P. v. Cross
Filed 4/5/13 P. v. Cross CA4/1
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
TERRENCE QUINTEN CROSS,
Defendant and Appellant.
D061591
(Super. Ct.
No. SCD227465)
APPEAL from
a judgment of the Superior Court
of
County, Charles Gill, Judge.
Affirmed.
Terrence
Cross appeals from a judgment convicting him of
(a), 11351.5.) He contends the court erred
by admitting evidence of a prior similar drug sale. We reject this contention and affirm.
FACTUAL
AND PROCEDURAL SUMMARY
Defendant's
arrest arose from a "buy-walk" operation, in which undercover
officers purchase drugs without immediately arresting the seller after the
purchase. This operation permits
undercover officers to preserve their true identities for continued undercover
activities. Under the applicable
procedures, an undercover officer will purchase drugs from a drug seller, and
then walk away. Shortly after, uniformed
police officers contact the suspected seller on a pretext and will obtain the
seller's identity for later arrest.
During this contact, the officer merely conducts a weapons patdown and
does not engage in a full search.
In this
case, the buy-walk undercover officer was San Diego Police Officer Joel
Tien. In June 2011, Officer Tien called
Eric Robertson and arranged to buy some drugs.
When they met at 11th and C streets in the downtown San Diego area,
Officer Tien asked Robertson to help him purchase a $20 amount of rock
cocaine. Robertson agreed, and Officer
Tien handed him a prerecorded $20 bill.
Officer
Tien followed Robertson for a short while, and then saw Robertson speaking with
a person later identified as James Morgan.
Morgan led Robertson to the corner of 17th Street and Island Avenue,
where defendant was standing.
Viewing the
events from about 10 to 15 feet away, Officer Tien saw Morgan communicating
with defendant. Officer Tien then
observed defendant turn away, lift his shirt, lean over, and put his right hand
towards the front of his pants. Officer
Tien then saw defendant and Morgan (who were standing right next to each other)
make motions as if they were exchanging something. Officer Tien saw Morgan turn around and place
a white rock-like substance (later identified as rock cocaine) on a soup lid
that Robertson was holding. Robertson
then walked towards Officer Tien, and the officer took the cocaine from Robertson. Officer Tien also saw Robertson take out the
$20 bill from Robertson's pocket, hand the currency to Morgan, who then handed
the money to defendant. Officer Tien saw
defendant physically take hold of the money.
As Officer
Tien walked away from the group, Officer Tien gave Robertson a prerecorded $5
bill in response to Robertson's request for compensation for his assistance
with the drug purchase.
Shortly
after, Officer Tien radioed fellow police officers, described Morgan and
defendant, and asked the officers to contact these two men for later
arrest. Defendant was wearing a
distinctive green shirt. Police Officer
Dan Stanley responded, and contacted defendant for questioning on another
subject matter and confirmed his identity.
The officer conducted a patdown search of defendant only on areas where
defendant could be hiding a weapon. The
officer did not find any prerecorded money during this limited search. Officer Stanley then released defendant. Viewing the contact from a distance, Officer
Tien confirmed that Officer Stanley had detained the correct individual who had
sold the drugs. Another officer searched
Morgan, and did not find any prerecorded money.
Defendant
was later arrested for selling the cocaine.
At trial,
Officer Tien testified about the details of the transaction (as summarized
above) and said he was 100 percent certain and there was "no doubt"
in his mind that defendant was the person who gave the drugs to Morgan and that
defendant received the $20 bill for the drugs.
Officer Tien also testified as an expert witness explaining that drug
dealers in this downtown area (known as the East Village) are aware of
undercover police officer tactics, including the use of prerecorded money, and
that sellers often use third party intermediaries (known as "facilitators")
to avoid being arrested. Officer Tien
also described the reasons and purposes for the buy-walk operation.
Over
defense objections, San Diego Police Officer Jessie Zaldivar testified (as
detailed below) that while working undercover he purchased a similar amount of
drugs from defendant at the same location about five years earlier.
