Opinion
D041057.
7-11-2003
THE PEOPLE, Plaintiff and Respondent, v. RICKY DANIEL PAGE, Defendant and Appellant.
In July 2002 a jury found the defendant Ricky Daniel Page guilty of one count of sale of cocaine in violation of Health and Safety Code section 11352, subdivision (a), arising out of a "buy/bust" drug transaction with an undercover San Diego Police officer. Page also admitted that he had one prior "strike" conviction within the meaning of Penal Code sections 667, subdivisions (b) through (i), 668 and 1170.12, and three prison priors within the meaning of Penal Code sections 667.5, subdivision (b) and 668. In October 2002 the court sentenced Page to a total of 14 years in state prison consisting of (1) a midterm sentence of eight years for the sale of cocaine conviction; (2) a three-year consecutive sentence for an enhancement under Health and Safety Code section 11370.2, subdivision (a) based upon a prior conviction for violation of Health and Safety Code section 11351 (possession or purchase of controlled substance for sale); and (3) three consecutive one-year terms for the three prison priors.
The People dismissed the remaining three counts in the interests of justice during trial.
Page appeals, asserting that the court erred by (1) admitting evidence of a prior cocaine sale arrest to prove knowledge and intent under Evidence Code section 1101, subdivision (b); (2) admitting a photocopy of prerecorded bills the police used in the drug sale transaction, as the admission of such evidence violated the secondary evidence rule ( § 1521); and (3) allowing a witness to testify concerning the contents of the prerecorded bills in violation of section 1523. We conclude that the court did not err in admitting evidence of the prior cocaine sale conviction and the photocopy of the prerecorded bills used in the buy/bust operation, and also there was no error in allowing testimony concerning the prerecorded bills. Accordingly, we affirm the judgment.
All further statutory references are to the Evidence Code unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
A. Peoples Case
In December 2001, Sergeant Raymond Rowe of the San Diego Police Department was working as an undercover officer on a buy/bust operation seeking to purchase narcotics from street dealers. Sergeant Rowe was wired with a one-way transmitter and was carrying two prerecorded $ 20 bills and two prerecorded $ 1 bills. A photocopy of the bills was made before Sergeant Rowe began his assignment.
In the 1300 block of K Street, Officer Rowe contacted a female, Vioree Ricks, sitting on an electrical box. Officer Rowe told her he was looking for "40" ($ 40 worth of cocaine) and asked if she was "working" (selling narcotics). Ricks said that while she did not have any, she could get some for Rowe if she could have a piece and smoke it with him. Sergeant Rowe agreed, and he and Ricks walked eastbound until they met three individuals, including Page. Ricks asked Page if he was working, and if he had "40," to which Page nodded and said, "Yeah. Come on, let me holler at you."
Ricks and Page walked about 15 to 20 feet away from Sergeant Rowe. Ricks then came back to Officer Rowe and told him, "Hes got it, and hes willing to deal to me." Sergeant Rowe gave the two $ 20 prerecorded bills to Ricks. Ricks and Page walked to the southwest corner of 17th and K Streets, and went around the corner. Sergeant Rowe lost sight of them at that point. Sergeant Rowe informed officers who were monitoring the transaction through his wire that Page and Ricks had walked around the corner and provided a description of them.
Ricks returned to Sergeant Rowe about 30 seconds later with two small rocks of cocaine base. Officer Rowe then put out a "bust signal" to let the monitoring detectives know he had successfully purchased narcotics.
Officer Ruben Hernandez was monitoring the transaction visually through binoculars and through the wire worn by Sergeant Rowe. Hernandez observed Sergeant Rowe meet Ricks and then meet Page. Ricks and Page made a hand-to-hand exchange. In the opinion of Officer Hernandez, based upon his training and experience, a narcotics transaction took place. Once Page completed the transaction with Ricks, Officer Hernandez observed him engage in hand-to-hand transactions with two other individuals. Upon receiving the bust signal from Sergeant Rowe, Officer Hernandez directed San Diego Police Officer James Clark to arrest Page.
