People v. Palmer CA4/1

Opinion

Filed 8/28/26 P. v. Palmer CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D085702

Plaintiff and Respondent, v. (Super. Ct. No. SCD274478)

FREDERICK JOSEPH PALMER,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Albert T. Harutunian, III, Judge. Affirmed. Richard J. Moller, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Arlene A. Sevidal, Assistant Attorney General, Daniel Rogers and Adrian R. Contreras, Deputy Attorneys General, for Plaintiff and Respondent. During a five-week surveillance operation of a convenience store, law enforcement recorded Frederick Joseph Palmer conducting several apparent hand-to-hand drug transactions. Four of his buyers were stopped by law enforcement after the transactions were complete, and two were found in possession of cocaine base. Palmer was charged with 19 counts of selling cocaine base. To show that all of his transactions involved this drug, the prosecution presented evidence of more than 20 other sales involving different sellers that took place at the same store during the same surveillance period. Following these other sales, law enforcement stopped the buyer and seized a drug from their person or vehicle, and in all but one instance the drug was confirmed to be cocaine base. A jury ultimately convicted Palmer of 10 counts of selling cocaine base. On appeal, he contends the trial court abused its discretion in admitting evidence of the other sales and relatedly claims his counsel was ineffective in failing to request an instruction telling the jury the limited purpose for which it could consider this evidence. For reasons we explain, we discern no error or ineffective assistance of counsel and accordingly affirm the judgment. FACTUAL AND PROCEDURAL BACKGROUND According to a detective who testified at Palmer’s trial, cocaine base comes in the form of a small rock about the size of a pea. Dealers might keep several rocks together in a small plastic bindle. To hide the drug from law enforcement, however, dealers often keep individual rocks in their mouths or private areas. During a sale, the dealer will pinch the small rock between their index finger and thumb and place it into the customer’s open palm. Generally, a dealer will set up in an area that is known for cocaine base sales—somewhere they have a customer base, that is outside the view of surveillance cameras, and that is obscured from law enforcement observation. Customers learn through word of mouth the places to go to buy the drug.

2 Between July 7 and August 15, 2022, law enforcement surveilled a convenience store called Mike’s Market. During that time period, Palmer was seen conducting what appeared to be 19 hand-to-hand transactions outside the store. Many of these transactions featured the hallmarks of a cocaine base deal—Palmer was reaching into his mouth, pinching something between his fingers, or manipulating a plastic bindle containing an off-white substance while the customer was extending their open palm toward him. In addition to Palmer, law enforcement observed other men and women conduct hand-to-hand transactions around Mike’s Market during the same timeframe. Palmer was present in the background during many of these sales. A few days into the surveillance operation, law enforcement began stopping some of the buyers after the transaction was complete. At least 24 buyers were stopped, four of them being Palmer’s buyers. Many but not all of the stops led to the seizure of narcotics. Of the narcotics seized, all but one sample tested positive for cocaine base.1 Two of Palmer’s buyers were found in possession of cocaine base. The detective explained that cocaine base is easily concealed or destroyed because it is so small—it can be thrown, hidden in private areas, or swallowed. The prosecution filed an amended indictment charging Palmer with 19 counts of selling cocaine base (Health & Saf. Code, § 11352, subd. (a)). As to each count, it was alleged the offense was committed for the benefit of a 1 In one of the stops, law enforcement recovered a “white rock-like substance” and a “white crystalline substance” from the vehicle. The laboratory analyst only testified regarding the latter substance, which was confirmed to be crystal methamphetamine.

3 criminal street gang (Pen. Code,2 § 186.22, subd. (b)(1)) and while Palmer was out on bail in another case (§ 12022.1, subd. (b)). The prosecution further alleged that Palmer suffered one prior serious felony conviction (§ 667, subd. (a)) and one prior strike (§§ 667, subds. (b)–(i)/1170.12). Several aggravating sentencing factors were asserted as well (Cal. Rules of Court,3 rule 4.421(a)(8), (b)(1)–(3) & (5)). The court entered a judgment of acquittal (§ 1118.1) on five counts (counts 2, 6, 10, 13, 17) where the surveillance video evidence failed to show an exchange of drugs or money between Palmer and the alleged buyer. The jury convicted Palmer of 10 counts (counts 3, 4, 7, 8, 9, 12, 14, 16, 18, 19) and found him not guilty of the remaining four counts (counts 1, 5, 11, 15). In bifurcated proceedings, the court entered a judgment of acquittal (§ 1118.1) on the gang allegation based on insufficient evidence that his drug sales benefitted a gang and dismissed one sentencing factor allegation (rule 4.421(b)(5)) on the prosecution’s request. The jury found true that Palmer suffered a prior serious felony and a prior strike, and that he was out on bail when he committed the current offenses. It also found true that Palmer was a serious danger to society, that his criminal convictions were numerous and/or of increasing seriousness, and that he had previously served time in prison (rule 4.421(b)(1)–(3)). But it found not true that the current offenses were carried out with planning, sophistication, and professionalism (rule 4.421(a)(8)).

