Opinion
E070498
03-10-2020
THE PEOPLE, Plaintiff and Respondent, v. SHADY FAROUK SHAWKI ELBOUHY, Defendant and Appellant.
Richard Power, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Alan L. Amann, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF1603060) OPINION APPEAL from the Superior Court of Riverside County. Jorge C. Hernandez, Judge. Affirmed in part, reversed in part with directions. Richard Power, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Alan L. Amann, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant and appellant Shady Farouk Shawki Elbouhy, guilty of (1) transporting methamphetamine (Health & Saf. Code, § 11379, subd. (a)); and (2) two counts of possessing methamphetamine for sale (Health & Saf. Code, § 11378). The jury found true the allegations that defendant transported and possessed for sale 28.5 grams or more of methamphetamine. (Pen. Code, § 1203.073, subd. (b)(2).) Defendant admitted suffering seven prior convictions for which he served prison terms. (Pen. Code, § 667.5, subd. (b).) Defendant admitted suffering a prior strike conviction. (Pen. Code, § 667, subd. (c).) The trial court sentenced defendant to prison for a term of 10 years four months.
All subsequent statutory references will be to the Penal Code unless otherwise indicated. --------
Defendant raises six issues on appeal. First, defendant contends there is insufficient evidence that he possessed or controlled the methamphetamine found alongside his car. Second, defendant asserts the evidence does not support the trial court's decision to instruct the jury on the law of aiding and abetting in relation to the offense of possessing methamphetamine inside his car (Health & Saf. Code, § 11378). Third, defendant contends the trial court erred by not instructing the jury on unanimity. Fourth, defendant asserts his sentence violates Penal Code section 654. Fifth, defendant contends the trial court erred by allowing evidence of uncharged acts. Sixth, defendant contends the one-year prison prior sentences (§ 667.5, subd. (b)) should be stricken. (Sen. Bill 136 (2019-2020 Reg. Sess.).) We affirm in part and reverse in part.
FACTUAL AND PROCEDURAL HISTORY
Riverside County Sheriff's Deputy Garza was on patrol on June 19, 2016. At approximately 11:45 p.m., defendant drove through a stop sign, without stopping, in front of Garza. Garza followed defendant to determine if defendant exhibited any signs of inebriation. Defendant stopped his Ford Mustang on the side of the road. Garza found that unusual because most people continue driving when a law enforcement vehicle is behind them. "At that point [Garza felt he] was pretty much forced into a traffic stop." Therefore, Garza activated his patrol vehicle's overhead lights.
Garza noticed there was a passenger in defendant's vehicle. It appeared from their head movements that defendant and the passenger were speaking to one another. Upon exiting his patrol vehicle, Garza "heard the sound of an object almost like a plasticky sounding paper bag or plastic bag, more of a rustling sound near the vehicle." Garza approached defendant's vehicle. Garza instructed defendant to turn off his engine, but defendant refused. Defendant placed his hand on his gear shift, which caused Garza to believe defendant intended to drive away. Garza drew his gun and pointed it at defendant. Garza radioed for backup.
Riverside County Sheriff's Deputy Joseph Cox arrived. The deputies detained defendant and the passenger. The passenger was identified as Tawnya Clerisse. When walking around defendant's car, Cox noticed "a large baggie or a plastic zip-lock bag with a white crystalline substance in it," which tested positive for methamphetamine. The gallon-size bag was located outside the vehicle, "near the front passenger side tire in the gutter." The amount of methamphetamine "was the largest [Garza had ever] come upon." With the large plastic bag, the methamphetamine weighed 109.4 grams. A lab weighed the methamphetamine and found the weight to be 103.525 grams.
Garza found a digital scale on the passenger side floorboard of defendant's vehicle. Garza explained that scales are used when selling drugs in order to determine the amount being sold. Garza found two smaller plastic bags, approximately the size of a sugar packet, inside or near the gallon-size bag of methamphetamine. At the time of his arrest, defendant had $973 in his wallet. Garza explained that people who sell drugs often carry large amounts of cash. Garza did not locate, inside defendant's car, any pipes or paraphernalia one would use for consuming methamphetamine.
