Opinion
A146097
12-18-2018
THE PEOPLE, Plaintiff and Respondent, v. RALPH E. FRANKLIN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 051505874)
Ralph E. Franklin appeals a judgment of conviction of possession for sale of drugs and possession of firearms and ammunition (Health and Saf. Code, § 11351; Pen. Code, §§ 30305, subd. (a), 29900, subd. (a)(1), 30605, subd. (a)), as well as related enhancements. (Pen. Code, § 12022, subd. (a)(1).) He contends the trial court prejudicially erred when it admitted evidence of the facts underlying a 2007 prior conviction for possession of a controlled substance with intent to sell. We see no error and will affirm.
I. BACKGROUND
A. Trial Court Proceedings
The Contra Costa County District Attorney filed a total of six counts against Franklin and his codefendants, Donald Clark and N.W. This opinion addresses only Franklin's appeal. The charges against Franklin were: possession of a controlled substance for sale (Health & Saf. Code, § 11351) (count 1), with an enhancement for being armed with a firearm during the offense (Pen. Code, § 12022, subd. (a)(1)); being a violent felon in possession of a firearm (Pen. Code, § 29900, subd. (a)(1)) (count 3); possession of an assault weapon (Pen. Code, § 30605, subd. (a)) (count 4); and being a prohibited person possessing ammunition (Pen. Code, § 30305, subd. (a)) (count 6), with an enhancement for being armed with a firearm (Pen. Code, § 12022, subd. (a)(1)). Counts 2 and 5 were alleged solely against his codefendants.
At trial, the prosecution moved in limine to admit evidence of Franklin's conduct in 2005, which led to the 2007 conviction, to show a common design or plan, knowledge, and intent. Franklin's counsel made an opposing motion in limine to exclude such evidence. The court admitted the evidence as relevant to knowledge and intent. The court noted similarities between the two incidents, such as the presence of an "array of drugs," a cutting agent (lactose) used to dilute drugs, and firearms associated with the possession of drugs. It also noted similarities "suggestive of drug dealing as opposed to mere drug possession" in both incidents, such as the presence of scales and the amount of drugs itself.
The court conducted a bifurcated trial. First, a jury convicted Franklin of possession of heroin for sale, along with the firearm and ammunition charges and the arming enhancements. It also convicted Clark and acquitted N.W. Thereafter, the jury found Franklin had suffered three prior strike convictions for robbery as well as a prior conviction for possession for sale of heroin. The court sentenced Franklin to a prison term of 13 years and four months. Franklin timely appealed. B. The Current Charged Offense
Officers began conducting surveillance on a home located at 1907 Hoffman Boulevard in Richmond in January 2015, two months before they executed the search warrant leading to this appeal. During the stakeout, officers observed Franklin and Clark at the residence on more than one occasion. Officers determined that Franklin drove a 1998 white Ford truck which they saw parked in front of the house on approximately three or four occasions during the week before the search warrant was executed. Franklin went to and from the home in a pattern; he left the home on Mondays, Wednesdays, and Fridays and returned home between 10 p.m. and 11 p.m. Officers sometimes saw him travel to a medical office in El Cerrito, where (unbeknownst to the jury) he was receiving dialysis treatments. They did not observe Franklin engage in what appeared to be any drug transactions.
Shortly before 11 p.m. on Monday, March 16, Richmond Police Department Detective Elizabeth Bashan saw Franklin leave the medical facility in his truck and followed him. Having a search warrant that encompassed both the home and Franklin and his truck, Bashan instructed other officers to pull over and detain the white Ford truck about three or four blocks away from the home. Officers seized Franklin's set of keys from the ignition. They also found about $1,000 on Franklin, mostly in $10 and $20 denominations, as well as DMV paperwork. The truck was registered to Franklin at the Hoffman Boulevard address.
About five to ten minutes later, Detective Bashan and other officers executed a search warrant at the home. Forcibly entering the home, they found Clark and N.W. inside and discovered drugs, drug paraphernalia, guns, cash, and other items.
In addition to heroin residue coated on various items of drug paraphernalia, officers found a cloth bag with three knotted plastic bags of tar heroin inside it in the outer pocket of a gray men's Sean John jacket, as well as more heroin in the jacket, which was located in a bedroom closet. The drugs in one bag weighed nearly 219 grams (almost half a pound) and those in the other set of bags weighed nearly 28 grams total; both tested positive for heroin. A typical dose of heroin is one-tenth of a gram.
Officers found assorted drug paraphernalia throughout the house. In the living room, officers found four containers, three empty and one with a white powder, labeled "lactose." They also found a food processor, coated on the inside with a brownish residue and smelling like vinegar, plugged into the wall. They found a triple beam scale and two digital scales, one with a "light brownish" residue on it. Officers also found approximately $80,000 in cash in multiple locations throughout the house—$2,000 in a jacket pocket in a closet, more than $32,000 stuffed in tube socks in the closet, more than $1,500 on Clark, and nearly $43,000 in a locked safe.
