Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from a judgment of the Superior Court of Orange County, H. Warren Siegel, Judge, Super. Ct. No. 06CF2240.
Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Elizabeth S. Voorhies, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
SILLS, P. J.
A jury convicted Damascus Bell of possession of cocaine base for sale. (Health & Saf. Code, § 11351.5.) The court found true allegations Bell had been convicted of the same offense in 1995 (Health & Saf. Code, § 11370.2, subd. (a)) and served five prior prison terms (Pen. Code, § 667.5, subd. (b)). He was sentenced to prison for a total term of eight years. The court imposed the midterm of four years for possession for sale of cocaine base, three years for the prior narcotics conviction, and one year for all five prior prison term enhancements.
On appeal, Bell challenges the sufficiency of the evidence to prove he possessed cocaine base for the purpose of sale rather than for his own personal use. He further contends the trial court erroneously admitted evidence of his 1995 conviction for possession of cocaine base for sale and improperly imposed concurrent one-year terms on four of the five prior prison term enhancements. The Attorney General concedes the trial court’s sentencing error, and we agree the imposition of concurrent terms constitutes an unauthorized sentence subject to correction on appeal. Therefore, the judgment is modified to strike four of the five one-year prior prison term enhancements for sentencing purposes. In all other respects, the judgment is affirmed.
I
FACTS
At approximately 2:00 a.m. on July 17, 2006, Santa Ana Police Officer Alma Guerrero parked her patrol vehicle across the street from the Royal Roman Motel in Santa Ana. She described the Royal Roman Motel as a one of a group of “low-level” motels in the area that are rife with criminal activity. During one 15-to 20-minute time period, Guerrero saw one couple and three individuals enter and exit room number 109 on the ground floor. In each instance, the visit lasted approximately three minutes. Guerrero thought this activity was consistent with drug trafficking and she decided to investigate.
Four officers, including Corporal Galen Diaz, responded to Guerrero’s call for backup. When all five officers knocked on the door to room number 109, Darryl Hammond answered the door. The officers announced that they were there to investigate narcotics activity, and Hammond permitted them to enter the room. Two women, identified as V. Jones and L. Harris, and Bell were inside the room. Bell and Harris were seated at a small table next to a sliding glass door. When the officers entered the room Bell stood up and dropped two off-white or white-colored rocks onto the floor. The rocks turned out to be 86 milligrams, or a little less than a tenth of a gram, of cocaine base.
Hammond, Jones, and Harris were taken out of the room, searched and released while one of the officers subjected Bell to a patdown search. A search of room number 109 yielded an additional 586 milligrams, or a little over half a gram, of rock cocaine that had been tucked inside a transparent, plastic box the size of a box of Tic Tacs. The plastic box was found on the floor of the motel room’s enclosed patio, approximately three feet from where Bell had been sitting when the officers entered the room. Guerrero testified that none of the room’s occupants appeared to be under the influence of a controlled substance, and the officers did not find any drug paraphernalia or personal effects, with the exception of a couple of used condoms in a trash can. Guerrero arrested Bell and transported him to the City of Santa Ana’s jail. During the ride to jail, Bell asked why he was under arrest. When Guerrero told him he was under arrest for possession of cocaine base for sale, Bell said, “Man, I don’t even use cocaine.”
At trial, Corporal Diaz testified as the prosecution’s drug recognition expert. He explained how cocaine powder is processed into cocaine base and prepared in large, thin sheets, which are then broken into smaller pieces or rocks. According to Diaz, the typical dose is one rock weighing a tenth of a gram, which sells for $20 or $30, and that a user generally ingests cocaine base by smoking a rock in a small, glass pipe. Diaz explained that the rock cocaine business has recently moved from street corners and parking lots to motel rooms. As a result, Diaz said he had been to the Royal Roman Hotel “hundreds and hundreds of times” to investigate drug-related crimes. He stated that the lowest-level dealers operate out of motel rooms and cater to a transient population. In Diaz’s expert opinion, heavy foot traffic to and from a motel room is a sign of narcotics activity.
Diaz also explained that while rock cocaine dealers tend to buy several rocks at one time, the typical user lacks sufficient self-control to make such bulk purchases. Diaz testified, “Cocaine addicts generally cannot pace themselves or can any addict pace themselves through a purchase where they buy in bulk. If they were to buy in bulk, they would be continually using that product and would not be able to space it out over time. [¶] . . . [¶] You’ll buy as much as you can certainly, but you will use that very quickly. You will not be holding it over. You’ll be under the influence the entire time you have it. You won’t be waiting and pacing yourself through the entire — like cocaine lasts maybe 30, 40 minutes in the system and you’re not going to use ten and wait an hour and use ten. You’ll just keep continually using the quantity that you have.”
