Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from judgments of the Superior Court of Los Angeles County Nos. BA289564; BA209669; BA253965, Michael S. Luros, Judge. Affirmed.
Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Robert S. Henry, Deputy Attorneys General, for Plaintiff and Respondent.
ASHMANN-GERST, J.
Arturo Ibarra Bojorquez (defendant) appeals from the judgments entered in three separate cases. In the first two cases, defendant entered no contest and guilty pleas. In the third case, case No. BA289564, a jury convicted defendant of sale or transportation of a controlled substance (Health & Saf. Code, § 11352, subd. (a)) (count 4; count 1 on verdict form); possession for sale of a controlled substance (cocaine) (§ 11351) (count 5; count 2 on verdict form); and possession for sale of a controlled substance (methamphetamine) (§ 11378) (count 7; count 3 on verdict form). Probation violation hearings in case Nos. BA209669, BA253965, and LA032700 were held contemporaneously with the trial and were to be decided upon the trial evidence and any additional evidence or arguments put forward at the end of trial.
All further statutory references are to the Health and Safety Code unless otherwise indicated.
The trial court sentenced defendant to a total of eight years in prison. The sentence consisted of the upper term of five years in count 4 and a three-year enhancement pursuant to section 11370.2, subdivision (a). The court imposed concurrent terms of four years on counts 5 and 7. Probation was revoked in case No. BA253965.
Section 11370.2 provides for a full, separate, and consecutive three-year prison term for each prior felony conviction of, inter alia, sections 11351, 11352, or 11378 when a person is convicted of a violation of sections 11351, 11351.5, or 11352.
Defendant appeals on the grounds that: (1) there is insufficient evidence as a matter of law to support his convictions; and (2) the trial court violated his rights to due process and a fair trial under the Fifth, Sixth, and Fourteenth Amendments when it admitted evidence of his 2003 conviction.
FACTS
On August 31, 2005, at approximately 10:30 p.m., Carlos Bedolla, a narcotics officer with the Los Angeles Police Department, received information that led him to the location of Sierra Vista and Western Avenue in Los Angeles. Officer Bedolla was accompanied by numerous other officers. Officer Bedolla saw a silver Ford Explorer make a left-hand turn into a Burger King parking lot without signaling and then immediately exit the lot. Defendant was driving the car, and there was a male Hispanic front passenger. Defendant made another left-hand turn without signaling and proceeded northbound on Western Avenue. Officer Bedolla radioed an order to have the Explorer stopped for the observed violations.
When Officer Bedolla arrived at the traffic stop, another officer drew his attention to the top of the Explorer’s center console where there was a bag containing cigarettes that lacked the California tax stamp. Defendant and his companion were placed under arrest for violating Revenue and Taxation Code section 30474.
During the traffic stop, a cell phone lying on the center console rang continuously. Police found two Motorola two-way radios with batteries on the passenger-side floor board. Police also recovered a travel document with defendant’s picture inside the vehicle. There was a spiral address book in the pocket of the driver’s-side door. Officer Bedolla searched defendant’s person and found nothing of interest. Defendant told Officer Bedolla that his passenger was staying with him at his residence.
Officer Bedolla conducted a more thorough search of defendant and his companion at the police station, and he found narcotics inside a clear plastic baggie in the right rear pants pocket of defendant’s companion, Fernando Sanchez (Sanchez). The baggie contained 16 off-white solids wrapped in white plastic, resembling rock cocaine; nine baggies containing an off-white powder resembling powder cocaine; a white bindle containing an off-white powder resembling cocaine, and seven additional baggies containing an off-white, crystal-like substance resembling methamphetamine. Officer Bedolla testified that the items were packaged individually for purpose of sales. Later testing showed that the item resembling powder cocaine was cocaine base. Officer Bedolla also found $68 in Sanchez’s pocket. Approximately $51 in one-dollar bills was found in defendant’s fanny pack. The trunk of the Explorer contained a case of Corona beers.