Cox searched defendant's house. Inside the two-car garage, Cox saw "a hangout place" that "had couches and a table in the middle." On top of a hutch, in the makeshift space, Cox found "[a] rectangular Tupperware with a plastic scoop and [a] crystalline substance inside." The substance tested positive for methamphetamine. Cox moved the methamphetamine to a plastic bag and weighed it. With the bag, the methamphetamine weighed 80 grams. Cox did not locate any pipes or other tools for consuming methamphetamine inside defendant's house. A lab weighed the methamphetamine and found the weight to be approximately 83 grams.
Cox explained that typically, when people who consume methamphetamine are arrested, they possess less than one gram of methamphetamine. Riverside County Sheriff's Department Investigator Leone explained that "the most common street level weight [of methamphetamine] sold is two-tenths of a gram," which sells for $20. The average dose of methamphetamine is one-tenth of a gram; 103 grams of methamphetamine is approximately 1,030 doses. A heavy user of methamphetamine would consume one to two grams of methamphetamine per day. A person who consumed a tenth of a gram per day would have a 1,030 day supply of the drug. Leone opined that one who possesses 103 grams of methamphetamine is intending to sell the drug because "[t]hat's a lot of methamphetamine."
In 2016, an ounce of methamphetamine would have sold for approximately $300. One hundred three grams is approximately three and one-half ounces, which would cost approximately $900. Leone opined that the $937 in defendant's wallet came from Clerisse purchasing the methamphetamine from defendant.
Leone opined that the 83 grams of methamphetamine found in defendant's house was also possessed for sale because 83 grams is "a lot of methamphetamine." 83 grams is approximately three ounces, which equates to approximately 830 doses. Leone explained that typically, when a person is a consumer of methamphetamine, one would expect to find paraphernalia for use among the person's possessions.
The parties stipulated that "on May 10th, 2017, defendant Tawnya Clerisse pled guilty to a violation of Health and Safety Code Section 11379, transportation of a controlled substance, and to a violation of Health and Safety Code Section 11378, possession for sale of a controlled substance, with a date of offense for both of them being June 19th of 2016."
DISCUSSION
A. SUBSTANTIAL EVIDENCE
Defendant contends there is insufficient evidence that he possessed or controlled the methamphetamine found alongside his car.
" 'In reviewing a challenge to the sufficiency of the evidence, we do not determine the facts ourselves. Rather, we "examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—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." [Citations.] We presume in support of the judgment the existence of every fact the trier reasonably could deduce from the evidence.' " (People v. Whisenhunt (2008) 44 Cal.4th 174, 200.)
" '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. Busch (2010) 187 Cal.App.4th 150, 161.)
The prosecutor argued that defendant had constructive possession of the methamphetamine because "he has control over everything that's in that car." Because defendant sold the methamphetamine to Clerisse, he was aware that she possessed the methamphetamine inside his car.
The evidence supporting a finding that defendant sold the methamphetamine to Clerisse is as follows: defendant was found with $973 in his wallet. In 2016, an ounce of methamphetamine sold for approximately $300. Approximately three and one-half ounces of methamphetamine was found alongside defendant's car. Leone opined that defendant sold the methamphetamine to Clerisse, given that the amount of money in defendant's wallet corresponded to the amount of methamphetamine found by the passenger side of defendant's car.
Defendant had control over the methamphetamine while it was inside his car because he had the ability to transport the methamphetamine to any place he wanted to take it given that he was driving the car. For example, defendant could have driven the methamphetamine to his house, against Clerisse's wishes, if he so chose. (See People v. Jenkins (1979) 91 Cal.App.3d 579, 584 ["The inference of dominion and control is easily made when the contraband is discovered in a place over which the defendant has general dominion and control: his residence . . . , his automobile"]; People v. Nieto (1966) 247 Cal.App.2d 364, 368 [gun found under the front seat of defendant's car when he was driving was "[a]t the very least . . . circumstantial evidence supportive of a finding of joint or constructive possession"].)
Further, Garza witnessed defendant and Clerisse speaking to one another after defendant stopped his car on the side of the road. Garza then heard the sound of a plastic bag. The methamphetamine was found inside a plastic bag alongside the car. One could infer that defendant and Clerisse discussed what should be done with the methamphetamine, thus indicating that defendant had joint control over what occurred with the methamphetamine. Accordingly, because defendant shared control over the methamphetamine, there is substantial evidence of defendant having joint constructive possession.