Defendant
did not testify or call any witnesses, but his counsel challenged the
prosecution's case on many grounds, including claiming that Officer Tien was
biased and emphasizing there was no physical evidence to show defendant's
involvement in the crime.
After
deliberations, the jury found defendant guilty of possessing and selling the
cocaine. The court imposed a seven-year
sentence, which included the lower term for the cocaine sale, doubled because
of a prior strike, plus a consecutive one-year term for a prior prison term
finding.
DISCUSSION
Defendant
contends the court erred in permitting the prosecution to present the facts of
his prior drug sale.
I. Background
Facts
Before
trial, the prosecutor requested the court's permission to introduce evidence of
defendant's 2007 conviction for selling $20 worth of rock cocaine to an
undercover officer on the same street corner where the current alleged drug
sale took place. After extensive
arguments and a motion for
reconsideration, the court ruled the prosecution could present evidence of
the prior sale and arrest to show defendant's knowledge of undercover
operations and to establish a common plan or scheme to sell drugs. However, to avoid any undue prejudice, the
court refused to permit the prosecution to present evidence that defendant was
convicted of the prior drug sale or that police officers found prerecorded
money in defendant's sock after he was arrested for the prior offense.
Thereafter,
the prosecutor called Officer Zaldivar, the undercover police officer in the
prior drug sale. Before the testimony,
the court instructed the jury on the limited purposes of the prior acts
evidence (defendant's prior knowledge of police officer undercover tactics and
defendant's use of a common scheme or plan).
The court also admonished the jury that:
"If you conclude that the defendant committed the uncharged
offense, that conclusion is only one factor to consider with all the other
evidence. It is not sufficient by itself
to prove that the defendant is guilty of selling cocaine base or possessing
cocaine base for the purpose of sale.
The People must still prove each charge and allegation beyond a
reasonable doubt."
Officer
Zaldivar then testified that on November 8, 2006, while working undercover, he
encountered defendant on 17th Street and Island Avenue. Officer Zaldivar made a hand signal
indicating he wanted to buy $20 worth of cocaine base, and asked defendant if
he had any drugs to sell. Defendant
responded by asking, " 'Are you a police officer?' " and
after satisfying himself with Officer Zaldivar's answer, he walked south with
Officer Zaldivar and reached into his pocket and asked Officer Zaldivar for
money. Officer Zaldivar gave him four
prerecorded $5 bills. In exchange,
defendant took a rock cocaine substance out of his pocket and placed it in the
officer's hand.
At the
conclusion of the evidence in the current trial, the court repeated its earlier
instruction regarding the relevance of Zaldivar's testimony. During closing arguments, both the prosecutor
and defense attorney also cautioned the jury as to the limited purpose of
Zaldivar's testimony. The prosecutor
argued that the jury could consider the evidence to infer that defendant's
common plan was to sell the cocaine because of the similarities between the
prior sale and the current sale ("same quantity, $20, same controlled
substance, crack cocaine, same exact street corner, 17th and Island . .
.") and to show defendant's knowledge of the undercover tactics used by
law enforcement officers to explain why no money was found on his person, i.e.,
that he quickly hid the money or transferred it shortly after the sale. But the prosecutor devoted most of his
argument in discussing Officer Tien's eyewitness testimony, and emphasized that
the prior drug sale evidence was only a "very small" part of the
prosecution's case.
Defense
counsel likewise told the jury it could not
consider the prior-sale evidence to infer that "because [defendant]
did it before, that he's guilty again," and reiterated that the jury was
permitted to consider the evidence only "for the limited purpose of
deciding whether or not [defendant] knew about the undercover tactics . . .
when he allegedly acted in the case or whether [defendant] had a common plan or
scheme to commit the offenses alleged."
II. Applicable
Law
Generally,
evidence of the defendant's other crimes or misconduct is inadmissible when it
is offered to show the defendant had the criminal
propensity to commit the charged crime.
