Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F10229
NICHOLSON, J.
A jury convicted defendant Ralph Hibbler III, also known as Richard Parker, of one count of possession for sale of cocaine base (Health & Saf. Code, § 11351.5), and deadlocked on a second such count; the trial court declared a mistrial on the second count and it was dismissed. The trial court found true a strike, a prior prison term allegation, and a prior narcotics conviction allegation. (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, 667.5, subd. (b); Health & Saf. Code, § 11370.2, subd. (a).) The trial court sentenced defendant to 12 years in prison, consisting of the midterm of four years, doubled to eight for the strike, plus one year for the prior prison term and three years for the prior narcotics charge. Defendant timely appealed.
On appeal, defendant contends no substantial evidence supports the verdict and the trial court should not have allowed the People to introduce evidence defendant had previously sold narcotics. We affirm.
FACTS
Defendant’s mother, Gwendolyn Cruse, testified that on October 24, 2006, she lived in a two-bedroom apartment with her boyfriend of 27 years, Lester Patterson, her daughter and her two grandchildren. She and the three children slept downstairs, Patterson slept in one of the upstairs bedrooms, and the other bedroom was used as a playroom for her daycare operation. She testified the playroom had toys, games, a television with a video game device, children’s clothing and clothing for the children to play “dress up” in. Defendant lived with her “In and out,” never for more than two nights in a row, and when he stayed there he slept on the couch downstairs. On the date in question, the police came. She denied telling an officer that defendant had left for a meeting. She admitted using and trying to sell drugs in the past.
Patterson testified that when defendant stayed over, he slept downstairs. He denied he told officers that defendant stayed in the playroom, but did testify that guests slept in that room about twice a month. Although he used drugs in the past, and had used within the month before trial, he had no drugs in the house when the police came. He knew defendant was on searchable parole.
Detective Erika Woolson testified that she was part of a team conducting a parole search of defendant’s residence at about 1:15 p.m. that day. Defendant’s mother told her he was not at home and had left for a meeting. She searched Patterson’s room and found no contraband. She asked Patterson where defendant slept and he pointed to the other bedroom (the alleged playroom) “and said that’s where Ralph sleeps[.]”
Parole Agent Wayne Wilkinson testified the team searched the apartment because it was the address on defendant’s parole “face sheet.” Patterson told him defendant was not home, and identified the other bedroom as defendant’s room. Wilkinson testified he found no toys, video games or children’s clothing in that room, nothing to suggest it was a playroom. Under the bed mattress he found a digital scale. Under the bed he found shoes with rolled-up socks inside, and inside the socks he found two bindles of rock cocaine. He described the shoes as size nine and a half “Air Jordan tennis shoes, basketball shoes,” with the number 23 on the heel, a reference to basketball player Michael Jordan. The parties stipulated a criminalist would testify the two bindles contained 6.19 and 9.27 grams of cocaine base.
Officer Tera Carson testified she found defendant’s identification card in a cookie tin in the kitchen.
Officer Frank Reyes testified that on November 8, 2000, during an undercover street-level operation in which he pretended to be an interested narcotics buyer, defendant sold him two pieces of rock cocaine for $30. Officer Reyes was also qualified as a narcotics expert, and testified that a typical dose is .1 or .2 grams, which would sell for $10 or $20. Heavy users might smoke up to two grams a day, but most smoke whatever they get. Based on a hypothetical, “In my opinion 15.46 grams of cocaine base and a scale is possessed for sales.”
After Officer Reyes finished his testimony, the trial court instructed the jury that the evidence about the 2000 incident was “offered only on the question of intent for the charges alleged in this case.”
Defendant’s girlfriend testified he slept at her place every night beginning around early October.
A defense investigator called by the People testified that defendant’s mother and Patterson both told him defendant lived at the apartment, although his mother said defendant usually stayed with his girlfriend. Patterson told him defendant stayed in the other bedroom upstairs (the alleged playroom), but sometimes defendant slept downstairs.
DISCUSSION
I
Sufficiency of the Evidence
Defendant contends no substantial evidence supports the jury’s conclusion that he constructively possessed drugs. Defendant’s argument relies only on viewing the evidence and reasonable inferences in his favor, and his briefs read like plausible closing arguments to a jury. Viewed in light of the appropriate standard of review, we reject the argument.
“Constructive possession occurs when the accused maintains control or a right to control the contraband; possession may be imputed when the contraband is found in a place which is immediately and exclusively accessible to the accused and subject to his dominion and control, or to the joint dominion and control of the accused and another.” (People v. Williams (1971) 5 Cal.3d 211, 215; see People v. Howard (1995) 33 Cal.App.4th 1407, 1419.) On appeal, we view the evidence and reasonable inferences in the light favorable to the jury’s verdict. (See People v. Johnson (1980) 26 Cal.3d 557, 576-578.)