2 Further undesignated statutory references are to the Penal Code.

3 Further undesignated rules references are to the California Rules of Court.

4 At sentencing, the court struck the prior strike in the interest of justice. It then sentenced Palmer to one term of four years (count 3), five consecutive terms of one year four months (counts 4, 7, 8, 9, 12), four concurrent terms of four years (counts 14, 16, 18, 19), and one consecutive term of two years for the on-bail enhancement.4 DISCUSSION A. Evidence of Sales By Others Palmer primarily claims the trial court abused its discretion by admitting evidence that others sold cocaine base at Mike’s Market during the surveillance period. We conclude the court reasonably admitted the evidence. 1. Additional Background Before trial, the court granted Palmer’s related motions to bifurcate trial on the gang allegations and to exclude all gang evidence from the first phase of trial. Palmer also moved to exclude evidence of drug sales by anyone else as irrelevant, unduly prejudicial, and unduly time consuming. At the hearing on motions in limine, defense counsel elaborated that any probative value in the evidence that other people were selling cocaine base at Mike’s Market would be far outweighed by its prejudicial effect, since it would not necessarily follow that Palmer was selling cocaine base as well. Moreover, it would be unduly time consuming to examine every video, picture, officer, and 4 At the same time Palmer was sentenced in this case, he was resentenced in the case on which he had been out on bail (SCD292521). In that case, the court imposed a consecutive term of two years for an assault by means likely to produce great bodily injury (§ 245, subd. (a)(4)) plus one year for a great bodily injury enhancement (§ 12022.7, subd. (a)) and stayed punishment for a battery with serious bodily injury (§ 243, subd. (d)). The total sentence for both cases was 15 years 8 months.

5 lab analyst regarding each transaction, of which there were more than 100. In counsel’s view, this would open “a huge Pandora’s box of having this trial last a long, long time.” In response, the prosecutor explained that although there was surveillance video of Palmer allegedly selling cocaine base 19 separate times, drugs were seized from the alleged customer on just two occasions. As further circumstantial evidence that the remaining 17 transactions also involved cocaine base, the prosecutor sought to present evidence of other sales that took place at Mike’s Market around the same time period. She had evidence of roughly 175 transactions and more than 20 seizures of the purchased drug, which turned out to be cocaine base virtually every time. She theorized that Mike’s Market was functionally an open air farmers market for cocaine base. As to the time consumption, she noted that one detective would testify regarding all of the surveillance evidence, most of the officers that executed the seizures conducted more than one, and one lab analyst examined all of the samples. The court decided the evidence was admissible, finding its probative value was not outweighed by the consumption of time or prejudicial effect. In the court’s view, it was permissible for the prosecutor to argue that “every known transaction law enforcement has had at that location has been cocaine base. So it’s circumstantial evidence that everybody sells cocaine base when they’re selling drugs at that location.” By the same token, the defense could argue that was “guesswork or something like that,” but any weakness in the inference to be drawn from the evidence of the other sales went to its weight, not its admissibility. The court limited the evidence, however, to the 20- something sales that resulted in seizure of the cocaine base. Presenting the other 100-plus sales would effectively be asking the jury to make an inference 6 upon an inference—to infer from the sales where the drug was confirmed to be cocaine base that the other sales also involved cocaine base, and to infer from the latter that Palmer also sold cocaine base—which was too tenuous. The next day, Palmer orally asked the court to reconsider its ruling, emphasizing that evidence of the other sales was unnecessary because the evidence that two of his own sales resulted in the seizure of cocaine base allowed the jury to infer that all of his sales involved that drug. Moreover, he urged the court to consider the danger that the jury would assume “this is a group activity, this is a conspiracy,” and “something more nefarious is going on than just Mr. Palmer selling drugs 19 times,” which undercut the purpose of excluding the gang evidence. In the alternative, Palmer asked the court to limit the other-sales evidence to testimony, because videos or pictures could be unduly prejudicial to the extent the other sellers were dressed “like gang members” or appeared “thuggish.” The court declined to change its ruling or limit the evidence to testimony only. It was not persuaded that it would be unduly prejudicial for the jury to learn that other people were selling cocaine base at the same market, noting such conduct was no more serious than what Palmer was charged with. The court further reasoned it was common knowledge “that there are areas of town where people go to if they want to partake” in certain “vices” and that does not necessarily mean that everyone doing the same criminal activity in the same area works for some “master boss or something like that.”

