Wednesday, June 18, 2008
Court Upholds Conviction of Paraplegic Drug Dealer
By KENNETH OFGANG, Staff Writer
The Fourth District Court of Appeal yesterday affirmed the three-year prison term imposed on a wheelchair-bound man convicted of selling drugs to a police informant on a downtown Riverside street corner.
Div. Two rejected Jason Ford’s claim that Riverside Superior Court Judge Stephen D. Cunnison discriminated against him by sentencing him to state prison, rather than granting probation and a 180-day jail term as recommended by a probation officer. The defense cited the trial judge’s comments that Ford would likely be released early if sentenced to jail, due to his disability.
Ford was approached by police after they were contacted by an informant, identified by Justice Barton Gaut as “the eponymously-named Johnny Crummie.”
Crummie testified that the defendant sold drugs by reaching behind his back, “digging” to retrieve crack, and receiving money. Crummie said he called police after Ford offered to sell him $600 worth of drugs and Crummie left, ostensibly to use an ATM machine.
Crummie admitted that setting up drug buys was his main source of income. At the time of trial, he was in jail on charges of spousal abuse and grand theft, and had a history of drug and other crimes.
Police said they found Ford in the company of two other men and asked him if they could search him as part of a drug investigation. They said he consented, leading to the recovery of two cell phones—one of which showed a recent call to Crummie—and $165 from his person.
Police also found about $500 worth of crack in a zippered cushion on the back of the wheelchair, which Ford denied any knowledge of. A prosecution expert testified that it is not unusual for disabled persons to use their circumstances as cover for selling drugs.
Ford testified that Crummie asked him where he could buy drugs, but that he told him he did not know. Crummie, he said, took his cell phone, dialed his own number, and told Ford to call him if he located drugs for sale.
Someone must have stashed the drugs without his knowledge, Ford testified.
The defense also presented witnesses who testified that they never saw Ford with drugs or with large sums of money.
On rebuttal, the prosecutor, over defense objection, presented evidence that when Ford was involved in the 2003 motorcycle accident that disabled him, he was found in possession of 5.1 grams of crack.
In rejecting the probation officer’s recommendation and imposing the lower prison term of three years, the trial judge suggested that “the sheriff would not wait to get rid of Mr. Ford because of the financial obligations that this custody would pose to the county.” Cunnison acknowledged that “to a certain extent, one of the reasons for rejecting probation is due to Mr. Ford’s physical condition over which he has no control over which he cannot be faulted.”
But Gaut, in his unpublished opinion for the court yesterday, said Ford was not being discriminated against because the trial judge also cited other reasons for denying probation, including the sophisticated nature of the crime; Ford’s prior record, including parole violations; and an absence of remorse.
Gaut went on to say that the trial judge abused his discretion by admitting the prosecution’s rebuttal evidence of uncharged criminal conduct, since it was offered to prove a specific criminal act rather than to show a pattern or scheme. But the justice said the error was harmless under the reasonable probability test, because the jury was unlikely, given the defendant’s possession of money, drugs, and two cell phones, to conclude that he did not commit the charged offense of possession for sale of cocaine base.
Justice Art McKinster concurred in the opinion. Justice Douglas Miller, writing separately, said he agreed with the majority “in toto” but wanted to emphasize that a judge may not sentence a disabled defendant to prison solely because of the possibility that a jail term would result in early release.
“Denying probation to a physically disabled person because of his status abridges the disabled person’s right to the same treatment a nondisabled person would receive from the court,” the justice wrote. “The net effect would be to punish a disabled person more severely, merely because he or she has a physical handicap.”
The case is People v. Ford, E042547.
Copyright 2008, Metropolitan News Company