Opinion
NOT TO BE PUBLISHED
Superior Court County of Los Angeles. No. SA068041, Cynthia Rayvis, Judge
Helen S. Irza, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec, Supervising Deputy Attorney General, Theresa A. Patterson, Deputy Attorney General, for Plaintiff and Respondent.
GILBERT, P.J.
Marcel Johnson appeals a judgment following his conviction of two counts of selling a controlled substance, cocaine (Health & Saf. Code, § 11352, subd. (a)), and one count of possession for sale of a controlled substance (id., § 11351). We conclude that 1) the trial court did not err by admitting evidence that Johnson sold cocaine in a prior incident in 2006; and 2) from our independent review of the in camera proceedings on Johnson's Pitchess motion (Pitchess v. Superior Court (1974) 11 Cal.3d 531), there was no reversible error involving the trial court's rulings on the evidence that was discoverable from police personnel records. We affirm.
FACTS
Juan Diaz-Ibarra was an undercover narcotics officer. On June 11, 2008, he and other officers began an "undercover buy operation" on Westminister Avenue between 6th and 7th Streets in Los Angeles. Ibarra approached Johnson and said, "What's up, brother?" Johnson replied, "What do you need?" Ibarra said, "Can I get a 40? [$40 worth of rock cocaine]" Johnson said, "Yeah, come with me."
Daniel Vizcaino, a second undercover officer, approached them. Johnson asked Vizcaino, "What do you want." Vizcaino said, "Can I get a 'dub'? [$20 worth of rock cocaine]" Johnson directed Vizcaino to wait with Ibarra.
Johnson made a phone call. He came back and gave Ibarra "three off-white solids resembling rock cocaine," and Ibarra gave Johnson two $20 bills which Ibarra had "prerecorded." Johnson gave Vizcaino one or two "off-white solids" for the $20 bill which police had "prerecorded."
A few minutes later, police narcotics detective Robert Riske heard over the police radio that Johnson had sold drugs. Riske walked towards Johnson. Johnson asked what he wanted. Riske said he wanted "a 20" ($20 worth of street cocaine). Johnson looked towards another man who was 20 feet away. Riske identified himself as a police officer. Johnson and the other man ran away. Police officers apprehended Johnson. Johnson "tossed a clear plastic bindle to the ground." It contained 2.3 grams of rock cocaine, enough for "a hundred usable quantities."
In searching Johnson, the police did not recover any of the prerecorded buy money. Officer Vizcaino testified that he was not surprised that that money was not recovered. Suspects dispose of it. He said, "Usually... if they run, they throw the money away."
In the defense case, Johnson testified that on June 11, 2008, he was near 6th Street in Los Angeles. He saw police officers approaching him. He ran away because there was a warrant for his arrest. He possessed a cocaine pipe because he "was using it." But he did not sell drugs and he did not possess drugs with the intent to sell them.
The 2006 Drug Sale
Police Officer Jacinto Zavala testified that on January 26, 2006, he was working in "an undercover capacity." He approached Johnson who was standing on 6th Street in Los Angeles and asked him for a "dub."
In exchange for the $20 bill, Johnson gave Zavala an "off-white solid" which appeared to be rock cocaine. Before approaching Johnson, Zavala had made a photocopy of the $20 dollar bill that he ultimately handed to him. After the police arrested Johnson, they recovered that $20 bill from Johnson's pants pocket.
DISCUSSION
I. Admitting Evidence about a Prior Drug Sale
Johnson claims the trial court committed reversible error by admitting evidence that Johnson sold cocaine to undercover officers in 2006. We disagree.
We review rulings on the admissibility of evidence to determine whether there was an abuse of discretion. (People v. Memro (1995) 11 Cal.4th 786, 864.) "'The general rule is that evidence of other crimes is inadmissible when it is offered solely to prove criminal disposition or propensity on the part of the accused to commit the crime charged....'" (People v. Foster (1974) 36 Cal.App.3d 594, 597.)
But "evidence of other crimes is admissible where it tends to show guilty knowledge, motive, intent, or presence of a common design or plan." (People v. Pijal (1973) 33 Cal.App.3d 682, 691, italics omitted.)