Because defendant had constructive possession of the methamphetamine, he could properly be found guilty of possessing the methamphetamine and transporting the methamphetamine. (People v. Morante (1999) 20 Cal.4th 403, 415 ["It is well established that one may become criminally liable for possession for sale or for transportation of a controlled substance, based upon either actual or constructive possession of the substance"].) Therefore, we find no error.
Defendant asserts, "What is missing is definitive proof." Definitive proof is not required. Circumstantial evidence can constitute substantial evidence. (People v. Catlin (2001) 26 Cal.4th 81, 142.) Accordingly, we find defendant's argument to be unpersuasive.
B. AIDING AND ABETTING
Defendant contends the evidence does not support the trial court's decision to instruct the jury on the law of aiding and abetting in relation to the offense of possessing methamphetamine inside the car (Health & Saf. Code, § 11378).
"A party is entitled to a requested instruction if it is supported by substantial evidence. [Citation.] Evidence is '[s]ubstantial' for this purpose if it is 'sufficient to "deserve consideration by the jury," that is, evidence that a reasonable jury could find persuasive.' [Citation.] At the same time, instructions not supported by substantial evidence should not be given. [Citation.] 'It is error to give an instruction which, while correctly stating a principle of law, has no application to the facts of the case.' " (People v. Ross (2007) 155 Cal.App.4th 1033, 1049-1050.) "We review the trial court's assessment de novo." (People v. Quiroz (2013) 215 Cal.App.4th 65, 76.)
"[A] person aids and abets the commission of a crime when he or she, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime." (People v. Beeman (1984) 35 Cal.3d 547, 561.)
During closing argument, the prosecutor asserted, "[Leone] told us that the evidence in this case is consistent with defendant having just sold drugs to Miss Clerisse." The prosecutor later reiterated, "So in this case Investigator Leone testified that not only did defendant possess the methamphetamine for sale, he may have actually sold it right before that traffic stop."
As set forth ante, there is evidence to support a finding that defendant sold the methamphetamine to Clerisse prior to being arrested. The evidence is as follows: Defendant was found with $973 in his wallet. In 2016, an ounce of methamphetamine sold for approximately $300. Approximately three and one-half ounces of methamphetamine was found alongside defendant's car. Leone opined that defendant sold the methamphetamine to Clerisse given that the amount of money in defendant's wallet corresponded to the amount of methamphetamine found by the passenger side of defendant's car.
The evidence that Clerisse intended to sell the methamphetamine consists of the following: (1) the average dose of methamphetamine is one-tenth of a gram; (2) 103.525 grams of methamphetamine were located alongside defendant's car; (3) the amount of methamphetamine equated to 1,030 doses, which would last an average daily user 1,030 days; (4) Leone opined the methamphetamine was possessed for sale because "[t]hat's a lot of methamphetamine"; (5) two small baggies, the size of sugar packets, were found near the car; (6) a scale was found in the car; (7) no pipes or paraphernalia for consuming methamphetamine were found in the car; and (8) Clerisse pled guilty to possessing the methamphetamine for sale (Health & Saf. Code, § 11378).
The large amount of methamphetamine, consisting of a multi-year supply for a single user, combined with tools for sale, such as a scale and small baggies indicate that there was a plan to break the methamphetamine into smaller amounts to sell to other people. Given that the scale was on the floor of defendant's car and the small baggies were found near or inside the large bag containing the methamphetamine, it is reasonable to infer that defendant was aware of their presence inside his car. Further, given the large amount of methamphetamine, it is reasonable to infer that defendant knew Clerisse would not be keeping the methamphetamine for herself, but would be selling it to others using the tools (scale and baggies) inside the car. Thus, there is evidence of Clerisse's intent to sell the methamphetamine and defendant's knowledge of Clerisse's intent.
In sum, the record reflects that (1) defendant knew of Clerisse's intent to possess the methamphetamine for sale; (2) defendant intended to assist Clerisse with that crime, which is shown by his act of selling the methamphetamine to Clerisse; and (3) defendant aided Clerisse in the crime by selling her the methamphetamine. (See generally People v. Francis (1969) 71 Cal.2d 66, 72 ["A conviction for possession of marijuana may be upheld where there is evidence that the defendant aided and abetted another in committing the crime of possession of narcotics"].) Because there is evidence from which one could conclude defendant aided and abetted Clerisse's possession of the methamphetamine, we conclude the trial court did not err by instructing the jury on aiding and abetting.
