P. v. Evans

Filed 10/17/07 P. v. Evans 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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After an undercover police drug-buy operation on May 18, 2005, defendant Kenneth Lamar Evans was charged with one count of selling cocaine base. As a result of a drug investigation on July 12, 2005, at an apartment complex, defendant was charged with one count of possession of cocaine base for the purpose of sale. The counts were tried together and a jury found defendant guilty on both. The trial court sentenced him to eight years four months of imprisonment.

On appeal, defendant contends that (1) the trial court erred in permitting the admission of evidence of a prior arrest for sale of drugs occurring on January 28, 2004; (2) the trial court abused its discretion in denying his motion to sever the counts so they could be tried separately; and (3) there was insufficient evidence to support the conviction for possession of cocaine for the purpose of sale.

We reject each of defendants contentions. First, evidence of defendants January 2004 arrest for sale of cocaine was admissible to show a plan or design common to defendants sale of cocaine base in May 2005. Second, defendant failed to show that consolidation of the counts involving separate incidents was prejudicial. And third, every element of possession of cocaine for the purpose of sale was supported by substantial evidence.

STATEMENT OF FACTS

A. Facts of Sale of Cocaine Base (Count One)

On May 18, 2005, Detective Gary Malmquist was in charge of a buy-walk operation near 53rd Street and Fruitridge Road. A buy-walk operation involves several undercover police officers who go into an area to purchase narcotics but do not make any arrests.

Detective Eugene Shim was part of this buy-walk operation. He encountered Tony Smith in the Auto Zone parking lot. Detective Shim asked Smith if he could get him some cocaine base. Smith said he could. Smith turned and held up two fingers toward defendant, who was standing on the corner near the World Wine Liquors store. Detective Shim said that Smith used the two-fingers gesture to indicate to street level dealers that Im looking for cocaine base. Detective Shim gave Smith a $20 bill, the serial number of which Detective Shim had previously recorded.

Smith took the $20 bill and walked toward defendant. He and defendant stood close to one another talking. Defendant then walked over to a Honda that was parked nearby and got into the drivers seat. Smith walked over to the Honda and leaned into the open drivers side door. A moment later, Smith approached Detective Shim and handed him a plastic wrapped piece of cocaine base. Detective Shim thanked Smith and left.

Detective Malmquist observed the transaction between Detective Shim and Smith. After the transaction, he watched defendant get out of the Honda and go into World Wine Liquors. Defendant was inside the store for less than a minute and then got back into the Honda and drove away.

Officer Kyle Jasperson entered the liquor store and asked Karnail Virk, the liquor store cashier, if he could see the $20 bills in the cash register. Officer Jasperson examined the three $20 bills in the register and took the one with the serial number that matched the bill Detective Shim gave to Smith. Virk told Officer Jasperson that he sold a bottle of alcohol to a Black man just before the officer came into the store. Defendant is Black.

After Detective Shim had concluded his transaction with Smith, Detective Malmquist directed Officers Ruff and Bullard to follow a gray or blue Honda exiting World Wine Liquors parking lot. The officers made a traffic stop down the road from the liquor store. Defendant and a Black female were in the car with an unopened bottle of Remy Martin cognac.

At trial, defendant claimed that he was driving with Starresha Dyson to go visit a friend of Dysons. On the way, they stopped at World Wine Liquors to buy some cognac. Defendant testified that after he got out of the car, a man, Smith, approached him and asked for a cigarette. Defendant returned to his car, and upon realizing he had only two or three cigarettes left, told the man he could not have one. Then he went into the liquor store and bought a bottle of cognac with several small bills, not with a $20 bill.

B. Facts of Possession of Cocaine for Sale (Count Two)

On July 12, 2005, Officer Thomas Turay and two other officers responded to a complaint alleging drug dealing at an apartment complex in apartment number 20.

Information given to the officers by a tenant at the complex associated defendant with the apartment. The officers discovered defendant sitting in a red Honda in the apartment parking lot and started walking toward him. Defendant got out of the car and walked in the opposite direction. When police caught up to him, they questioned him as to how and why he was at the apartment complex. Defendant said that he had taken a bus to the area. Officer Turay continued to ask him about how he got to [the apartment]. And [defendant] continued coming at us with other stories on how and why he was there. When Officer Turay finally told defendant they saw him in the red Honda, defendant stated that the car was his and he drove to the apartment to visit his girlfriend.

Officers searched defendant and found a key in his pocket. Defendant acknowledged that the key was to apartment 20. The officers searched apartment 20. In a closet they found a shoe box containing a dish, three chunks of rock cocaine, six small baggies of marijuana, some additional packaging material, and $103 in cash. The officers also found documents with defendants name, including three court documents, an arrest report from January 28, 2004, and a document from the City of Sacramento. In the kitchen, officers found four more pieces of wrapped rock cocaine. A Comcast bill in the name of Starresha Dyson was also discovered. One of the police officers was told in a phone conversation that Calvin Moore and Shakondra Hines also lived in apartment number 20.

