Opinion
C082076
07-31-2018
THE PEOPLE, Plaintiff and Respondent, v. CEDRIC LEE BROOKS, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. P15CRF0323)
A jury convicted defendant Cedric Brooks of possessing a controlled substance (methamphetamine) for sale, in violation of Health and Safety Code section 11378. Defendant admitted having a prior strike pursuant to the "Three Strikes" law (Pen. Code, §§ 667, subds. (b)-(i); 1170.12, subds. (a)-(d)). He also admitted three prior prison terms pursuant to Penal Code section 667.5, subdivision (b), and two prior convictions for drug trafficking. The trial court sentenced defendant to nine years in prison, consisting of three years for possession of a controlled substance doubled to six years for the strike, and one year each for the three prison priors. The trial court struck the enhancements for the prior drug trafficking convictions because it found the prosecution had alleged the wrong subsection in the information to defendant's prejudice.
Defendant argues there was insufficient evidence to convict him, and that the trial court erred in admitting evidence of two prior convictions for drug sales. We shall affirm the judgment.
The People also filed a notice of appeal in this matter, but notified the court in a footnote to the respondent's brief that after reviewing the merits of potential claims, they decided to abandon their appeal. The People have filed no opening brief with respect to their appeal. Therefore, the People's appeal is dismissed. --------
FACTUAL AND PROCEDURAL BACKGROUND
The Red Hawk Casino called the El Dorado County Sheriff's Office in 2015 to report that defendant was trespassing at the casino after having been issued a lifetime ban from the casino in 2012. Deputies contacted defendant and conducted a patdown search of his person. They escorted defendant outside. Security footage from the casino showed that just before the patdown search, defendant put his right hand into his right front pants pocket and pulled out a white baggie that landed on the floor. A presumptive field test indicated the bag contained methamphetamine. There were 26.148 grams of methamphetamine in the baggie.
The search of defendant revealed no drug paraphernalia. When defendant was searched at the jail, he had $1,491.15 in cash. There was no search of defendant's vehicle or home, but a search warrant was obtained for defendant's cell phone. However, nothing of note was found on the phone.
The deputies did not see any signs or symptoms of defendant being under the influence of a controlled substance. His speech was rapid but coherent. Defendant repeatedly stated that he did not use drugs, other than marijuana, for which he had a medical marijuana card. Defendant also did not display the pock-marked skin of a long-term methamphetamine user.
The trial court informed the jury that defendant had been convicted of possession for sale of methamphetamine in 2008, and for the sale/transportation of a controlled substance, not methamphetamine, in 2013.
DISCUSSION
I
Prior Convictions Were Admissible
At trial, defendant did not argue that methamphetamine was not in his possession. His only argument was that the methamphetamine was for his personal use, and he had no intent to sell it. The prosecution sought to admit the prior convictions, but not the underlying facts. Defendant objected below to the admission of his prior convictions for drug trafficking on the ground the convictions were being introduced as propensity evidence, rather than evidence of his intent to sell methamphetamine, and that the prior acts did not have sufficient similarity and were too remote in time to be admissible.
Defendant again argues that the prior convictions "served no purpose other than as impermissible propensity evidence," and further argues for the first time that the bare fact of the convictions should not have been admitted without disclosure of the underlying facts. He argues that the admission of the convictions violated Evidence Code sections 1101 and 352.
Defendant argues the prior convictions were inadmissible to prove intent because they were not sufficiently similar to the current charge. The dissimilarities he argues are that: (1) in the 2008 case the methamphetamine was divided into small baggies, and was discovered during a traffic stop; and (2) the 2013 case involved hydrocodone tablets, and a forensic search of his cell phone had revealed text messages regarding the sale of the drugs.
As the trial court recognized, the entire trial was about defendant's intent to possess the methamphetamine for sale, since he did not contest that he possessed the drug. Evidence Code section 1101, subdivision (a) provides that evidence of uncharged bad acts is inadmissible to prove bad character, predisposition to criminality, or the defendant's conduct on a specific occasion. However, subdivision (b) provides that a defendant's prior commission of a crime is admissible where relevant to prove intent. "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 . . . .' (2 Wigmore, supra, (Chadbourn rev. ed. 1979) § 302, p. 241.) 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.]" (People v. Ewoldt (1994) 7 Cal.4th 380, 402.)
