Opinion
NOT TO BE PUBLISHED
Super. Ct. No. NCR64907
SIMS, J.A jury convicted defendant Jesus Dias Ruiz of possession of marijuana for sale (Health & Saf. Code, § 11359) and cultivation of marijuana (Health & Saf. Code, § 11358) and found, in connection with both counts, that a principal was armed with a firearm (Pen. Code, § 12022, subd. (a)(1)).
The trial court sentenced defendant to state prison for an aggregate term of three years, that is, the midterm of two years for the possession for sale offense plus one year for the arming enhancement. For cultivation and the enhancement, defendant received a concurrent three-year term.
Defendant appeals, contending (1) his sentence for cultivation and the enhancement should have been stayed pursuant to Penal Code section 654 and (2) defense counsel rendered ineffective assistance in failing to object to the evidence of the details of defendant’s prior arrest and conviction of two counts of misdemeanor possession of marijuana. We will affirm.
FACTS
For purposes of showing defendant’s identity and common plan and scheme, the prosecutor introduced evidence of an incident which occurred in 2003:
While driving on a dirt road in a remote location in the forest around dusk on October 25, 2003, California Department of Fish and Game Warden Dewayne Little approached a pickup truck with a camper shell traveling slowly in the opposite direction. Little stopped and spoke with the pickup truck’s driver and his two front seat passengers. All were Hispanic male adults. Defendant Jesus Dias Ruiz sat in the middle seat. The far right passenger sat holding a rifle with the barrel pointed towards the roof of the truck and the butt of the rifle in the seat or in the passenger’s lap. Little inspected the rifle and found it had a clip inserted but had no live round in the chamber. Little detected the smell of non-burning, recently harvested marijuana, took possession of the rifle, had the driver get out with the keys and radioed dispatch for backup. The driver and front seat passengers (including defendant) as well as two men who emerged from the truck bed then fled.
In the pickup truck, officers found 25 pounds of marijuana bud in two boxes and about two pounds of marijuana bud and shake in two separate plastic bags, all of which had been recently harvested, a loaded handgun, two cell phones, one of which had the name of Ruiz on the screen, two licenses in the name of Francisco Perez Arteaga, also known as Roberto Dias Ruiz, and paperwork for the registered owner (Ruiz Labor Contractors).
A grow site was found near Antelope Creek, about three miles from where the pickup truck was stopped. Only 11 plants remained at the site which had been harvested. A search of a nearby camp (Lyman Springs) revealed 116 pounds of marijuana individually packaged in bags, a shotgun and indicia with the name of the Ruiz Labor Contractors.
On August 16, 2004, while fishing on Antelope Creek, Timothy Green and Jeff Brusatori noticed trash, clothing and laundry detergent near the creek. Investigating their discovery, the two men found a trail leading up from the creek only to be confronted by defendant, holding an assault rifle and yelling, “‘No trail, no trail, no trail.’” Although not pointed at anyone, defendant held the gun within six inches of Green’s stomach. A younger man with defendant came up behind Green and Brusatori. Defendant claimed he was bear hunting. Green knew it was not hunting season but fearing he and Brusatori had discovered a marijuana cultivation site, they engaged in conversation with defendant and the other man for a short time about the colors of the bears and then left. After hiking out of the area the next day, Green notified law enforcement on August 25.
On September 1, 2004, Green accompanied law enforcement officers back to the area where defendant had confronted Green and Brusatori. It was the same location as the 2003 grow site and was located 10 to 20 yards up the trail from the point Green had been confronted by defendant. The 2004 grow site consisted of a large growing area and, a short distance away and connected by a foot path, a smaller site. Officers seized more than 3,000 plants.
A search of the Ruiz camp (Lyman Springs), located three miles from the grow site, revealed paperwork and ammunition. A receipt for a recycling business reflected a vehicle license plate number of “38LX253.” Because California plate numbers for passenger cars have a letter instead of a number in the second position, officers used a “B” for the “8” and found that the car was registered to defendant.
The parties stipulated that no fingerprints lifted from the grow site and camp matched defendant’s and that the plants seized constituted a usable amount of marijuana.
Brusatori was called by the defense. When he had previously been shown a photographic lineup, he chose a photo other than defendant’s and was 90 percent certain. He recalled but was not certain that the person with the rifle had a gold tooth. On cross-examination, he testified that defendant looked like the person who confronted them on the trail.
