Opinion
G036308
12-11-2006
THE PEOPLE, Plaintiff and Respondent, v. CLIFTON DUKE ROSS, Defendant and Appellant.
Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Michael T. Murphy, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Clifton Duke Ross was convicted of possession of cocaine base for sale (Health & Saf. Code, § 11351.5) and possession of marijuana (Health and Saf. Code, § 11357, subd. (b)). The jury found not true the allegation he possessed marijuana for sale (Health and Saf. Code, § 11359). Defendant appeals his conviction for possession of cocaine base for sale, contending the court erred in admitting prior crime evidence and that insufficient evidence supports the finding he intended to sell the cocaine. We disagree and affirm.
FACTS
A narcotics detective, suspecting defendant was selling drugs, began an investigation. During surveillance, he saw a large number of people frequenting defendants residence. An officer also searched a car driven from the residence and found cocaine base.
Detectives obtained a warrant authorizing them to search defendants residence. There they found a plastic baggy containing approximately 6.1 grams of cocaine base and another containing marijuana. They also found several baggies marked with the "8-ball" symbol drug dealers use to denote a quantity of 3.5 grams of a controlled substance. While searching defendant, they discovered rock cocaine and marijuana in a tissue paper between his buttocks. Defendant carried $48 cash and did not appear to be under the influence of drugs.
The prosecution presented evidence that an officer had arrested defendant a few years prior and had found cocaine and marijuana concealed between his buttocks. This evidence was admitted after the court considered argument from both sides. The court also advised the jury and took judicial notice of the fact that, in 2001 in open court, defendant had stated that he possessed cocaine base for purpose of sale as well as a usable quantity of marijuana. The court instructed the jury to consider evidence of the earlier incident only to determine whether defendant intended to sell the cocaine.
DISCUSSION
1. Admissibility of Prior Crime Evidence
Defendant contends the court erred in admitting evidence of his 2001 crime because it was irrelevant to his intent to sell and was inadmissible character evidence offered to prove his criminal disposition. After reviewing the admission of this evidence for abuse of discretion, we disagree. (People v. Lenart (2004) 32 Cal.4th 1107, 1123.)
Under Evidence Code section 1101, subdivision (b), evidence of prior crimes is admissible to prove a defendants intent in a charged crime. Our Supreme Court set forth a three-step analysis to determine whether such evidence is admissible: "`(1) the materiality of the fact sought to be proved . . .; (2) the tendency of the uncharged crime to prove . . . the material fact; and (3) the existence of any rule . . . requiring the [evidences] exclusion . . . . [Citation.]" (People v. Robbins (1988) 45 Cal.3d 867, 879, (Robbins) italics omitted, overruled by statute on another ground as set out in People v. Jennings (1991) 53 Cal.3d 334, 387, fn. 13.)
Applying the first step of the Robbins analysis, defendants specific intent to sell was a material issue because it is an element of possession of cocaine base for sale. (People v. Pimental (1970) 6 Cal.App.3d 729, 734.) And defendant disputed it, admitting he possessed, but denying he intended to sell, the cocaine. (See People v. Ewoldt (1994) 7 Cal.4th 380, 400, fn. 4 [not guilty plea places all elements into issue].)
Applying the second step of the analysis, defendants prior crime is relevant to his intent to sell. As the trial court noted, the crimes are "substantially similar" because in both "there was a small amount of rock cocaine secreted with tissue paper between the butt cheeks . . . ." Defendant also concealed a small amount of marijuana in that same area both times. Since defendant concealed the rock cocaine the exact same way both times, and intended to sell it the first time, the prior crime evidence tends to prove he had the same intent the second time. (Robbins, supra, 45 Cal.3d at p. 879 ["`if a person acts similarly in similar situations, he probably harbors the same intent"].) Defendant contends similar concealment of drugs is relevant to intent to conceal and possess, but not intent to sell.
People v. Earley (2004) 122 Cal.App.4th 542, a case with similar facts, stands for the opposite proposition: similar concealment of drugs is relevant to intent to sell them. In Earley the defendant, in both a prior and a charged offense for possession of marijuana for sale, concealed marijuana on his person and in the nearby vicinity. Deferring to the trial courts admission of evidence of the prior crime, the appellate court stated, "It could reasonably be argued the . . . incident was admissible on . . . intent to sell because there was a recurrence of a similar result: . . . [the] defendant was caught . . . in possession of marijuana that he attempted to discard by tossing it away." (Id. at p. 548.)