In drug prosecutions, evidence of prior drug convictions is usually admissible to establish the intent to possess the drugs for sale. (People v. Williams (2009) 170 Cal.App.4th 587, 607.) Under the circumstances presented, the prior crimes are sufficiently similar. The 2008 case was a conviction under the same Health and Safety Code section as the current conviction, section 11378, and was for the same drug, methamphetamine. The 2013 conviction was for transportation and sale under Health and Safety Code section 11379, but the drug involved was different. The bare fact that defendant was previously convicted of possessing drugs with intent to sell is highly relevant to the current charge for possession with intent to sell where the prosecution must prove intent, even if the details of the circumstances of sale are different. Obviously, the jury is less likely to believe a defendant's claim that a large quantity of drugs in his possession were for personal use where the defendant has a history as a convicted drug dealer, even if the circumstances of the arrest are different, even if the drugs being sold are different, and even if the drugs are packaged differently. We conclude the prior convictions were sufficiently similar. For the same reason, we conclude the trial court did not err in admitting only the fact of the convictions.
Defendant's claim of error under Evidence Code section 352 is also without merit. That section authorizes the trial court in its discretion to exclude evidence if the probative value is substantially outweighed by the probability the evidence will necessitate undue consumption of time or create undue prejudice, confuse the issues, or mislead the jury. The fact of the convictions was highly probative to the issue of intent to possess for sale, and there was no undue prejudice. " ' " '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.]" . . . In other words, evidence should be excluded as unduly prejudicial when it is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors' emotional reaction. In such a circumstance, the evidence is unduly prejudicial because of the substantial likelihood the jury will use it for an illegitimate purpose.' " (People v. Doolin (2009) 45 Cal.4th 390, 439.)
There was no chance the evidence would inflame the emotions of the jury for an illegitimate purpose, because the jury was not told any inflammatory facts. The jury would have used the evidence for the proper purpose of evaluating defendant's intent in possessing the methamphetamine. The trial court acted within its discretion in admitting the prior conviction evidence.
II
Substantial Evidence
Defendant argues there was not sufficient evidence to support the verdict because there was insufficient evidence he had the requisite intent to sell. We review this claim for substantial evidence. "A substantial evidence inquiry examines the record in the light most favorable to the judgment and upholds it if the record contains reasonable, credible evidence of solid value upon which a reasonable trier of fact could have relied in reaching the conclusion in question. Once such evidence is found, the substantial evidence test is satisfied. [Citation.] Even when there is a significant amount of countervailing evidence, the testimony of a single witness that satisfies the standard is sufficient to uphold the finding." (People v. Barnwell (2007) 41 Cal.4th 1038, 1052.)
The evidence in support of the jury's finding that defendant had the requisite intent was as follows. The quantity of methamphetamine defendant possessed was sizeable. Two of the arresting deputies testified it was the largest amount they had ever seen in investigating a case. An expert narcotics investigator testified that the amount was not typically possessed by someone for their own personal use. The expert testified that a useable amount of methamphetamine is between five-hundredths and one-tenth of a gram, which meant the amount defendant possessed would yield several hundred uses, although a heavy user would use more at one time.
The People presented evidence defendant was not a heavy user of methamphetamine. Defendant's demeanor before being arrested was calm. Defendant told the arresting deputies that he did not use methamphetamine, and no methamphetamine paraphernalia was on his person. People on methamphetamine are usually fidgety, and defendant was not. He spoke coherently. Methamphetamine use usually results in teeth decay and pock-marked skin. Defendant had nice teeth and did not have pocked skin.
Finally, the prosecution presented the evidence cited above, of defendant's prior convictions for drug sales. Even though deputies discovered no pay-owe sheets or scales, and nothing on defendant's cell phone to indicate drug sales, the prosecution's expert opined that the defendant possessed the methamphetamine for sale.
Defendant points to the countervailing evidence that he had no history of selling drugs at the casino, that surveillance video did not show him engaged in sales transactions, and that the officers did not prove that he was not under the influence of drugs when arrested. However, considering the entire record in the light most favorable to the judgment, there was reasonable, credible evidence of solid value that the jury could have relied upon to convict defendant. There was substantial evidence to support the judgment.
DISPOSITION
The judgment is affirmed.
/s/_________
Blease, Acting P. J. We concur: /s/_________
Hull, J. /s/_________
Butz, J.