People v. Johnson

Opinion

STEIN, J. Andre Johnson appeals from a judgment of conviction of one count of possession of cocaine for sale (Health & Saf. Code, § 11351.5). The jury also found true an allegation under Penal Code section 1203.073, subdivision (b)(5), which restricted appellant’s eligibility for probation. After denying appellant’s motion for a new trial, the court denied probation, sentenced appellant to the lower base term of three years, and set bail pending appeal.

[394]Facts*

I.

Appellant contends that the court erred in permitting the prosecution to impeach Mr. Walters with evidence allegedly obtained in an illegal search.

On direct examination, defense counsel asked Mr. Walters, “You’re not involved in purchases or sales of drugs out there, are you?” Mr. Walters responded that he was not. Prior to the cross-examination of Mr. Walters, the court held a conference outside of the jury’s presence to address appellant’s objections to the prosecution’s proposed use of Mr. Walters’s recent arrest for possession of a pipe containing cocaine residue. Based on the police report, the court opined that the search of Mr. Walters’s house may have been illegal. Nonetheless, the court ruled that evidence of possession of the pipe was relevant for purposes of impeachment and that it was admissible even if the warrantless search of Mr. Walters’s home was illegal. On cross-examination the prosecutor reminded Mr. Walters of his response to the question on direct. He then asked Mr. Walters if he had ever possessed cocaine. When he stated that he had not, the prosecutor impeached him with evidence that he had been arrested for possession of a pipe containing cocaine residue.

Appellant’s characterization of Mr. Walters’s testimony on direct as only placing in issue whether he had sold cocaine, is an overly narrow interpretation of the direct examination. The question Mr. Walters was asked was whether he was “involved in the purchases or sale of drugs.” Thus, evidence that he had possessed a pipe containing cocaine residue was relevant because it could support an inference that he was “involved with the purchases ... of drugs” even if he had not personally purchased the cocaine. Indeed, the prosecutor clarified any ambiguity by following up Mr. Walters’s general denial of any involvement with the purchase or sale of cocaine by asking specifically if he had ever possessed it. 1