Defendant claims he never lived at the apartment, that he was only there to visit his girlfriend, Dyson, and that she gave him a key to the apartment to retrieve some of her items she needed for school. He says when he got out of his car he did not see the police officers and that he told them he arrived by bus because he was nervous. Defendant insisted he was unaware of any drugs at the apartment and that it was not unusual for other men to be at Dysons apartment.

DISCUSSION

I

Evidence of Prior Arrest

Defendant contends that the trial court erred in admitting evidence of his arrest for sale of cocaine on January 28, 2004. We disagree.

Sixteen months prior to the event of May 18, 2005, on January 28, 2004, Sacramento Police Detective Norm Leong was on a buy-bust operation, which entails undercover officers rotating through and buying drugs off street dealers. This operation was being conducted near 53rd Street and Fruitridge Road.

Detective Leong met Charles Goodin, who offered to take him to try to buy narcotics. Goodin met with Anthony Green. Goodin and Green rode with Detective Leong to another location to purchase drugs.

Detective Leong gave Goodin a $20 bill from which he had recorded the serial number. Goodin got out of the car and walked toward Star Motel. Detective Leong saw Goodin make a hand-to-hand exchange of something with a person later learned to be Anthony Evans. While Goodin stood at a bus stop, Evans went into room number 13 of the motel.

While Detective Leong waited, he offered Green a couple of dollars if he got [Detective Leong] ten dollars more of drugs. Shortly after entering the motel room, Evans came out and walked toward Goodin. Green got out of Detective Leongs car and approached Evans. Goodin then came back to Detective Leongs car and gave Leong a package containing approximately .2 grams of cocaine base.

Green walked up to Evans, and Evans ran back up to the motel room. Shortly thereafter, Green came back to Detective Leongs car, broke off a piece of [the cocaine] that he got, gave [Detective Leong] half of it, and kept half himself.

After Detective Leong had finished the transactions with Goodin and Green, several Sacramento police officers went to search room 13 of the Star Motel. Defendant was in the room when the officers arrived. He was arrested and police found in his left front pocket the prerecorded $20 bill Detective Leong had given to Goodin. The officers also found rock cocaine in the motel room.

After being advised of his rights, defendant told Detective Frank Reyes that his brother, Anthony Evans, was selling dope for him. Defendant said that he had given [Evans] the dope earlier, and he assumed that Anthony had sold dope to a gentleman in a yellow jacket, because after he made contact, Anthony returned and handed [defendant] twenty dollars.

Evidence of prior crimes may be admissible to prove a fact other than the defendants disposition to commit the present crime. (Evid. Code, 1101, subd. (b).) For example, prior crimes may be admitted to prove a defendants motive, opportunity, intent, preparation, plan, knowledge, or identity. (Ibid.)

If the trial court finds that the purpose of evidence of a prior offense is to prove one or more of these facts, it may admit the evidence unless its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. (Evid. Code, 352.)

In this case, the court found that the January 28, 2004, incident met the standard for admission to establish a plan common to the May 18, 2005, incident. It noted that the facts of the two incidents were strikingly similar, including similar location and method of operation, use of more than one person to effectuate a drug transaction, [and] circumstantial evidence supporting that [defendant] was providing the drugs, although not the person making the initial contact with the buyer.

The court then considered whether the probative value of the January 2004 crime would be substantially outweighed by the possibility of undue prejudice. It concluded that the prior crime was a fairly recent event, not remote, not unduly inflammatory. It noted that evidence of the prior crime was not so out of proportion to the current case that the jury [was] going to be distracted by that information. Therefore, it found that the potential for unfair prejudice did not substantially outweigh the probative value and permitted the evidence to be admitted.

Defendant first argues that the January 2004 incident and the May 2005 incident at issue here were so dissimilar that the admission of the prior crime could not establish a common plan or design to sell cocaine. Second, defendant argues that the prejudicial effect of the prior crime substantially outweighed its probative value. He claims that because he admitted to selling drugs through a family member on January 28, the jury would be more likely to base its findings on his admitted background as a drug dealer rather than on the material relevance of the evidence.

The question of whether evidence of past crimes has been erroneously admitted is reviewed for abuse of discretion. (People v. Lenart (2004) 32 Cal.4th 1107, 1123.) The trial courts decision to admit such evidence is entitled to deference. (People v. Harris (1998) 60 Cal.App.4th 727, 736 (Harris).)

A. Common Plan

Evidence of a past crime to show a plan common to the present crime is admissible if there are striking similarities between the two crimes. (People v. Scheer (1998) 68 Cal.App.4th 1009, 1020.) In other words, evidence establishing a design or plan must show a concurrence of common features that the various acts are naturally to be explained as caused by a general plan. (People v. Ewoldt (1994) 7 Cal.4th 380, 393-394.)