(Evid. Code,
title="">[1]
§ 1101, subd. (a).) However, prior acts
evidence may be admitted when relevant to prove some other fact, such as
knowledge or common plan. (§ 1101, subd.
(b); see People v. Ewoldt (1994) 7
Cal.4th 380, 393-403 (Ewoldt.) If the evidence is admissible on a proper
basis, the court should conduct a section 352 balancing analysis to ensure there
is no undue prejudice. (
22-23.) " 'Because this type
of evidence can be so damaging, "[i]f the connection between the uncharged
offense and the ultimate fact in dispute is not clear, the evidence should be
excluded.". . .' "
(People v. Fuiava (2012)
review the trial court's rulings on the admission of evidence under sections 1101 and 352 for abuse of
discretion. (Id. at pp. 667-668.)
III. Analysis
The trial
court found the evidence of defendant's prior drug sale was admissible to show
the existence of a common plan or scheme and to show defendant's knowledge of
undercover operations. The court's
conclusions were proper and did not constitute an abuse of discretion. The court also did not err in refusing to
exclude the evidence under section 352.
A. Common
Plan
With
respect to common plan, the evidence of a very similar prior drug sale at the
same location supported an inference that defendant was engaged in a plan or
scheme to sell drugs at this location, and therefore the current offense was
part of that plan. (See
393-403.) " 'The presence of a
design or plan to do or not to do a given act has probative value to show that
the act was in fact done or not done.' "
(Id. at p. 393.) In this case, defendant claimed the
prosecution did not prove he participated in the drug sale. The evidence of defendant's prior drug sale
was relevant to refute this defense and establish defendant's involvement in
the drug transaction. The evidence
supported an inference that defendant was involved in a plan to sell drugs and
that the transaction with Morgan was part of this plan.
Defendant
acknowledges that the California Supreme Court in Ewoldt held that prior misconduct evidence may be admitted to show
that the defendant committed the current charged offenses "pursuant to the
same design or plan defendant used to commit the uncharged
misconduct." (Ewoldt, supra, 7 Cal.4th
at p. 393.) But he argues
admission of the evidence under this exception violates his constitutional
rights. However, defendant acknowledges
that this court is bound by Ewoldt,
and states he is asserting this argument solely to preserve the argument for
review by the California Supreme Court and the federal courts. We agree that we are bound by the California
Supreme Court's decision (Auto Equity
Sales, Inc v. Superior Court (1962) 57 Cal.2d 450, 455) and thus we do not
further discuss this contention.
Defendant
alternatively contends the court erred because the two drug sales were not
sufficiently similar. A substantial
similarity between the prior and the charged offense is required to prove the
existence of a common scheme or plan. (
393-403.) " '[A] common scheme or plan focuses on the manner in which
the prior misconduct and the current crimes were committed, i.e., whether the
defendant committed similar distinctive acts of misconduct against similar
victims under similar circumstances.' "
(People v. Walker (2006) 139 Cal.App.4th 782, 803.) "To establish the existence of a common
design or plan, the common features must indicate the existence of a plan
rather than a series of similar spontaneous acts, but the plan thus revealed
need not be distinctive or unusual."
(Ewoldt, supra, 7 Cal.4th at
p. 403.)
The court
did not err in finding defendant's methodology to sell cocaine in both
instances was sufficiently similar to show he employed a plan in committing the
charged offense. In both instances,
defendant was at the same exact location (17th Street and Island Avenue), and
thus it can be inferred he was using this corner as his home base to engage in
street drug sales. In addition,
defendant was carrying the drugs on his person, had a $20 amount of unwrapped
rock cocaine, and was wary of undercover police officers.
The fact
that these elements are common to many street level drug sales does not negate
the admissibility of the evidence to show a common plan or scheme. Unlike evidence of uncharged acts used to
prove identity, the plan need not be unusual or distinctive; it need only exist
to support the logical inference that the defendant employed that plan in
committing the charged offense. (
402.) The trial court found the evidence
"clearly falls within the exception common plan or scheme because it's the
same behavior, same location, allegedly, from the prior conviction." The court did not abuse its discretion in
admitting the evidence on this basis.
