IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
January 13, 2012
THE PEOPLE, PLAINTIFF AND RESPONDENT,
LESLIE JONES, DEFENDANT AND APPELLANT.
(Super. Ct. No. 09F05184)
The opinion of the court was delivered by: Mauro , J.
P. v. Jones CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant Leslie Jones of possessing cocaine base for sale. In a bifurcated proceeding, the trial court found that defendant was convicted previously for unlawful sale of a controlled substance. The trial court sentenced defendant to six years in prison.
Defendant contends on appeal that the trial court prejudicially erred in admitting evidence of his prior conviction. He also contends he received ineffective assistance of counsel when his attorney failed to object to hearsay and inadmissible character evidence.
We conclude the trial court did not err in admitting the evidence of defendant's prior conviction because it was relevant to the element of defendant's intent. In addition, defense counsel's performance was not prejudicially deficient. Accordingly, we will affirm the judgment.
In late November or early December 2008, Detective Quinn of the Sacramento Police Department began an investigation of possible narcotics sales at 3841 Belden Street in Sacramento. Over the next several months, he conducted surveillance of the house at least once or twice a week. Detective Quinn observed a silver BMW sports utility vehicle (SUV) arriving at or leaving the house on numerous occasions. Defendant was the only person he ever saw driving the BMW. Quinn also observed co-defendant Terrance Terry at the house a few times. Terry drove a blue car.
During the surveillance, Detective Quinn regularly saw a large amount of short-term traffic frequenting the house. Vehicles would arrive and people in the vehicles would enter the house for only one to five minutes before leaving. During this activity, sometimes defendant's BMW was parked at the house and sometimes Terry's blue car was there.
On July 8, 2009, Detective Quinn and his partner, Detective Bell, were in the area of the house on Belden Street preparing for a search of the house. The silver BMW and Terry's blue car were parked in the driveway. Detective Quinn returned to the police station to brief the other officers in his unit while Detective Bell monitored the incoming and outgoing traffic. Around 1:05 p.m., Terry left in the blue car. Thereafter, other vehicles arrived and persons entered the house and left after a short period of time. Around 2:19 p.m. the BMW left and Bell notified Quinn.
The BMW was followed until Officer Carlos Martinez, in a marked police unit, conducted a traffic stop. Detective Quinn assisted with the stop. Defendant was in the driver's seat, Enoch Williams was in the passenger's seat, and defendant's child was in the backseat. Officer Martinez requested defendant's license, car keys and cell phone, and defendant complied. Officer Martinez found $615 in cash in defendant's front pocket. Officer Martinez also found $700 in cash and two cell phones in the center console of the vehicle. In addition, Officer Martinez searched Williams and found two sets of keys to the house on Belden Street and .93 grams of marijuana.
When questioned by Detective Bell, defendant stated he purchased the BMW at an auction in Nevada but that it belonged to his former girlfriend, Mary. He claimed the money in his front pocket was from Mary, and that a person named Yamilet gave him the $700 in the car console. Defendant also stated that he had been at the Belden Street house on numerous occasions to visit Enoch Williams, but he did not know who owned the house. He professed to be unaware that narcotics were in the house.
Detective Quinn returned to the Belden Street house and participated in a search of the house. The house had a surveillance system with a "live feed" monitoring the front and driveway of the residence. It contained minimal furnishing: television sets, an air mattress, a workout bench and an ironing board. Clothing for a male was in a bedroom. In a kitchen cupboard, Detective Quinn found two digital scales, $100 in cash, 55 grams of marijuana, 5.09 grams of rock cocaine, and sandwich baggies with the corners torn off. Sandwich baggie corners are commonly used to package narcotics. Detective Quinn also found a photograph of defendant and a Metro PCS receipt for activating a phone in defendant's nickname, Bobo Jones. The phone number associated with the receipt was (916) 504-8946. Detective Quinn found that phone number written repeatedly on the torn edges of a piece of binder paper. In one of the bedrooms, he found a receipt from Polar Bear Auto Care in defendant's name and a report card for a child with the same last name as defendant. In the backyard, Detective Quinn discovered 24 packaged pieces of rock cocaine hidden among shoots and leaves at the base of a tree.
On July 15, 2009, Detective Bell contacted Ronald Simpkins, the owner of the house. Simpkins stated that he rented the house to a Cynthia McCain, and provided Detective Bell with her driver's license number. After conducting a record check, Detective Bell discovered that the driver's license belonged to Kennedy Carter, also known as Cynthia McCain. Detective Bell printed out the driver's license photo and showed it to Simpkins, who did not recognize the person depicted. Detective Bell then showed Simpkins a photo of Mary McCain, later identified as Mary McCaim. Simpkins said that she was the person who had filled out a rental agreement under the name Cynthia McCain. Mary McCaim, defendant's ex-girlfriend, was the registered owner of the BMW defendant was driving.
McCaim testified for the defense in an effort to show defendant had only a minimal connection to the drug house. She said she had rented and lived at 3841 Belden Street from December 15, 2008 to March 29, 2009. She rented the house using her sister's name without disclosing this to Simpkins. When McCaim moved out of the house in March, she left the keys with Terrence Terry, who was also living there. According to McCaim, she never gave defendant any keys to the house.