Officers found seven guns, as well as related items. In the living room, officers found two handguns: one loaded handgun with a spare magazine and a second with an empty magazine. In a bedroom, they found two more guns, a loaded assault pistol and a revolver, as well as ammunition and an opened gun cleaning kit. In another bedroom, officers found two loaded semiautomatic assault rifles. In a hallway closet they found a locked safe, which they opened with a key they had seized from Franklin, and discovered an unloaded Glock firearm and a Glock magazine inside, along with almost $43,000 in cash. Finally, in the kitchen, they found a box containing a loaded Glock magazine and one loose round of ammunition.
In addition to guns, drugs, and related paraphernalia, officers also found items connecting Franklin to the home. They used the keys seized from his car to unlock the front door's deadbolt and two locks on its security screen, as well as to open the locked safe. They also found a red folder labeled with his name, which contained documents with his name, as well as a piece of paper with his name on it taped to a stereo.
Steven Lynn of the Contra Costa County District Attorney's Office testified as an expert on heroin possession and distribution. He explained how a food processor or grinder, together with another substance such as lactose, can convert tar heroin into powdered form, which increases the amount available for sale. He also described how the typical dose of heroin, which has an "acidic vinegar-type smell," is one-tenth of one gram, as well as how the sale of heroin is a "cash business" and drug dealers use scales and plastic bags to weigh and package the drugs.
The prosecutor then described a hypothetical residence, which included a description of the Richmond residence and what officers found inside. Lynn described the hypothetical home as "very well fortified" against possible robberies and said activity inside was indicative of a "fairly large ongoing operation." He also characterized the living room as a "direct distribution area."
Lynn testified to his opinion that the heroin was possessed for sale based on factors such as the amount of cash found in the home, the "tactically arranged" locations of the weapons and people inside, and the presence of the scales, grinders and food processor, cutting material, and packaging supplies. He said it was very rare to find this amount of heroin in one location and described the home as an "upper-level distribution network that is making tens of thousands of dollars." C. Conduct Underlying Franklin's 2007 Conviction
Prosecutors introduced evidence of prior conduct arising from a 2005 search warrant, which resulted in Franklin's 2007 plea of no contest to a felony violation of Health and Safety Code section 11351, possession of heroin for sale. Entering through the door, officers found Franklin lying on the hallway floor. A canine officer searched the apartment and directed officers to specific locations in the unit. They found drugs, drug equipment, and guns. They also found a DMV document with Franklin's name on it.
Officers found approximately two grams of a "tar-like substance" inside a piece of knotted plastic on a coffee table in the living room, approximately 150 grams in a plastic grocery bag under the coffee table, and 46 more grams in a hallway closet. At trial, a Richmond police officer who was involved in executing the 2005 search warrant testified as an expert in recognizing heroin. He testified that heroin smells like vinegar and that samples of the tar-like substance tested positive for heroin.
Officers also found drug paraphernalia and four guns. In the living room, officers found 600 small empty water balloons and two coffee grinders, which contained a resin and smelled like vinegar, as well as a white powder inside a paper towel Officers also found two loaded revolvers and a paper bag with bullets. In the bedroom, officers found a loaded shotgun, an automatic pistol and 50 rounds of ammunition.
Franklin did not testify and put on no witnesses in his defense. Instead, he tried to cast doubt on the prosecution's evidence that he lived at the home on Hoffman Boulevard and to sow doubt about whether he knew of, or had constructive possession of, the drugs and weapons at that address. His attorney in closing argument emphasized that he was not found in actual possession of the drugs, guns or ammunition, and argued the prosecution's evidence was insufficient to prove he knew what was going on in the house or that he had control over the guns and drugs. Franklin, for instance, had never been seen wearing the Sean John jacket where the heroin was found. Although defense counsel admitted there was a "connection" between Franklin and 1907 Hoffman Boulevard, he claimed that connection was "historical," not "current," and was insufficient to establish residence or knowledge of the drugs and guns found in the house. He suggested that other people could have occupied the house and set up a drug dealing operation after Franklin had moved out.
