Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. C154108
STEIN, J.
Jermaine West (defendant) appeals his conviction of possession of cocaine base for sale (Health & Saf. Code, § 11351.5), possession of cocaine for sale (Health & Saf. Code, § 11351), being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)), possession of an assault weapon (Pen. Code, § 12280, subd. (b)), and possession of ammunition (Pen. Code, § 12316, subd. (b)(1)). The jury found true an enhancement allegation that defendant possessed 14.25 grams or more of cocaine base, and defendant admitted that he had served one prior prison term within the meaning of Penal Code section 667.5, subdivision (b). After a court trial on sentencing factors, the court sentenced defendant to a total prison term of nine years eight months in state prison.
Defendant contends on appeal that: (1) One of the aggravating factors upon which the court relied in selecting the upper term is not supported by the evidence; and (2) the court abused its discretion by admitting evidence of uncharged misconduct pursuant to Evidence Code section 1101, subdivision (b).
We shall find no error and affirm the judgment.
Facts
An informant told Detective Jack Friedman of the Berkeley Police Department that a person known as “Nephew” was selling cocaine on the 5400 block of Market Street in Oakland. Detective Friedman confirmed with an Oakland police officer and the informant that defendant was “Nephew.” He also determined that defendant drove a 2005 GMC Yukon SUV.
On August 27, 2006, Detective Friedman arranged for an informant to make a controlled buy from defendant. On that day Friedman observed the informant purchase cocaine from the occupant of a blue Yukon SUV on the street in front of 5415 Market Street. The informant identified defendant as the seller.
On September 15, 2006, Detective Friedman obtained a search warrant, but did not immediately execute it. Detective Friedman first conducted further surveillance of defendant and the blue Yukon SUV. He photographed the SUV parked directly in front of 5415 Market Street. From his vantage point approximately one block away, Detective Friedman observed defendant walk off the property located at 5415 Market Street and to the driver’s side of the Yukon SUV. Defendant leaned in, and after approximately one minute, he stepped back and walked over to the passenger side of a Mercedes that had pulled up in front of the SUV. Defendant leaned in through the window of the Mercedes, and put his hands down onto either the passenger seat or the center console, and then talked to the female occupant for one to two minutes. Over the next hour and a half, Detective Friedman watched defendant walk off the property several times, and walk onto the street as if he were looking for someone. Eventually, a white Ford conversion van arrived. After first going to his SUV and leaning in, defendant got into the van, and the van drove away.
In response to a call from Detective Friedman, Officer Brian Hartley and another officer stopped the van. Hartley searched defendant and found $869 in cash on his person. In a search at the police station officers also found three cocaine rocks in defendant’s underwear. A search of the SUV uncovered 16.5 grams of crack cocaine, a digital scale, and another 22 grams of powder cocaine and 35 grams of crack cocaine in the vehicle’s fuse box.
Detective Friedman contacted defendant’s mother, who was the registered owner of the SUV. She stated she had purchased the vehicle for defendant, and disclosed the address of defendant’s apartment. A search of the apartment disclosed a loaded nine millimeter pistol under the bed, $500 in cash in a nightstand and $465 in a water jug. A black duffel bag in the closet contained several household sifters with cocaine residue on them, and another contained a loaded assault rifle. The police also found a pistol magazine loaded with .380 caliber ammunition. In the kitchen, the police found a rental agreement in defendant’s name, and two digital scales with white residue.
The defense primarily turned on the issue of constructive possession. Defendant’s mother and a friend of defendant’s girlfriend both testified that they had seen many other people present in the apartment where the guns were found, and that they had never seen defendant in possession of a handgun or rifle. The friend also testified she never saw defendant in possession of illegal drugs. Defense counsel argued the prosecutor failed to prove knowledge of presence of drugs in the car, and gun ammunition in the house, or that defendant exercised control over this contraband.
Discussion
I.