Defendant testified. In 2003 and 2004, he lived at Lyman Springs campsite and worked as a woodcutter. He denied ever seeing Green or Brusatori. He denied having ever carried a rifle. On cross-examination, he admitted Roberto Ruiz was his brother but did not know his brother went by the name of Francisco Arteaga. Jose Ruiz, another brother of defendant’s, ran the Ruiz Labor Contractors. He denied ever seeing any marijuana at Lyman Springs or in the woods in 2003 or 2004. He denied having been in the stopped pickup truck with the 25 plus pounds of marijuana in 2003. After an unreported bench conference, the prosecutor asked defendant about his plea to possession of more than an ounce of marijuana as a result. Defendant admitted that he had entered a plea but explained that he did so in order to be released from custody so he could take care of his family.
DISCUSSION
I
The court imposed a concurrent term for the cultivation offense and the arming enhancement. The court found that “the crimes and their objectives were similar [and] were committed at generally the same time and place so as to indicate a single period of aberrant behavior.” Defendant contends Penal Code section 654 mandated a stay on cultivation and the enhancement. Defendant argues “the cultivation and possession convictions were part of a[n] indivisible scheme to grow marijuana for sale.”
Penal Code section 654 provides, in relevant part, as follows: “(a) An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. . . .” “‘Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor.’ [Citation.]” (People v. Britt (2004) 32 Cal.4th 944, 951-952.) That question is for the trial court and its answer will be upheld where substantial evidence supports it. (People v. Braz (1997) 57 Cal.App.4th 1, 10.)
Citing People v. McDaniel (1957) 154 Cal.App.2d 475 (McDaniel), defendant argues that the undisputed evidence shows that his only possession of marijuana was that which he had while engaged in guarding the cultivated site. In McDaniel, supra, 154 Cal.App.2d 475, the defendant was convicted of possessing the same marijuana plants he cultivated. McDaniel concluded that the defendant’s possession was incidental to his cultivation so that he could not be convicted of both. McDaniel reversed the defendant’s conviction for possession which “merged” into the offense of cultivation and ordered it dismissed. (Id. at pp. 485-486.)
Assuming for the sake of argument that McDaniel is correctly decided, it is distinguishable. Here, defendant was convicted of cultivating over 3,000 plants and possession of marijuana for sale. Although there was no other possession of marijuana, defendant entertained two separate objectives: to cultivate marijuana and to sell it. We find People v. Goodall (1982) 131 Cal.App.3d 129 (Goodall) instructive.
In Goodall, the defendants were convicted of and sentenced to terms for possession of piperidine and cyclohexanone with intent to manufacture phencyclidine (PCP), possession of PCP for sale, and manufacturing PCP. (Goodall, supra, 131 Cal.App.3d at pp. 135-136, 146, fn. 6.) Goodall rejected the defendants’ assertion that one or more of the terms should have been stayed under Penal Code section 654, stating: “In this case the trial court could reasonably conclude that [the defendants] intended (1) to manufacture PCP; (2) to sell the PCP they had manufactured, if they could find a buyer; and (3) to manufacture more PCP with the ingredients not used up in step (1). The manufacturing and selling elements in this process clearly involve separate objectives. It would not be proper to subsume the manufacturing into the selling as merely incidental to a single objective of selling the ultimate product for profit.” (Id. at pp. 147-148.)
Cultivation of marijuana and possession of marijuana for sale is analogous to the manufacture of PCP and the possession of PCP for sale. Here, officers found over 3,000 plants in two grow sites connected by a foot path. The record supports the trial court’s implied finding that defendant entertained separate intents in cultivating the marijuana and in possessing the marijuana for sale. No violation of section 654 has been shown.
II
Defendant contends counsel rendered ineffective assistance in failing to object to the evidence related to the 2003 incident to prove common plan or scheme. We conclude that defendant has failed to demonstrate that counsel’s performance was deficient.
