Opinion
F062001 Super. Ct. No. BF133990A
02-17-2012
THE PEOPLE, Plaintiff and Respondent, v. NATHANIEL EDWARD JOHNSON, Defendant and Appellant.
Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and David A. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
THE COURT
Before Levy, Acting P.J., Poochigian, J., and Detjen, J.
APPEAL from a judgment of the Superior Court of Kern County. Gary T. Friedman, Judge.
Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and David A. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
STATEMENT OF THE CASE
On January 27, 2011, after a jury trial, appellant, Nathaniel Edward Johnson, was found guilty of possession of cocaine base for sale (Health & Saf. Code, § 11351.5, count one) and possession of heroin (Health & Saf. Code, § 11350, subd. (a), count two). In a bifurcated proceeding, the trial court granted the prosecutor's motion to have several special allegations and enhancements dismissed. At the conclusion of an evidentiary hearing, the court found true allegations that appellant had two prior drug convictions within the meaning of Health and Safety Code section 11370.2, subdivision (a). The court also found true a prior prison term enhancement (Pen. Code, § 667.5, subd. (b)).
The court found the prior prison term enhancement true as alleged as to each count, but the enhancement was for a single conviction against appellant on December 5, 2008, in case No. BF125050. A prior prison term enhancement for a single prior prison term is a status enhancement that can only be imposed once. (People v. Edwards (2011) 195 Cal.App.4th 1051, 1060.) The trial court, however, only imposed this enhancement once.
On February 28, 2011, the trial court sentenced appellant to prison for the upper term of five years on count one and to a concurrent term of three years on count two. The court imposed consecutive terms of six years for the prior drug conviction enhancement and one year for the prior prison term enhancement for a total prison term of 12 years. The court awarded actual custody credits of 153 days and conduct credits of 153 days for total custody credits of 306 days.
The court expressly announced appellant's actual and conduct custody credits each as 153 days. The clerk's minutes also reflect 153 days each for actual and conduct custody credits. The abstract of judgment accurately shows appellant's actual custody credits as 153 days and his total custody credits as 306 days. The abstract of judgment, however, inaccurately states that appellant's conduct credits are only 113 days. This is a clerical error that can be corrected at any time, including on appeal on motion of the parties or the court. (People v. Mitchell (2001) 26 Cal.4th 181, 185; In re Candelario (1970) 3 Cal.3d 702, 705.) On remand, the trial court is directed to prepare an amended abstract of judgment reflecting its pronouncement of conduct credits and to forward it to the appropriate authorities.
The trial court granted an in limine motion by the prosecutor to permit introduction of evidence concerning appellant's two prior narcotics convictions in 2006 and 2008 for the limited purposes of showing intent, knowledge, common scheme, and plan. The court found the probative value of the evidence outweighed any prejudicial impact. Appellant contends the trial court violated his right to due process by admitting evidence of the prior offenses.
FACTS
On September 29, 2010, at about 12:30 a.m., City of Bakersfield Police Officer Daniel McAfee stopped a blue Toyota on Robinson Street because the vehicle's registration was expired. The driver showed signs of alcohol intoxication. He had the distinct odor of alcohol on his breath, his eyes were bloodshot and watery, and his speech was thick and slurred. There were three other occupants in the car, including appellant who was sitting in the rear passenger seat behind the front passenger seat.
McAfee searched appellant. Appellant's clothes were a couple of sizes too large for him and were described by McAfee as sagging. While conducting a pat-down search of appellant, McAfee felt an object in appellant's underwear. McAfee escorted appellant to the rear of his patrol car. Appellant was wearing a long pair of shorts that could have been mistaken for pants, a pair of loose-fitting boxer shorts and a pair of boxer briefs that were not form-fitting.
During a hearing on a suppression motion, McAfee testified that appellant told McAfee he was on parole. The trial court denied the suppression motion.
McAfee pulled the object away from appellant's body and, with a pocketknife, cut a slit in the underwear. McAfee retrieved a paper towel that contained 15 individually wrapped packages of what McAfee believed to be cocaine base. McAfee also found a single package of heroin. The narcotics were located in the underwear closest to appellant's body. The parties stipulated that McAfee seized 4.16 grams of cocaine base and 83 milligrams of heroin and that both quantities of narcotics were usable amounts.
McAfee advised appellant of his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). Appellant told McAfee that he understood his rights and wanted to speak to McAfee. Appellant said, "hey, man, look, all that stuff, all that shit you located, is for my personal use. I don't sell that shit." McAfee explained that the word "shit" can refer to drugs. When McAfee asked why the drugs were individually wrapped, appellant replied that he did not know.
