P. v. Gonzalez
Filed 5/30/13 P. v. Gonzalez CA2/2
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and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
GINGER LINDSAY GONZALEZ,
Defendant and Appellant.
B244477
(Los Angeles
County
Super. Ct.
No. BA395145)
APPEAL from
a judgment of the Superior Court
of
County. Frederick N.
Wapner, Judge. Affirmed. Remanded with directions.
Jennifer Hansen, under appointment
by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Paul M. Roadarmel, Jr., Deputy Attorney General, for
Plaintiff and Respondent.
* * * * * *
Defendant
Ginger Lindsay Gonzalez was convicted by jury of possession
for sale of cocaine base (Health & Saf. Code, § 11351.5 (count 1)),
transporting cocaine base (Health & Saf. Code, § 11352, subd. (a) (count
2)), possession for sale of methamphetamine (Health & Saf. Code, § 11378
(count 3)), and transporting methamphetamine (Health & Saf. Code, § 11379,
subd. (a) (count 4)). In a separate
proceeding she admitted suffering a prior narcotics conviction (Health &
Saf. Code, § 11370.2, subd. (a)).
Defendant was sentenced to the low term of three years in county jail on
count 1, plus a consecutive three-year term for the prior conviction, for a
total term of six years. The trial court
also imposed a concurrent two-year sentence on count 3, and imposed but stayed
sentences on the remaining counts pursuant to Penal Code section 654.
defendant was awarded 34 days of presentence
Defendant contends that the trial court
abused its discretion in admitting the underlying facts of the prior drug
conviction. We disagree and affirm the
judgment. We remand with directions to
amend the abstract of judgment.
FACTS
A. Prosecution case
1. Current
incident
On March 14, 2012, at approximately
5:30 p.m., Los Angeles County Deputy Sheriff Jesus Mora and his partner Deputy
Yoshida were on patrol in a marked police vehicle in East Los Angeles, when
Deputy Mora saw a white Jeep Grand Cherokee fail to stop at a stop sign and
make an unsafe left turn. The deputies
made a U-turn and followed the Jeep until they were approximately five feet
behind it. Before initiating a traffic
stop Deputy Mora was able to determine there were four occupants of the
Jeep. Through the rear window of the
Jeep, Deputy Mora saw defendant, the driver, reach back “and hand over a brown
case to the rear passenger of the vehicle.â€
approached the Jeep on the passenger side.
The front and rear windows were down and Deputy Mora saw the rear
passenger Gamez concealing plastic bags in the magazine pocket attached to the
back of the front passenger seat.
Defendant
and the three passengers were detained while the deputies searched the
Jeep. Deputy Mora recovered four plastic
bags from the pocket of the passenger seat, two contained cocaine base, and two
contained methamphetamine. Deputy Mora
also searched defendant’s purse and recovered a piece of paper with names and
numbers on it, which he described as a “pay-and-owe†sheet used to keep track
of money paid or owed for illicit drugs.
Two cell phones that were continuously ringing were also recovered from
defendant’s purse. An open brown
sunglass case which Deputy Mora testified he saw defendant pass to Gamez, was
found on the floorboard of the Jeep where Gamez was seated. None of the occupants of the Jeep appeared to
be under the influence of drugs and no drug paraphernalia was found inside the
vehicle.
Los Angeles
County Sheriff’s Department Criminalist Warren Michael Best testified that two
of the plastic bags recovered from the Jeep contained cocaine base; one bag
weighed 10.62 grams and the other weighed 13.19 grams. The other two bags recovered contained
methamphetamine; one bag weighed 23.7 grams, and the other weighed 23.8
grams. Detective Enrique Rosado of the
Los Angeles County Sheriff’s Department testified as a narcotics expert. Based on his education, training and
experience in narcotics, Detective Rosado opined the cocaine base and
methamphetamine recovered from defendant’s Jeep was possessed for sale because
(1) the amount of illicit drugs recovered was “way over the amount for personal
useâ€; (2) the cell phones continuously ringing were indicative of “worriedâ€
customers “trying to get a hold of [defendant]â€; and (3) the document referred
to as a pay-and-owe sheet recovered from defendant’s purse was a record of
earnings from the illicit drugs.
2. Prior
incident
Detective Rosado testified that
in June 2008, defendant who was under surveillance, was observed engaging in
numerous “hand-to-hand narcotic transactions.â€
Defendant drove “around the city . . . all day long†and
exchanged narcotics for money with individuals that came to her car. On June 12, 2008, Detective Rosado served a
search warrant on defendant’s residence and recovered two plastic baggies
containing rock cocaine, a digital scale, a cell phone, and about $294 in
cash. Testing determined the baggies
contained 22.7 grams of cocaine in base form.
No drug paraphernalia was found at defendant’s residence. Defendant was convicted of possession for
sale of cocaine base in violation of Health and Safety Code section 11351.5.
B. Defense case
Defendant testified that on
March 14, 2012, her Jeep needed a tune-up and she picked up her friend Mike
Hoffman whose friend Gamez knew a mechanic named Mike Lopez. Defendant then picked up Gamez and Lopez who
were seated in the back of the Jeep when defendant was pulled over by deputies
Mora and Yoshida. Defendant owned the
Jeep since 2010. The rear windows were tinted;
however, the front windows were not tinted.