C. UNANIMITY
The prosecutor argued that defendant could be liable for possession of the methamphetamine found alongside the car because (A) he possessed the drugs prior to selling the drugs to Clerisse; (B) he constructively possessed the drugs that belonged to Clerisse because the drugs were in defendant's car; and/or (C) he aided and abetted in Clerisse's possession of the drugs by selling the drugs to Clerisse. Defendant contends that because the jury could have based liability on different acts, a unanimity instruction was required.
The "requirement of unanimity as to the criminal act 'is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed.' " (People v. Russo (2001) 25 Cal.4th 1124, 1132.) "[W]here the evidence shows only a single discrete crime but leaves room for disagreement as to exactly how that crime was committed or what the defendant's precise role was, the jury need not unanimously agree on the basis or, as the cases often put it, the 'theory' whereby the defendant is guilty." (Ibid.)
The prosecutor described a single criminal transaction—defendant sold methamphetamine to Clerisse and then drove with her while the methamphetamine was in the car. The prosecutor set forth various legal theories under which one could find defendant guilty based upon those facts: (1) defendant's possession prior to the sale; (2) aiding and abetting due to the sale; and (3) defendant's constructive possession in the car after the sale. In other words, the prosecutor did not set forth different factual ways in which the crime was committed; the prosecutor set forth different legal theories based upon a single factual scenario. Accordingly, a unanimity instruction was not required.
D. SECTION 654
Defendant contends the trial court erred by not applying section 654 to defendant's possession of methamphetamine in the garage, because that was a continuous course of conduct with the transportation and possession of methamphetamine inside the car, due to all three offenses involving the single objective of selling methamphetamine.
"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." (§ 654, subd. (a).)
" ' "Section 654 has been applied not only where there was but one 'act' in the ordinary sense . . . but also where a course of conduct violated more than one statute and the problem was whether it comprised a divisible transaction which could be punished under more than one statute within the meaning of section 654." [Citation.] [¶] 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. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.' " (People v. Rodriguez (2009) 47 Cal.4th 501, 507.) "A trial court's express or implied determination that two crimes were separate, involving separate objectives, must be upheld on appeal if supported by substantial evidence." (People v. Brents (2012) 53 Cal.4th 599, 618.)
The record reflects methamphetamine was in defendant's vehicle and in defendant's garage. Thus, defendant possessed the methamphetamine in two separate locations. The evidence indicates defendant sold the methamphetamine in the car to Clerisse because defendant had $973 in his wallet, which corresponded to the amount of methamphetamine in the car. Because approximately 83 grams of methamphetamine was left in defendant's garage, a reasonable inference is that defendant intended to sell the 83 grams of methamphetamine to another purchaser.
Defendant's intent to ultimately sell the entire supply of methamphetamine does not support a conclusion that he acted with a single criminal objective. Multiple sales are generally deemed to involve separate criminal objectives—the completion of each sale. (See People v. Fusaro (1971) 18 Cal.App.3d 877, 893-894 [separate sales are separate criminal acts each involving a different objective], disapproved on other grounds by People v. Brigham (1979) 25 Cal.3d 283, 292, fn. 14.)
Thus, defendant's overall sales objective does not invoke the prohibition against multiple punishments found in section 654. Possession of different quantities of methamphetamine at different locations is sufficient to support the trial court's finding of separate criminal objectives. (See People v. Von Latta (1968) 258 Cal.App.2d 329, 340-341 [different intents and objectives when defendant possessed marijuana at two different houses]; see also People v. Blake (1998) 68 Cal.App.4th 509, 512 [multiple objectives may be found when there is evidence of an objective to make multiple sales].) Accordingly, we conclude the trial court did not err.
E. UNCHARGED OFFENSES
1. PROCEDURAL HISTORY
a. Prosecutor's Pretrial Motion
Prior to trial, the prosecutor moved to introduce evidence of two uncharged criminal acts. The first uncharged act occurred in September 2013. Law enforcement officers "went to a residence in Riverside for a probation compliance check. Officers found the probationer and the defendant in a make-shift shed in the back yard [sic]. During a search of the shed, officers found 2 digital scales and 15 plastic baggies labeled '$100.' " Upon searching defendant's vehicle, officers "found a rectangular plastic Tupperware container with a red lid that contained . . . Methamphetamine." The methamphetamine weighed 8.8 ounces. Defendant had $2,900 in cash in his wallet. Text messages on defendant's cell phone were "consistent with drug sales." Defendant pled guilty to possessing a controlled substance for sale (Health & Saf. Code, § 11378).