B. Defendant's
Knowledge
Defendant
also challenges the court's admission of the prior-sale evidence to show
his awareness of law enforcement
undercover tactics. However, the
evidence was strongly probative to show defendant's knowledge of undercover
operations in the East Village area to explain why defendant sold the drugs
through facilitators and why defendant did not have the prerecorded buy money
on him when he was searched. The prior
sale evidence helped the jury understand defendant's actions and was relevant
to establish that defendant committed the crime even if he did not have the
prerecorded money in his pocket shortly after the transaction and did not
directly sell drugs to Officer Tien.
Defendant
does not challenge that the evidence was relevant to prove these facts. Instead, he argues the evidence should not
have been admitted on these grounds because the evidence was cumulative, noting
that Officer Tien provided expert testimony on these same points. However, the court had a reasonable basis to
conclude the evidence of defendant's specific knowledge was much stronger than,
and not merely cumulative of, Officer Tien's testimony. Although Officer Tien explained the general
characteristics of a street drug sale, the prosecution was entitled to present
evidence to show that defendant's specific knowledge and actions were
consistent with these general characteristics.
The prior sale evidence was highly probative to assist in the jury's
understanding of defendant's method of selling drugs through facilitators, and
why the money was not found on his person shortly after the sale.
C. Section
352 and Prejudice
Defendant
additionally contends that even if the evidence was relevant and material on
common plan and knowledge grounds, the court should have excluded the evidence
under section 352. Section 352
states: "The court in its
discretion may exclude evidence if its probative value is substantially
outweighed by the probability that its admission will (a) necessitate undue
consumption of time or (b) create substantial danger of undue prejudice, of
confusing the issues, or of misleading the jury."
On our
review of the entire record, we conclude the court did not abuse its discretion
in refusing to exclude the evidence under section 352.
strongly probative of a common design or plan and defendant's knowledge of
undercover operations to explain his actions.
On the other hand, the danger of unfair prejudice or jury confusion was
limited. The prior drug sale evidence
was brief and straightforward, and was not particularly egregious or likely to
inflame the jury against defendant.
Defendant
argues that the "inflammatory effect" of the evidence "was
increased in this case because there was no evidence that appellant's uncharged
act resulted in conviction or punishment."
However, the trial court specifically excluded the evidence of the
conviction to reduce the likelihood that the jury would improperly use the
evidence to conclude that the defendant was a bad person or had a criminal
disposition. Defendant cannot now change
his position and argue he was unduly prejudiced because the court agreed to
limit the scope of the evidence to be presented to the jury.
Additionally,
the trial court took appropriate steps to instruct the jury on the limited uses
of the evidence. Although the court did
not specifically state the jury could not use the evidence to show defendant
had the propensity or criminal disposition to commit the crime, the court
expressly instructed the jury on the proper use of the evidence and both
counsel were careful to reiterate the limited purpose of the evidence in their
closing arguments. There is no reasonable
probability the jurors improperly relied on defendant's prior drug sale to
conclude he was a person of bad character or had a predisposition to commit the
current crime.
Likewise,
there is no likelihood the verdict would have been different without the prior
misconduct evidence. The evidence of
defendant's guilt was overwhelming. The
officer who testified at trial was standing about 10 to 15 feet away when he
saw defendant hand Morgan the drugs and saw defendant take the money from
Morgan. The officer was 100 percent
certain that defendant was the person who committed this crime. Shortly after, a police officer stopped
defendant and obtained his identity.
Although the prerecorded money was not found on defendant's person, only
a cursory search was performed (because of the nature of the buy-walk
operation) and the evidence supported that defendant was aware of the fact that
undercover officers use prerecorded money and of the need to hide or quickly
transfer the money after a street drug sale.
DISPOSITION
Judgment affirmed.
HALLER, J.
WE CONCUR:
McCONNELL, P. J.
IRION, J.
name="_ftn1" title="">[1]
All further statutory references
are to the Evidence Code.