Defendant relies on People v. Scheer (1998) 68 Cal.App.4th 1009 in support of his argument that evidence of his prior crime is inadmissible because it was too remote in time. Scheer held that evidence of a crime occurring four years prior was inadmissible to prove the defendants intent to commit felony hit and run. (Id. pp. 1018-1020.) But the basis for this holding was that intent was not an element of the crime charged; felony hit and run only requires general intent. (Id. at p. 1019.) Scheer was not based on the fact that the earlier crime was "excessively remote."
Furthermore, remoteness goes to weight, not admissibility. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1162.) And while there is a `"line of reasonableness beyond which evidence is not admissible" (People v. George (1959) 169 Cal.App.2d 740, 746), courts have upheld the admission of evidence of prior crimes substantially more removed in time than four years. (E.g., People v. Grimes (1952) 113 Cal.App.2d 365, 373 [11 years]; People v. Burns (1952) 109 Cal.App.2d 524, 538 [13 years].) We are not aware of any case where a crime committed within four years of the charged offense was held to be too remote in time.
Applying the third step of the Robbins analysis, the trial court did not abuse its discretion when it determined that the risk of prejudice did not outweigh the evidences probative value in violation of Evidence Code section 352. Because the crimes were substantially similar, the evidence was probative of defendants intent to sell. And the court reduced the risk the jury would consider the evidence for an improper purpose by (1) prohibiting evidence of defendants conviction of the prior crime, (2) instructing the jury to determine for itself the significance of defendants statement he possessed the cocaine for sale, and (3) instructing the jury to consider the evidence only on the issue of intent. We must presume that the jury followed the courts instructions. (People v. Ramirez (1997) 55 Cal.App.4th 47, 59.)
2. Sufficiency of the Evidence
Defendant also contends there is insufficient evidence he intended to sell the cocaine. He maintains we must engage in "independent[] review [of] the evidence" to determine whether it "establishes guilt beyond a reasonable doubt . . . ." In support of this argument he relies on People v. Trevino (1985) 39 Cal.3d 667, overruled on another ground in People v. Johnson (1989) 47 Cal.3d 1194, 1221; People v. Redmond (1969) 71 Cal.2d 745; People v. Veitch (1982) 128 Cal.App.3d 460; and People v. Lopez (1969) 1 Cal.App.3d 78. But those cases distinguished two standards: trial courts ruling on motions for new trial independently review evidence, whereas appellate courts review jury verdicts for substantial evidence. (People v. Trevino, supra, 39 Cal.3d at p. 695, fn. 29.)
Under the proper standard, we "review[] the entire record, in the light most favorable to the judgment, for . . . substantial evidence . . . `that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.]" (People v. Chatman (2006) 38 Cal.4th 344, 389.) "Unless it is clearly shown that `on no hypothesis whatever is there sufficient substantial evidence to support the verdict the conviction will not be reversed. [Citation.]" (People v. Quintero (2006) 135 Cal.App.4th 1152, 1162.)
Courts have found sufficient evidence of intent to sell when "`experienced officers [opine] . . . narcotics are held for purposes of sale based upon such matters as quantity, packaging and normal use of an individual . . . . [Citations.]" (People v. Parra (1999) 70 Cal.App.4th 222, 225, 227 [officers opinions, based on above factors, as well as absence of paraphernalia and the defendants apparent sobriety from cocaine, sufficient evidence of intent to sell].) So here. Experienced narcotics detectives based their opinions defendant intended to sell the cocaine on the same factors as in Parra: quantity, packaging, absence of paraphernalia, and defendants apparent sobriety. In addition, the large number of people frequenting defendants residence is consistent with drug sales. (See People v. Shoals (1992) 8 Cal.App.4th 475, 491.)
Defendant argues that, because the detectives did not witness any sales or find indicia of sales except the 8-ball marked baggies, no reasonable juror could have found he intended to sell the cocaine because the evidence tends to prove he possessed it for personal use. He notes that a typical cocaine user could smoke the found quantity of cocaine in a single week. However this is but one hypothesis. Because the evidence also "`reasonably justif[ies] the jurys finding [defendant intended to sell the cocaine], the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.]" (People v. Guerra (2006) 37 Cal.4th 1067, 1129.)
DISPOSITION
The judgment is affirmed.
We Concur:
SILLS, P. J.
FYBEL, J.