Sufficiency of Evidence to Support Aggravating Factor
The prosecutor filed an aggravated term notification stating her intention to present evidence of multiple aggravating factors, including that defendant possessed cocaine and cocaine base for sale within 1,000 feet of a school during hours that the school is open for class or school-related programs. (See Health & Saf. Code, § 11353.6.) Defendant waived a jury trial on the aggravating factors.
California Rules of Court, rule 4.421 does not expressly specify the sale or possession of a controlled substance within 1,000 feet of a school as an aggravating factor, but subdivision (c) does provide that aggravating factors may include “[a]ny other factors statutorily declared to be circumstances in aggravation.”
At the court trial, the prosecutor recalled Detective Friedman. He testified that in his opinion defendant’s drug enterprise was particularly sophisticated, based upon the quantity of drugs, the fact that defendant was selling both crack and powder cocaine, the fact that defendant hid drugs in a second residence, and the presence of an assault rifle, loaded firearm, and a bulletproof vest. Detective Friedman further testified that he had measured the distance between 5415 Market Street to Santa Fe Elementary School, and determined it to be 168 feet, three inches. The principal of Santa Fe Elementary testified that the school was in session on September 15, 2006, from 8:30 a.m. until 2:40 p.m., and the after-school program continued from 2:40 p.m. until 6:00 p.m.
The court found true the allegation that defendant had possessed cocaine or cocaine base within 1,000 feet of a school. It also found that the manner in which the crime was committed indicated planning, sophistication, or professionalism (Cal. Rules of Court, rule 4.421(a)(8); that the crime involved a large quantity of contraband (rule 4.421(a)(10)); and that defendant’s prior performance on probation or parole was unsatisfactory (rule 4.421(b)(5)).
All references to rules are to the California Rules of Court.
Defendant contends that the aggravating factor that he possessed cocaine or cocaine base within 1,000 feet of a school within the meaning of Health and Safety Code section 11353.6 on September 15, 2006, when school was in session, is not supported by the evidence because: (1) there was no evidence that a drug transaction took place when defendant went first to his SUV and then over to the Mercedes parked in front of his SUV; and (2) if a transaction did take place it was confined to the interior of the Mercedes and therefore did not take place in a public area or private area accessible to school children.
The contention is unavailing. It was not necessary to prove that defendant sold cocaine or cocaine base to the driver of the Mercedes, because the alleged aggravating factor was that defendant possessed cocaine and cocaine base for sale within 1,000 feet of a school during hours that the school is open for class or school-related programs. He was charged and convicted of possession of cocaine for sale, which is one of the enumerated offenses in Health and Safety Code section 11353.6, and there is no dispute that the conviction was supported by substantial evidence. For purposes of Health and Safety Code section 11353.6, “public area” encompasses not only publicly owned locations such as streets, sidewalks and bus stops, but also “those portions of private property which are readily accessible to the public.” (People v. Tapia (2005) 129 Cal.App.4th 1153, 1162, see also People v. Jimenez (1995) 33 Cal.App.4th 54, 59-60.) Defendant was arrested with $869 in cash and three rocks of cocaine on his person, and substantial additional quantities were found in his SUV. His SUV and the Mercedes were parked on the public street. Shortly before the arrest Detective Friedman observed defendant walking on the street between his SUV and the Mercedes, and then out onto the street several times before the van arrived in which he drove off. This is ample evidence that on September 15, 2006, he possessed cocaine for sale in the public area in front of 5415 Market Street, which was within 1,000 feet of Santa Fe Elementary School.
In any event, even if this aggravating factor were not supported by substantial evidence, defendant could not demonstrate prejudice. The court found true numerous other aggravating factors, which would be sufficient to support imposition of the upper term. (See People v. Avalos (1984) 37 Cal.3d 216, 233.) Since defendant waived jury trial with respect to the aggravating factors, reliance upon these other aggravating factors found by the court could not have violated his Sixth Amendment right to a jury, and we therefore need not reach defendant’s further contention that our Supreme Court in People v. Black (2007) 41 Cal.4th 799 incorrectly interpreted Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856].
II.