He also testified that users generally do not have enough money to buy in bulk, and that they fear getting arrested while possessing large quantities. And, he further explained that rock cocaine dealers do not always have ready cash because rock cocaine users are willing to exchange sexual favors for the drug in lieu of cash. Moreover, due to the unique nature and characteristics of rock cocaine, Diaz said not all rock cocaine dealers use cell phones, scales, pay/owe sheets, or standard packaging materials. Following the prosecutor’s hypothetical question based on the facts adduced at trial, Diaz opined that the rock cocaine found in room number 109 was possessed for the purpose of sales and not just for personal use. He relied on the amount of cocaine base seized and the way it was packaged, the fact that the officers found rock cocaine but no drug paraphernalia, and the fact that none of the room’s occupants appeared to be under the influence.
The defense called Jeffrey McCollam, an investigator with the Orange County Public Defender’s Office and former Costa Mesa Police Officer, as a drug recognition expert. McCollam stated that in his experience, police officers stop and question the people who go in and out of a motel room before conducting any other investigation. Here, he would have entered the room only after talking to the suspected buyers, and he may have waited to obtain a search warrant. McCollam further testified that the indicia of drug sales are things like packaging materials, scales, cutting tools, pay/owe sheets, and cash, which were not found in room number 109.
When asked a hypothetical question based on the facts of the instant case, McCollam testified the cocaine base was possessed for personal use not sales. He based his opinion on the quantity of the drug seized, the absence of any indicia of sales, and the fact that none of the room’s occupants admitted to buying or selling the drug. Neither Bell’s statement to Guerrero during the trip to jail, or the fact of Bell’s 1995 prior conviction for possession of cocaine base for sale changed McCollam’s opinion that the cocaine base in room number 109 had been possessed for personal use.
II
DISCUSSION
Evidentiary Error
The information alleged that Bell had a 1995 prior conviction for possession of a controlled substance for the purpose of sales. (Health & Saf. Code, § 11351.) As an enhancement to the underlying crime, proof of a prior sales conviction rendered Bell ineligible for probation. (Pen. Code, § 1203.07, subd. (a)(11).) In addition, the prosecution also filed a pretrial motion to introduce evidence of Bell’s 1995 prior conviction at trial to prove his intent in this case. (Evid. Code, § 1101, subd. (b).) According to the People’s motion, Bell pled guilty to one count of possession for sale of cocaine base on October 16, 1995 and served a nine-month jail term. The information described the prior as “a violation of Section 11351 of the Health and Safety Code on or about October 16, 1995 in the SUPERIOR Court of the State of California, in and for the County of Orange, in case 95WF1923.”
Evidence Code section 1101, subdivision (b) provides, “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, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act.”
After a pretrial conference, the court ruled evidence of Bell’s 1995 prior conviction was relevant to prove his intent in the instant case. As to the issue of prejudice, the court stated, “I don’t think it [the prior] is because one of the other factors to consider on prejudicial [sic] is the other conduct of the defendant. And while there is no other for sale convictions, there certainly [are] other charges including one in ‘04 where he’s found guilty under [Health and Safety Code section] 11350A. [¶] So there’s evidence there of his continued involvement with drugs. The issue for sale — of possession for sale is obviously the critical issue in the case. [¶] If the defense is not going to challenge and will admit the actual possession as indicated, I think that the prior is an important fact for the jury’s evaluation and certainly both sides are free to argue the fact that it was 11 years old and so on and so forth. [¶] But I think it’s a relevant factor and not prejudicial in light of the defendant’s prior history so I will admit that.”
At the conclusion of the prosecution’s case-in-chief, the court made the following statement to the jury: “There’s one additional thing that had to be addressed. [¶] And that’s the question of the reference to the prior conviction in 1995 and the records of the court after which I will take judicial notice do show a prior conviction in which the defendant made the following statement. I was in knowing possession of cocaine intending to sell it.” The court found Bell’s admission in a copy of the change of plea form Bell completed in 1995, which constituted the sole evidence of the prior presented by the prosecution. In addition, the court gave a limiting instruction, which advised the jury that evidence of Bell’s 1995 prior conviction was admitted “for the limited purpose of [] assessing whether there was intent to sell on this case.”
