Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA289910, Frederick N. Wapner, Judge.
Gina McCoy, 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, Assistant Attorney General, Steven D. Matthews and Herbert S. Tetef, Deputy Attorneys General, for Plaintiff and Respondent.
KITCHING, J.
Jose Luis Tejeda appeals from the judgment entered following his conviction by jury of selling a controlled substance (Health & Saf. Code, § 11352, subd. (a)) with court findings that he suffered three prior felony convictions (Pen. Code, § 667, subd. (d)). The court sentenced him to prison for eight years. Appellant claims trial and sentencing error occurred, and asks this court to review sealed transcripts and documents pertaining to his Pitchess motion. We affirm the judgment.
Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
FACTUAL SUMMARY
Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), about 5:45 p.m. on September 7, 2005, undercover Los Angeles Police Officer Anthony Jackson was working with a narcotics task force near Seventh Place and Mateo. Jackson was walking on Mateo when Michael Clark asked if Jackson wanted to buy some glasses. Jackson indicated no and kept walking.
Clark was a codefendant. He is not a party to this appeal.
Jackson later saw a male and, using street vernacular, asked him if he was selling narcotics. The male asked Jackson if Jackson was selling narcotics. Jackson continued walking. Jackson then heard Clark, who was about 10 to 15 feet away, calling to him. Clark motioned Jackson to come to Clark. Jackson returned to Clark, Clark asked Jackson how much he was looking for, and Jackson indicated he had $38 and wanted to buy $40 worth of narcotics. Clark told Jackson that Clark would get it or take Jackson to get it.
Clark led Jackson down a street, appeared to be looking for someone, and told Jackson that the person who Clark was looking for was not there. Jackson testified that Clark then told Jackson that Clark was going to take him to see “the Cuban.” Clark led Jackson to an alley, and to an area which had been fenced-off with a chain link fence. Clark asked a male behind the fence if the Cuban was there, and the man indicated yes.
Appellant emerged from behind a tarp, walked to Clark, and spoke with him. Clark then turned to Jackson and told him that it would be $38 for a package of narcotics. Jackson gave appellant $38 of prerecorded money through the fence. Jackson was standing near the rear portion of the driver’s side of a parked van. The passenger side of the van was against a wall. Appellant took the money, walked towards the front of the van, and then to its passenger side. A female emerged from behind the tarp and approached the passenger side of the van.
Within a minute, appellant walked around the front of the van and approached Jackson. Jackson testified that appellant placed a “clear plastic bag bindle” on a crossbar of the fence. The bindle was about eye level on the crossbar. There were several off-white substances in the bindle that appeared to be rock cocaine. Jackson took the bindle and walked away. Clark was following him. Jackson signaled to other officers.
Police arrested appellant and found $216 in his front pants pocket and $48 in his rear pants pocket. The prerecorded money was on top of a purse inside the van. The bindle contained numerous off-white substances having a net weight of 1.2 grams and containing cocaine base. Appellant presented no defense evidence.
CONTENTIONS
Appellant claims (1) the trial court erred by failing to exclude Clark’s statement that he would take Jackson to the Cuban; (2) there was insufficient evidence to support appellant’s conviction; (3) the trial court erred by not striking, pursuant to Penal Code section 1385, appellant’s prior felony conviction; and (4) this court should ensure that the trial court, pursuant to appellant’s Pitchess motion, properly ordered disclosure of all relevant documents.
DISCUSSION
1. The Trial Court Did Not Erroneously Fail to Exclude Clark’s Statement.
a. Pertinent Facts.
During an Evidence Code section 402 hearing, appellant moved to exclude Jackson’s proposed testimony relating Clark’s statement to Jackson that Clark would take him to see the Cuban. Appellant moved to exclude the proposed testimony under Evidence Code section 352. The court concluded Clark’s statement was circumstantial evidence that Clark was going to take Jackson to find someone who could provide the drugs that Jackson had wanted, and that the statement was part of the crime itself. The court ruled Evidence Code section 352 was inapplicable.
b. Analysis.
Appellant claims the trial court erred by failing to exclude, under Evidence Code section 352, Jackson’s proposed testimony relating Clark’s statement. We disagree.
There is no dispute that Clark’s statement was admissible except to the extent appellant argues it was excludable under Evidence Code section 352. We review a trial court’s ruling on an Evidence Code section 352 issue for abuse of discretion. (People v. Waidla (2000) 22 Cal.4th 690, 723-724.)