There were mechanical problems with the rear windows; they did not go
down.
Defendant
told Deputy Yoshida that she was on parole “for narcotics.†She knew that she was subject to search and
seizure and would get in trouble if drugs were found in her car. The drugs found by Deputy Mora did not belong
to her and she did not know that anyone in the car had drugs that day. Her sunglasses case was empty because she was
wearing her sunglasses and she never passed anything to Gamez in the rear
passenger seat.
Defendant
testified one of the cell phones found in her purse could not have been ringing
on March 14 because it was not operable and she kept it as a “play phone†for
her children. Defendant explained the
note found in her purse had nothing to do with drugs. The names listed on it were female parolees
she met while in custody and hoped to contact again. The numbers listed on the note represented a
score sheet for a dice game she played with her roommates.
On
packaging of the drugs found in the Jeep looked like the drugs found at her
house in 2008, the amount of cocaine base recovered from the Jeep was a similar
weight to that found in her house in 2008, and in the past she used a cell
phone to conduct business with her drug buyers.
DISCUSSION
I. Defendant’s Prior Conviction for
Possession of Cocaine Base for Sale
Defendant
contends that the trial court abused its discretion and violated her due
process rights to a fair trial by admitting evidence of her prior conviction
for drug sales.
Prior to
trial, the People filed a motion under Evidence Code section 1101 to admit
evidence of defendant’s prior conviction for violating Health and Safety Code
section 11351.5. The motion set
forth the facts of the prior conviction, which was substantially the same as
the evidence presented at trial. The
2008 search of defendant’s home produced 22.7 grams of cocaine, a digital scale,
a cell phone, and an envelope containing empty plastic baggies. At the hearing on the motion the prosecutor
argued the evidence was relevant to prove defendant’s knowledge and her intent
to sell. Defendant argued it was
propensity evidence and irrelevant under Evidence Code section 1101,
subdivision (a), and was unduly prejudicial and should be excluded.
The trial
court ruled that the evidence of the prior conviction was relevant to prove
intent to sell cocaine, and to show knowledge that what was possessed was in
fact cocaine. Further, it was not
offered to show propensity. The court
concluded the evidence was not overly prejudicial under Evidence Code section
352.
At the
close of trial, the jury was instructed pursuant to CALCRIM No. 375 that if it
found the prosecution had proven the prior offense by a preponderance of the
evidence, it could “consider that evidence for the limited purpose of deciding
whether or not: [The defendant acted
with the intent to sell]†and whether she “knew the nature of the controlled
substance alleged†in this case. The
evidence was to be considered only for the limited purpose of determining
defendant’s credibility and the jury was cautioned against concluding that
defendant had a bad character or was disposed to commit crimes.
The prior conduct
evidence was relevant. Evidence
possessing any tendency in reason to prove or disprove any disputed material
fact is relevant and admissible. (Evid.
Code, §§ 210, 351; People v. Garceau
(1993) 6 Cal.4th 140, 177.) The trial
court is vested with wide discretion in determining the relevancy of
evidence. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124–1125.) The relevancy of prior drug convictions in a
case involving another charge of drug possession is certainly relevant.
However, even
relevant evidence can be excluded.
Evidence Code section 1101, subdivision (a) generally prohibits the
admission of evidence of a person’s character or a trait of his or her
character when offered to prove his or her conduct on a specified occasion. Evidence Code section 1101, subdivision (b),
however, provides that evidence of a person’s prior criminal act is admissible
“when relevant to prove some fact (such as motive, opportunity, intent,
preparation, plan, knowledge . . .) other than his or her disposition
to commit such an act.â€
By pleading not
guilty, defendant placed in issue all of the elements of the charged
offenses. (People v. Roldan (2005) 35 Cal.4th 646, 705–706, disapproved on
other grounds in People v. Doolin
(2009) 45 Cal.4th 390, 421, fn. 22.) The
prior crime which involved a similar amount of cocaine being sold in numerous
transactions from a vehicle driven by defendant, was substantially similar to
the instant crime and properly admitted to show defendant possessed the same
intent in this case, and was well aware of the illegal nature of the
cocaine. Thus, the evidence was properly
admitted to show intent, motive, absence of mistake, and knowledge under
Evidence Code section 1101, subdivision (b).
In addition, the
evidence was admissible under Evidence Code section 352. ‘“Under Evidence Code section 352, the trial
court enjoys broad discretion in assessing whether the probative value of
particular evidence is outweighed by concerns of undue prejudice, confusion or
consumption of time. [Citation.]’ [Citation.]
A trial court’s discretionary ruling under Evidence Code section 352
will not be disturbed on appeal absent an abuse of discretion. [Citation.]â€
(People v. Lewis (2001) 26
Cal.4th 334, 374.) Prejudicial evidence
is evidence that tends to evoke an emotional bias against the defendant. (People
v. Barnett (1998) 17 Cal.4th 1044, 1118.)
