Filed 6/13/16 P. v. McCarter CA2/7
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


THE PEOPLE,                                                          B255174

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. VA132193)
         v.

NOLAN MCCARTER,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County, Raul A.
Sahagun, Judge. Affirmed.
         Anthony J. Patti, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Michael R. Johnsen and
Kathy S. Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent.


                                             ____________________
                                    INTRODUCTION
       Defendant Nolan McCarter appeals from a judgment of conviction for possessing
a controlled substance (Health & Saf. Code, § 11377, subd. (a)). His sole contention on
appeal is that he was denied the effective assistance of counsel because his trial counsel
failed to object under Evidence Code section 352 to evidence that the testifying
detectives knew him from prior arrests. We affirm.
                              FACTUAL BACKGROUND
       In the late evening on October 14, 2013, Los Angeles County Sheriff’s
Department Detectives Gerardo Magos and Jesus Urrutia were in the backyard of a
vacant house looking into the backyard of an adjacent house on East 78th Street in Los
Angeles. The two backyards were separated by a wrought iron fence that was partially
boarded up with wood. Detective Magos thought the backyard of the 78th Street house
had lighting at the back of the property, while Detective Urrutia said “[i]t was dark” with
no light other than “maybe the moonlight.”
       Standing on debris to see over the fence, the detectives used their flashlights to see
into the backyard of the 78th Street house. From that vantage point, the detectives saw
defendant and numerous other African American men and women in the backyard. The
detectives were about eight feet from defendant and saw him speaking to Keshean
Moore. The detectives recognized defendant from previous contacts, including two
arrests. When the detectives shined their flashlights into the backyard, defendant looked
in their direction and appeared startled and nervous. Both detectives saw defendant open
his hand and drop a plastic bindle to the ground. At that point, the detectives ordered the
men and women to stop, and they scattered into and around the house. Detective Urrutia
watched the bindle while Detective Magos drove around the block to the 78th Street
house to recover it. The bindle contained 8.64 grams of methamphetamine. The
detectives subsequently arrested defendant and Moore, who were inside the house.
                           PROCEDURAL BACKGROUND
       At trial, defendant moved to exclude evidence of his prior arrests by Detectives
Magos and Urrutia on relevance grounds. Defense counsel did not argue that the

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evidence should be excluded as unduly prejudicial under Evidence Code section 352.
The prosecutor opposed the motion, arguing that evidence of prior contacts was relevant
to show that the detectives were able to identify defendant. The trial court denied the
motion, finding the evidence relevant to the issue of identification, but ordered the
prosecutor “not to mention the subject matter of the arrest[s].”
       During trial, the prosecutor briefly explored the prior arrests when questioning the
detectives about their ability to identify defendant as the person who dropped the plastic
bindle to the ground. In responding to the prosecution’s case, defense counsel ultimately
chose to exploit the prior contacts in her argument that the detectives lied about seeing
defendant drop the bindle. In closing argument, counsel acknowledged that the
detectives knew defendant from prior arrests, but she reminded the jury that defendant
knew the detectives from those arrests as well. She argued that if defendant had
possessed the bindle, he would not have dropped it right in front of the detectives
knowing they could identify him, but instead would have brought it into the house and
destroyed it there. Counsel suggested that the detectives were lying and may have
planted the drugs.
       The jury rejected the defendant’s contention and convicted him of possessing a
controlled substance. The trial court subsequently found that defendant had suffered two
prior convictions for which he served prison sentences (Pen. Code, § 667.5, subd. (b)),
one of which was for a serious or violent felony (id., §§ 667, subds. (b)-(i), 1170.12).
The court sentenced defendant to the mid-term of two years, doubled as a second strike
offender to four years, and dismissed the prior prison term enhancements. The felony
conviction was later reduced to a misdemeanor pursuant to Proposition 47 (Pen. Code,
§ 1170.18).
                                      DISCUSSION
       Defendant contends that his trial counsel was ineffective in neglecting to object to
the evidence of his prior arrests as unduly prejudicial under Evidence Code section 352.
To establish a Sixth Amendment claim of ineffective assistance of counsel, a defendant
must show (1) his or her trial counsel’s performance was objectively deficient; and

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(2) the deficiency was prejudicial in that it is reasonably probable that it produced the
unfavorable result. (Strickland v. Washington (1984) 466 U.S. 668, 687 [104 S.Ct. 2052,
80 L.Ed.2d 674] (Strickland ); accord, People v. Ledesma (2006) 39 Cal.4th 641, 745-
746.)
        Even if defendant’s trial counsel’s performance was deficient in failing to object to
the evidence as unduly prejudicial, no prejudice resulted from her failure to do so for two
reasons. First, the prosecution did not emphasize the prior arrests. The prosecutor asked
Detective Magos about the arrests in one page of questioning about his ability to identify
defendant; and the prosecutor elicited from Detective Urrutia only that he knew
defendant “from prior contacts.” In closing argument, the prosecutor made only passing
reference to the prior arrests, stating: “Remember they had prior contacts with him, they
arrested him in the past. They know who he is. . . . So they are not mistaken when they
see the defendant.”
        Second, the evidence supporting conviction was overwhelming. The prosecution
presented uncontradicted testimony from two detectives who knew defendant and
observed him dropping the plastic bindle containing methamphetamine. The defense
offered no contrary evidence, but rather suggested that the detectives were lying and had
planted the drugs. There was no evidence, however, that the detectives had a motive to
engage in this misconduct. As for defendant’s argument that it was against his penal
interests to drop the bindle on the ground in the police’s presence, this is true but hardly
compelling given the undisputed evidence that he was startled and had no time to reflect.




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                                    DISPOSITION
      The judgment is affirmed.



                                                BLUMENFELD, J.*


We concur:



             PERLUSS, P. J.



             ZELON, J.




*       Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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