Clark’s statement was highly probative circumstantial evidence that appellant was the Cuban and a person whom Clark knew could sell the drugs which Jackson had indicated he had wanted. The statement was not other crimes evidence but evidence of part of the events leading to the actual exchange of narcotics for money, i.e., the statement was evidence of the present crime. The statement was not more inflammatory than the later actual exchange of narcotics for money which Jackson personally witnessed. The trial court did not abuse its discretion by failing to exclude, under Evidence Code section 352, Jackson’s proposed testimony relating Clark’s statement.
Even if the trial court erred, there is no need to reverse the judgment. The jury reasonably could have concluded as follows. Prior to the exchange of narcotics for money, appellant kept the narcotics hidden and/or used the female to secrete them, evidencing appellant’s consciousness of guilt. Appellant later spoke with Clark, who acted as a go-between to communicate to Jackson appellant’s price for the narcotics.
Appellant took the money from Jackson, and later returned with narcotics which he had obtained from the female accomplice or otherwise obtained after he went to the far side of the van. Appellant put the narcotics on a fence, and the fence provided a measure of security for appellant as he traded in narcotics. The prerecorded money was later found in appellant’s constructive possession. (See People v. Francis (1969) 71 Cal.2d 66, 71.) Any trial court error in failing to exclude Jackson’s proposed testimony relating Clark’s statement was not prejudicial. (Cf. People v. Watson (1956) 46 Cal.2d 818, 836.)
2. There Was Sufficient Evidence to Support Appellant’s Conviction.
Appellant claims there was insufficient evidence that he sold narcotics because there was insufficient evidence that appellant “had the requisite knowledge of the presence, nature, or character of what was in the plastic bag.” We disagree.
There was ample evidence, including Clark’s statements, that Clark was a go-between in an exchange between appellant and Jackson of narcotics for money. There is no dispute appellant possessed a plastic bindle inside of which were numerous off-white substances having a net weight of 1.2 grams and containing cocaine base. The narcotics were in a clear plastic bindle which appellant actually possessed when he held it in his hand, and the jury reasonably could have concluded he constructively possessed said bindle and contents before he brought the bindle to Jackson. Appellant indicated he would sell the bindle for $38, and exchanged the bindle and its contents for that amount; the jury reasonably could have concluded this was an unlikely price for plastic alone. In sum, the jury reasonably could have concluded appellant was aware of the presence of narcotics in the bindle.
Moreover, possession of narcotics constitutes substantial evidence that the possessor knew of its narcotic nature. (People v. White (1969) 71 Cal.2d 80, 83; People v. Eckstrom (1986) 187 Cal.App.3d 323, 331.) Further, knowledge of the presence of contraband and its narcotic content may be inferred from a defendant’s conduct and statements at or near the time of his arrest. (People v. Eckstrom, supra, 187 Cal.App.3d at p. 331.) We have recited facts in our analysis in part 1 of our Discussion that are pertinent here. We conclude there was sufficient evidence that appellant committed the present offense, including sufficient evidence that appellant knew of the presence and nature of the narcotics. (Cf. People v. Ochoa, supra, 6 Cal.4th 1199 at p. 1206.)
3. The Trial Court Properly Refused to Strike a Prior Felony Conviction.
a. Pertinent Facts.
The probation report prepared for a September 2005 hearing reflects as follows. Appellant was born in Cuba in 1953. He was arrested for two vehicle thefts in 1982, and for burglary and sexual assault in 1985. He suffered four felony convictions in Florida, that is, two for the vehicle thefts, one for the burglary, and one for the sexual assault. Appellant used a knife in connection with the sexual assault. The Florida court sentenced appellant to prison for 17 years for the sexual assault. As of August 2005, appellant was a registered sex offender. The probation report noted appellant’s last felony conviction occurred over 20 years ago, but it was for a violent offense.
An amended information filed on March 2, 2006, alleged, inter alia, that appellant suffered three June 27, 1986, Florida convictions (case No. 85-28627) under the “Three Strikes” law, that is, for burglary of an occupied dwelling, robbery with a deadly weapon, and sexual battery with a deadly weapon. On March 27, 2006, appellant filed a request that the trial court strike all of the strikes. The written request conceded the strikes were violent but argued they were remote and the current offense was not violent.
After appellant’s jury trial, the court, on April 4, 2006, indicated its understanding that the prosecutor would dismiss two of the three strikes. At appellant’s court trial on the strike allegations, the prosecutor introduced Florida prison records (case No. 8528627) evidencing that appellant suffered convictions for burglary of an occupied dwelling, robbery with a deadly weapon, and sexual battery with a deadly weapon. The prosecutor noted the last offense was originally charged as rape with a deadly weapon. The court found true that appellant suffered the three strikes.