Officer Clark, who was part of the arrest team, pulled in front of Page at the 200 block of 17th Street and exited his vehicle. Believing Page was going to run, Officer Clark grabbed Page by the arm and took him over to his patrol vehicle. After he had placed one handcuff on Page and as he was attempting to handcuff the other arm, Page pulled away from him. Officer Clark told him he was under arrest and not to try to resist, but Page continued to struggle and they fell to the ground. San Diego Police Detective Dawn Wolfe, also part of the buy/bust operation, arrived and helped Officer Clark subdue and arrest Page.
Officer Clark then searched Page. Officer Clark found "a bunch of wadded-up cash," including several $ 20 bills, in Pages right front pant pocket. He then went inside his patrol car and placed the money on the "hump" between the driver and passenger seats in order to compare it to the list of prerecorded bills. Initially, Officer Clark did not find the prerecorded $ 20 bills. Officer Clark then continued his search and found $ 50 in Pages left front pant pocket, $ 10 in the rear right pocket, and $ 670 in an upper jacket pocket. He also found a paycheck made payable to Page in the amount of $ 328.14. After counting all the money and searching his car further, he discovered that three $ 20 bills had fallen in between the hump and the drivers seat. Two of the bills were those prerecorded bills used in the operation. Officer Clark did not have anyone else in the patrol car prior to placing Page in the vehicle.
Detective Wolfe testified that she had photocopied the two $ 20 bills before the buy/bust operation, had put her name and the date on the copy, and had then given the bills to Sergeant Rowe for use in the operation. Officer Clark returned the prerecorded bills to her after the operation. Detective Wolfe matched the serial numbers of the money that was returned against the photocopy to ensure a match and put the bills back with the funds for buy/bust operations. Detective Wolfe testified that all the narcotics teams in the San Diego police department use this procedure for buy/bust funds.
Officer Rowe testified that the buy money is recirculated following each operation as the police department does not have sufficient funds to impound money as evidence for each buy/bust. He testified that it was common practice to photocopy the prerecorded bills and put your name and date on the copy before the bills are used in a buy/bust operation.
The parties stipulated that the forensic analysis of the substance seized from Page revealed that it was .27 grams of cocaine. The parties also stipulated that in May of 1998 Page was arrested on the 1600 block of K Street in San Diego for possession of 3.3 grams of cocaine and that Page admitted at the time of that arrest that the substance was cocaine base which he intended to sell.
B. Defense Case
Page did not testify and did not call any witnesses on his behalf.
C. Motion Regarding Evidence of Prior Arrest
Prior to trial the People sought a ruling that Pages arrest for sale of cocaine in 1998 be admitted "to show his intent and his knowledge of the nature of the controlled substance in this case." Defense counsel objected to admission of this evidence on the basis that it was unduly prejudicial. The court ruled the evidence admissible, finding that it was relevant to shows Pages knowledge of the controlled substance, that its probative value outweighed its prejudicial effect, and that the court would instruct the jury that the evidence would come in only for a limited purpose. The parties thereafter agreed to have the stipulated facts concerning Pages 1998 cocaine sale arrest read to the jury.
The court gave the jury a limiting instruction on the prior arrest evidence, both at the time it came in and when instructing the jury generally, as to the limited purpose for which it could be considered. The court instructed the jury under a modified version of CALJIC No. 2.50 that the prior arrest could only "be considered by you for the limited purpose of determining if it tends to show the existence of the intent which is a necessary element of the crime charged and/or the defendant had knowledge of the nature of the controlled substance."
D. Objection to Evidence of Prerecorded Bills
Prior to trial Page objected by motion in limine to the introduction of any evidence concerning the prerecorded bills, based upon the Peoples failure to retain the original prerecorded bills used in the buy/bust operation. The court denied the motion, finding that the People were not required to retain the original bills.
DISCUSSION
I. Evidence of Prior Offense
Page asserts that the court erred in admitting evidence of his prior arrest for selling cocaine. We conclude the court properly exercised its discretion to admit this evidence to show Pages knowledge and intent in this case.
A. Standard of review
A courts decision to admit or exclude evidence of a prior offense is reviewed for an abuse of discretion. (People v. Hayes (1990) 52 Cal.3d 577, 617, 276 Cal. Rptr. 874, 802 P.2d 376.) Under this standard, we will not overturn a trial courts ruling unless it is irrational, arbitrary, or "falls outside the bounds of reason." (People v. DeSantis (1992) 2 Cal.4th 1198, 1226, 831 P.2d 1210; People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977, 928 P.2d 1171.)