Admission of Evidence of Uncharged Misconduct
The court granted the prosecution’s motion to admit evidence of the following uncharged misconduct:
Since our review of the court’s exercise of discretion must be based upon the record before it at the time of its ruling, we rely upon the summary of the proffered evidence provided in the prosecution’s pretrial motion.
On May 27, 2003, Oakland police officers went to 5415 Market Street to do a parole search because they had received an anonymous tip that defendant was selling drugs from his car, as well as from the house at that address. They found a cell phone, pager and $215 in small denominations on defendant. They also found three small twists of suspected cocaine on the fireplace mantel, a razor blade, a box of sandwich bags and a car key to the Camaro parked in front of the house. In the car they found 48 small twists of suspected rock cocaine, one larger twist in the driver’s side floor mounting, and three pieces of mail with defendant’s name on it. Defendant stated that the mother of his baby owned the car.
On December 3, 1999, officers served a narcotics-related search warrant for defendant at 5415 Market Street. Defendant ran upon seeing the officers. The officers found $222 in small denominations and a pager on defendant. They also found 24 twists of suspected cocaine underneath the middle extension to the dining room table; several sandwich bags with the corners cut off, stuffed in a vase; plastic sandwich bags on the table; glass with a razor blade; a spoon with white residue; and a metal box with crack pipes.
In May 1997, police officers executed a search warrant for defendant’s father, Lewis West, in Manteca. When the police searched a car parked in front of the father’s residence, they found over $22,000 in small denominations, along with a handgun, in the trunk. Lewis West claimed defendant had parked the car outside the residence. The car was registered to Patsy Lawson, defendant’s mother. The officers arrested Lewis West, and further investigation led to 892 Davis Street in San Leandro. In defendant’s bedroom the officers found narcotic packaging, a plate with suspected cocaine residue, and a microwave oven. They obtained keys from Lewis West to a locked cabinet in defendant’s room. The cabinet contained a brown paper bag holding 21 ounces of suspected rock cocaine, additional quantities in other containers, $299 dollars in cash, and mail in defendant’s name.
The court ruled that the foregoing evidence was admissible under Evidence Code section 1101, subdivision (b) for the purpose of showing “intent to sell, intent, knowledge common scheme and plan.”
“ ‘The admissibility of other crimes evidence depends on (1) the materiality of the facts sought to be proved, (2) the tendency of the uncharged crimes to prove those facts, and (3) the existence of any rule or policy requiring exclusion of the evidence.’ ” (People v. Steele (2002) 27 Cal.4th 1230, 1243.) If the court determines the evidence is admissible under Evidence Code section 1101, subdivision (b), it must also determine, pursuant to Evidence Code section 352, whether its probative value is outweighed by the danger of undue prejudice, confusion of the issues or misleading the jury. (People v. Ewoldt (1994) 7 Cal.4th 380, 404.) As the reviewing court, we will not reverse the trial court’s ruling on the admissibility of the evidence pursuant to Evidence Code section 1101, subdivision (b), and whether to exclude it pursuant to Evidence Code section 352, absent a clear showing of an abuse of discretion. (People v. Kipp (1998) 18 Cal.4th 349, 369.)
On appeal, defendant challenges only the admissibility of the evidence of the May 1997 investigation of his father, Lewis West, that, among other things, led to the discovery of large quantities of rock cocaine hidden in a locked cabinet in defendant’s bedroom. Defendant suggests this evidence was inadmissible to prove intent or knowledge because he did not dispute that he had knowledge of the presence of the drugs in the car. He contends that, in any event, the 1997 evidence was not relevant to prove his intent or knowledge, or for any other purpose allowed by subdivision (b) of Evidence Code section 1101, because the police found a key to the cabinet on defendant’s father, Lewis, and only Lewis was arrested. Defendant finally contends that even if relevant and admissible under Evidence Code section 1101, subdivision (b), the court should have excluded it under Evidence Code section 352. He reasons that any inference of his knowledge or intent was weak, and outweighed by the potential prejudice that would follow from the implication that defendant, as the son of a drug dealer, had a natural predisposition to commit the offenses with which he was charged.
