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People v. Lopez

California Court of Appeals, Fifth District

November 20, 2019

THE PEOPLE, Plaintiff and Respondent,
JOSE CARLOS LOPEZ, Defendant and Appellant.


          APPEAL from a judgment of the Superior Court of Kern County. No. BF162814A Steven M. Katz, Judge.

          Kevin Smith, under appointment by the Court of Appeal, for Defendant and Appellant.

          Xavier Becerra, Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Eric L. Christoffersen and Christina Hitomi Simpson, Deputy Attorneys General, for Plaintiff and Respondent.


          SNAUFFER, J.

         In 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)).[1] 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.

         Lopez 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.


         We summarize the material trial facts. We provide additional facts later in this opinion when relevant to specific issues raised on appeal.

         On 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.


         As an 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.

         We 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.

         Lopez 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.

         A. Background.

         During 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.[2] It was during this arrest that the heroin supporting the present conviction was discovered on Lopez.

         The 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.

         During 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.

         B. The standard of review.

         “‘We 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 (Waidla).)

         C. Analysis.

         Lopez 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 unpersuasive.

         Character 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.)

         Lopez 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 Jeffer ...

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