Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. NA080691, Charles D. Sheldon, Judge.
Jonathan B. Steiner and Larry Pizarro, 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 Sullivan Pithey and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.
JOHNSON, J.
SUMMARY
Defendant Jeff Patterson appeals his conviction for possession of base cocaine with intent to sell. He argues the trial court abused its discretion by permitting the prosecution’s expert witness to tell the jury that the fact that Patterson had twice before been convicted of selling cocaine formed part of the basis for his opinion that Patterson possessed the cocaine here with intent to sell. We agree that an error was committed, but find that the error was harmless.
Patterson also appeals on the ground that the new formula set forth in amended Penal Code section 4019 should be applied retroactively to increase his presentence conduct credits. We agree.
Further undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
On January 2, 2009, Patterson was taken into police custody in Long Beach for public intoxication. Police conducted a strip search before Patterson was booked into county jail. In the course of that search, an officer saw a plastic baggie containing an off-white substance protruding from Patterson’s buttocks. Patterson was taken to the hospital to have the baggie removed. At the hospital Patterson was combative and, as a result, was strapped to a bed with his arms by his side. Patterson wore a shirt and underwear, and a blanket was placed over him. An officer observed Patterson moving his hands and feet underneath the blanket, and thereafter saw him toss a plastic baggie containing an off-white substance onto the floor. The baggie was recovered, booked in evidence and later determined by a police criminalist to contain 3.8 grams of cocaine base.
A two-count information charged Patterson with felony possession for sale of cocaine base, in violation of Health and Safety Code section 11351.5 (count 1), and misdemeanor public intoxication in violation of section 647, subdivision (f) (count 2). As to count 1, the information also alleged Patterson had served two prior prison terms within the meaning of section 667.5, subdivision (b), and had suffered three prior drug convictions within the meaning of Health and Safety Code section 11370.2, subdivision (a). Patterson pleaded not guilty and denied all allegations. Trial on the priors was bifurcated from the substantive counts.
At trial, Long Beach Police Detective Oscar Valenzuela testified as an expert on narcotic sales. After reviewing the police reports, listening to the testimony at trial, and based on his experience and training and considering Patterson’s prior convictions for the sale of rock cocaine, Detective Valenzuela opined that Patterson possessed the cocaine recovered at the hospital for the purpose of sale.
A jury found Patterson guilty as charged. Patterson then admitted the priors.
Patterson was sentenced to eight years in state prison. His sentence consisted of the upper term of five years on count 1, plus three years for one drug prior, and a six-month sentence for count 2, to be served concurrently. The trial court struck one prior drug offense enhancement, and both of the prison term enhancements. Patterson was given 211 days of custody credits, composed of 141 days of actual custody plus 70 days of conduct credits, and ordered to pay various fees and fines.
DISCUSSION
Patterson contends the trial court abused its discretion by permitting the expert witness to tell the jury that Patterson’s prior convictions for selling cocaine formed part of the basis for his opinion that Patterson possessed the cocaine in this case with the intent to sell. Patterson also insists his conduct credits must be recalculated in light of a recent amendment to section 4019.
1. Patterson’s evidentiary objection and the expert witness testimony
a. Objection as to admissibility of priors
Before trial, the prosecutor indicated he wanted the jury to be told about Patterson’s prior convictions for sale of rock cocaine as part of a basis for his expert witness’s opinion. Patterson’s counsel objected. The trial court noted the issue was a “touchy subject, ” which was why trial on the priors had been bifurcated from trial of the substantive offenses. The issue was shelved for a time, and the prosecutor was instructed to provide authority supporting the admissibility of such evidence.
The issue was raised again during trial. Patterson’s counsel reiterated her argument that to permit the expert witness to testify about Patterson’s prior convictions would place inadmissible evidence before the jury, and that such testimony was also inadmissible under Evidence Code section 352 because it was “highly prejudicial.” Patterson’s attorney also pointed out that the record lacked evidence of the “facts around [Patterson’s] prior convictions, ” and that the court therefore could not “know if [those convictions] were similar or the same” as the crimes charged here. She noted that the only thing known for sure was the “conviction dates and the charge.”
