P. v. Kelley

Filed 4/20/11 P. v. Kelley CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE,
Plaintiff and Respondent,
v.
RAYMOND LORENZO KELLEY,
Defendant and Appellant.
2d Crim. No. B218204
(Super. Ct. No. 1284355)
(Santa Barbara County)
Raymond Lorenzo Kelley appeals from conviction by jury of
possession for sale of cocaine base (Health & Saf. Code, § 11351.5); sale,
transportation, or offer to sell a controlled substance (Health & Saf. Code, § 11352,
subd. (a)); and misdemeanor resisting arrest (Pen. Code, § 148, subd. (a)(1)). In a
bifurcated proceeding, the trial court found true an allegation that appellant suffered
a prior serious or violent felony conviction within the meaning of the Three Strikes
law. (Pen. Code, §§ 667, subds. (d)(1) & (e)(1), 1170.12, subds. (b)(1) & (c)(1),
1192.7, subd. (c).) Appellant was sentenced to an aggregate term of 10 years in
state prison.
Appellant contends that the court erred (1) when it permitted a
narcotics officer to testify to the duration of a crack cocaine high, the number of
doses in a particular quantity of crack cocaine, and the period of time over which
cocaine can be detected in urine; (2) when it limited cross-examination of that

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officer; (3) when it did not give a unanimity instruction on the charge of resisting
arrest; (4) when it admitted the lab report of a non-testifying analyst; and (5) when
it denied his motion to unseal, traverse or quash a search warrant. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On August 9, 2008, Santa Maria police were conducting surveillance
of appellant and his home. Appellant drove into the alleyway and parked his car in
his carport. Four officers, three in uniform, got out of an unmarked van and
approached the car. They identified themselves as police officers, and told the
occupants to put their hands up. Appellants' girlfriend was in the car with two
children. Appellant got out and ran. Two officers chased and caught him.
According to police testimony, appellant ran 50 to 75 yards before being tackled.
According to appellants' testimony, he ran one car length before he realized the men
were police officers and stopped.
Police searched appellants' car pursuant to a warrant and found 13.71
grams of cocaine base behind a panel. Corporal Woodrow Vega (Vega) was the
surveillance team leader and was not initially present. He had been communicating
with the officers by phone and radio. He arrived during the search of the car. Vega
searched appellant and joined in the search of appellant's apartment, also pursuant
to warrant.
In a closet in appellants' apartment, officers found three digital scales,
two of which did not work. On the working scale, there were cut marks and cocaine
base residue. They also found unused baggies. Appellant told police where to find
the scale and told them that his girlfriend had nothing to do "with it." Officers did
not find any crack pipes or pay owe sheets.
Appellant was in good physical condition. His teeth were not decayed
and his fingertips were not callused or charred. He did not appear to be under the
influence and his urine tested negative for cocaine base.
Before trial, the court sealed the search warrant affidavit to protect the
identity of a confidential informant pursuant to People v. Hobbs (1989) 7 Cal.4th

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948. The trial court denied appellant's motion to unseal, traverse or quash the
search warrant affidavit after conducting an in camera hearing.
At trial, the court permitted Vega to offer the opinion that appellant
possessed the cocaine base for purposes of sale. Vega's opinion was based on the
quantity, the scale, cut marks on the scale which indicated "weighing off" portions,
the absence of a pipe, and appellant's sobriety.
Vega testified that a dose of cocaine base is about 1/10 of a gram and
lasts about six hours, if the user is non-tolerant. He testified that users typically
possess only small amounts, ingest whatever they have immediately, and do not
possess scales. Over defense objection that he lacked medical knowledge, Vega
testified that 13.7 grams of rock cocaine is about 137 doses, that one dose can keep
a person high for about six hours, depending on their tolerance level, and therefore
13.7 grams could keep a "non-tolerant user" high for about 820 hours. Vega
testified that rock cocaine remains in a person's urine for up to 72 hours, also over
defense objection. The court received into evidence a Department of Justice report
of appellant's urine analysis, over foundation and hearsay objections.
On cross-examination, Vega testified that he had not conducted any
test on the duration of a cocaine base high and could not recall the details of what
medical experts have said on this subject. He conceded that a regular user could go
through 13.7 grams in a week, and that the wholesale value of that amount was
about $450.
Appellant and his girlfriend testified. His girlfriend testified that she
had not seen appellant smoke cocaine in the five years they had lived together, but
he had a history of addiction and she suspected recently that he fallen back into
using drugs. She testified that the baggies were hers and she uses scales to measure
food and medicine in her work as a private care attendant. However, the working
scale was not hers. She said appellant was unemployed and she regularly gave him
cash for his car payment.