McCaim claimed she purchased the BMW at an auction in Sparks, Nevada, and that defendant was present at the time. She permitted defendant to drive her BMW while they were in a relationship. Because she had a suspended driver's license at the time, the car insurance was under defendant's name and he drove her to and from work in the Bay Area. At times she would stay in the Bay Area during the week or on the weekend, and then call defendant to pick her up when she was ready to come home. She permitted other people to drive the car, including defendant's brother Wesley, Enoch Williams, her sister, and Terry. On July 8, 2009, defendant drove McCaim to work and then drove back to Sacramento. Later that day, he was pulled over in her BMW.
McCaim stated she had a handyman install three security cameras soon after she moved into the Belden Street house, because one of defendant's ex-girlfriends broke some of the windows in the house. She claimed she thought the cameras were set to record, as opposed to being on live feed, and she never checked them after she installed them.
Defendant called Terry as a witness, but he exercised his Fifth Amendment right not to testify. Terry had been seen leaving the Belden Street residence on the day of the search. A police officer performed a traffic stop, searched Terry, and found a small amount of marijuana as well as keys to the Belden Street house. Prior to trial, Terry pleaded no contest to possession of cocaine for sale.
During the prosecution's case-in-chief, and over defense counsel's objection, the trial court permitted the People to introduce evidence that defendant previously was convicted of narcotics sales in Reno, Nevada, as follows:
On March 12, 2008, Reno Police Officer Jason Welch began a narcotics investigation after receiving information from a confidential informant. The informant said that she regularly purchased rock cocaine from a man she knew as B.J. Officer Welch showed her a past booking photo of defendant, and the informant identified defendant as B.J.
Officer Welch learned that defendant was staying at an apartment on Carville Drive in Reno, and that the apartment was leased to a woman named Yamilet Jorlin. On March 20, 2008, Officer Welch commenced a sting operation in which the informant attempted to buy a controlled substance from defendant. The informant arranged a meeting at a 7-Eleven two blocks from defendant's apartment. Before she left, the informant was given a body/voice transmitter and $100 of pre-recorded buy money.
The informant arrived at the 7-Eleven and telephoned defendant. Defendant told her to go to the apartment on Carville Drive. The informant did so and, pursuant to directions from law enforcement officials, entered the apartment to purchase drugs. While she was there, Officer Welch heard a conversation between the informant and Jorlin via the informant's transmitter. The informant left the apartment a short time later and gave the officers what appeared to be 3.5 grams of rock cocaine.
Shortly thereafter, Officer Welch and other law enforcement officers entered the apartment. On the kitchen counter, Officer Welch saw marijuana, plastic sandwich-style bags, and a digital scale with white residue. He noticed that there was very little furniture in the apartment except for an air mattress and a television on a small end table. Jorlin was in the living room and defendant was in the bathroom taking a bath. During the search, officers found, among other things, the pre-recorded money they had given the informant, plus additional money and more than 80 grams of presumptive rock cocaine packaged in clear plastic in a kitchen cupboard.
On April 7, 2008, Officer Welch monitored a telephone call defendant made from jail. Defendant spoke with a person named "Teddy" about the controlled buy and stated, "I was in the tub or I would have gone and met her and that would have been that. You feel me? But I had the bitch go to the house." Two months later, defendant pleaded guilty to the unlawful sale of cocaine.*fn1
Defendant contends the trial court erred in admitting evidence of his criminal conviction in Nevada because this was inadmissible character evidence (Evid. Code, § 1101), and its probative value was outweighed by its prejudicial effect (Evid. Code, § 352).*fn2 He maintains that the trial court erred in ruling the evidence was admissible to show a common scheme or plan because there was insufficient similarity between the current offense and the prior criminal conduct.
As a general rule, evidence that the defendant has committed crimes other than those for which he or she is on trial is inadmissible to prove the defendant's bad character, predisposition to criminality, or conduct on a specific occasion. (People v. Avila (2006) 38 Cal.4th 491, 586; § 1101, subd. (a).) However, such evidence is admissible when relevant to prove a material fact at issue, such as identity, motive or intent. (People v. Roldan (2005) 35 Cal.4th 646, 705, 707 (Roldan), overruled on other grounds as stated in People v. Doolin (2009) 45 Cal.4th 390, 421, and fn. 22; § 1101, subd. (b).) A defendant's "not guilty" plea places in issue all elements of the charged offenses. (Roldan, supra, 35 Cal.4th at pp. 705-706.)
The relevance of uncharged misconduct to show identity, intent, or the existence of a common design or plan is determined by the nature and degree of the similarity between such misconduct and the charged crime. "Evidence of uncharged crimes 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." (People v. Kipp (1998) 18 Cal.4th 349, 369 (Kipp).) "The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent." (People v. Ewoldt (1994) 7 Cal.4th 380, 402 (Ewoldt).) "A greater degree of similarity is required in order to prove the existence of a common design or plan." (Ibid.)