B. Analysis
Section 1101 provides in part:
"(a) Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a persons 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.
"(b) 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, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act."
The California Supreme Court has explained that "evidence that a defendant committed crimes other than those for which the defendant is then being tried is barred by . . . section 1101 . . . if it is offered to prove the defendants criminal disposition, but not if it is offered to prove a material disputed issue such as motive or intent. [Citation.]" (People v. Hayes, supra, 52 Cal.3d at pp. 616-617.)
In People v. Kipp (1998) 18 Cal.4th 349, 369, 956 P.2d 1169 (Kipp), our high court concluded that evidence showing a defendant committed crimes other than those for which the defendant is then being tried "is admissible to prove identity, common design or plan, or intent only if the charged and uncharged crimes are sufficiently similar to support a rational inference of identity, common design or plan, or intent. [Citation.]"
In People v. Ewoldt (1994) 7 Cal.4th 380, 401-403, 867 P.2d 757 (Ewoldt), the Supreme Court also explained that there is a range in the degree of similarity between a charged offense and uncharged criminal conduct that must be shown before the evidence of the uncharged misconduct may be admitted to support specific inferences under subdivision (b) of section 1101. (See also Kipp, supra, 18 Cal.4th at pp. 369-371.) As the Kipp court put it, "the least degree of similarity is required to establish relevance on the issue of intent. [Citation.] For this purpose, the uncharged crimes need only be sufficiently similar [to the charged offenses] to support the inference that the defendant "probably harbored the same intent in each instance. [Citations.]" [Citation.]" (Id. at p. 371.)
However, even if evidence of a prior offense is admissible under section 1101, subdivision (b), such evidence is still subject to exclusion in the discretion of the trial court under the terms of section 352, which provides in part: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
Page asserts that evidence of the prior cocaine sale arrest for a cocaine sale was improper under sections 1101, subdivision (b) and 352 because the only defense he raised was identity: that it was not he that transferred the cocaine via Ricks to Sergeant Rowe. Page contends that the elements of knowledge and intent, for which the evidence of the prior arrest was admitted, were not at issue here because he did not contest those issues at trial. This assertion is unavailing.
In Ewoldt, supra, 7 Cal.4th at page 400, footnote 1, the California Supreme Court explained that by pleading not guilty a defendant puts every element of the charged crime in issue, even if not specifically raised, absent some stipulation or admission that a particular element is not being contested: "[ The] defendants plea [of not guilty] does put the elements of the crime in issue for the purpose of deciding the admissibility of evidence [of a prior crime], unless the defendant has taken some action to narrow the prosecutions burden of proof. . . . The prosecutions burden to prove every element of the crime is not relieved by a defendants tactical decision not to contest an essential element of the offense." (Italics added.)
Thus, in People v. Ellers (1980) 108 Cal. App. 3d 943, 166 Cal. Rptr. 888, the defendant sold narcotics to an informant. The prosecution presented evidence that the same informant had previously purchased narcotics from the defendant. The Court of Appeal held there that "the evidence relating to Ellers prior dealing relationship with the informant properly falls within the purview of section 1101, subdivision (b), as it tended to prove knowledge of the narcotic nature of the heroin he sold . . ., which is an essential element of the crime of selling a narcotic." (People v. Ellers, supra, 108 Cal. App. 3d at p. 953.) Moreover, the court held that "it is not necessary for the defendant to raise an issue as to his knowledge before the People can introduce such evidence." (Ibid .)
Here, Page never offered to stipulate to the elements of intent or knowledge as to the charged offense as a means of excluding evidence of the prior cocaine sale arrest. Therefore, evidence of that crime was admissible even though Page did not affirmatively raise those elements as issues at trial.
Page asserts that there is a "split of authority" as to whether evidence of a prior drug offense is admissible to prove knowledge or intent as to the charged offense where the defendant has not affirmatively placed these elements at issue. This contention is unavailing.
First, Page ignores the holding of Ewoldt that every element of a charged offense is placed in issue for the purposes of section 1101, subdivision (b), even where the defendant does not affirmatively contest the issue, unless the defendant takes some affirmative action to lessen the prosecutions burden of proof. (Ewoldt, supra, 7 Cal.4th at p. 400, fn. 4.)
