FOR PARTIAL PUBLICATION [*]
from a judgment of the Superior Court of Kern County. No.
BF162814A Steven M. Katz, Judge.
Smith, under appointment by the Court of Appeal, for
Defendant and Appellant.
Becerra, Attorney General, Michael P. Farrell, Senior
Assistant Attorney General, Eric L. Christoffersen and
Christina Hitomi Simpson, Deputy Attorneys General, for
Plaintiff and Respondent.
2017, a jury convicted Jose Carlos Lopez of possession of a
controlled substance (heroin) for sale (Health & Saf.
Code, § 11351). The trial court sentenced Lopez to the
upper term of eight years, enhanced by four years based on
four prior prison terms (Pen. Code, § 667.5, subd.
(b)). Lopez's sentence was further
enhanced by three years by Health and Safety Code section
11370.2. In a companion case, the court imposed a one-third
consecutive term of 32 months for Lopez's 2015 conviction
for transporting narcotics (heroin) for sale (Health &
Saf. Code, § 11352, subd. (a)). Lopez received an
aggregate prison term of 17 years eight months.
contends the trial court abused its discretion in permitting
the jury to hear about his 2015 conviction for transporting
heroin for sale. He also claims the court abused its
discretion when it rejected a chain of custody argument and
permitted the jury to hear about the heroin seized in this
matter and tested by a crime laboratory. We reject these
claims. However, we agree with the parties that Lopez's
three-year enhancement pursuant to Health and Safety Code
section 11370.2 must be stricken because it is inapplicable
in this case. We also agree with the parties that Senate Bill
No. 136 (2019-2020 Reg. Sess.; Senate Bill 136), which the
Governor recently signed, retroactively applies to Lopez.
Senate Bill 136 amends the circumstances under which a
one-year sentence enhancement may be imposed under section
667.5, subdivision (b). Under the new law, none of
Lopez's four prior prison terms qualify for this
enhancement. We strike the enhancements under section 667.5,
subdivision (b), and Health and Safety Code section 11370.2,
but otherwise affirm the judgment.
summarize the material trial facts. We provide additional
facts later in this opinion when relevant to specific issues
raised on appeal.
January 6, 2016, a senior deputy with the Kern County
Sheriff's Department, Michael Dorkin, arrested Lopez, who
was wanted on an outstanding warrant. When he searched Lopez,
Dorkin found a bag containing 24 bindles of suspected heroin.
The total heroin, including the bag and bindles, weighed 35.9
grams. Dorkin also found three $20 bills, three $10 bills,
and 11 $1 bills on Lopez (a total of $101). At the time of
his arrest, Lopez appeared to be under the influence of
heroin. Later testing confirmed that at least five of the
bindles recovered from Lopez contained heroin. The other 19
bindles were not tested because their collective weight was
insufficient to reach the next criminal enhancement.
initial matter, Lopez has filed a request for judicial notice
pursuant to rule 8.252 of the California Rules of Court, and
Evidence Code sections 452 and 459. We were asked to take
judicial notice of the following: (1) a 1999 superior court
order and related documents in San Diego County Superior
Court case No. SF133532; (2) a 2014 superior court order and
related documents from the same matter in number 1; and (3) a
2017 superior court order in San Diego County Superior Court
case No. SCD107189. Respondent does not oppose this request.
grant Lopez's request for judicial notice.
I.[*] The Trial Court
Did Not Abuse Its Discretion Regarding The Admission Of
Lopez's 2015 Conviction For Transporting Heroin For Sale.
contends that the trial court abused its discretion by
permitting the jury to hear the facts underlying his 2015
conviction for transporting heroin for sale. He argues that
this prior incident was too dissimilar to be relevant and was
more prejudicial than probative. He seeks reversal of his
conviction in this matter.
this trial, the parties stipulated that in September 2015
Lopez was convicted of transporting heroin for sale in
violation of Health and Safety Code section 11352,
subdivision (a). The jury learned that, following the 2015
conviction, Lopez had been erroneously released from custody.
He was rearrested on January 6, 2016, pursuant to a
warrant. It was during this arrest that the
heroin supporting the present conviction was discovered on
jury in this matter learned that, in June 2015, officers
stopped Lopez while he was driving a vehicle. Officers
eventually located a brick of heroin, wrapped in multiple
layers of plastic, hidden in a cell phone case that had been
pushed down between the rear seat and the back of the trunk.
The heroin weighed 249 grams.
this trial, the prosecution's drug expert opined
Lopez's possession of 249 grams of heroin from the 2015
conviction, “close to 2, 000 personal uses, ”
represented an enormous amount for mere personal use. The
expert believed the 2015 heroin was intended for sales. The
expert also opined the 35.9 grams of heroin seized in the
present matter, “about 350 personal uses, ” also
was possessed for sales. This heroin had been placed in 24
bindles, and Lopez possessed small denominations of cash.
standard of review.
review the trial court's decision whether to admit
evidence, including evidence of the commission of other
crimes, for abuse of discretion.' ” (People v.
Leon (2015) 61 Cal.4th 569, 597 (Leon).)
“A trial court abuses its discretion when its ruling
‘fall[s] “outside the bounds of reason.'
” (People v. Waidla (2000) 22 Cal.4th 690, 714
argues his 2015 conviction for transporting heroin for sale
did not share any similarities with this matter. He contends
the 2015 incident involved substantially more heroin (249
grams versus 35.9 grams), and the heroin in the prior
incident was discovered inside his vehicle and not on his
person. He claims that, even if the 2015 conviction was
relevant, its admission was more prejudicial than probative
under Evidence Code section 352. We find these contentions
evidence is generally inadmissible to prove a person's
conduct on a specified occasion. (Evid. Code, § 1101,
subd. (a).) However, evidence a person committed a crime or
other act may be admitted to prove some other material fact,
such as that person's knowledge, intent or motive.
(Id., § 1101, subd. (b).) The prior act must be
“relevant to prove a fact at issue (Evid. Code, §
210), and its admission must not be unduly prejudicial,
confusing, or time consuming (Evid. Code, § 352).”
(People v. Leon, supra, 61 Cal.4th at pp. 597-598.)
Relevance depends, in part, on whether the other act is
sufficiently similar to the current charges to support a
rational inference of intent, common design or other material
fact. (Id. at p. 598.)
relies on People v. Jefferson (2015) 238 Cal.App.4th
494 (Jefferson), but it does not assist him. In
Jefferson, the appellate court found an abuse of
discretion when the trial court failed to exclude evidence
the defendant had possessed registered firearms on two
occasions. (Id. at pp. 506-507.) The evidence about
the registered firearms was not logically connected with the
pending allegation that the defendant knew a charged firearm
had been stolen. In addition, other trial evidence had
suggested the defendant knew the charged firearm was stolen.
As such, evidence about the defendant's registered
firearms added nothing of value, but it portrayed him as a
dangerous person. (Id. at p. 507.) The