II. DISCUSSION
Franklin contends the trial court erroneously granted the prosecutor's in limine motion to admit the evidence of his past drug dealing (and erroneously denied his counter motion), claiming the evidence was more prejudicial than probative. We review the trial court's determination with deference and apply the abuse of discretion standard of review. (People v. Mungia (2008) 44 Cal.4th 1101, 1130 (Mungia); People v. Fruits (2016) 247 Cal.App.4th 188, 202.) "A trial court abuses its discretion when its ruling 'falls outside the bounds of reason.' " (People v. Hollie (2010) 180 Cal.App.4th 1262, 1274.) We also "view the evidence in the light most favorable to the trial court's ruling." (People v. Edwards (2013) 57 Cal.4th 658, 711.) "We will only disturb the trial court's exercise of discretion under [Evidence Code] section 352 'when the prejudicial effect of the evidence clearly outweighed its probative value.' [Citation.]" (Hollie, at p. 1274.)
"With certain exceptions not relevant here, 'evidence 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.' (Evid. Code, § 1101, subd. (a).) Evidence Code section 1101's subdivision (b) clarifies this general rule" (Mungia, supra, 44 Cal.4th at p. 1130) and "provides for the admission of uncharged acts when relevant to prove some other disputed fact." (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 406 (Bryant).) " '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 . . . ) other than his or her disposition to commit such an act.' " (Mungia, supra, at p. 1130, quoting Evid. Code, § 1101, subd. (b).) Such "evidence is admissible, subject to a limiting instruction upon request." (Bryant, at p. 406.) In this case, the court instructed the jury to consider evidence from the 2005 incident only for knowledge and intent, and not for criminal propensity.
In People v. Ewoldt (1994) 7 Cal.4th 380, 402-403, the Supreme Court discussed the varying degrees of similarity necessary to make prior misconduct evidence relevant to illustrative issues other than propensity. Intent and knowledge are among those issues most likely to invite evidence of prior bad acts. "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.]' (People v. Robbins [(1988)] 45 Cal.3d 867, 879.)" (Ewoldt, at p. 402.) "In prosecutions for drug offenses, evidence of prior drug use and prior drug convictions is generally admissible under Evidence Code section 1101, subdivision (b), to establish that the drugs were possessed for sale rather than for personal use and to prove knowledge of the narcotic nature of the drugs." (People v. Williams (2009) 170 Cal.App.4th 587, 607; accord, People v. Horn (1960) 187 Cal.App.2d 68, 74-75; People v. Ellers (1980) 108 Cal.App.3d 943, 953 [prior conduct involving same substance "tended to prove knowledge of the narcotic nature of the heroin" the defendant had sold in the charged offense and was "probative of his intent to sell it"]; People v. Thornton (2000) 85 Cal.App.4th 44, 49-50 [similar].)
In various circumstances, evidence that the defendant has earlier engaged in conduct similar to the charged offense has been held admissible to show knowledge and intent, especially where the defendant denies culpable knowledge, intent or participation, either through his evidence in defense or based on the arguments of his attorney. (See People v. Schader (1969) 71 Cal.2d 761, 776-777 [details of prior robbery conviction properly admitted because the evidence substantiated, among other things, that the defendant knew of a particular robbery technique employed in the current offense, although defendant claimed innocent presence at the robbery scene]; People v. Morani (1925) 196 Cal. 154, 158 [where defendant accused of performing illegal abortion had performed a similar procedure three years earlier, evidence of the earlier procedure was relevant to show guilty knowledge and intent, whereas defendant in the current case claimed he had only performed a less intrusive examination of the victim]; People v. Brogna (1988) 202 Cal.App.3d 700, 705-707 [defendant convicted of vehicular manslaughter while under the influence of alcohol had previously sustained two DUI convictions and had attended drunk driving education courses and AA meetings; held, the evidence of the prior misconduct was admissible to show "the knowledge element of implied malice," where defense counsel questioned the accuracy of the prosecution's blood alcohol reading and claimed there was insufficient evidence of implied malice].) Here, Franklin's attorney argued the evidence was consistent with his having no knowledge of the guns and drugs in the Hoffman Boulevard house, but it is not even necessary for the defendant to raise an issue as to his knowledge before the People are allowed to introduce such evidence. (People v. Perez (1974) 42 Cal.App.3d 760, 766.)
In the present case, the prosecutor offered the evidence of the 2005 events to prove Franklin's intent to sell the drugs found at the Hoffman Boulevard residence, and to prove Franklin's knowledge of all that was going on at that house in order to show his constructive possession of the guns and drugs found there. The evidence was extremely relevant for those purposes.
When considered with the evidence of Franklin's access to the Hoffman Boulevard house, the 2005 incident increased the likelihood that Franklin knew of the presence of the drugs, knew the substance was heroin, and knew of the presence of the guns. Ten years earlier he had been found on the premises of a very similar drug dealing operation involving the same drug in nearly identical quantities, with a cache of guns in both cases. The evidence of his past involvement tends to support an inference that Franklin exercised shared control over the stash of drugs, as well as making it more likely he was aware of and in control of guns in the house. The evidence was relevant for purposes other than to prove Franklin's criminal propensity, so it was provisionally admissible under Evidence Code section 1101, subdivision (b).