Background
Defendant’s first trial resulted in a hung jury. Defendant was originally charged with possession of marijuana for sale while armed with a firearm, cultivation of marijuana and conspiracy to cultivate marijuana. Prior to the first trial, the prosecutor sought to introduce Green’s statements, defendant’s prior conviction for possession of marijuana and evidence showing the grow sites in 2003 and 2004 were “link[ed].” In the prosecutor’s original in limine motion, the prosecutor “alleg[ed] in this case that the cultivation site eradicated in 2003 was re-grown in 2004, and that [defendant] was a principal in that crime. The People are basing this on the testimony of Timothy Green, a fisherman who was allegedly confronted by [defendant] near the same cultivation site. [Defendant] was alleged to have been armed at this time.” The prosecutor sought to introduce the following: “The People intend to present evidence that the cultivation of marijuana was an ongoing endeavor. Timothy Green is expected to testify that the Defendant and another male were near an active marijuana cultivation site in the forest, the same site that had been eradicated soon after the discovery of the marijuana in the truck and camp in 2003. Timothy Green is expected to testify that the Defendant approached him and asked him his business in the woods. The Defendant said he was deer hunting and was holding a rifle. (The People intend to ask the Court to take judicial notice that it was not deer hunting season on the date of this incident in August of 2004). This incident is probative and evidence that [defendant] was guarding an active grow from people who may happen along. [¶] The People do not want to re-litigate the 2003 case, NCR63970, in its entirety. The People will seek to introduce evidence that links the marijuana in the pickup and at the campsite to the cultivation site eradicated in 2003 and 2004. The People wish to introduce [defendant’s] conviction for the possession of marijuana without re-litigating that entire matter. The focus of this case can be very narrow and the trial can be very brief if it mainly involves the testimony of Timothy Green and how the cultivation site is linked to the Defendant’s prior conviction.”
The record on appeal in this case (NCR64907) does not include much information concerning case No. NCR63970. In seeking to dismiss this case on the ground that defendant had been previously prosecuted and convicted for the same course of conduct, defense counsel summarized case No. NCR63970. In his motion in limine, the prosecutor also discussed case No. NCR63970. For conduct occurring in October 2003, defendant was charged with violating Health and Safety Code sections 11358 and 11360 and with conspiracy; the prosecutor sought in limine to introduce Green’s contact with defendant in August 2004 to show that defendant was involved in an ongoing conspiracy to cultivate marijuana at the same site; the trial judge in that case granted the prosecutor’s motion in limine to introduce Green’s statements; on the first day of trial in that case, defendant pled no contest to two counts of misdemeanor violations of Health and Safety Code section 11357, subdivision (c), for the marijuana found in the pickup and for the marijuana found at the camp; defendant was sentenced in that case on January 6, 2005; and the next day, the prosecutor filed case No. NCR64907 with respect to the conduct occurring on August 16, 2004.
On September 19, 2005, after a discussion of the in limine motions in chambers with counsel, the trial court denied the prosecutor’s request without any explanation on the record.
On December 13, 2005, the first day of the first trial, during jury selection, the prosecutor dropped the conspiracy charge. After the jury was selected, the clerk’s minutes reflect that “[o]ut of the presence of the jury [m]otions in limine [were] addressed and evidentiary rulings [were] made.” The record on appeal in this case does not include a reporter’s transcript of this midtrial ruling. Thereafter, several witnesses testified for the prosecution. The record on appeal in this case does not include a reporter’s transcript of the testimony at the first trial. Defendant’s first trial resulted in a hung jury, 11 to 1 in favor of guilt, on both counts.
On May 3, 2006, after jury selection and prior to the introduction of evidence on retrial, the prosecutor renewed his in limine motion including his request to introduce facts from the 2003 case. The following discourse ensued:
Although there were two prosecutors, Deputy District Attorneys Larry Olsen and Lynn Strom, discussing the in limine, the head District Attorney is Gregg Cohen so we refer to the prosecutor in the singular rather than plural.
“The Court: Lastly was Timothy Green’s statement. And I believe it was my intended decision that we weren’t going to relitigate the 2003 case. Is that correct, Mr. Ols[e]n?
“Mr. Olsen: That is correct, your Honor. However, the facts of the stop, whatever, could come in. I believe that was your ruling then according to the notes I have here.
“Ms. Strom: The stop and the grow being in the same place.
“Mr. Ryan [defense counsel]: But my client’s misdemeanor conviction of 2003 would not be admissible.
“Mr. Olsen: And that is our understanding.
Defense counsel claims the court contradicted its prior ruling on September 15, 2005. Defense counsel argues the “court’s remarks, apparently granted [the prosecutor’s request] in limited form” and “create ambiguity in the record, about both the prosecution’s purpose for renewing [the] request” and “the parameters of the court’s apparent qualified grant of the request.” In a footnote, defense counsel states that the trial court denied his request to settle the record apparently to explain the contradiction. The apparent contradiction is most likely no contradiction at all; the record on appeal does not include the reporter’s transcript of the first trial where the court made a midtrial evidentiary ruling on a motion in limine.