The court was within its discretion to admit the 1997 evidence of uncharged drug possession. The prosecutor had to prove defendant actually or constructively possessed the controlled substance with the intent of selling it and with knowledge of both its presence and illegal character. (People v. White (1969) 71 Cal.2d 80, 82; People v. Harris (2000) 83 Cal.App.4th 371, 374.) Evidence that defendant had, in 1997, possessed large quantities of cocaine was relevant to show knowledge of the presence and illegal character of the controlled substance found in his SUV and apartment. (See e.g., People v. Thornton (2000) 85 Cal.App.4th 44, 49-50.) A not guilty plea places in issue all of the elements of the charged offense. (People v. Roldan (2005) 35 Cal.4th 646, 705-706; People v. Catlin (2001) 26 Cal.4th 81, 146.) Therefore, it is immaterial whether defendant conceded or disputed that he had knowledge of the presence of drugs in his car or apartment. In any event, except for the drugs found on defendant’s person, the primary disputed issue in this case was whether defendant had constructive possession, which, in addition to the right to control, requires proof that defendant knew of the presence and illegality of the controlled substance in his car and the apartment.
Defendant’s argument that the 1997 evidence was irrelevant and inadmissible to show his knowledge and intent because of the evidence that his father had access to the controlled substances found in his bedroom, and the fact that only his father was arrested, goes only to the weight of the evidence. The fact that defendant’s father held a key to the locked cabinet in defendant’s bedroom simply does not preclude the inference that defendant also exercised control over its contents, because it is well established that possession need not be exclusive. (See, e.g., People v. White, supra, 71 Cal.2d at p. 82; People v. Hamilton (1963) 223 Cal.App.2d 542, 545).) Defendant’s constructive possession of the drugs found in the cabinet could reasonably be inferred from the fact that the cabinet was in defendant’s bedroom, and that the cabinet also contained some mail addressed to defendant. The presence in the bedroom of a microwave oven that an expert testified is often used to “cook” large quantities of narcotics, a “cooking beaker,” and a plate with what appeared to be a large amount of cocaine residue on it, also all tended to show defendant had control and knowledge of the drugs found in the cabinet.
We also find no abuse of discretion with respect to the court’s decision not to exclude this evidence pursuant to Evidence Code section 352. We are not persuaded by defendant’s assertion that the 1997 evidence concerned primarily misconduct of defendant’s father and therefore supported, at best, only a weak inference of defendant’s intent or knowledge. As we have stated, the father’s possession of a key to the cabinet does not undermine the inference that defendant also exercised control over its contents. The strength of this inference was amply supported, especially in light of the presence of mail addressed to defendant in the cabinet alongside the drugs. In balancing the probative value of the 1997 evidence against the potential prejudice, the court could reasonably conclude the risk that the jury might improperly infer defendant was predisposed to commit the offense because his father had committed it would be minimized by the standard instruction on the limited purpose for which evidence of uncharged misconduct may be considered.
In any event, any error in the admission of the 1997 uncharged conduct evidence was harmless. Defendant does not challenge the admission of the more recent uncharged 2003 incident, in which large quantities of rock cocaine were found in a search of defendant’s vehicle, and the discovery of packaging material and twists of cocaine base at 5415 Market Street. The impact of the 1997 incident would have been largely cumulative of the unchallenged 2003 evidence. Moreover, the evidence of guilt was overwhelming in light of the large quantities of cash and rocks of cocaine found on defendant’s person at the time of the arrest, in addition to the large quantities found in his vehicle along with a digital scale, and the presence of cash, guns, and ammunition in his residence. Therefore we find no reasonable probability that the result would have been any more favorable to defendant had the 1997 incident been excluded. (See People v. Scheer (1998) 68 Cal.App.4th 1009, 1018-1019; People v. Felix (1993) 14 Cal.App.4th 997, 1007-1008.)
Conclusion
The judgment is affirmed.
We concur: MARCHIANO, P. J., SWAGER, J.