Bell contends admitting evidence of an 11-year-old prior conviction for the same crime as the charged crime, without any showing of factual similarity between the two, constitutes an abuse of the court’s discretion under Evidence Code sections 1101, subdivision (b) and 352. We disagree.
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.”
“‘In reviewing the ruling of the trial court, we reiterate the well-established principle that “the admissibility of this evidence has two components: (1) whether the challenged evidence satisfied the ‘relevancy’ requirement set forth in Evidence Code section 210, and (2) if the evidence was relevant, whether the trial court abused its discretion under Evidence Code section 352 in finding that the probative value of the [evidence] was not substantially outweighed by the probability that its admission would create a substantial danger of undue prejudice.” [Citation.]’ [Citation.]” (People v. Carter (2005) 36 Cal.4th 1114, 1166.)
The court concluded Bell’s prior conviction was highly probative on the issue of his intent, which was the only issue for the jury’s consideration. Bell removed the issue of possession as a part of his trial strategy, but his not guilty plea put at issue his intent at the time of possession. (People v. Steele (2002) 27 Cal.4th 1230, 1243 [the defendant’s not guilty plea put in issue all elements of the offense].) “The least degree of similarity (between the uncharged act and the charged offense) is required to prove intent. [Citation.]” (People v. Ewoldt (1994) 7 Cal.4th 380, 402.) It is enough to show the uncharged crime is “sufficiently similar to the charged crime to support the inference that the defendant ‘“probably harbor[ed] the same intent in each instance.” [Citations.]’ [Citation.]” (Ibid.)
The crimes in question are sufficiently similar to support an inference that Bell probably had the same intent on both occasions. In 1995, Bell admittedly possessed cocaine base, not for his own use, but with the intent to sell it. In 2006, Bell again possessed cocaine base. On this occasion, he told an officer transporting him to jail that he does not use rock cocaine, but he later changed his mind. The fact that in 1995 Bell admitted he possessed cocaine base with the intent to sell the drug and not for his own use supports the inference he possessed cocaine base for the same purpose 11 years later. It does not conclusively prove Bell’s intent, but it is relevant and probative on the sole issue the jury had to decide. Moreover, the court indicated that remoteness might have been a factor if Bell’s only prior offense was the 1995 prior conviction for possession for sale of cocaine base, but his intervening convictions for possession of methamphetamine in 1996, burglary in 1999, corporal injury to a spouse or cohabitant in 2001, felony theft in 2001, and 2004 conviction for cocaine possession lessened the remoteness.
On the other hand, the admission of evidence of Bell’s 1995 prior conviction did not risk consuming undue time or interjecting extraneous information into the trial. (Evid. Code, § 352.) The court’s concise statement took less than a minute and told the jurors all they needed to know. Further, for purposes of our analysis, “‘prejudicial’ is not synonymous with ‘damaging,’ but refers instead to evidence that ‘“uniquely tends to evoke an emotional bias against defendant”’ without regard to its relevance on material issues. [Citations.]” (People v. Kipp (2001) 26 Cal.4th 1100, 1121.) There was nothing in what the court told the jury about Bell’s prior conviction that would tend to evoke an emotional bias or otherwise distract the jury from the facts of case before it. “A court abuses its discretion when its ruling ‘falls outside the bounds of reason.’ [Citation.]” (People v. Kipp (1998) 18 Cal.4th 349, 371.) We find no abuse of the court’s broad discretion here.
Assuming error, however, no prejudice appears because the prosecution presented ample evidence of Bell’s intent apart from evidence of the prior conviction. Guerrero testified that Bell dropped two rocks of cocaine when the officers entered the room and that he was the person closest to the plastic box containing additional rocks of cocaine. There was no evidence the other individuals in the room possessed the drug or drug paraphernalia, and the officers did not find any drug paraphernalia in the room. With no way to ingest the drug Bell possessed, his contention that he possessed rock cocaine for his own seems unlikely. Of course, he admitted as much on the way to jail.
Further, Guerrero had already seen five different people, a couple and three individuals, enter and exit Bell’s motel room. Diaz explained that heavy foot traffic in and out of a motel room is one indicator of narcotics activity. He testified that rock cocaine dealers routinely conduct their business from rooms in motels like the Royal Roman Motel, and he also explained the absence of any of the items frequently associated with drug dealers is due to the unique way rock cocaine is manufactured, transported, and sold. Thus, the prosecution presented ample circumstantial evidence of Bell’s intent even without the evidence of his prior conviction. Under the circumstances, there is no reasonable probability of a more favorable outcome for Bell had the court excluded evidence of his prior conviction. (People v. Watson (1956) 46 Cal.2d 818, 836.)