The jury was entitled to believe the out-of-court statements of defendant’s mother and Patterson and disbelieve contrary testimony. The jury could rationally conclude defendant stayed in the upstairs bedroom where the drugs and scale were found. Defendant’s mother told officers defendant had left for a meeting, which impliedly indicated he was staying at that house. Patterson told an officer defendant stayed in the bedroom where the drugs were found. Defendant’s identification was found in the kitchen, corroborating the conclusion that he lived in the house. Defendant’s mother testified the bedroom in question was set up as a playroom for children, with toys and video games, but there was testimony no such items were found in the bedroom. Defendant’s knowledge of the drugs could be inferred from the circumstance that they were found secreted in the Air Jordan shoes under the bed in the room he occupied. (Cf. People v. Johnson (1984) 158 Cal.App.3d 850, 854 [“the record is strikingly devoid of any solid evidence that defendant owned, rented or in any way occupied the premises”].)
Although the jury might have concluded Patterson had secreted his own drugs in the bedroom and falsely indicated defendant stayed there in order to escape his own culpability, it was not compelled to reach that conclusion, nor find it raised a reasonable doubt about defendant’s guilt.
The fact there may be some discrepancies in the testimony does not undermine the force of the evidence, outlined above, showing defendant stayed in the bedroom and therefore had control over it, and its contents, including the drugs.
II
Admission of Prior Narcotics Sale
Defendant contends evidence of his 2000 sale of cocaine to Officer Reyes should not have been admitted into evidence and its admission was prejudicial. We disagree.
Defense counsel conceded intent was at issue and the prior sale was not remote, but argued it was too dissimilar to the instant charges to be relevant. The trial court noted the substance sold was the same in each case, rock cocaine, and ruled the evidence was admissible to show intent. This ruling was reiterated midtrial, when the parties discussed how the prior would be shown.
The trial court’s ruling was correct. Evidence Code section 1101, subdivision (b) allows the admission of evidence of past conduct to show, among other things, intent. It has long been held that a prior sale of narcotics is admissible to show a defendant’s intent to sell on another occasion. (See People v. Pijal (1973) 33 Cal.App.3d 682, 691.)
Defendant asserts the prior sale took place in such different circumstances that it could not be used to show his intent on this occasion. The least degree of similarity is required to show intent. (People v. Ewoldt (1994) 7 Cal.4th 380, 402 (Ewoldt).) The fact the police found defendant’s stash of drugs hidden in his room on this occasion, instead of catching him in another sale of drugs on the street, does not substantially lessen the probative force of the prior on the issue of intent to sell.
Defendant claims the evidence of the prior sale of drugs was cumulative because “the officers that performed the search testified regarding their findings in the present case.” The evidence of the prior sale of drugs was not cumulative to the evidence regarding the current possession for sale of drugs. The officers who searched defendant’s residence testified they found a scale and an amount of drugs suggesting, but not compelling, the conclusion that defendant possessed the drugs for sale. By pleading not guilty, defendant put in issue every element of the crime, including his intent. Absent a stipulation to his intent, the issue remained in contention. (See Ewoldt, supra, 7 Cal.4th at p. 400, fn. 4.) The evidence of the prior sale presented the jury with qualitatively different evidence regarding defendant’s intent and was not cumulative.
Defendant asserts the trial court abused its discretion by not excluding the evidence as unduly prejudicial under Evidence Code section 352. We disagree. Under that statute a trial court has discretion to exclude relevant evidence when “the probative value of the evidence of defendant’s uncharged offenses 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.’ [Citation.]” (Ewoldt, supra, 7 Cal.4th at p. 404.)
The evidence of the prior incident was presented by means of an officer’s testimony about the undercover sale. It was not confusing, time consuming or inflammatory. Indeed, as the trial court later noted, the fact the jury did not convict defendant of the second count of possession for sale shows that it was not inflamed to convict him despite the evidence.
Finally, as stated, immediately after evidence of the prior sale was introduced, the trial court instructed the jury on its limited purpose. During final instructions, the court again told the jury that the 2000 incident was only to be used “for the limited purpose of determining the defendant’s intent.” We presume the jury followed these instructions (see People v. Powell (1960) 186 Cal.App.2d 54, 59) and did not use the evidence to show defendant’s general “propensity” to sell drugs, as appellate counsel posits. Indeed, had the jury done so, it would likely have convicted defendant of the second count of sale of cocaine base.
DISPOSITION
The judgment is affirmed.
We concur: BLEASE, Acting P. J., DAVIS, J.
Retired Associate Justice of the Court of Appeal, Third Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.