The second uncharged act occurred in September 2014. At 12:30 a.m., Deputy Lycopolus noticed a car parked in an alleyway with a woman seated in the passenger seat and two men, one of which was defendant, standing behind the car. Lycopolus exited his patrol vehicle. Defendant walked toward the driver's side of the vehicle. Lycopolus also walked toward the driver's side of the vehicle. When Lycopolus was approximately "two feet away from the defendant, he saw defendant turn and throw a small plastic baggie containing a while crystalline substance. The baggie hit the leaves of a tree and fell to the ground. Deputy Lycopolus attempted to handcuff the defendant, but the defendant pulled away and resisted arrest." After defendant was arrested, the plastic bag was recovered and the substance tested positive for methamphetamine. The methamphetamine weighed 5.7 grams. Defendant pled guilty to possessing a controlled substance for sale (Health & Saf. Code, § 11378).
The prosecutor asserted the uncharged act evidence was admissible as proof of defendant's identity, knowledge, and intent. (Evid. Code, § 1101, subd. (b).) The prosecutor argued, "Because there was a passenger in the vehicle, and the drugs were thrown from the passenger side of the vehicle, defendant may argue lack of knowledge of the presence of the drugs in the vehicle and may argue evidence of third party culpability. Defendant could also argue that, assuming the drugs were his, he possessed them for personal use, rather than sales."
The prosecutor asserted defendant's 2013 offense was relevant to the charged offense because both involved scales, small plastic baggies, a large amount of cash, methamphetamine stored inside a Tupperware container, and methamphetamine located inside defendant's car. The prosecutor asserted the 2013 Tupperware container was "the exact same size, shape, color, and brand" as the Tupperware container found in the charged crime—a rectangle with a red lid. The prosecutor argued, "The Tupperware container is so distinctive as to constitute a signature and is relevant to proving the elements of identity and possession in this case. The other similarities are also relevant to show his dominion and control over the makeshift living area in the garage, his knowledge of the presence of the Methamphetamine in the car, his access to large quantities of Methamphetamine, and his intent to sell the Methamphetamine."
The prosecutor asserted defendant's 2014 offense was similar to the charged offense because in both cases, defendant "was parked in a suspicious manner," a baggie of methamphetamine was thrown, and defendant was evasive with law enforcement. The prosecutor asserted the similarity of the circumstances made the 2014 offense relevant to proving "knowledge and possession of the Methamphetamine."
The prosecutor asserted the uncharged offense evidence was not prejudicial because (1) defendant was convicted for the uncharged offenses; (2) the uncharged offenses occurred within three years of the charged crimes; and (3) the uncharged offenses were not more inflammatory than the charged crimes.
b. Defendant's Pretrial Motions
In defendant's introduction to his motions in limine, he explained, "[Defendant's] defense is that Ms. Clerisse possessed the alleged methamphetamine, and not he." Defendant moved for permission to introduce evidence of Clerisse's knowledge and intent pursuant to Evidence Code section 1101, subdivision (b). Defendant sought to introduce evidence of (1) Clerisse's convictions related to the instant case; (2) Clerisse's November 9, 2016, arrest for possessing methamphetamine for sale (Health & Saf. Code, § 11378); and (3) Clerisse's January 23, 2016, arrest for possessing methamphetamine for sale (Health & Saf. Code, § 11378) and transporting methamphetamine (Health & Saf. Code, § 11379).
Defendant also moved to exclude any evidence of prior crimes that the prosecution might seek to introduce under Evidence Code section 1101, subdivision (b) related to defendant. Defendant asserted evidence of prior crimes was so prejudicial that it should only be admitted if it has substantial probative value.
c. Pretrial Hearing
The trial court held a hearing on the parties' pretrial motions. In regard to defendant's motion to introduce evidence of Clerisse's crimes, the trial court found Clerisse's prior crimes were similar to the crimes charged in the instant case. The trial court explained, "I think I found enough common markers here to suggest that that information should in fact come in to show that this individual was—it wasn't a one-time situation. It wasn't where she was the patsy and defendant here was the one in control."
The court continued, "I think that that information does in fact come in. For the same reason when we get to [the] discussion of whether they come in for defendant, I think they're the exact same arguments that will be made. When you want that 1101(b) against the defendant, I think that's the same argument that defense is putting forth in order to use those against Miss Clerisse. So I am going to allow those things to come in whether she testifies or not."