Even if there is the requisite degree of similarity, to be admissible such evidence must not contravene the policy limiting admission contained in section 352. (People v. Lewis (2001) 25 Cal.4th 610, 637.) Under section 352, the probative value of the proffered evidence must not be substantially outweighed by the probability that its admission would create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. (See Ewoldt, supra, 7 Cal.4th at p. 404.) The trial court's resolution of these issues is reviewed for a manifest abuse of discretion. (Id. at p. 405; Kipp, supra, 18 Cal.4th at p. 369.)
Here, the trial court did not admit the evidence to establish a common scheme or plan as defendant contends; it did so to demonstrate that defendant had the intent to sell the narcotics, which was an element of the charged crime. The trial court's ruling was based on the prosecutor's offer of proof that in both cases: a residence was leased by defendant's girlfriend; the residence was used as an apparent front for drug sales by defendant, who claimed to be unaware of the narcotics; similar narcotics were involved; the narcotics were packaged similarly; and the contraband was kept in the kitchen. In both cases, there was evidence that defendant stayed at the residence. He was found in the bathtub in the Reno apartment, and there was indicia of his belongings and frequent presence at the Belden Street house. This was sufficient similarity to warrant admitting the evidence for the purpose of establishing defendant's intent. (Roldan, supra, 35 Cal.4th at pp. 705-707.) If appellant possessed cocaine with the intent to sell it in Reno, "the jury legitimately could infer he harbored the same intent" with regard to his possession in the instant case. (Roldan, supra, 35 Cal.4th at pp. 706-707.) Accordingly, the trial court did not abuse its discretion in admitting this evidence under section 1101, subdivision (b).
Defendant also asserts that the trial court abused its discretion by not excluding the evidence under section 352 because it was highly prejudicial and "would not assist in establishing any element of the count charged."
As explained above, however, the evidence did assist in establishing an element of the offense. Moreover, the trial court instructed the jury on the limited purposes for which the prior conviction evidence could be used, cautioning the jury it could not use the evidence to conclude that defendant had a bad character or was disposed to commit crime. We presume the jury understood and followed those instructions. (See People v. Danielson (1992) 3 Cal.4th 691, 722, overruled on another ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.)
In any event, even if the admission of the prior misconduct evidence had been in error, it would not compel reversal unless a result more favorable to the defendant would have been reasonably probable if such evidence were excluded. (People v. Scheer (1998) 68 Cal.App.4th 1009, 1017-1019.)
Here officers repeatedly saw defendant at a house rented by his ex-girlfriend under an assumed name. The house contained only male clothing, not female clothing. Items belonging to defendant were in the house, such as a report card for his child and a receipt for the activation of a phone in his name. The phone number was written repeatedly on the torn edges of binder paper as if the pieces were intended to be ripped off and given to customers or potential customers. The house was equipped with a surveillance system monitoring the front door. A substantial amount of narcotics was stored in the house and yard, and officers found a scale and packaging material associated with narcotics sales. Indeed, some of the narcotics were individually packaged in a manner ready for sale. Officers observed a large amount of short-term vehicle traffic associated with narcotics transactions while defendant was present. When defendant was stopped by the police, he had several cell phones and over $1,100 in cash that he claimed was given to him by two different women. Defendant did not have any keys to the house but his passenger in the front seat had two sets of house keys. It is a reasonable inference that defendant gave the passenger his set of keys in an attempt to avoid any connection to the house.
This evidence demonstrates that defendant was selling or assisting in the sale of narcotics at the Belden Street house. It is not reasonably probable that the jury would have returned a more favorable verdict if the challenged evidence had been excluded.
Defendant also contends that he received ineffective assistance of counsel because his attorney failed to object to Reno Police Officer Welch's hearsay testimony that an informant told him she had purchased cocaine from defendant, and also failed to object to Welch's assertion that the informant identified defendant from a booking photo. Defendant concedes that the informant's hearsay statement was offered for the non-hearsay purpose of explaining why Officer Welch began his investigation, but maintains that it was not necessary to name defendant as the drug dealer. He also argues that the reference to a booking photo "was meant to further sully [his] name, attack his character, and imply he was nothing more than a criminal." Defendant's arguments are not persuasive.
A claim of ineffective assistance of counsel requires that defendant show both that counsel's performance fell below the standard of a reasonably competent attorney and that counsel's deficient performance caused prejudice to defendant "in the sense that it 'so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.' [Citations.] If a defendant has failed to show that the challenged actions of counsel were prejudicial, a reviewing court may reject the claim on that ground without determining whether counsel's performance was deficient. [Citation.]" (Kipp, supra, 18 Cal.4th at pp. 366-367.)
Given that the jury properly learned of defendant's drug conviction in Nevada following the informant's purchase of drugs, the additional knowledge that the informant identified him as a drug dealer and that defendant had a booking photo was not prejudicial. For the reasons set forth in part I of the opinion, it is not reasonably probable a different verdict would have resulted absent this evidence. Accordingly, defendant has failed to establish ineffective assistance of counsel.
The judgment is affirmed.
We concur: RAYE , P. J. NICHOLSON , J.