In this case, the methodology used to sell cocaine in both instances is very similar. In both instances, defendant used an intermediary to engage in drug transactions for him, he being the ultimate provider of the cocaine. Both instances took place in the same general location. That defendant used a motel as the base of his drug operation in one instance and a car in the other does not make the two crimes so dissimilar that they would not share a common design or plan. It can reasonably be inferred that the features similar to both crimes demonstrate a common plan. The trial court did not abuse its discretion in admitting the evidence.

B. Prejudicial Effect

The court in Harris outlined five factors to be considered in determining whether the prejudicial effect of past crimes substantially outweighs their probative value. The factors are (1) the inflammatory nature of the evidence, (2) the probability of confusion to the jury, (3) the remoteness in time, (4) the consumption of time, and (5) the probative value of the evidence. (Harris, supra, 60 Cal.App.4th at pp. 737-740.)

Here, the court found that (1) the time between the incidents was not remote, (2) the prior crime was not unduly inflammatory, and (3) the prior crime was not so out of proportion to the current case that the jury would be confused. These findings were reasonable under the facts of the prior crime. The January 28 incident occurred only 16 months before the offense charged here. Both incidents were similar in nature in that they involved the sale of cocaine, and, thus, one would not be likely to inflame or confuse the jury any more than the other. Therefore, the trial court did not abuse its discretion when it admitted evidence of defendants January 28 arrest.

II

Joinder of Counts

The district attorney moved the trial court to consolidate the cases of May 18, 2005, involving count one of sale of cocaine base, and of July 12, 2005, involving count two of possession of cocaine base for sale. The court granted the motion. Defendant moved the court to sever the counts so they could be tried separately, and the court denied defendants motion.

Defendant claims the trial court abused its discretion when it denied his motion to sever the two cases. We disagree.

Subject to the trial courts discretion, charges of two or more different offenses of the same class may be consolidated and tried together. (Pen. Code, 954.) To establish that a trial court has abused its discretion in consolidating charges of separate offenses, or in denying a motion for severance, a defendant must make a clear showing of prejudice. (People v. Marshall (1997) 15 Cal.4th 1, 27.)

Because of the significant benefits of joinder, such as conservation of judicial resources and public funds, [t]he statutory policy favoring joint trials has been so consistently applied that cases holding it an abuse of discretion to deny a severance are virtually nonexistent, and . . . the difficulty of showing prejudice from denial of severance is so great that the courts almost invariably reject the claim of abuse of discretion. [Citation.] (People v. Rhoden (1972) 6 Cal.3d 519, 525, fn. 2.)

Whether the defendant has been prejudiced by a consolidation is analyzed using four factors:

(1) Is the evidence of the crimes cross-admissible?

(2) Is one of the charges unusually likely to inflame the jury?

(3) Is a weak case being joined with a strong case?

(4) Is it a death penalty case? (People v. Marshall, supra, 15 Cal.4th at pp. 27-28.)

Here, the trial court explained its reasons for consolidating the offenses: Theyre [counts one and two] similar class of crimes [sic]. The evidence clearly as to Count One is cross-admissible. [] . . . [] And I do not see that the presentation of the evidence against [defendant] as to [count two] and including the prior 1101 evidence which the Court has ruled to be admitted, would result in any substantial prejudice. [] The Court intends to give the appropriate limiting instruction, assumes the jury will follow the Courts instructions, and denies the request to have severed or separate trials . . . .

Defendant first argues that evidence of the sale of cocaine on May 18, 2005, was inflammatory when considered together with the evidence from defendants January 28, 2004, arrest for sale of cocaine. He claims this evidence cast [him] as a callous and controlling drug supplier, who used his own brother, among others, to do the dirty work on the streets. Second, defendant claims that a strong May 2005 case was joined with a weak July 2005 case, making the consolidated case much stronger than the cases would have been if tried separately. He says that evidence from May 18 would unavoidably spill over onto the second case. For these reasons, defendant concludes that denial of severance resulted in unfair prejudice. We disagree that (1) any evidence was inflammatory or (2) that a strong and weak case were joined. No prejudice resulted.

A.Inflammatory Evidence

Evidence inflames the jury when it causes strong feelings of anger or indignation toward a defendant, such that it evokes an emotional response that has little to do with the issue on which the evidence is offered. (Austin B. v. Escondido Union School Dist. (2007) 149 Cal.App.4th 860, 885.) Here, all of the evidence involved either the sale or possession of drugs. None of the evidence, either individually or combined, was of a nature that would cause the jury to make findings based on an emotional response having little to do with the probative value of the evidence.