The court explained, "[T]here's no question that she was the one partially responsible because, you know, two people—the argument is going to be two people can possess the same amount of dope, one who physically does it and the other one that constructively does it. And here it's clear that she's the one that physically possessed it because she was the one that threw it out. . . . [¶] Both of [them] with their history, I think the jury could go either way as to who they think may or may not be responsible in this case. So I am going to allow the fact that she pled guilty."
In discussing evidence of defendant's prior crimes, the trial court said, "Defense is that it wasn't me. It was my passenger. And she is a dope head. And she is a convicted seller, transporter, furnisher of dope. And there are three specific instances including this one where she is responsible. And her acts will show that she is the one that is culpable. [¶] But on the flip side of that your client does not come to the table with clean hands. He comes with his prior drug convictions. There's a 2013. There's a 2014. Neither one of those are too remote in time. And all of those go to the heart of the People's case and also to rebut the defense that, you know, there was some mistake. I really have no knowledge of what drugs are or how drugs are sold.
"So as I go through the checklist of what I have to do in order to overcome the automatic thoughts to exclude, I see that they're all there for the same reasons that I'm allowing you to bring in the stuff regarding the co-defendant. They're the exact same arguments that could be used here to bring these two very specific incidents against your client. And I think they do meet the intent and knowledge and absence of mistake and identity. I think it meets all of those.
"So this is one where I recognize that it's prejudicial. But it's not so prejudicial that I would exclude it. It does not shock the conscience of the Court that I would exclude it. So I'm intending to allow the 2013 and 2014. . . . I think what's good for the goose is good for the gander. Your request to allow her stuff to come in is the same reason why I'm going to allow his stuff to come in." The trial court instructed the jury that it could use the uncharged offense evidence as proof of identity, intent, and knowledge.
2. ANALYSIS
Defendant contends the trial court erred by permitting evidence of defendant's uncharged offenses to be used as proof of identity and intent.
To be admissible "the uncharged act must be relevant to prove a fact at issue [citation], and its admission must not be unduly prejudicial, confusing, or time consuming [citation]. [¶] The relevance depends, in part, on whether the act is sufficiently similar to the current charges to support a rational inference of intent, common design, identity, or other material fact. [Citation.] 'The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent. [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.' " ' " (People v. Leon (2015) 61 Cal.4th 569, 598 (Leon).)
"[T]he greatest similarity is required to prove identity. When offered on this point, '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.] These common features need not be unique or nearly unique; 'features of substantial but lesser distinctiveness may yield a distinctive combination when considered together.' " (Leon, supra, 61 Cal.4th at p. 598.) "We review the trial court's decision whether to admit evidence, including evidence of the commission of other crimes, for abuse of discretion.' " (Id. at p. 597.)
Defendant informed the trial court that he planned to argue that Clerisse was the sole perpetrator in this case. As a result, defendant put the element of identity at issue. The 2013 evidence helped to prove defendant's identity in the charged crime because both offenses involved scales, plastic baggies, methamphetamine stored in a rectangular Tupperware container with a red lid, and methamphetamine located in defendant's car. The evidence that defendant had the same tools and drugs with him on a prior occasion tends to show that the items found in the charged offense belonged to defendant, thus helping to prove that defendant shared control of the drugs in the charged case.
The 2014 evidence helped to prove defendant's identity in the charged crime because both offenses involved defendant having methamphetamine near his car and then throwing the methamphetamine when approached by law enforcement. Because defendant planned to argue that Clerisse was solely at fault in the instant case, the prosecutor needed to prove that defendant bore some responsibility for the methamphetamine that was located along the passenger side of defendant's car. The evidence that defendant previously threw methamphetamine when confronted by law enforcement helped to prove that defendant shared control over the methamphetamine and that defendant—not Clerisse—decided to throw it outside the car when Garza approached.
Accordingly, both prior incidents were relevant to proving identity and were sufficiently similar to the charged offense so as to support the inference that the same person committed the charged and uncharged acts. Because the two uncharged acts are sufficiently similar to the charged acts for proof of identity, they are also sufficiently similar for proof of intent because a greater degree of similarity is required for proof of identity than for proof of intent. (Leon, supra, 61 Cal.4th at p. 598.)