Officer Bedolla examined the address book found in the Explorer. The page marked “A” listed days and money quantities. Officer Bedolla knew through experience and training that narcotics dealers keep accounting ledgers of how much they make per day. He believed the address book to be such a ledger, called a “pay and owe” book. Mention of Coronas in the book led Officer Bedolla to believe defendant sold Corona beers also. Subsequent pages of the address book showed names corresponding to dates and money amounts.
Officer Bedolla knew that defendant was running a bandit taxicab service. The persons who run the bandit cabs do not have city permits and use their own vehicles not only to pick up people but also to sell narcotics. They also transport narcotics dealers and engage in other illegal activities.
Officer Bedolla had previously arrested defendant in Hollywood on September 24, 2003, for selling cocaine. On that occasion, he saw defendant exit his residence and enter a black Ford Explorer that was parked in a carport. Defendant drove to Sunset Boulevard, pulled over, and honked his horn at a male Hispanic who then entered the passenger side of the vehicle. The Explorer was soon stopped, and police found underneath the driver’s seat two individually wrapped bindles containing a rock-like substance resembling cocaine. Officer Bedolla later searched defendant’s residence. In defendant’s bedroom, the police found baggies of powder cocaine and methamphetamine, as well as individually wrapped solids resembling rock cocaine. Police found three notebooks inside defendant’s residence that were similar to the address book found in the instant case. Police found approximately $642 in the black Explorer defendant had been driving. Police also found cell phones and two-way radios.
Based on all the circumstances, Officer Bedolla was of the opinion that defendant possessed the rock cocaine, cocaine base, and the methamphetamine for the purpose of sales in the instant case.
Officer Arvin Asuncion and his partner, Officer Ingalls, conducted the traffic stop of defendant’s vehicle. Officer Asuncion testified that he conducted a pat-down search of Sanchez at the stop. He patted the outer clothing looking for weapons. He did not check inside Sanchez’s pockets because he did not feel any hard object that could be used as a weapon. Officer Asuncion did not recall if he felt anything in Sanchez’s rear pocket, but nothing drew his attention.
The parties stipulated that a criminalist with the Los Angeles Police Department analyzed the substances found in the instant case. The 16 plastic bindles of rock-like, off-white substances weighed 2.64 grams and consisted of cocaine base. The nine small zip baggies contained 3.39 grams of cocaine. Another plastic bindle contained 0.05 grams of cocaine base, and the seven baggies contained 1.93 grams of methamphetamine.
The parties also stipulated that a criminalist with the Los Angeles Police Department analyzed the evidence taken in the prior arrest on September 25, 2003. Item No. 1 consisted of 0.19 grams of cocaine base, item No. 5 consisted of 17.31 grams of cocaine base, item No. 7 consisted of 32.61 grams of cocaine, and item No. 9 consisted of 15.98 grams of methamphetamine.
DISCUSSION
I. Sufficiency of the Evidence
A. Argument
Defendant contends there was insufficient evidence he knew of the presence of cocaine, cocaine base, and methamphetamine in Sanchez’s pocket. Therefore, there was insufficient evidence to support the jury’s finding that he transported or possessed the narcotics with the specific intent to sell them. Similarly, there was insufficient evidence defendant exercised control over or the right to control the cocaine base and methamphetamine found on Sanchez.
B. Relevant Authority
The standard of appellate review for sufficiency of evidence was articulated in People v. Johnson (1980) 26 Cal.3d 557. When an appellate court seeks to determine whether a reasonable trier of fact could have found a defendant guilty beyond a reasonable doubt, it “‘must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’” (Id. at p. 576.) The court does not limit its review to the evidence favorable to the respondent, but must resolve the issue in light of the whole record. (Id. at p. 577.) “[S]ubstantial evidence” is evidence that is “reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (Id. at p. 578.)