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Appellant testified that he bought the cocaine for his personal use for
about $300. He said that 13.7 grams would last him about four to five days. He can
go about a week without smoking; he had not used for a few days when he was
arrested. He displayed no physical signs of use because he was immune. He had
the scale to make sure that he got his money's worth when he bought cocaine. The
baggies belonged to his girlfriend for jewelry making. He uses homemade pipes
and disposes of them.
Appellant testified that he ran when the police surrounded his car
because a man had been shot and killed in a car three blocks away the night before.
He stopped running when he heard, "Police," but they tackled him. He did not see
the officers' uniforms until they handcuffed him. On cross-examination, he
acknowledged that he understood the consequences would be different if he
possessed the cocaine for personal use rather than for sale. The court instructed the
jury to consider this testimony only on the issue of bias or interest, and not to
consider punishment.
On rebuttal, Police Officer Matthew Kline testified that appellant
continued to run after the officers identified themselves as police. When they got
appellant to the ground he did not comply with their orders. Vega did not arrive
until after these events. Vega testified in rebuttal that Kline told him at the scene
that there had been a brief struggle. Defense counsel sought to question Vega about
a statement in his report that appellant was arrested "without incident," in order to
prove that Vega was motivated to influence Kline to testify in a way that would
increase appellant's punishment. The trial court did not allow the question pursuant
to Evidence Code section 352.
DISCUSSION
Admission of Testimony of Narcotics Detective
Appellant contends that the trial court abused its discretion,
impermissibly invaded the province of the jury, and lessened the prosecution's
burden of proof in violation of the Fifth and Sixth Amendment when it permitted

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Vega to testify to the duration of a cocaine base high, the number of doses in a
particular quantity of cocaine, and the period of time over which crack cocaine can
be detected in urine. His contentions go to the weight of the evidence and we reject
them.
A properly qualified expert may offer an opinion on matters related to
a subject that is sufficiently beyond common experience that the opinion of an
expert would assist the trier of fact. (Evid. Code, § 801, subd. (a).) An expert is
qualified if he or she has special knowledge, skill, experience, training, or education
on the subject matter of the testimony. (Evid. Code, § 720, subd. (a).) Expert
testimony has no evidentiary value if it is based on assumptions unsupported by the
record, matters not reasonably relied on by other experts, or facts which are
speculative, remote or conjectural. (Pacific Gas & Electric. Co. v. Zuckerman
(1987) 189 Cal.App.3d 1113, 1135.) Expert testimony should be excluded when
the subject is one of common knowledge. (People v. Hernandez (1977) 70
Cal.App.3d 271, 280-281.)
The court has broad discretion to determine expert qualifications.
(People v. Chavez (1985) 30 Cal.3d 823, 828.) We will reverse its determination
only for manifest abuse of discretion. (People v. Mayfield (1997) 14 Cal.4th 668,
766.)
The trial court did not abuse its discretion when it determined that
Vega was qualified to offer opinions on the subject of dose and duration. Vega
testified that he was familiar with street level narcotics sales, use, dosage, and
effects, based on his 15 years as a police officer, 8 of which he worked as a
narcotics detective, and extensive training in narcotics investigation. He received
special training to identify street drugs and to identify people who are under the
influence. He taught these subjects at the police academy. He was involved in
hundreds of narcotics arrests. The trial court acted within its discretion when it
determined that Vega had special knowledge on the subject of cocaine base dosage
that was sufficiently beyond common experience to assist the trier of fact and that