Defendant asserts that the act of throwing drugs when confronted by police is "an almost universal action rather than being a rare and distinctive action." In the instant case, defendant accused Clerisse of being solely responsible for the charged offenses. Thus, the jury needed to decide whether defendant bore any responsibility, in addition to Clerisse. The issue was not who in the whole world might have committed this crime, but rather whether defendant acted in conjunction with Clerisse. The evidence that defendant has previously reacted to law enforcement by throwing drugs to the side is some proof that he may have done so again in the instant case, especially since both cases involve defendant being approached by law enforcement, while defendant is in or near his car, and while defendant is in possession of methamphetamine. The similarities between the two cases start to indicate a pattern that helps to establish identity and intent. (See People v. Ewoldt (1994) 7 Cal.4th 380, 402 [" '[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' "].)
The next "consideration is the question of undue prejudice, time consumption, or confusion. 'If evidence of prior conduct is sufficiently similar to the charged crimes to be relevant to prove the defendant's intent, common plan, or identity, the trial court then must consider whether the probative value of the evidence "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.' " ' " (Leon, supra, 61 Cal.4th at p. 599.)
The charged offense occurred in 2016. The uncharged offenses took place in 2013 and 2014. Therefore, the uncharged offenses were close in time to the charged offense because they involved a gap of only three years. The charged offenses were of the exact same nature as the uncharged offenses because they all involved possession of methamphetamine for sale. Therefore the uncharged crimes were not more inflammatory than the charged crimes. Given that the crimes occurred at different times, with different police officers, in different locations, it is unlikely the jury would confuse the incidents. Accordingly, the trial court acted within its discretion by concluding the probative value of the evidence outweighed any prejudicial impact. In sum, we conclude the trial court did not err.
F. ONE-YEAR PRISON PRIOR SENTENCES
1. PROCEDURAL HISTORY
Defendant admitted suffering seven prior convictions for which he served prison terms. (Pen. Code, § 667.5, subd. (b).) The trial court sentenced defendant to prison for a term of 10 years four months. The sentence was comprised of: (1) the midterm of three years for transporting methamphetamine (Health & Saf. Code, § 11379, subd. (a)), doubled to six years due to the prior strike; (2) one-third the midterm for one count of possessing methamphetamine for sale (Health & Saf. Code, § 11378), which was eight months, doubled to 16 months, and stayed; (3) one-third the midterm for the second count of possessing methamphetamine for sale (Health & Saf. Code, § 11378), which was eight months, doubled to 16 months, and ordered to run consecutive; and (4) three consecutive one-year terms for three of the prison priors (§ 667.5, subd. (b))—the trial court struck the one-year terms for four of the prison priors (§ 667.5, subd. (b)).
2. ANALYSIS
Defendant contends this court should strike the remaining three prison priors (§ 667.5, subd. (b)). The People contend the matter should be returned to the trial court, so the trial court may restructure defendant's sentence in light of the new law.
"Under current law, a one-year enhancement is imposed for each prior separate prison term or county jail term imposed under section 1170, subdivision (h). (§ 667.5, subd. (b).) [¶] On October 8, 2019, the Governor signed Senate Bill 136 into law. This amends section 667.5, subdivision (b). Under this amendment, a one-year prior prison term enhancement will only apply if a defendant served a prior prison term for a sexually violent offense as defined in Welfare and Institutions Code section 6600, subdivision (b)." (People v. Lopez (2019) 42 Cal.App.5th 337, 340-341.)
The People concede that defendant's prison priors are not sexually violent offenses and that his three prison priors should be stricken (§ 667.5, subd. (b)). We agree with the parties that defendant's three prison priors must be stricken. We will reverse defendant's sentence and direct the trial court to resentence defendant. We direct the trial court to resentence defendant because the trial court may want to restructure defendant's sentence in light of the new law. (See People v. Bucks (2018) 5 Cal.5th 857, 896, fn. 15 ["Because the resentencing court had imposed the maximum possible sentence . . . there is no need to remand the matter to the trial court to exercise its sentencing discretion anew"].)
DISPOSITION
The sentence is reversed in its entirety. The trial court is directed to resentence defendant. In resentencing defendant, the trial court is directed to strike the prison priors (§ 667.5, subd. (b)). After the resentencing, the trial court is directed to issue a new abstract of judgment and forward it to the appropriate agency/agencies. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
Acting P. J. We concur: CODRINGTON
J. SLOUGH
J.