Given this court’s limited role on appeal, defendant bears an enormous burden in claiming there was insufficient evidence to sustain the finding. If the finding is supported by substantial evidence, we must give due deference to the trier of fact and not retry the case ourselves. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) As long as there is reasonable justification for the findings made by the trier of fact, a reviewing court’s opinion that contrary findings might also have been reasonable does not require a reversal. (People v. Stanley (1995) 10 Cal.4th 764, 793.)
Reversal for insufficiency of the evidence “is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’” (People v. Bolin (1998) 18 Cal.4th 297, 331.) The standard for securing a reversal is just as high when the prosecution’s case depends on circumstantial evidence. (People v. Stanley, supra, 10 Cal.4th at p. 792.) When the evidence is largely circumstantial, reversal is not warranted simply because the evidence might support contrary findings equally as well as those made by the trier of fact. (People v. Ceja (1993) 4 Cal.4th 1134, 1139.)
C. Evidence Sufficient
As the jury was instructed, in order to find defendant guilty in count 1, the jury had to find that he transported cocaine and knew of its presence and nature as a controlled substance. (CALJIC No. 12.02.) In order to convict defendant of possession for sale in counts 2 and 3, the jury was instructed that it had to find, inter alia, that a person exercised control over (or the right to control) an amount of cocaine or methamphetamine, that the person knew of its presence, and that the person possessed the controlled substance with the specific intent to sell it. (CALJIC No. 12.01.) We believe defendant’s knowledge of the presence of the controlled substances, his right to control them, and his intent to sell them were sufficiently established by circumstantial evidence.
Defendant’s knowledge of the presence of the narcotics was shown by his preparations. Officer Bedolla testified that he found a spiral notebook in the driver’s side of the car during the traffic stop. This notebook bore clear signs of being a pay-owe book used by narcotics dealers. The page marked “A” contained days and money quantities. Several other pages were pointed out to the jury, and these also contained names and money amounts next to those names. The book contained a reference to 500 grams and half a kilo. Officer Bedolla explained that mid-level dealers normally obtain a kilo and convert it into smaller baggies that are measured in grams. Officer Bedolla stated that narcotics dealers use pay-owe books to keep track of who owes them money or what they are spending and making on a daily basis.
The pay-owe book was also circumstantial evidence of defendant’s dominion and control, since he was obviously the person in charge of keeping the accounts. In other words, he was the dealer. Further preparations showing defendant’s knowledge of the narcotics carried by Sanchez and of his dominion and control consisted of carrying two Motorola two-way radios. Officer Bedolla said that the two-way radios are used to communicate if the passenger has to get out of the car and call at someone’s door. The other person then watches out for competitors and the police. Defendant, as the driver, clearly was intended to stay in the car and monitor operations by means of the radios. Moreover, defendant was prepared for sales by carrying $51 in one dollar bills in his fanny pack.
With respect to the intent to sell, the packaging was clear circumstantial evidence of this intent. Each of the nine baggies contained a similar amount of cocaine. As stated by Officer Bedolla, a mere user would normally buy and possess a larger bag of cocaine versus a lot of little baggies. Each baggie in this case contained approximately 16 to 18 “hits.” The same was true for the methamphetamine, which was packaged in seven bags containing approximately 14 “hits.” Officer Bedolla testified that the items were packaged individually for purpose of sales.
The fact that defendant used his car as a bandit taxicab was also circumstantial evidence of his dominion and control and his intent to sell. Defendant was in control of the vehicle and therefore directed the enterprise. Officer Bedolla testified that persons who run the cabs do not have city permits and use their own vehicles to not only pick up people but also to sell narcotics and engage in other illegal activities. Defendant was accompanied by another person, which Officer Bedolla stated was common for narcotics dealers for purposes of protection. Frequently one person answers phone calls while the other one hands the narcotics to the user. During the traffic stop, a cell phone lying on the center console rang continuously. Defendant admitted that Sanchez was staying with him, which is a further indication that defendant was in control of the narcotics Sanchez carried.