The trial court agreed the admission of evidence of Patterson’s prior convictions “certainly [had] some potential for prejudice.” It also found, however, that the hearsay evidence was “certainly relevant” and “certainly reliable, ” and agreed to permit the expert to testify regarding two of the three priors (both violations of Health and Safety Code section 11352, subdivision (a), one in 1999 and another in 2003).
b. Expert witness testimony
Detective Valenzuela, who was now employed in the drug investigation section, testified he had worked for six years in drug enforcement, had taken 120 hours of course training related to narcotics and narcotic enforcement and had made over 500 drug-related arrests. Detective Valenzuela had been involved in thousands of drug-related investigations, ranging in complexity from situations involving simple possession of a crack pipe, to a major international drug-trafficking organization, and had interviewed people involved in both the sale and consumption of narcotics. He has worked as an undercover informant, and has also managed undercover informants who have purchased crack cocaine on his behalf.
Detective Valenzuela listened to the trial testimony and reviewed the police reports filed in connection with the investigation. Detective Valenzuela opined that the cocaine recovered from Patterson at the hospital had been possessed with the intent to sell and distribute it. His opinion was premised on several factors.
First, Patterson had about 3.8 grams of cocaine in his possession, which is a much larger quantity than Detective Valenzuela had ever seen someone possess for his or her personal use. A typical dose is.05 to.10 grams. Based on that typical dosage, Patterson had 38–76 individual doses in his possession, with a street value of as much as $380. According to Detective Valenzuela, a typical consumer of rock cocaine would spend about $20 on an individual transaction. Thus, the amount of rock cocaine in Patterson’s possession was about 20 times more than Detective Valenzuela would expect for a typical user.
Second, Patterson had not carried any kind of drug paraphernalia, which would have indicated he had planned to use the drugs himself. Rock cocaine is consumed in a specific manner—typically it is smoked in a glass pipe.
Third, Patterson was unemployed, which is typical of those who sell drugs for a living.
Fourth, Patterson’s criminal record reflected that he had twice before been convicted for selling rock cocaine, once in 1999 and again in 2003. Detective Valenzuela testified that, “typically individuals who are arrested for possession for sale, as in this case, usually have a prior history. I don’t know what it is, but even after they’ve been convicted, they continue to do so in the future.”
Finally, the drugs recovered from Patterson were hidden in his buttocks. Detective Valenzuela had seen drug dealers carry drugs that way in the past. During past investigations in which he used “informants to purchase rock cocaine on [his] behalf, [Detective Valenzuela had] seen drug dealers reach down into their buttocks area, remove the crack cocaine, and then sell it to the informant.”
Detective Valenzuela also testified that neither the fact that the cocaine in Patterson’s possession was not broken up into smaller components, or that Patterson’s cell phone lacked text messages regarding drug sales altered his professional opinion that the cocaine was possessed with intent to sell. First, the cocaine was not just a single chunk, but rather several pieces wrapped in a piece of cellophane. Also, street dealers are typically quite able to “eyeball” the amount at the time of a sale, and break off a chunk of $10-$20 worth of rock cocaine in their fingers. As for the cell phone, even if Patterson had a text messaging service on his phone (and there was no evidence he did), one can obtain rock cocaine simply by asking people one knows on the street; there is no need to use a phone to accomplish that objective.
