Opinion
D040047.
7-1-2003
THE PEOPLE, Plaintiff and Respondent, v. DONEL LEE PATTERSON, Defendant and Appellant.
A jury convicted Donel Lee Patterson of possessing cocaine base for sale (Health & Saf. Code, § 11351.5), and destroying or concealing evidence (Pen. Code, § 135). In a bifurcated hearing, Patterson admitted two prior drug convictions (Health & Saf. Code, § 11370.2, subd. (a)) and serving a prior prison term (Pen. Code, §§ 667.5, subd. (b), 668). The court sentenced Patterson to prison for nine years: the five-year upper term for possessing cocaine base for sale, enhanced three years for a prior drug conviction and one year for serving a prior prison term. The court struck the second prior drug conviction enhancement.
FACTS
On November 30, 2001, San Diego police officers and detectives executed a search warrant at a residence in the 5000 block of Imperial Avenue. When a detective entered, Patterson ran to the rear of the residence. The detective followed and heard a toilet flush. Patterson walked out of the bathroom. After officers subdued Patterson, they found in a bedroom a film canister containing cocaine residue, $ 3,000 in a safe, $ 1,000 on a television stand, a cellular telephone, a pager, a glass plate with a razor and Pattersons identification. In the kitchen, officers found plastic wrap and money on the stove. A small amount of cocaine base, .06 grams, was recovered from the toilet. The detective was of the opinion that this evidence showed Patterson possessed the cocaine base for sale. While in the home, an officer answered the cellular telephone three times. The first caller asked, "Can I get a 20?" The second asked for $ 10 worth of rock cocaine. The third hung up.
A defense investigator and a toxicologist testified, respectively, when pepper was placed in the toilet no residue remained after the toilet was flushed, and when .06 grams of pea gravel was placed in the toilet no residue remained after flushing.
Patterson contends the trial court erred in admitting the statements callers made on the cellular telephone.
DISCUSSION
Patterson argues that the statements of the callers on the cellular telephone answered by the officer were inadmissible hearsay. We disagree. Hearsay evidence is evidence of an out-of-court statement that is "offered to prove the truth of the matter stated." (Evid. Code, § 1200.) Here, the callers statements were not offered to prove the callers truly wanted $ 20 worth and $ 10 worth of cocaine base. Testimony of the callers statements was circumstantial evidence showing Patterson used his cellular telephone to receive drug orders. Evidence is not hearsay when offered to show that certain words were spoken, not to prove the truth of what was said. (People v. Fields (1998) 61 Cal.App.4th 1063, 1068-1069 [evidence of requests to make bets made over a telephone where defendant is charged with bookmaking]; People v. Bullock (1990) 226 Cal. App. 3d 380, 388, 277 Cal. Rptr. 63 [evidence of request to purchase cocaine made over a pager].)
Relying on People v. Scalzi (1981) 126 Cal. App. 3d 901, 179 Cal. Rptr. 61, (Scalzi), Patterson argues the statements the callers made over the cellular telephone were inadmissible hearsay. In Scalzi, John Scalzi was at the McDaniels residence when officers executed a search warrant. Methamphetamine and a scale were on the dining room table. The evidence in question was:
"[Officer] Jaksch then testified: I answered the phone at the Idora Street address and spoke to an unknown female. The female asked if "John" was there. I informed her, "No." " She asked if I knew where he was. I told her that he had gone to Hazels house at 71 Porter Street. She then asked me if I knew if he had taken care of business. I asked her, what did she mean? She wanted to know if John had gotten it bagged up. I told her, yeah, that he had taken care of that. He was dropping off some packages. " Q. Are you familiar with the street jargon "got it bagged"? " A. Yes, I am. " Q. What does that mean to you? " A. On the street, "bagged" is a term for packaging of narcotics for sale, basically for transportation. " Q. How —what did you mean — how did you interpret this phrase she asked you, "If John had got it bagged up"? " A. Bagged up. " Q. "Bagged up," how did you interpret that? " A. That to mean approximately one-ounce of contraband that we had found at the residence that he had gotten it placed into the plastic bindles. " (Id. at pp. 905-906.)
The trial court found the statements hearsay but admitted them as falling within the state-of-mind exception to the hearsay rule. The reviewing court found the statements clearly hearsay because the hearers state of mind was irrelevant. (Scalzi, supra, 126 Cal. App. 3d at pp. 906-907.) In People v. Nealy (1991) 228 Cal. App. 3d 447, 452, 279 Cal. Rptr. 36, (Nealy), the reviewing court criticized Scalzi and chose not to follow it "to the extent that it . . . holds that a telephone request for the purchase of a controlled substance is not admissible circumstantial evidence on the issue of the purpose for which seized contraband is possessed." (Accord, People v. Ventura (1991) 1 Cal.App.4th 1515 (Ventura ).) We choose to follow Nealy and Ventura rather than less well-articulated Scalzi.
Citing Ventura andNealy, Patterson argues the court here erred in failing to give an instruction on the limited use of the telephone call evidence. As indicated, in both Ventura and Nealy, the reviewing court held that out-of-court requests to buy drugs are not inadmissible hearsay when offered to prove why the defendant possessed the drugs. In Nealy, the reviewing court did not mention a limiting instruction. In Ventura, after the reviewing court found the out-of-court statements were not hearsay since they were not offered to prove the truth of the matter stated, in dicta, the court said:
"On its own motion, the court instructed the jury that, You have heard evidence relating to incoming telephone calls at the 230 Maple Street garage. If found to be true, you may not consider this evidence for the truth of the matters stated therein but only as circumstantial evidence showing that someone was in possession of these premises for the purpose of narcotic sales. When so limited, the statements are not hearsay. [Citation.]" (Ventura, supra, 1 Cal.App.4th at p. 1519.)
We do not interpret this dictum to mean that evidence changes from nonhearsay to hearsay if the trial court fails to give a sua sponte limiting instruction. It is well settled that the trial court is under no duty to instruct sua sponte on the limited admissibility of evidence. (See People v. Collie (1981) 30 Cal.3d 43, 64, 177 Cal. Rptr. 458, 634 P.2d 534.) Here, Patterson did not request an instruction on the limited admissibility of evidence of the statements made in the telephone calls. The trial court did not err in failing to give a sua sponte instruction on the limited admissibility.
DISPOSITION
The judgment is affirmed.
WE CONCUR: HUFFMAN, J., and McDONALD, J.