People v. McCarter CA2/7

Filed 6/13/16 P. v. McCarter CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 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.

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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