7 2. Admitting Evidence of Sales By Others Was Not an Abuse of Discretion Only relevant evidence is admissible. (Evid. Code, § 350.) Evidence is relevant if it has “any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Id., § 210.) “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Id., § 352.) In this context, prejudice “ ‘refers to evidence that uniquely tends to evoke an emotional bias against the defendant as an individual, and has little to do with the legal issues raised in the trial.’ ” (People v. Miles (2020) 9 Cal.5th 513, 587.) We review the trial court’s decision to admit evidence for abuse of discretion. (Ibid.) We will not disturb a court’s exercise of discretion “ ‘ “ ‘ “except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.” ’ ” ’ ” (Id. at pp. 587–588, italics omitted.) Here, the trial court reasonably exercised its discretion to admit evidence of the other sales. The prosecution was required to prove that the drugs Palmer sold were, in fact, cocaine base. (See CALCRIM No. 2300.) Since cocaine base was seized from only two of his buyers, the fact that the remaining 17 transactions involved cocaine base needed to be shown circumstantially. Evidence that more than two dozen other sales took place at the same location around the same time and virtually all of them involved cocaine base tended to show that Palmer was selling this specific drug as well. This is especially true in light of the expert testimony that dealers of a certain drug tend to “set up” in a particular area so their customers will know 8 where to buy that drug. The fact that the jury could infer that Palmer was selling cocaine base in every transaction based on the evidence that two of his sales resulted in the seizure of cocaine base did not extinguish the relevance of the other sales. (See People v. Scheid (1997) 16 Cal.4th 1, 16 [“Subject to the trial court’s authority to exclude cumulative evidence . . . , it is immaterial for purposes of determining the relevance of evidence that other evidence may establish the same point.”].) We see nothing arbitrary, capricious, or absurd in the trial court’s determination that the probative value of the other-sales evidence was not outweighed by any undue prejudice. Palmer insists the evidence should have been excluded because the jury might have assumed he was part of a gang or a conspiracy. But there was no basis from which the jury could infer that he was involved in some broader operation, as opposed to just one of many sellers at this “open air drug market,” as the prosecutor put it. Beyond the fact that these several individuals sold the same drug at the same place, sometimes on the same day and sometimes on different days, there was no evidence of any relationship or agreement between them. The prosecutor never suggested to the jury that the sellers were connected to each other in any way, much less involved in a gang. The court also sensibly limited the evidence to the 20-something sales that resulted in the seizure of cocaine base, instead of the 100-plus sales the prosecution offered. Palmer maintains this limitation was insufficient. He notes that presenting evidence of the 20-something sales took at least as much time as the evidence of his own sales. In his view, the court should have further limited the evidence to sales that took place on the days he sold as well, or to the two sales made to undercover officers. To be sure, the time it took to present evidence of each transaction, the stop of each buyer, and the 9 seizure of the cocaine base from each buyer was substantial. But the court fairly found this consumption of time was warranted. The sheer number of times law enforcement stopped someone who engaged in a hand-to-hand sale at Mike’s Market and found cocaine base on their person or in their vehicle is what tended to show this particular location was the place to buy cocaine base. Further limiting the number of sales would not have had the same effect. B. Ineffective Assistance of Counsel Palmer also claims he received ineffective assistance of counsel insofar as his attorney did not request a limiting instruction “informing the jury that it could consider the evidence of sales of cocaine base by other people only for the purpose of establishing [he] was selling cocaine base, and not to conclude he had a bad character or was part of a gang or conspiracy.” “When challenging a conviction on grounds of ineffective assistance, the defendant must demonstrate counsel’s inadequacy. To satisfy this burden, the defendant must first show counsel’s performance was deficient, in that it fell below an objective standard of reasonableness under prevailing professional norms. Second, the defendant must show resulting prejudice, i.e., a reasonable probability that, but for counsel’s deficient performance, the outcome of the proceeding would have been different. When examining an ineffective assistance claim, a reviewing court defers to counsel’s reasonable tactical decisions, and there is a presumption counsel acted within the wide range of reasonable professional assistance. . . . On direct appeal, a conviction will be reversed for ineffective assistance only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation. All 10 other claims of ineffective assistance are more appropriately resolved in a habeas corpus proceeding.” (People v. Mai (2013) 57 Cal.4th 986, 1009 (Mai).) Here, it would have been very reasonable for counsel to decide that such an instruction would not be helpful to the defense. As noted, there was no evidence suggesting the sellers at Mike’s Market had any relationship or agreement with one another, and the prosecutor made no suggestion to that effect. She explicitly argued that the other sales constituted circumstantial evidence that Palmer was selling cocaine base. An instruction telling the jury not to consider the other sales as evidence that Palmer “had a bad character or was part of a gang or conspiracy” risked emphasizing to jurors the precise inference he wanted to avoid. DISPOSITION The judgment is affirmed.

DATO, J.

WE CONCUR:

O'ROURKE, Acting P. J.

KELETY, J.