Officer Bedolla’s testimony indicated that defendant was an example of an experienced dealer who uses someone younger and less experienced who lacks knowledge of the consequences of being caught. According to Officer Bedolla, the person who hands out the narcotics also collects the money and holds it. This allows the other person to avoid being connected to the crime, which is precisely what defendant attempts to show by his argument.
Finally, the evidence from the prior case helped show that defendant knew Sanchez had the drugs, that defendant exercised dominion and control over them, and that defendant had the intent to sell them. In the prior case, defendant was seen picking up another male. When the car was stopped, the discovery of two rocks of cocaine under the driver’s seat led to a search of defendant’s house. In defendant’s room police found baggies of powder cocaine, baggies of methamphetamine, and bindles of individually wrapped solids resembling rock cocaine. Defendant’s companion possessed $405. Both defendant and the passenger possessed cell phones. Officer Bedolla was of the opinion that the cell phones were used in 2003 and in the current case for receiving orders from regular customers and arranging meetings. Two 2-way radios were found in defendant’s residence, and they were similar to the ones found in the current case. Two address books and one notebook similar to the address book found in the current incident were found in defendant’s residence in 2003. These notebooks contained names and money amounts similar to the “pays and owes” found in this case. The contents and the appearance of the notebooks were the same.
Moreover, the drugs in the current case were packaged in the same way as those found in defendant’s residence in the prior incident. The current address book referred to kilos, and in the 2003 case a kilo brick was found in defendant’s closet. This led Officer Bedolla to the conclusion that defendant continues to deal in kilos of cocaine. In addition to the narcotics being packaged the same way, in the prior case the packaging materials were found inside defendant’s residence along with a scale. Moreover, as Officer Bedolla explained, narcotics dealers tend to be consistent with the types of narcotics they sell because they build up a reputation. They develop a clientele, and the users know them by sight. In neither the past nor the current incident were heroin, marijuana, angel dust, or other drugs found in defendant’s possession.
Given the degree of circumstantial evidence present in the record, we conclude there was sufficient substantial evidence in support of defendant’s conviction, and his argument is without merit.
II. Evidence of Prior Conviction
A. Argument
Defendant contends that his current crimes were not sufficiently similar to his 2003 crime to show identity, motive, intent, or purpose. Therefore, the trial court erred in admitting evidence of his prior conviction under Evidence Code section 1101, subdivision (b).
Furthermore, he claims, under Evidence Code section 352 the prejudicial effect of the 2003 offense significantly outweighed any probative value, since without the evidence of the prior offense, there was insufficient evidence to support defendant’s current convictions. Defendant maintains that all of the items recovered constituted evidence of an illegal taxicab service only. Absent the evidence of the 2003 offense, under CALJIC No. 2.01, the jury could have drawn a reasonable inference that defendant conducted an illegal bandit taxicab service but did not knowingly transport or possess the narcotics with intent to sell. Thus, the evidence cannot be deemed harmless under any standard.
CALJIC No. 2.01 informs the jury that a guilty verdict may not be based on circumstantial evidence unless the proved circumstances are not only consistent with the theory that the defendant is guilty of the crime but also cannot be reconciled with any other rational conclusion. Furthermore, each fact or circumstance on which an inference rests must be proved beyond a reasonable doubt. Also, if the circumstantial evidence permits two reasonable interpretations, the jury is told to adopt the interpretation that points to the defendant’s innocence over the one that points to his guilt. Finally, if one interpretation of the circumstantial evidence appears reasonable and the other unreasonable, the jury must accept the reasonable interpretation and reject the unreasonable.