Where a defendant is charged with selling drugs, evidence of his or her prior drug sales may be admitted if it is related to a relevant and material issue involving the charged drug offense. (People v. Pijal, supra, 33 Cal.App.3d at p. 691.) The Court of Appeal stated, "Since appellant's knowledge of the narcotic contents of the drug and his intent to sell were at issue, evidence of his prior narcotic offenses was clearly admissible to show his guilty knowledge, motive and intent...." (Ibid.) Such evidence also may be admitted to show "that the drugs were possessed for sale rather than for personal use.... " (People v. Williams (2009) 170 Cal.App.4th 587, 607.)
In People v. Foster, supra, 36 Cal.App.3d at page 597, the defendant was charged with possession for sale of illegal drugs. The Court of Appeal held that the trial court did not err by admitting evidence that the defendant possessed drugs on a prior occasion. It said, "It is manifest that conclusive proof of Foster's possession, 18 months before, of restricted dangerous drugs with intent to sell them, had a logical and substantial tendency to establish an intent... to sell the drugs here at issue." (Id. at p. 597, italics omitted.)
Johnson placed his motive and his intent in issue. He testified that on June 11, 2008, he did not sell any drugs and did not possess drugs with the intent to sell them. Because his motive and intent were at issue, the trial court properly allowed the prosecution to introduce evidence about the 2006 drug sale. (People v. Pijal, supra, 33 Cal.App.3d at p. 691.) That evidence "had a logical and substantial tendency to establish an intent... to sell drugs here at issue." (People v. Foster, supra, 36 Cal.App.3d at p. 597.)
The 2006 incident was probative evidence. The facts of that sale involved a very similar pattern to the modus operandi Johnson used to sell drugs in the charged offenses. Johnson sold the same type of drugs for the same price. The method of conducting the street sale was the same, and the sales took place near 6th Street. "The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent." (People v.Ewoldt (1994) 7 Cal.4th 380, 402.) This prior sale also showed the "presence of a common design or plan." (People v. Pijal, supra, 33 Cal.App.3d at p. 691.) "'[T]he recurrence of a similar result... tends to establish... the presence of the normal, i.e., criminal, intent accompanying such an act....'" (Ewoldt, at p. 402.) Moreover, the evidence of the prior incident was admissible to refute Johnson's claim that he was only a drug user and not a drug seller. (People v. Williams, supra, 170 Cal.App.4th at p. 607.)
The earlier incident was relevant to the prosecution's case for another reason. The defense had argued that the failure of police to recover the recorded buy money that they used to make the current drug purchases proved that Johnson could not have been the seller. The prosecution claimed the evidence about the 2006 incident showed that Johnson knew that possessing buy money was incriminating and that he would have to dispose of it. This helped to explain why the money the officers used to purchase the drugs for the current offenses was not found when they searched Johnson.
Even if the trial court had erred by admitting this evidence, any error is harmless. The prosecution's evidence was strong. Johnson admitted that he ran away from the police. The bindle of drugs he possessed was substantial. It contained "a hundred usable quantities." The jury could reasonably infer that this refuted Johnson's claim that he was only a drug user and not a drug seller. Johnson testified that police officers Ibarra and Vizcaino never approached him to buy drugs. But the jury rejected this claim and did not find Johnson to be a credible witness. They believed the testimony of the police officers.
II. The Pitchess Motion
Johnson requests that we independently review the trial court's rulings on his Pitchess motion. (Pitchess v. Superior Court, supra, 11 Cal.3d 531.) He notes that the court gave his counsel the names of two witnesses after conducting an in camera review of the personnel records of the police officers who arrested him.
A Pitchess motion is a procedure for "screening law enforcement personnel files in camera for evidence that may be relevant to a criminal defendant's defense." (People v. Mooc (2001) 26 Cal.4th 1216, 1225.) "'A trial court's decision on the discoverability of material in police personnel files is reviewable under an abuse of discretion standard.'" (Id. at p. 1228.)
After reviewing Johnson's Pitchess motion, the trial court ruled there was good cause for disclosure of personnel records of the three officers who arrested him. It stated that it would review the files to determine if there were allegations that the officers made false statements or false police reports.
We have reviewed the transcript of the in camera proceedings which includes the trial court's findings and rulings on discoverable evidence from the files. There was no prejudicial abuse of discretion.
The judgment is affirmed.
We concur: YEGAN, J., PERREN, J.