During argument on appellant’s request to strike the strikes, appellant reiterated the arguments reflected in his written request to strike them. The prosecutor commented the strikes were extremely serious. The prosecutor noted appellant burglarized a woman’s home, and raped and robbed her with use of a knife. The prosecutor also noted that the offenses were committed long ago, but appellant had been in prison for some time. Appellant suggested that, because of custody credit, he had been released from prison in 1999 or 2000.
The court noted the prosecutor was already going to strike two of the strikes. The court indicated it was unwilling to strike the third. The court agreed with the prosecutor that the strikes involved very serious conduct. The court concluded that the fact that the conduct had arisen from the same case and had occurred long ago was not controlling. The court noted appellant had been in prison until 1999. The court added that even though the present offense was not violent, it involved the sale of drugs to an undercover police officer.
The court denied appellant’s request to strike the strikes. The court granted the prosecutor’s motion to strike two of the strikes, that is, appellant’s convictions for burglary of an occupied dwelling, and sexual battery with a deadly weapon. The court sentenced appellant to prison for eight years, consisting of the four-year middle term, doubled pursuant to the Three Strikes law.
b. Analysis.
Appellant claims the trial court erred by refusing to strike the third strike. We disagree. The trial court is presumed to have read and considered the probation report (People v. Black (2007) 41 Cal.4th 799, 818, fn. 7) and appellant’s written request to strike the strikes, and the court heard argument from the parties. We conclude that, in light of the nature and circumstances of appellant’s current felony offense, the prior strike, and the particulars of his background, character, and prospects, appellant cannot be deemed outside the spirit of the Three Strikes law as to the remaining strike, and may not be treated as though he previously had not suffered it. (Cf. People v. Williams, (1998) 17 Cal.4th 148, 161-164.) We hold the trial court’s order refusing to strike appellant’s Florida conviction for robbery with a deadly weapon was sound, and not an abuse of discretion. (Cf. People v. Williams, supra, 17 Cal.4th at pp. 158-164; People v. DeGuzman (1996) 49 Cal.App.4th 1049, 1054-1055; People v. Askey (1996) 49 Cal.App.4th 381, 389.)
4. The Trial Court Fulfilled Its Responsibilities Under Pitchess.
Appellant asks this court to review the sealed transcript and documents produced at an in camera hearing on appellant’s Pitchess motion to assure that the trial court properly ordered disclosure of all relevant documents. As discussed below, we conclude the trial court fulfilled its responsibilities.
a. Pertinent Facts.
On November 21, 2005, appellant filed a pretrial discovery motion pursuant to Pitchess, supra, 11 Cal.3d 531, seeking from the Los Angeles Police Department (LAPD), inter alia, information in the personnel files of Jackson and Los Angeles Police Officer Zavala (serial number 33760) pertaining to acts of misconduct by them. According to the supporting police report, Zavala witnessed the narcotics transaction between Jackson and appellant. The City of Los Angeles submitted an opposition, dated December 13, 2005.
A minute order printed January 12, 2006, and pertaining to proceedings on December 16, 2005, reflects as follows. The cause was called for appellant’s Pitchess motion. The court conducted an in camera hearing with Los Angeles Deputy City Attorney Steve Blumin and LAPD representative Debra Green. The court ordered disclosure of eight items and ordered sealed the reporter’s transcripts of the in camera hearing.
A reporter’s transcript of any proceedings conducted in open court on December 16, 2005, is not before this court.
b. Analysis.
Trial courts are granted wide discretion when ruling on motions to discover police officer personnel records. (People v. Samayoa (1997) 15 Cal.4th 795, 827; People v. Memro (1995) 11 Cal.4th 786, 832.) We have reviewed the sealed transcript of the December 16, 2005 in camera hearing, which transcript was transmitted to this court. That transcript constitutes an adequate record of the trial court’s review of any document(s) provided to the trial court, and that transcript fails to demonstrate that the trial court abused its discretion to the extent, if any, that the court did not disclose information from the personnel files of Jackson and Zavala. (People v. Samayoa, supra, 15 Cal.4th at p. 827; see People v. Mooc (2001) 26 Cal.4th 1216, 1228-1230, 1232.)
DISPOSITION
The judgment is affirmed.
We concur: KLEIN, P. J., ALDRICH, J.