The trial court instructed the jury in the language of CALJIC No. 2.50 as follows:
“The defendant is not on trial for any actions that were alleged to have occurred in 2003. Evidence has been introduced for the purpose of showing that the defendant committed acts in 2003 for which he is not on trial.
“Except as you will otherwise be instructed, this evidence, if believed, may not be considered by you to prove the defendant is the person – is a person of bad character or that he has a disposition to commit crimes. It may be considered by you only for the limited purpose of determining if he – if it tends to show:
“The identity of the person who committed the crime, if any, of which the defendant is accused;
“The crime charged is part of a larger continuing plan, scheme or conspiracy;
“For the limited purpose for which you may consider such evidence, you must weigh it in the same manner as you do all other evidence in the case. You are not permitted to consider such evidence for any other purpose.”
In arguing his contention that counsel was ineffective, defendant complains that the court mentioned conspiracy in the instruction when the conspiracy charge had been dismissed. Defendant’s challenge to the instruction will not be discussed; he failed to raise it under a separate heading. (Cal. Rules of Court, rule 8.204(a)(1)(B); People v. Turner (1994) 8 Cal.4th 137, 214, fn. 19.) In any event, in context, the reference was obviously another word for common plan or scheme.
Analysis
Defendant contends that defense counsel rendered ineffective assistance in failing to object to and to limit the details of 2003 stop and investigation and defendant’s arrest and conviction.
To establish ineffective assistance of counsel, defendant must demonstrate that counsel’s performance was deficient and that defendant suffered prejudice as a result. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692 [80 L.Ed.2d 674, 693, 696]; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) Defense counsel’s determination whether to object to evidence is a tactical decision which is entitled to substantial deference; “failure to object seldom establishes counsel’s incompetence.” (People v. Majors (1998) 18 Cal.4th 385, 403.)
Defendant argues, “Despite the record not reflecting any conversation in which the prosecutor expresses a desire to no longer submit request number three to prove the dropped count three conspiracy charge [ ] and instead prove common plan or scheme, relating to counts one and two, defense counsel’s failure to object at any moment on Evidence Code section 1101 and 352 grounds is a flagrant demonstration of ineffective assistance.” We conclude that the trial court properly admitted the evidence of the prior incident and any objection would have been futile.
Evidence Code section 1101, subdivision (b), permits the introduction of other crimes evidence to prove some fact, other than a defendant’s disposition to commit a crime, such as common plan and identity. “Evidence Code section 1101, subdivision (b), permits the admission of other-crimes evidence against a defendant ‘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.’ Section 1101 prohibits the admission of other-crimes evidence for the purpose of showing the defendant’s bad character or criminal propensity. It recognizes, however, that there are facts other than criminal propensity to which other-crimes evidence may be relevant. [Citation.] The categories listed in section 1101, subdivision (b), are examples of facts that legitimately may be proved by other-crimes evidence, but . . . the list is not exclusive. [Citations.] As we have explained, the admissibility of other- crimes evidence depends upon the materiality of the fact sought to be proved or disproved, the tendency of the uncharged crime to prove or disprove the material fact, and the existence of any policy requiring exclusion of the evidence. [Citation.]” (People v. Catlin (2001) 26 Cal.4th 81, 145-146.)
Evidence Code section 1101 provides, in relevant part, as follows:
“The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent. [Citation.] ‘[T]he recurrence of a similar result . . . tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such an act . . . .’ [Citation.] In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant ‘“probably harbor[ed] the same intent in each instance.” [Citations.]’ [Citation.] [¶] A greater degree of similarity is required in order to prove the existence of a common design or plan. As noted above, in establishing a common design or plan, 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.] ‘[T]he difference between requiring similarity, for acts negativing innocent intent, and requiring common features indicating common design, for acts showing design, is a difference of degree rather than of kind; for to be similar involves having common features, and to have common features is merely to have a high degree of similarity.’ [Citations.] [¶] To establish the existence of a common design or plan, 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. For example, evidence that a search of the residence of a person suspected of rape produced a written plan to invite the victim to his residence and, once alone, to force her to engage in sexual intercourse would be highly relevant even if the plan lacked originality. In the same manner, evidence that the defendant has committed uncharged criminal acts that are similar to the charged offense may be relevant if these acts demonstrate circumstantially that the defendant committed the charged offense pursuant to the same design or plan he or she used in committing the uncharged acts. Unlike evidence of uncharged acts used to prove identity, the plan need not be unusual or distinctive; it need only exist to support the inference that the defendant employed that plan in committing the charged offense. [Citation.] [¶] The greatest degree of similarity is required for evidence of uncharged misconduct to be relevant to prove identity. For identity to be established, the uncharged misconduct and the charged offense must share common features that are sufficiently distinctive so as to support the inference that the same person committed both acts. [Citation.] ‘The pattern and characteristics of the crimes must be so unusual and distinctive as to be like a signature.’ [Citation.]” (People v. Ewoldt (1994) 7 Cal.4th 380, 402-403.)