Page cites People v. Anderson (1970) 6 Cal. App. 3d 364, 85 Cal. Rptr. 669 in support of his assertion that it was improper to admit evidence of the prior crime until and unless he placed the elements of knowledge or intent at issue in the case. In that case the defendant was being prosecuted for possession of marijuana. The prosecution presented evidence, over the defendants objection, that he had previously been arrested for possession of marijuana. The Court of Appeal, however, held that this was improper, stating, "the plea of not guilty, of course, places in issue all of the elements of the offense, but that alone does not justify admissibility of evidence of prior criminality, which carries with it such a high potential for collateral prejudice. Unless there appears to be some genuinely controverted issues as to which the prior crime is pertinent, the evidence should be excluded." (Id. at p. 371.)
Page asserts that, under the Anderson case, it was improper to admit evidence of the prior cocaine sale arrest because he "never raised an issue that he did not know the general nature of cocaine or dispute the identity of the substance transferred to Sergeant Rowe . . . ." This contention is unavailing.
To the extent Anderson can be read as broadly as Page suggests, it is contrary to subsequent California Supreme Court authority holding that even where a defendant does not affirmatively contest an element of the prosecutions case at trial, evidence of a prior similar crime may be admitted to prove that element. (Ewoldt, supra, 7 Cal.4th at p. 400, fn. 4.) Rather, the rule has been refined since the time of the Anderson decision to require a defendant to take some affirmative action to remove the issue from the case, before the prosecution puts on its case-in-chief, if a defendant desires to have evidence of prior crimes excluded.
This rule was explained in People v. Daniels (1991) 52 Cal.3d 815, 277 Cal. Rptr. 122, 802 P.2d 906, wherein the California Supreme Court approved admitting into evidence a prior bank robbery at the trial of a defendant charged with murdering two police officers who came to take him to prison after his conviction for that prior bank robbery was upheld on appeal. The defendant there argued that evidence of the prior bank robbery was irrelevant because his intent was not "at issue" in the case: "[Defendant] claims that his defense contested only the issue of identity and that the robbery evidence is not probative on that point. Under People v. Thompson [(1980) 27 Cal.3d 303, 315, 165 Cal. Rptr. 289, 611 P.2d 883], no other elements of the crime were at issue, because Thompson held that the fact that an accused has pleaded not guilty is not sufficient to place the elements of crimes charged against him "in issue." [P] In People v. Rodriguez [(1986) 42 Cal.3d 730, 757-758, 230 Cal. Rptr. 667, 726 P.2d 113], however, we substantially limited the scope of Thompson . . . . Rodriguez held that when the defendant did not isolate the issue of identity until after the prosecutor had completed his case-in-chief, the court did not err in permitting the prosecutor to present evidence of prior criminal conduct to prove premeditation, willfulness, and malice aforethought. Thus, contrary to Thompson, it appears that defendants plea does put the elements of the crime in issue for the purpose of deciding the admissibility of evidence under [section 1101], unless the defendant has taken some action to narrow the prosecutions burden of proof. [P] In the instant case defendant offered no concession which limited the issues, so the prosecution had the burden of proving all elements of the crime." (People v. Rodriguez, supra, at pp. 857-858, fns. omitted.)
Likewise in this case, Page did nothing by way of an admission or stipulation to lessen the prosecutions burden of proof in its case-in-chief on the issues of intent and knowledge of the controlled substance. Therefore, the mere fact that his defense rested only on the issue of identity did not preclude admission of evidence of the prior cocaine sale arrest.
The decision to admit evidence of the prior cocaine sale also was not violative of section 352. The offense was virtually identical. In fact, when Page was arrested in the instant crime he was apprehended in the same area as the previous one. The evidence was highly probative of Pages knowledge of the narcotic nature of the drug he sold to Sergeant Howe and his intent to sell it. The prior crime was not inflammatory or more serious than the current one. The previous crime was also not remote, as it occurred less than four years prior to the current charge. Further, the potential prejudice to Page was minimized by the limiting instruction, given twice by the court. Here, the court acted within its discretion in admitting evidence of the prior cocaine sale arrest.
II. Admission of Photocopy of and Testimony Concerning Premarked Bills
Page asserts that the court erred in admitting a photocopy of the prerecorded $ 20 bills as the evidence was violative of section 1521 (secondary evidence rule). Page also asserts that the oral testimony concerning the content of the bills was inadmissible under section 1523 (oral testimony to prove content of a writing). We reject these contentions.