Sufficiency of the Evidence
Bell contends no reasonable trier of fact could have found the prosecution proved beyond a reasonable doubt that he possessed rock cocaine for the purpose of sale. He emphasizes the relatively small amount of drugs he possessed (less than one gram total), the absence of any indicia of sales in the room or on his person, the presence of three other people in the room with him, and the defense expert’s opinion, to argue the jury made the wrong decision. However, Bell ignores the fact he dropped two rocks of cocaine on the floor when the police entered the motel room, and that he was the person closest to the stash in the plastic box. He also ignores the testimony of the prosecution’s drug recognition expert and the fact of his own prior conviction.
“In assessing a sufficiency-of-evidence argument on appeal, we review the entire record in the light most favorable to the prevailing party to determine whether it shows evidence that is reasonable, credible and of solid value from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] We draw all reasonable inferences in support of the judgment. [Citation.]” (People v. Wader (1993) 5 Cal.4th 610, 640.) Under the appropriate standard of review, and considering the record as a whole, the evidence is sufficient to support the judgment.
Imposition of Concurrent Terms for Prior Prison Terms
The trial court imposed one, one-year prison term enhancement and ordered sentence on the remaining four one-year prior prison term enhancements to run concurrently with Bell’s eight-year sentence. However, once a prior prison term enhancement is found true within the meaning of Penal Code section 667.5, subdivision (b), the trial court must either impose a consecutive term or strike the enhancement. (People v. Langston (2004) 33 Cal.4th 1237, 1241; People v. Gulbrandsen (1989) 209 Cal.App.3d 1547, 1552-1553.) The parties agree the court’s imposition of concurrent terms on the prior prison term enhancements constitutes an unauthorized sentence. Where they differ is on what constitutes the appropriate remedy. Because an unauthorized sentence is subject to correction on appeal, Bell contends this court should simply modify the judgment by striking four of the five prison priors. The Attorney General contends we must remand for a new sentencing hearing because the record is devoid of “any implied circumstances in mitigation,” and “[a]n enhancement cannot be stricken without a statement of reasons . . . .”
Although the minute order from the sentencing hearing and the abstract of judgment indicate the court stayed four one-year prior prison term enhancements (§ 667.5, subd. (b)), the reporter’s transcript of the proceedings states the court imposed concurrent terms. The result is the same regardless of this discrepancy.
Penal Code section 667.5, subdivision (b) states, “Except where subdivision (a) applies, where the new offense is any felony for which a prison sentence is imposed, in addition and consecutive to any other prison terms therefor, the court shall impose a one-year term for each prior separate prison term served for any felony; provided that no additional term shall be imposed under this subdivision for any prison term served prior to a period of five years in which the defendant remained free of both prison custody and the commission of an offense which results in a felony conviction.”
The Attorney General’s characterization of the record is not entirely accurate. There is evidence the court imposed a somewhat mitigated eight-year term in recognition of Bell’s long-standing drug problem. The probation report includes several letters from people familiar with Bell and his problems with drugs. Three people testified on his behalf at the sentencing hearing. Each person emphasized the negative impact Bell’s drug addiction had on an otherwise promising life. In his personal statement to the court, Bell acknowledged his drug problem and asked for treatment. Perhaps more importantly, the trial court recognized its authority to impose consecutive sentences but stated on the record, “I don’t think that’s necessary under the circumstances. I hope the defendant really means that he’s going to try and turn a leaf and I think the time in state prison, eight years, is sufficient to do that with credit for time served.”
Further, while the trial court must give a statement of reasons to exercise its authority to strike enhancements under Penal Code section 1385 (People v. Bradley (1998) 64 Cal.App.4th 386, 392), an appellate court has the statutory authority to modify an unauthorized sentence without a separate statement of reasons. (Pen. Code, § 1260; People v. Lawley (2002) 27 Cal.4th 102, 171-172.) Because the record clearly shows the court would have exercised its discretion to strike the four remaining prior prison term enhancements in the interests of justice, we need not remand for resentencing.
III
DISPOSITION
The judgment is modified to strike four of the five section 667.5, subdivision (b) prior prison term enhancements. (§ 1260.) The trial court is directed to amend the abstract of judgment to reflect this modification and to forward a copy of the amended abstract to the Department of Corrections. In all other respects, the judgment is affirmed.
WE CONCUR: RYLAARSDAM, J., IKOLA, J.