Appellant told McAfee that he also uses heroin. Appellant admitted he did not have a job but was able to obtain a large quantity of drugs because they were "fronted" to him. McAfee explained fronting drugs commonly means a dealer will give someone a large quantity of narcotics with the assumption that person will pay the dealer back with proceeds from the narcotics sales and keep any remaining profits from the sales.
When asked if he might sell drugs if he had no other way to pay for them, appellant replied "maybe." McAfee did not locate any narcotics paraphernalia on appellant or inside the car. Appellant did not appear to be under the influence of narcotics.
McAfee believed appellant possessed cocaine base for sale based on the quantity of drugs and his concurrent possession of a cell phone. McAfee would not change his opinion if he had known of appellant's prior convictions in 2006 and 2008 for possession of cocaine base for sale.
When evidence of appellant's prior convictions was first introduced through Officer McAfee's testimony, the trial court advised the jury with CALCRIM No. 375 in relevant part as follows:
"The People presented evidence that the defendant committed other behavior and offenses of possession for sales of cocaine base that were not charged in this case. You may ... consider this evidence only if the People have proved by a preponderance of the evidence that the defendant, in fact, committed the uncharged offenses or acts....
"If you decide that the defendant committed the uncharged offenses or acts, you may, but are not required to, consider that evidence for the limited purpose of deciding whether or not: One, the defendant acted with the intent to possess the cocaine base with the specific intent to sell it or the defendant had a plan or scheme to commit the offense alleged in Count 1 of this case.
"In evaluating this evidence, consider the similarity or lack of similarity between the uncharged offenses and acts and the charged offense in Count 1. Do not conclude from this evidence that the defendant has a bad character or is disposed to commit crime.
"If you conclude that the defendant committed the uncharged offenses or acts, that conclusion is only one factor to consider along with all of the other evidence. It is not sufficient by itself to prove that the defendant is guilty of Count 1 and/or Count 2. The People must still prove each charge beyond a reasonable doubt."
Appellant was arrested in 2006 and transported to the Kern County Jail's Central Receiving facility. Kern County Sheriff's Deputy Damon Mead conducted a strip search of appellant and found he was wearing two layers of boxer shorts. Appellant took off his underwear and handed them to Deputy Mead. Mead felt something in the crotch area of the inner-most pair of underwear. Appellant then grabbed the underwear back from Mead and placed a baggie in his mouth. Mead and the arresting officers eventually retrieved the baggie, which contained 2.67 grams of cocaine base. Appellant was convicted of possession of cocaine base for sale.
On September 25, 2008, Bakersfield Police Officer Pete Beagley went to a residence on Monticello where he saw appellant in a bedroom. Beagley found a pill bottle with what was later determined to be 5.0 grams of cocaine base. Investigators also found a digital gram scale in the bedroom and $1,000 in cash inside appellant's car. Bakersfield Police Officer Theodore King was also involved in the investigation. King advised appellant of his Miranda rights. Appellant waived his rights and told King he did not sell cocaine base but the drugs found by the officers belonged to him. Appellant was convicted of possession of cocaine base for sale.
Bakersfield Police Detective Brian Kennemer testified as an expert on the sale of cocaine. Kennemer reviewed the details of the instant offense and appellant's two prior convictions for possession of cocaine base for sale. Kennemer believed that appellant possessed cocaine base for sale in this case solely on the large quantity he possessed. Kennemer explained he would hold this opinion even without knowing about appellant's prior convictions. Also, based on appellant's past convictions for the same offense, Kennemer believed appellant possessed cocaine for sale in the instant action.
The appellant's motion for a mistrial based on the admission of evidence of his prior convictions was denied by the trial court.
The defense called Charles Hill, a drug rehabilitation specialist who formerly had been a drug addict, as an expert. It was Hill's opinion that appellant, like others, bought a large amount of cocaine base for his own use, "because it's the Costco mentality, you get more and you get better quality if you spend more money ...." Hill explained that there is a point at which if someone possesses 10 pounds of cocaine, it is not for personal use.
ADMISSION OF PRIOR CONVICTION EVIDENCE
Appellant contends the trial court denied his right to due process by admitting his prior convictions pursuant to Evidence Code section 1101. Appellant contends the trial court abused its discretion under sections 1101 and 352 in allowing the admission of evidence of appellant's prior sales of cocaine base. Appellant further contends that the trial court's admonition to the jury with CALCRIM No. 375 was ineffective. We reject these contentions and affirm the judgment.
Unless otherwise noted, all further statutory references are to the Evidence Code.
