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People v. Johnson

California Court of Appeals, Third District, Sacramento
Mar 3, 2008
No. C054747 (Cal. Ct. App. Mar. 3, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. BRANDON D. JOHNSON, Defendant and Appellant. C054747 California Court of Appeal, Third District, Sacramento March 3, 2008

NOT TO BE PUBLISHED

Sup.Ct. No. 06F05311

MORRISON , J.

A jury convicted defendant of possession of cocaine base for sale (Health & Saf. Code, § 11351.5) and the trial court found true the allegation of a prior prison term (Pen. Code, § 667.5, subd. (b).) Sentenced to six years in prison, defendant appeals. He contends the trial court erred in admitting evidence of an uncharged drug offense and in imposing the upper term based on facts not found by the jury. We affirm.

FACTS

On the evening of June 18, 2006, several officers were in a high narcotics area conducting a parole search. They were in modified uniform, wearing tactical vests, with the word “Police” on the front and back, and duty belts.

They saw two individuals in a parking lot standing between two cars, a Lumina and an Impala. The officers approached and one made eye contact with the men. One of the men, later identified as Marcus Dearmond, walked away. The other man, defendant, bent down for a brief period and then popped up and walked towards a scooter.

Officers found a zippered, leather pouch between the cars where the men had been. Inside the pouch was a digital scale, $339 in small bills, and two pieces of plastic containing an off-white substance that looked like rock cocaine. The officers arrested Dearmond and defendant. Dearmond had $110 in cash on him. Defendant had three pills of MDMA or Ecstasy in his pocket. Defendant did not appear to be under the influence and he had no pipes, needles or smoking devices on him.

The off-white substance was weighed and tested. The larger piece was 9.37 grams of cocaine base; the smaller was 3.04 grams of cocaine base.

Sergeant Marc Coopwood, a former narcotics detective, opined the drugs were possessed for sale. He based his opinion on several factors: the high narcotics area, the suspects’ actions upon the police arriving, the amount of drugs which conservatively was 140 dosages, the money in small bills, the lack of narcotics paraphernalia, and that the suspects were not under the influence.

Over objection, the trial court admitted evidence of prior drug offenses by defendant and Dearmond. In 2005, an undercover narcotics detective purchased $20 worth of cocaine base from Dearmond. In 2002, a police officer saw defendant jump from a car during a vehicle pursuit. When defendant was detained, he had five individually wrapped pieces of rock cocaine in his front pocket. The officer thought the drugs weighed 1.3 to 1.4 grams. The laboratory weighed the cocaine base at .69 grams. Sergeant Coopwood testified the facts of the 2002 incident were a borderline case of possession for sale. His opinion was weakened “a little bit” if the amount was .69 grams instead of 1.4 grams.

The jury convicted defendant of possession for sale, but acquitted Dearmond.

DISCUSSION

I. Admission of Uncharged Offense

Defendant contends it was reversible error to admit evidence of his 2002 drug offense. While such evidence was relevant to issues of knowledge and intent, defendant contends its real purpose was to show his disposition to commit the charged crime. He contends the evidence was inadmissible under Evidence Code section 352 because its prejudicial effect outweighed its probative value. We find no prejudicial error.

Evidence Code section 1101, subdivision (a) makes evidence of a person’s character, as shown by evidence of specific instances of conduct, inadmissible to prove conduct on a specified occasion. Evidence that a person committed a crime may be admissible, however, to prove some fact, such as intent or knowledge, other than disposition. (Evid. Code, § 1101, subd. (b).)

The People offered evidence of defendant’s 2002 offense to prove knowledge and intent. “The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent. [Citation.]” (People v. Ewoldt (1994) 7 Cal.4th 380, 402.)

The admissibility of evidence of an uncharged offense “depends upon three principal factors: (1) the materiality of the fact sought to be proved or disproved; (2) the tendency of the uncharged crime to prove or disprove the material fact; and (3) the existence of any rule or policy requiring the exclusion of relevant evidence. [Citations.]” (People v. Thompson (1980) 27 Cal.3d 303, 315, original italics.)

Here, the issue of intent to sell was material to the charged offense. The crime of possession for sale requires proof of a specific intent to sell the substance. (People v. Montero (2007) 155 Cal.App.4th 1170, 1175.) While defendant was willing to stipulate to his knowledge of cocaine base, he refused to stipulate as to intent.