B. Relevant Authority
The admissibility of evidence of prior misconduct, as with other types of circumstantial evidence, depends upon “(1) the materiality of the fact sought to be proved or disproved; (2) the tendency of the uncharged crime to prove or disprove the material fact; and (3) the existence of any rule or policy requiring the exclusion of relevant evidence. [Citation.]” (People v. Thompson (1980) 27 Cal.3d 303, 315 (Thompson), disapproved on other grounds by People v. Rowland (1992) 4 Cal.4th 238, 260.) “To be material, the evidence need only tend to prove or disprove some fact in issue.” (People v. Carter (1993) 19 Cal.App.4th 1236, 1246.) “In order to satisfy the requirement of materiality, the fact sought to be proved may be either an ultimate fact” in dispute “or an intermediate fact ‘from which such ultimate fact [] may be presumed or inferred.’” (Thompson, supra, at p. 315, fn. omitted.) “Motive, opportunity, plan, scheme, design, and modus operandi are examples of intermediate facts.” (Id. at p. 315, fn. 14.) To determine whether the evidence “has a tendency to prove the material fact,” the trial court examines “whether or not the uncharged offense serves ‘“logically, naturally, and by reasonable inference”’ to establish that fact.” (Id. at p. 316, fn. omitted.)
One of the policy considerations inherent in the determination of whether evidence of other crimes is admissible is found in Evidence Code section 1101. (Thompson, supra, 27 Cal.3d at p. 316.) Subdivision (a) of the statute provides: “Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.” Evidence Code section 1101, subdivision (b) provides an exception to this rule as follows: “Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, . . .) other than his or her disposition to commit such an act.”
A trial court’s admission of evidence under Evidence Code section 1101 is reviewed for an abuse of discretion. (People v. Memro (1995) 11 Cal.4th 786, 864.) The trial court’s discretionary power “must not be disturbed on appeal except on a showing that the [trial] court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]” (People v. Jordan (1986) 42 Cal.3d 308, 316.)
C. Proceedings Below
During the hearing under Evidence Code section 402, defense counsel argued that the 2003 case and the instant case were too dissimilar for the earlier case to have any relevance. He stated that the low degree of materiality was substantially outweighed by the risk of undue prejudice and confusion of the issues. He believed that the past bad act was really meant to show propensity. The prosecutor argued that both cases were really quite similar.
After hearing argument and eliciting the dates and times of the two cases, the trial court stated, “Well, let me just say this. They are both SUV’s . . . and they’re both Explorers, both Ford Explorers, they’re both on Wednesday, they were both in the evening hours, . . . they both had youngish male individuals in the passenger seat as passengers, I believe they’re both in the same approximate location. I believe it’s almost a classic signature offense. But I’m not going to use the part of the instruction that, if you believe the defendant committed the other crime, you believe he committed these crimes, because—although I could because it’s—they’re both Wednesdays, they’re both in the evening hours, they’re both with youngish male individuals, they’re both constructive possession cases, the materials were packaged the same in both cases, and it’s almost a classic signature offense. They both had spiral notebooks with pays and owes. I believe it goes to motive, I believe it goes to intent, and the court is going to overrule the objection on 352. Conduct a balancing, as I’m required to do, of the probative value against the prejudicial effect I find probative value outweighs the prejudicial effect and that the People can utilize that information over the defense’s objection.”
The trial court instructed the jury that the evidence, if believed, could not be considered as proof that the defendant was a person of bad character or someone with a disposition to commit crimes. The court stated that the evidence introduced regarding the other crime could be considered only for the limited purpose of determining if it tended to show a characteristic method, plan or scheme in the commission of criminal acts similar to the method, plan or scheme used in the commission of the offenses in the instant case, which would further tend to show the existence of the intent that was an element of the crimes charged in counts 2 and 3. The court stated that the evidence could also be considered for determining a motive for the commission of the charged crimes and whether defendant had knowledge of the nature of the things found in his possession. The jury was told to weigh the evidence in the same manner as all other evidence and not to consider the evidence for any other purpose. (CALJIC No. 2.50.)
D. Evidence Properly Admitted
We conclude that the prior offense was sufficiently similar to the charged offenses that the evidence was reasonably admitted as tending to show the factors listed in the jury instruction. Moreover, given the circumstances of the case, all of the facts that the evidence tended to show were material.