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his testimony was based on reasonably reliable information. Defense counsel was
permitted to fully explore the limits of Vega's medical knowledge on cross-
examination and to contradict his testimony about the duration of a cocaine base
high. Appellants' concerns about the degree of Vega's knowledge go to the weight
of the evidence rather than to its admissibility. (People v. Bolin (1998) 18 Cal.4th
297, 321-322.)
Limits on Cross-Examination
Appellant contends that his conviction for resisting arrest must be
reversed because the court did not allow him to cross-examine Vega during rebuttal
on the difference between his report, which stated that appellant had been arrested
without incident, and his testimony, in which he recalled Kline telling him that there
had been a struggle. We disagree.
The Confrontation Clause protects a defendant's right to engage in
appropriate cross-examination of the witnesses against him and to thereby expose
facts from which jurors could appropriately draw inferences relating to their
reliability. (Davis v. Alaska (1974) 415 U.S. 308, 318.) The court retains wide
latitude to restrict cross-examination that is repetitive, prejudicial, confusing or of
marginal relevance. (Evid. Code, § 352; People v. Frye (1998) 18 Cal.4th 894, 946,
overruled on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
A trial court does not violate the defendant's right to confrontation unless the
defendant can show that the prohibited cross-examination would have produced a
significantly different impression of the witness's credibility. (People v. Chatman
(2006) 38 Cal.4th 344, 372.)
The trial court did not abuse its discretion when it determined that any
probative value of further cross-examination of Vega's rebuttal testimony
outweighed the risk of undue consumption of time and juror confusion. Defense
counsel sought to question Vega about the report in order to prove that Vega tried to
influence Kline's testimony to increase appellant's punishment. The trial court acted
within its discretion when it determined that evidence that an officer would be

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motivated to achieve greater punishment by changing his story could confuse the
jury and could unduly encourage them to consider punishment. The evidence had
little probative value because Vega had already conceded that he was not a
percipient witness to the arrest. It was cumulative because counsel had already
fully examined Vega and Kline about whether Vega tried to influence Kline's
testimony. Appellant has not demonstrated that the prohibited cross-examination
would have produced a significantly different impression of either officers'
credibility.
Absence of Unanimity Instruction on Resisting Count
Appellant contends that the trial court erred when it refused his
request for a unanimity instruction on the resisting count. We reject the contention.
In a criminal case, a jury verdict must be unanimous. (People v.
Russo (2001) 25 Cal.4th 1124, 1132.) When one criminal act is charged, but the
evidence shows commission of more than one such act, the prosecution must elect
one act or the trial court must instruct the jury to agree on the same act. (Ibid.)
However, no unanimity instruction is required when multiple acts proved are part of
one transaction. "Even when the prosecution proves more unlawful acts than were
charged, no unanimity instruction is required where the acts proved constitute a
continuous course of conduct." (People v. Napoles (2002) 104 Cal.App.4th 108,
115.)
Here, the prosecution charged one count of resisting, obstructing or
delaying arrest. (Pen. Code, § 148, subd. (a).) It offered evidence that appellant ran
when police identified themselves and did not stop until he was tackled. In rebuttal,
Kline also testified that officers had to pull appellant's arm out from under him. The
trial court properly concluded that these acts were so closely connected as to be part
of a continuous course of conduct. No unanimity instruction was required.
Admission of Lab Report of Non-testifying Analyst
Appellant contends that the trial court violated his constitutional right
to confront witnesses against him when it admitted the urine analysis report of a