The tendency of the 2002 incident to prove intent to sell, however, was not great. The People’s expert opined the facts of that incident were a “borderline” case of intent to sell. His opinion was weakened when the laboratory weight of the drugs was less than the officers thought. Defendant was convicted in 2002 of only simple possession, not possession for sale. The Attorney General notes this fact “had some tendency to undermine the claim that the prior possession was probative as establishing an intent to sell in this case.”

Defendant places the weight of his argument on the rule of exclusion of Evidence Code section 352. A court has discretion to exclude evidence “if its probative value is substantially outweighed” by its undue prejudice. (Evid. Code, § 352.) The trial court has broad discretion in determining whether the probative value of evidence outweighs any potential it may have to prejudice a party or to confuse or mislead the jury. It is only when the exercise of that discretion is “arbitrary, capricious or patently absurd” that we reverse the trial court’s decision to admit the evidence. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.)

Applying that standard, we do not find an abuse of discretion even though the evidence had limited probative value. Evidence of an uncharged offense always has the substantial danger of prejudice by being used to show propensity. (People v. Kipp (1998) 18 Cal.4th 349, 372.) This danger was lessened in this case because the evidence was no more inflammatory than the crime charged and the jury was properly instructed on its limited use. (Ibid.) Accordingly, we do not find the probative value of the evidence “substantially outweighed” by its potential prejudice. (Evid. Code, § 352.)

Moreover, any error in admitting the evidence was harmless as the other crimes evidence had little, if any, effect on the verdict. While defendant characterizes the case against him as weak, we disagree. The police saw him duck between cars as they approached. Immediately afterwards, they found a pouch containing a significant amount of drugs, a scale and money on the ground. That the drugs were possessed for sale was not seriously in dispute. The People’s expert opined the drugs were possessed for sale, based on a number of factors. The expert called by Dearmond testified he had never seen an “eight-ball,” 3.25 grams of cocaine base, possessed for personal use. The pouch contained over 12 grams of cocaine base and indicia of sales, the scales and the money. While there was no direct evidence defendant possessed the pouch, that was the most reasonable inference to be drawn from the evidence. The other crimes evidence was more compelling as to Dearmond. He had previously sold drugs to an undercover officer, yet he was acquitted. This result indicates the jury did not use the other crimes evidence to show disposition.

Admitting evidence of defendant’s 2002 drug offense was not prejudicial error.

II. Cunningham Error

The probation report recommended the midterm, but the trial court disagreed. It found numerous aggravating factors justifying an upper term on the possession for sale charge. The court cited the following factors in aggravation: the significant quantity of narcotics (Cal. Rules of Court, rule 4.421(a)(10)), the planning, sophistication and professionalism of the crime (rule 4.421(a)(8)), defendant’s prior convictions were numerous and of increasing seriousness (rule 4.421(b)(2)), he was on active parole (rule 4.421(b)(4)), and his prior performance on probation and parole was unsatisfactory (rule 4.421(b)(5)).

Defendant contends the trial court violated the rule of Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] by relying on aggravating factors which were not submitted to the jury. Because defendant’s recidivist factors rendered him eligible for the upper term, the court did not err in considering other factors not found by a jury. (People v. Black (2007) 41 Cal.4th 799, 812 (Black II).)

In Black II, the California Supreme Court considered California’s determinate sentencing law in light of Cunningham. The court determined “so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury.” (Black II, supra, at p. 813, original italics.) It is well established that the right to a jury does not apply to the fact of a prior conviction. (Id. at p. 818.) This prior conviction exception includes “not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions. [Citation.]” (Id. at p. 819.)

Several of the aggravating factors relied on by the trial court relate to defendant’s criminal record. These factors made him eligible for the upper term and did not require a finding by a jury. Accordingly, the trial court did not err in considering other factors in imposing the upper term. (Black II, supra, at pp. 812-813.)

Defendant contends the reasoning of Black II, supra, 41 Cal.4th 799 is flawed and the prior conviction exception should be narrowly construed. We do not address this contention because we are bound by decisions of the California Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

DISPOSITION

The judgment is affirmed.

We concur: SCOTLAND , P.J., HULL , J.


Summaries of

People v. Johnson

California Court of Appeals, Third District, Sacramento
Mar 3, 2008
No. C054747 (Cal. Ct. App. Mar. 3, 2008)
Case details for

People v. Johnson

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. BRANDON D. JOHNSON, Defendant and…

Court:California Court of Appeals, Third District, Sacramento

Date published: Mar 3, 2008

Citations

No. C054747 (Cal. Ct. App. Mar. 3, 2008)