In People v. Ewoldt (1994) 7 Cal.4th 380, 393–407 (Ewoldt), the California Supreme Court interpreted Evidence Code section 1101, subdivision (b) at length. Ewoldt reasoned that the least degree of similarity between the uncharged and charged offenses is required to prove intent. (Ewoldt, supra, at p. 402.) The uncharged misconduct need only be sufficiently similar to support an inference that the defendant probably had the same intent on each occasion. (Ibid.) To prove the existence of a common design or plan, a higher degree of similarity between the uncharged and charged offenses is required. (Ibid.) Evidence of uncharged misconduct must demonstrate “‘not merely a similarity in the results, but such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations. [Citation.]’” (Ibid.) Moreover, “the common features must indicate the existence of a plan rather than a series of similar, spontaneous acts, but the plan thus revealed need not be distinctive or unusual. . . . [I]t need only exist to support the inference that the defendant employed that plan in committing the charged offense. [Citation.]” (Id. at p. 403.) Even plans lacking originality are highly relevant. (Ibid.)
In this case, both of the crimes occurred in the evening in Hollywood at locations quite close to one another. In both instances the drugs were not found on defendant’s person, but defendant was in constructive possession of the narcotics. The narcotics in the prior case were of the same nature as those found in the instant case: methamphetamine, rock cocaine, and powder cocaine. In both cases the narcotics were similarly packaged for sale. Spiral notebooks containing pay and owe information were found. Younger males were passengers in defendant’s bandit taxicabs, which in both cases were similar Ford Explorers registered to defendant. Defendant employed two-way radios and cell phones. As the trial court pointed out, both arrests occurred on a Wednesday within two years of each other, indicating that defendant was well organized and kept to a schedule.
The many similarities between the two cases are indicative, at a minimum, of defendant’s intent, which requires the least degree of similarity between the uncharged crimes and the current crimes. (Ewoldt, supra, 7 Cal.4th at p. 402.) Additionally, the evidence is strongly probative of a common scheme or plan under the guidelines provided by Ewoldt. The facts of both cases demonstrate “such a concurrence of common features” that the natural explanation for the similar circumstances is that they are the result of a general plan to conduct a mobile narcotics-selling business with its own territory and established customer list. (Ibid.)
Having concluded that the evidence of uncharged crimes had the tendency to prove material facts at issue in the instant case, we next consider “whether the probative value of the evidence of defendant’s uncharged offenses is ‘substantially outweighed by the probability that its admission [would] . . . create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.’” (Ewoldt, supra, 7 Cal.4th at p. 404, quoting Evid. Code, § 352.) Because such evidence entails substantial prejudice, it must also embody substantial probative value. (Thompson, supra, 27 Cal.3d at p. 318.) However, the prejudice that exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. “‘[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant’s case. The stronger the evidence, the more it is “prejudicial.” The “prejudice” referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, “prejudicial” is not synonymous with “damaging.”’ [Citation.]” (People v. Karis (1988) 46 Cal.3d 612, 638.)
We conclude the trial court did not abuse its discretion. The trial court provided a precise description on the record of the weighing process it engaged in under Evidence Code section 352. The court listened to extensive argument from the prosecutor and defense counsel and found that the evidence was admissible with a cautionary instruction. As we have indicated, the probative value of the evidence was high. The court properly instructed the jurors as to the limited use of the evidence at the time of its admission, and the court generally instructed the jury not to consider such evidence for any other purpose. Given the foregoing, we also conclude that the admission of the evidence did not result in a miscarriage of justice. We do not believe the jury would have returned a verdict more favorable to defendant absent the other-crimes evidence (People v. Watson (1956) 46 Cal.2d 818, 836), and any error in admitting the evidence was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24). As we explained in the first section of this opinion, there was sufficient evidence to support defendant’s conviction even without the evidence of the prior incident. Defendant’s argument is without merit.
DISPOSITION
The judgments are affirmed.
We concur: BOREN P. J., DOI TODD J.