2. The trial court erred by admitting unreliable other crimes evidence, but the error was not prejudicial
An expert witness may rely on otherwise inadmissible hearsay evidence as the basis for his opinion, so long as that evidence is reliable. (People v. Williams (2009) 170 Cal.App.4th 587, 621–622.); Evid. Code, § 801, subd. (b).) The trial court is vested with considerable discretion to control the way an expert is questioned so as to keep the jury from hearing otherwise inadmissible evidence. (People v. Gardeley (1996) 14 Cal.4th 605, 619.) The court has discretion to weigh the probative value of inadmissible evidence on which the expert witness relies against the risk the jury might improperly consider that evidence as independent proof of facts. (Id. at pp. 618–619; People v. Coleman (1985) 38 Cal.3d 69, 91.) The court may and should “exclude from the expert’s testimony ‘any hearsay matter whose irrelevance, unreliability, or potential for prejudice outweighs its proper probative value.’” (People v. Pollock (2004) 32 Cal.4th 1153, 1172; People v. Montiel (1993) 5 Cal.4th 877, 919; Evid. Code, § 352.)
a. Inadmissible “other crimes” evidence
Patterson asserts the evidence of his prior convictions was inadmissible as “other crimes” evidence. Evidence Code section 1101, subdivision (b), permits “the admission of evidence that a person committed a crime... when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident...) other than his or her disposition to commit such an act.” The admissibility of such evidence turns primarily on the question of whether the uncharged crimes are “sufficiently similar [to the charged offense] to support the inference that the defendant ‘“probably harbor[ed] the same intent in each instance.” [Citations]’” (People v. Ewoldt (1994) 7 Cal.4th 380, 402.) Patterson maintains that because no more is known about his priors than the dates on which he was convicted and the code section violated, there is insufficient evidence to support a reasonable inference that he harbored the same intent in each instance. (Ibid.) We agree.
Health and Safety Code section 11352, subdivision (a) may be violated in several ways. Undoubtedly, the statute is most often violated by the unlawful possession of drugs intended for sale. However, Health and Safety Code section 11352 is also violated if one transports, imports into California, furnishes, administers or makes a gift of illegal narcotics, offers to do any of the foregoing, or attempts to import or transport illegal narcotics. (Health & Saf. Code, § 11352, subd. (a).) Other crimes evidence is admissible only if it tends to establish that the conduct underlying the uncharged acts was sufficiently similar to the charged offense such that it will support a reasonable inference that the defendant probably harbored the same intent in each instance. The admissibility of evidence of prior acts turns on the question of whether those uncharged acts resemble the charge at issue enough to support a reasonable inference of the material fact they are offered to prove. (People v. Ewoldt, supra, 7 Cal.4th at p. 402; People v. Erving (1998) 63 Cal.App.4th 652, 659–660.) Here, the evidence of Patterson’s prior convictions for violation of Health and Safety Code section 11352 was offered as evidence Patterson had engaged in a pattern of unlawful possession of drugs for the purpose of sale. The prior convictions in and of themselves are not sufficient for that purpose.
The record reflects only the dates of Patterson’s prior convictions, and the fact that he was convicted twice for violating the same statute violated here. Without knowing whether those prior convictions involved the sale of drugs, as was at issue here, rather than, for example, the furnishing or attempted transportation of drugs, it is not possible to ascertain whether the prior acts were sufficiently similar to the charged offense to support a reasonable inference of the material fact they were offered to prove. Thus, the trial court erred in concluding this incompetent evidence was sufficiently probative to support Detective Valenzuela’s opinion that Patterson harbored the same intent in each instance. (People v. Ewoldt, supra, 7 Cal.4th at p. 402.)
b. Harmless error
Nonetheless, we find no basis upon which to reverse the jury's decision. We conclude the trial court’s error was not prejudicial because it is not reasonably probable the outcome would have been more favorable to Patterson absent the error. (People v. Watson (1956) 46 Cal.2d 818, 836.) Independent of the evidence of Patterson’s prior convictions, there is abundant evidence he possessed the cocaine in this instance for the purpose of sale.