A. Section 1521
Section 1521 provides in part:
"(a) The content of any writing may be proved by otherwise admissible secondary evidence. The court shall exclude secondary evidence of the content of a writing if the court determines either of the following: [P] (1) A genuine dispute exists concerning material terms of the writing and justice requires the exclusion. [P] (2) Admission of the secondary evidence would be unfair. [P] (b) Nothing in this section makes admissible oral testimony to prove the content of a writing if the testimony is inadmissible under Section 1523 (oral testimony of the content of a writing)."
Page asserts that he disputed the material terms of the prerecorded bills because he denied any role in the sale of the narcotics. However, whether Page claimed he was not the seller of the drugs to Sergeant Howe is irrelevant on the issue of whether the photocopy accurately reflected the contents of the original prerecorded bills. There is no claim that the original bills did not actually match up with the photocopy produced at trial.
Further, even if there were a dispute as to the material terms of the photocopy, there can be no claim that "justice" required the exclusion of the photocopy or that it would be "unfair" to admit that evidence. "Subdivision (a) makes secondary evidence generally admissible to prove the content of a writing. The nature of the evidence offered affects its weight, not its admissibility. The normal motivation of parties to support their cases with convincing evidence is a deterrent to introduction of unreliable secondary evidence. . . . [P] The mandatory exceptions set forth in subdivisions (a)(1) and (a)(2) provide further protection against unreliable secondary evidence." (Cal. Law Revision Com. com., 29B Wests Ann. Evid. Code (2003 supp.) foll. § 1521, p. 59, italics added.) Moreover, a claim of injustice or unfairness regarding secondary evidence "must be based on substance, not mere speculation that the original might contain some relevant difference." (People v. Garcia (1988) 201 Cal. App. 3d 324, 330, 247 Cal. Rptr. 94, interpreting § 1511, the predecessor to § 1521.)
Here, there is no support for any claim that there is any dispute as to the material terms of the writing or that the photocopy was somehow unreliable. The mere fact that the police had exclusive control of the original bills and defense counsel had no opportunity to view them does not compel exclusion of the photocopy. (People v. Garcia, supra, 201 Cal. App. 3d at p. 330.) The fact that the police failed to maintain the original prerecorded bills, and their reason for doing so (saving money), is the subject of argument and goes to the weight, not the admissibility, of the document. (Id. at p. 329.)
B. Section 1523
Section 1523 provides in part:
"(a) Except as otherwise provided by statute, oral testimony is not admissible to prove the content of a writing. [P] (b) Oral testimony of the content of a writing is not made inadmissible by subdivision (a) if the proponent of does not have possession or control of a copy of the writing and the original is lost or has been destroyed without fraudulent intent on the part of the proponent of the evidence."
Here, Page is objecting to the fact that the court allowed Officer Clark to testify that he found the prerecorded bills in his vehicle after counting the money he seized from Page. However, this testimony was not to "prove the content of a writing" under section 1523. The photocopy of the prerecorded bills proved the actual content of the writing. Officer Clarks testimony concerned the fact surrounding how the prerecorded bills were linked to Page and his arrest for the sale of narcotics.
C. Prejudice
Even if the court erred by allowing the prosecution to use a photocopy of the prerecorded bills at trial and to testify concerning those bills without having the originals, the admission of this evidence was not so prejudicial as to require a reversal of the judgment as it is not more likely than not that Page would have received a different result had the evidence not been admitted. (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.) Officer Rowe provided $ 40 to Ricks to buy cocaine, and Ricks told him that Page would sell some to her. He then observed Ricks and Page walk around the corner. Officer Hernandez observed Ricks and Page conduct a transaction that, based upon his experience and training, appeared to him to be a drug buy. Ricks then came back to Rowe with two rocks of cocaine. Officer Hernandez identified Page at trial as being the person involved in the drug transaction with Ricks. Thus, it is not more likely than not that Page would not have been convicted of selling cocaine even without the photocopy of the prerecorded bills or testimony to prove the content of those bills.
DISPOSITION
The judgment is affirmed.
WE CONCUR: HUFFMAN, Acting P. J., and OROURKE, J.