But establishing the non-propensity relevance of the evidence is only the first step in our analysis. The admissibility of evidence under Evidence Code section 1101, subdivision (b) is also subject to the trial court's discretion under Evidence Code section 352. (See People v. Castro (1985) 38 Cal.3d 301, 306-307.) "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." (Evid. Code, § 352.) "[I]t is for the trial court to determine whether the probative value of evidence outweighs the possibility of prejudice." (People v. Lyons (1970) 4 Cal.App.3d 662, 666.)
When Evidence Code section 352 speaks of "undue prejudice," it does not simply mean evidence harmful to the defendant. Rather, it refers to evidence that " 'uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues.' " (People v. Karis (1988) 46 Cal.3d 612, 638.) "Evidence is substantially more prejudicial than probative [only] if, broadly stated, it poses an intolerable 'risk to the fairness of the proceedings or the reliability of the outcome.' " (People v. Waidla (2000) 22 Cal.4th 690, 724.)
We conclude the court acted within its discretion under Evidence Code section 352 when it found the probative value of the evidence of the 2005 incident was not substantially outweighed by the potential for undue prejudice. The significant similarities between the crimes discovered in 2005 and the crimes committed in 2015 made the challenged evidence extremely probative. Although it no doubt had some potential for prejudice, a number of factors reduced the prejudicial effect of the evidence in this case.
First, the court instructed the jury to consider evidence from the 2005 incident only for knowledge and intent, and not for criminal propensity. A limiting instruction can ameliorate Evidence Code section 352 prejudice by " 'minimizing the potential for improper use.' " (People v. Foster (2010) 50 Cal.4th 1301, 1332.) Our Supreme Court previously held a similar jury instruction "eliminated any danger 'of confusing the issues, or of misleading the jury.' " (People v. Lindberg (2008) 45 Cal.4th 1, 25-26, quoting Evid. Code, § 352.) We assume the jury understood and followed this instruction, and that any prejudice thus was avoided. (People v. Peyton (2014) 229 Cal.App.4th 1063, 1079.)
Next, the fact the jury was made aware of Franklin's conviction for crimes arising from the 2005 search warrant further diminished any prejudicial value. The fact a defendant was punished via conviction for "prior bad acts introduced before the jury . . . lessens its prejudicial impact." (People v. Ortiz (2003) 109 Cal.App.4th 104, 118.)
And finally, the prior incident evidence was not more inflammatory than the evidence in the present case. (See Ewoldt, supra, 7 Cal.4th at p. 405 [the fact a defendant's uncharged acts were "no more inflammatory than the testimony concerning the charged offenses . . . [made it] unlikely . . . that the jury's passions were inflamed by the evidence of defendant's uncharged offenses"].) Instead, the two crime scenes were largely the same, or the current crimes were more serious because they involved more firearms. The testimony describing the previous acts, including the gun possession, was "no more inflammatory than the testimony concerning the charged offenses [, which] decreased the potential for prejudice . . . ." (Ibid.)
Even assuming, for argument's sake, the admission of the evidence was in error, it was harmless under the applicable standard. (See People v. Samuels (2005) 36 Cal.4th 96, 113 [applying standard of People v. Watson (1956) 46 Cal.2d 818, 836 to alleged erroneous admission of character evidence]; People v. Malone (1988) 47 Cal.3d 1, 22 [same].) It is not reasonably probable the jury would have reached a result more favorable to Franklin if the evidence of the 2005 incident had been excluded. (Watson, at p. 836.)
The evidence was overwhelming that a large-scale, high-stakes drug operation was being conducted in that house, which the co-responsibles protected with a cache of firearms. The only question in Franklin's case—because he was arrested elsewhere—was whether he was connected to the location in such a way as to establish his constructive possession of and control over the drugs and guns. There was plenty of evidence to support such a connection aside from the evidence of his conduct in 2005. Franklin's car was registered in his name at the Hoffman Boulevard address; the officers had observed him at that address in the preceding week; his truck had been parked at that address frequently during the surveillance period; personal papers of his were found inside the house; he had been returning to the house at night, which suggests he slept there; and he had a key to the front door and the security screen. All of this, combined with his having two keys to the safe containing $43,000 in drug proceeds, as well as a handgun and magazine, sealed his fate. It is highly likely the jury would have convicted him even without the prior crime evidence. The court did not abuse its discretion in admitting the prior act evidence, and even if it did, such admission was harmless. (Watson, supra, 46 Cal.2d at p. 836.)
III. DISPOSITION
We affirm.
/s/_________
Streeter, Acting P.J. We concur: /s/_________
Reardon, J. /s/_________
Tucher, J.
Retired Associate Justice of the Court of Appeal, First Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------