As Detective Valenzuela testified, Patterson had approximately 76 doses, or about 20 times more base cocaine in his possession than one would expect to find in the possession of an individual user. Those drugs had a street value of up to $380. Patterson is unemployed; most drug dealers are. The drugs were found in a baggie concealed in Patterson’s rump. Drug dealers frequently conceal drugs they plan to sell inside their buttocks. Patterson was not carrying a pipe or other paraphernalia; such paraphernalia is necessary to consume crack cocaine. Based on this evidence, and independent of the evidence of the prior convictions, it was not reasonably probable the jury would have reached a result more favorable to Patterson.
3. Conduct credits
Patterson was awarded 70 days of work and conduct credits based on 141 actual days in custody, pursuant to section 4019. At the time Patterson was sentenced, section 4019 provided for one day of work time credit and one day of good behavior credit for each six-day period of custody. (Former § 4019, subd. (b), (c).) If a defendant earned conduct credits, six days were deemed to have been served for every four days the defendant spent in actual custody. (Former § 4019, subd. (f).) Effective January 25, 2010, section 4019 was amended to provide for one day of work time and one day of conduct credit for each four-day period of custody. (§ 4019, subd. (b)(1), (c)(1).) In addition, a defendant who has earned conduct credits is now deemed to have served four days for every two days of actual custody. (§ 4019, subd. (f).) Patterson contends the amendment to section 4019 must be applied retroactively, and that he is entitled to additional credits. We agree.
In People v. House (2010) 183 Cal.App.4th 1049, review granted June 23, 2010, S182813, we held that the amendment to section 4019 applied retroactively. There is currently a split of authority as to whether the amended version of section 4019 applies retroactively, and we await guidance on this issue by the California Supreme Court. Meanwhile, as in House, the majority of courts to have published opinions on the issue have found the amendment retroactive. (People v. Bacon (2010) 186 Cal.App.4th 333.)
Recent opinions holding that the amended statute applies retroactively include People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963; People v. Landon (2010) 183 Cal.App.4th 1096, review granted June 23, 2010, S182808; People v. House, supra, 183 Cal.App.4th 1049, review granted June 23, 2010, S182813; People v. Pelayo (2010) 184 Cal.App.4th 481, review granted July 21, 2010, S183552; People v. Norton (2010) 184 Cal.App.4th 408, review granted August 11, 2010, S183260; People v. Keating (2010) 185 Cal.App.4th 364; People v. Weber (2010) 185 Cal.App.4th 337, review granted August 18, 2010, S184873; and People v. Bacon, supra, 186 Cal.App.4th 333. Others, concluding the amendment applies only prospectively are, People v. Rodriguez (2010) 183 Cal.App.4th 1, review granted June 9, 2010, S181808; People v. Hopkins (2010) 184 Cal.App.4th 615, review granted July 28, 2010, S183724; People v. Otubuah (2010) 184 Cal.App.4th 422, review granted July 21, 2010, S184314; People v. Eusebio (2010) 185 Cal.App.4th 990, and People v. Alvarado (2010) 187 Cal.App.4th 72.
Patterson served a total of 141 days prior to the imposition of his sentence. Retroactively applying section 4019, as amended, Patterson is entitled to two days credit for every two days actually served. (§ 4019, subd. (f).) Accordingly, Patterson’s work and conduct credits are to be calculated by dividing the number of actual days in custody by two, rounding down to the nearest whole number, and multiplying by two. Presentence work and conduct credits are equal to actual credit days, unless the actual number of credit days is odd, in which case the total number of presentence work and conduct credits is calculated by subtracting one from the number of actual custody days. Applying this formula, Patterson had 141 actual custody days, so he is entitled to 140 days of work and conduct credits, or a total of 281 days of presentence credits.
DISPOSITION
The court shall amend the abstract of judgment to reflect 281 total presentence credits, and forward the amended abstract of judgment to the California Department of Corrections and Rehabilitation. As so modified, the judgment is affirmed.
We concur: MALLANO, P. J., CHANEY, J.