Evidence Code section 352 provides: “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.” Prejudicial evidence means “‘evidence which uniquely tends to evoke an emotional bias against defendant as an individual and which has very little effect on the issues.’” (People v. Bolin (1998) 18 Cal.4th 297, 320.) “‘In applying section 352, “prejudicial” is not synonymous with “damaging.”’ [Citation.]” (People v. Karis (1988) 46 Cal.3d 612, 638.)
A trial court’s ruling under Evidence Code section 352 is reviewed for abuse of discretion. (People v. Kipp (2001) 26 Cal.4th 1100, 1125-1126.) A trial court’s ruling will not be disturbed on appeal absent “‘a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]’ [Citation.]” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)
Here, defendant’s plea of not guilty “put in issue all of the elements of the offenses.” (People v. Steele (2002) 27 Cal.4th 1230, 1243.) Defendant’s identity was also at issue since he denied having ever encountered Green or Brusatori in the forest. “The essential elements of the offense of unlawful possession of a controlled substance are actual or constructive possession in an amount sufficient to be used as a controlled substance with knowledge of its presence and its nature as a controlled substance. . . . [¶] Actual or constructive possession is the right to exercise dominion and control over the contraband or the right to exercise dominion and control over the place where it is found. [Citation.] Exclusive possession is not necessary. A defendant does not avoid conviction if his right to exercise dominion and control over the place where the contraband was located is shared with others.” (People v. Rushing (1989) 209 Cal.App.3d 618, 621-622; Weber v. Superior Court (1973) 30 Cal.App.3d 810, 815 [possession of marijuana for sale includes the additional element “that the possession by the accused was for the purpose or intent of selling [it]”].) For cultivation of marijuana, the prosecutor was required to prove: “‘1. That a person planted, cultivated, harvested, dried or processed a marijuana plant, and [¶] 2. That such person knew it was a marijuana plant or some part thereof.’” (People v. Villa (1983) 144 Cal.App.3d 386, 389, fn. 3, quoting CALJIC No. 12.24, see now CALCRIM No. 2370.) The crime of cultivation “continues at least during a period of cultivation that the defendant undertakes or aids or abets.” (People v. Bradford (1995) 38 Cal.App.4th 1733, 1738-1739.) A defendant’s presence at the grow site is not required. (Id. at p. 1739.)
The 2003 evidence showed that defendant was one of the individuals in the truck containing 25 plus pounds of recently harvested marijuana probably from the same grow site associated with the current charges. Defendant lived at Lyman Springs camp while working as a woodcutter with the Ruiz Labor Contractors where 116 pounds of marijuana were found. The grow site was in a remote location in the forest near Antelope Creek. The only difference in the current case was that the marijuana was not yet ready to be harvested. The 2003 evidence was more probative than prejudicial. The prior conduct was admissible to prove identity, intent, knowledge and common plan or scheme. The prior conduct involved harvested marijuana while the current charges involved cultivated marijuana. The prior conduct evidence did not consume an undue amount of time despite defendant’s protestations to the contrary. The trial court properly admitted the evidence. Defense counsel’s apparent failure to object did not amount to deficient performance, because objection would have been futile. (People v. Majors, supra, 18 Cal.4th at 403.) Defendant denied having been in the stopped pickup truck with 25 plus pounds of marijuana in 2003. The prosecutor was entitled to impeach defendant with his conviction for the same.
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND , P.J., MORRISON , J.
“(a) . . . . [E]vidence 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.
“(b) 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, . . . .) other than his or her disposition to commit such an act.
“(c) Nothing in this section affects the admissibility of evidence offered to support or attack the credibility of a witness.”