B. Strong and Weak Case

When a strong and weak case are joined, the concern is that the jury would aggregate all of the evidence, though presented separately in relation to each charge . . . [and] the two cases would become, in the jurors minds, one case which would be considerably stronger than either viewed separately. (Williams v. Superior Court (1984) 36 Cal.3d 441, 453-454.)

Defendant claims that the evidence supporting the possession count (count two) was weak. To the contrary, (1) the information given to the officers by one of the tenants associated defendant with the apartment, (2) defendant was found in the parking lot of the apartment complex, (3) the key to apartment 20 was found on defendant, and (4) court documents belonging to defendant were found in the apartment. All of these circumstances tied defendant to occupancy of the apartment. Defendants inconsistent stories to the police about how and why he arrived at the apartment complex showed his consciousness of guilt. (People v. Showers (1968) 68 Cal.2d 639, 643 [false statements about incriminating circumstances may support inference of consciousness of guilt].) This is not weak evidence. It is sufficient to allow the jury to reasonably infer that defendant possessed cocaine.^[1] Therefore, the concern of joining a weak case with a strong case did not exist here.

Because the cases were of the same non-inflammatory nature and a weaker case was not bolstered by a stronger case, the trial court did not abuse its discretion.^[2]

III

Insufficient Evidence of Possession of Cocaine for Sale

Defendant contends there was insufficient evidence for the jury to convict him of possession of cocaine for sale (count two). We disagree.

To convict a defendant of possession of cocaine for sale,
a jury must find beyond a reasonable doubt that the defendant (1) exercised control over or the right to control cocaine;
(2) knew of the presence of the cocaine; (3) knew that cocaine is a controlled substance; (4) possessed enough cocaine for sale; and (5) had the specific intent to sell it. (CALJIC No. 12.01.)

Here, defendant claims there was insufficient evidence that (1) he had dominion and control over or right to control the cocaine found in apartment 20 on July 12, 2005, and (2) he knew of the presence of the cocaine.^[3]

To determine whether there was sufficient evidence of these elements, we review the entire record in the light most favorable to the judgment to determine whether it discloses substantial evidence -- that is, evidence that is reasonable, credible, and of solid value -- from which a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. [Citations.] (People v. Cole (2004) 33 Cal.4th 1158, 1212.) In conducting this review, we may not redetermine the credibility of witnesses, nor reweigh any of the evidence, and must draw all reasonable inferences, and resolve all conflicts, in favor of the judgment. (People v. Poe (1999) 74 Cal.App.4th 826, 830.)

Dominion and control over an illegal substance may be imputed when the substance is found in a location that is immediately accessible to a defendant and when the location is subject to his dominion and control, or the joint dominion and control of the defendant and another. (People v. Williams (1971) 5 Cal.3d 211, 215; People v. Rushing (1989) 209

Cal.App.3d 618, 622.) In addition, [f]alse statements regarding incriminating circumstances constitute evidence which may support an inference of consciousness of guilt. (People v. Showers, supra, 68 Cal.2d at p. 643.)

Here, a tenant of the apartment complex had seen defendant at apartment 20. Defendant had a key to the apartment, showing his ability to access it at will. Documents with defendants name were also found in the apartment. The defendant walked away from the police officers, possibly trying to avoid them. He gave false statements to the police regarding how he arrived at the apartment complex, establishing his consciousness of guilt. These facts amount to substantial evidence from which a jury could reasonably infer that defendant shared the apartment with his girlfriend and, therefore, had dominion and control over the cocaine.

The evidence was also sufficient to show defendant knew about the cocaine. When contraband is found in a place to which a defendant and others have access and over which none has exclusive control no sharp line can be drawn to distinguish the congeries of facts which will and that which will not constitute sufficient evidence of a defendants knowledge of the presence of a narcotic. . . . [Citation.] (People v. Hutchinson (1969) 71 Cal.2d 342, 345.) Defendants occupancy of the apartment and his attempts to distance himself from that occupancy are sufficient to show that he knew the cocaine was there.

DISPOSITION

The judgment is affirmed.

NICHOLSON , Acting P.J.

We concur:

MORRISON , J.

CANTIL-SAKAUYE , J.

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^[1] The strength of the evidence to support count two and the relevant legal principles are discussed in more detail in part III, below.

^[2] We need not discuss whether evidence of one case would be cross-admissible in the separate trial of another case because absence of cross-admissibility, by itself, does not preclude joinder. (Pen. Code, 954.1; Belton v. Superior Court (1993) 19 Cal.App.4th 1279, 1286-1287 [joinder of two murder cases did not sufficiently prejudice defendant so as to entitle him to severance; although evidence as to one case would not be admissible in trial of other case, cases appeared to be of relatively equal strength, and neither case was likely to be more inflammatory than the other].)

^[3] Defendant stipulated that (1) he knew that cocaine is a controlled substance and (2) the cocaine seized was possessed for purposes of sale.