaining counts and allegations were imposed concurrently or stayed. George's total sentence was 12 years 8 months; Campbell's total sentence was 10 years 8 months; and Mitchell's total sentence was five years.⁶

DISCUSSION

I. Claim of Ineffective Assistance of Counsel Based on Failure to Renew Suppression Motion

Prior to trial, Campbell (joined by codefendants) filed a Penal Code section 1538.5 (§ 1538.5) motion to suppress the evidence acquired after entry into the apartment, arguing the warrantless entry into the apartment was illegal. As we shall detail below, at the section 1538.5 hearing Officer Edward Golubic testified that Campbell permitted him to enter, whereas Campbell testified that he told the officer he could not enter. The trialjudge presiding at the section 1538.5 hearing (Judge Douglas Gericke) denied the suppression motion, crediting the officer's claim of consent.

At trial, Mitchell testified that Campbell did not give consent, stating that Campbell told the officer not to come in but the officer "forced his way in there."

On appeal, defendants assert counsel provided ineffective representation by failing to renew the suppression motion before the trial judge (Judge Bryan Foster) because the failure to do so forfeited the issue on appeal (People v. Lilienthal (1978) 22 Cal.3d 891, 896; People v. Garrido (2005) 127 Cal.App.4th 359, 363-364), and Mitchell's testimony could have been presented to corroborate Campbell's claim that he refused the officer's request to enter. To further support the...