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In the context of admitting evidence of prior injuries to a child when a defendant is charged with battered child syndrome, the United States Supreme Court found the evidence was relevant to show intent. The Supreme Court held that admission of the prior injuries did not violate the defendant's due process rights under the Fourteenth Amendment. (Estelle v. McGuire (1991) 502 U.S. 62, 69-70.) Use of such evidence did not infuse the trial with such unfairness as to deny the defendant due process of law. (Id. at p. 75.)
The California Supreme Court has also rejected the state and federal due process challenges to section 1101. (People v. Lewis (2001) 25 Cal.4th 610, 636-637 (Lewis).) Lewis noted that for identity evidence to be admissible under section 1101, uncharged crimes must be highly similar to the charged offenses. To establish evidence of a common design or plan, a lesser degree of similarity is required. The least degree of similarity is required to establish relevance on the issue of intent. For this purpose, the uncharged crimes need only be sufficiently similar to the charged offense to support the inference that the defendant probably harbored the same intent for each crime. (Id. at pp. 636-637.)
Evidence of uncharged conduct is so prejudicial that extremely careful analysis should be applied prior to its admission. (People v. Ewoldt (1994) 7 Cal.4th 380, 404.) The probative value of the uncharged evidence must be substantial and must not be largely outweighed by the probability that its admission would create a serious danger of undue prejudice, of confusing issues, or of misleading the jury. (People v. Kipp (1998) 18 Cal.4th 349, 371 (Kipp).) On appeal, a trial court's ruling under sections 1101 and 352 is reviewed for abuse of discretion. (Lewis, supra, 25 Cal.4th at p. 637; Kipp, supra, 18 Cal.4th at p. 369.)
Appellant notes that Officer McAfee and Detective Kennemer expressed their opinions that the mere quantity of narcotics held by appellant was enough to establish intent to sell. Appellant argues that the evidence of prior crimes was therefore more prejudicial than probative to the jury. Appellant believes there was no similarity between the older offenses and the current allegation. We disagree.
Respondent argues appellant's comments to investigating officers that he possessed the narcotics only for his personal use, which was also his defense at trial, placed appellant's motive and intent at issue. Appellant's prior convictions for the same offense he was charged with in count one were relevant to the issues of his motive and intent. We note that the instant action and the 2008 offense involved relatively high amounts of cocaine base. Although the quantity of cocaine base appellant possessed in the 2006 offense was smaller than in this case, appellant followed the same distinctive method of concealing the narcotics, then and in the instant case, inside two layers of underwear. This is a striking similarity.
The appellant's prior cases, either by quantity of the narcotic or the method of concealment, show a common design or plan that is also evidence of appellant's intent in possessing cocaine base in the instant action. Where a defendant's knowledge and intent are at issue, evidence of prior narcotics offenses are clearly admissible to show guilty knowledge, motive, and intent. (People v. Williams (2009) 170 Cal.App.4th 587, 607 (Williams); People v. Pijal (1973) 33 Cal.App.3d 682, 691.) We therefore reject appellant's argument that there was no evidence that his intent with respect to his convictions for possession of cocaine base for sale in 2006 and 2008 was similar to his intent to possess cocaine base for sale in the instant action.
Appellant concedes the prior convictions are not remote in time. Proof of a defendant's prior recent possession of narcotics with intent to sell has "a logical and substantial tendency to establish an intent" to sell narcotics. (People v. Foster (1974) 36 Cal.App.3d 594, 597.)
Furthermore, the trial court took the precaution to advise the jury with the limiting instruction in CALCRIM No. 375. This instruction clearly explains that the use of uncharged acts can only be used for the limited purposes of showing common plan or scheme, knowledge, or intent. We presume the jury followed its instructions. (Richardson v. Marsh (1987) 481 U.S. 200, 211; People v. Harris (1994) 9 Cal.4th 407, 426; Williams, supra, 170 Cal.App.4th at p. 607.)
We reject appellant's argument that the cautionary instruction was ineffective. The instruction limited any prejudicial impact of uncharged crimes evidence by instructing the jury that such evidence should not be considered to prove appellant was a person of bad character or that he had a disposition to commit crime. (Lewis, supra, 25 Cal.4th at p. 637.) We conclude that the trial court did not abuse its discretion in permitting the prosecutor to present evidence of appellant's prior offenses in 2006 and 2008.
DISPOSITION
The case is remanded for the trial court to prepare an amended abstract of judgment to correct the statement of conduct credits to show that appellant had conduct credits of 153 days and total custody credits of 306 days. The amended abstract of judgment shall be forwarded to the appropriate authorities. The judgment is affirmed.