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non-testifying analyst and allowed Vega to testify concerning its contents. We
reject the contention because it was forfeited.
The question whether admission of a report of a non-testifying lab
analyst violates a defendant's constitutional right to confront witnesses is pending
before the California Supreme Court,1 but appellant made no constitutional
objection at trial. A defendant forfeits a constitutional confrontation claim when he
does not articulate it in the trial court. (People v. Burgener (2003) 29 Cal.4th 833,
869.)
Before Vega testified, the trial court overruled appellant's hearsay and
foundation objections to the Department of Justice toxicology report. During
Vega's testimony, the court received the report into evidence, over counsel's
statement that, "Again, for the record, object to the entrance of this piece of
evidence." Vega testified, without further objection, that he collected appellant's
urine and sent it to a lab, and received a report indicating that it was negative for
rock cocaine. On cross-examination, defense counsel asked Vega to look at the
report and answer, "Was the GCMS test conducted on the urine sample, or a
1 On December 2, 2009, the California Supreme Court granted review in
People v. Dungo (2009) 176 Cal.App.4th 1388, S176886, to consider the questions:
"(1) Was defendant denied his right of confrontation under the Sixth Amendment
when one forensic pathologist testified to the manner and cause of death in a murder
case based upon an autopsy report prepared by another pathologist? (2) How does
the decision of the United States Supreme Court in Melendez-Diaz v. Massachusetts
(2009) 557 U.S. ___, 129 S.Ct. 2527, affect the California Supreme Court's decision
in People v. Geier (2007) 41 Cal.4th 555?" The California Supreme Court has
granted review in a number of cases raising similar questions. (People v. Gutierrez
(2009) 177 Cal.App.4th 654, review granted Dec. 2, 2010, S176620; People v.
Lopez (2009) 177 Cal.App.4th 202, review granted Dec. 2, 2009, S177046; People
v. Rutterschmidt (2009) 176 Cal.App.4th 1047, review granted Dec. 2, 2009,
S176213; People v. Anunciation, review granted Mar. 18, 2010, S179423; People v.
Schwartz, review granted Mar. 20, 2010, S180445; People v. Benitez (2010) 182
Cal.App.4th 194, review granted May 12, 2010, S181137; People v. Bowman (2010)
182 Cal.App.4th 1616, review granted Jun. 9, 2010, S182172; People v. Chikosi
(2009) 185 Cal.App.4th 238, review granted Aug. 11, 2010, S184190; and People v.
Miller (2010) 187 Cal.App.4th 902, review granted Nov. 10, 2010, S186758.

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different test?" She also asked Vega whether he could vouch for the accuracy of the
report. Vega testified, "I do not know. I'm not a toxicologist and I didn't do the
testing." As the prosecution rested its case, defense counsel reasserted that the
report had not been properly authenticated. None of defendant's objections was
sufficient to preserve his constitutional claim and the court did not err in admitting
the evidence at trial.
Motion to Unseal, Quash and Traverse Search Warrant
The parties agreed that this court should review the sealed portion of
the record relating to appellant's motion to unseal the search warrant pursuant to
People v. Hobbs, supra, 7 Cal.4th 948.
All or part of a search warrant may be sealed to protect the identity of
confidential informants. (People v. Hobbs, supra, 7 Cal.4th at p. 971.) Where a
defendant moves to quash or traverse a sealed warrant, the trial court should
conduct an in camera hearing to first determine whether sufficient grounds exist for
maintaining the confidentiality of the informant's identity. The court next
determines whether the extent of the sealing is necessary to avoid revealing the
informant's identity. (Id. at p. 972.) If the affidavit has been properly sealed and
defendant has moved to traverse the warrant, the court determines if any defense
allegations of material misrepresentations or omissions are supported by the search
warrant affidavit or testimony offered at the in camera hearing. If the affidavit has
been properly sealed and defendant moves to quash the warrant, the court
determines whether, under the totality of the circumstances there was a fair
probability that contraband or evidence of a crime would be found in the place
searched. (Id. at p. 975.) The court reports its conclusions to the defendant, and
maintains the sealed material for review on appeal.
We independently review the record, including the sealed documents,
to determine whether the trial court's determinations constituted an abuse of
discretion. (People v. Martinez (2005) 132 Cal.App.4th 233, 241.) Having
conducted an independent review of the affidavit and the testimony of the in

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camera hearing, we conclude that appellant's motions to unseal, quash and traverse
the search warrant were properly denied.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
COFFEE, J.
We concur:
GILBERT, P.J.
YEGAN, J.

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Jed Beebe, Judge
Superior Court County of Santa Barbara
______________________________
Lisa M. J. Spillman, under appointment by the Court of Appeal, for
Defendant and Appellant.
Kamala Harris, Edmund G. Brown, Jr., Attorneys General, Dane R.
Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant
Attorney General, Joseph P. Lee, Sarah J. Farhat, Stephanie C. Brenan, Deputy
Attorneys General, for Plaintiff and Respondent.

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