“A trial court abuses its discretion when its ruling ‘falls outside the
bounds of reason.’ [Citation.]†(People
v. Wesson (2006) 138 Cal.App.4th 959, 969.)
Here, the prior
conduct was clearly probative to contested issues in this case as the prior
conviction had similarities to the offense in the instant case. Similarity between the offenses increases its
probative value. (People v. Balcom (1994) 7 Cal.4th 414, 427.) Additionally, the evidence was not more
prejudicial than the facts of the instant case.
Here, in addition to being found with a similar amount of cocaine as in
the prior case, defendant also possessed 47.5 grams of methamphetamine for
sale. The jury was also informed as to
the prior conviction that defendant “paid her debt to society†ensuring that
the jury would not convict her in the instant case to punish her for the other
offenses. (See Ibid.) We cannot say the
trial court abused its discretion by admitting the underlying facts of the 2008
prior conviction.
Even if we were
to assume that the trial court erred by admitting the prior convictions, any
error was harmless because it is not reasonably probable that the jury would
have reached a more favorable result had the challenged evidence been
excluded. (People v. Carter (2005) 36 Cal.4th 1114, 1152; People v. Watson (1956) 46 Cal.2d 818, 836.) The jury was admonished that the evidence of
the prior convictions was admitted for a limited purpose and could not be
considered to show defendant’s propensity to commit the instant crimes. We presume the jury followed the court’s
instructions. (People v. Boyette (2002) 29 Cal.4th 381, 436.)
II. Abstract of Judgment
The People
contend—and defendant does not dispute—that the trial court erred in
calculating and imposing the laboratory analysis fees and the penalty
assessments and surcharges. We agree.
At the
sentencing hearing, the court ordered the following fees and penalties as
relevant to this discussion: “You have
to pay a $50 laboratory fee; $100 in penalty assessments on the laboratory
fee.†The minute order entered following
the sentencing hearing, reflects the court’s imposition of a $50 lab analysis
fee “plus $145.00 penalty assessment and $10.00 criminal surcharge.†The abstract of judgment omits any reference
to fees imposed.
The use of
the term penalty assessment reflects the trial court’s intent that the
mandatory penalties and surcharge be added to the drug laboratory fee. (People
v. Voit (2011) 200 Cal.App.4th 1353, 1372–1373.) “In Los Angeles County, trial courts frequently
orally impose the penalties and surcharge . . . by a shorthand
reference to ‘penalty assessments.’ The
responsibility then falls to the trial court clerk to specify the penalties and
surcharge in appropriate amounts in the minutes and, more importantly, the
abstract of judgment. This is an
acceptable practice.†(
859, 864.)
The $50 laboratory
analysis fee triggers the mandatory imposition of the following penalty
assessments and surcharge in Los Angeles County: $50 for a state penalty under Penal Code
section 1464, subdivision (a)(1); $35 for a county penalty pursuant to
Government Code section 76000, subdivision (a)(1); $10 for a state surcharge
under Penal Code section 1465.7, subdivision (a); $15
pursuant to Government Code section 70372, subdivision (a)(1); $10 for an
emergency medical services penalty pursuant to Government Code section 76000.5,
subdivision (a)(1); $5 for a deoxyribonucleic acid penalty pursuant to
Government Code section 76104.6, subdivision (a)(1); and $15 for a state-only
deoxyribonucleic acid penalty pursuant to Government Code section 76104.7,
subdivision (a). The total assessments
are $140 for a total of $190. (
The
criminal laboratory analysis fee and assessments as to each count
stayed under Penal Code section 654 is not a “separate offense†because it
involves conduct that is identical to or indivisible from another crime for
which the defendant has already been punished.
A statute need not expressly refer to section 654 to override the
proscription against multiple punishment (see People v. Benson (1998) 18 Cal.4th 24, 31–33), but the requirement
of a fee for “each separate offense†does not clearly signify that an exception
to the general rule was intended. (See
also People v. Sharret,
865–870.) Therefore, since the sentences
on counts 2 and 4 were stayed the corresponding fees and assessments must also
be stayed.
Lastly, the court
below was required to impose an assessment under Government Code section 70373,
subdivision (a)(1)
name="_ftnref5" title="">[5] in the amount of $30 for each of the four
felonies of which defendant was convicted, for a total assessment of $120. The abstract of judgment must be amended to
so reflect. Upon remittitur issuance,
the trial court is directed to prepare an amended abstract of judgment that
correctly reflects the penalty assessments and surcharge set forth above. (People
v. Chan (2005) 128 Cal.App.4th 408, 425–426.)
DISPOSITION
The
judgment is affirmed. Upon remittitur
amended abstract of judgment that includes the penalties and surcharge set
forth in the body of this opinion. The
clerk shall forward the amended abstract of judgment to the California
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, J.
FERNS
We concur:
____________________________,
Acting P. J.
ASHMANN-GERST
____________________________,
J.
CHAVEZ
further statutory references are to the Penal Code unless otherwise stated.
passenger was later identified as Tom Christopher Christian Gamez, a
codefendant at trial, who is not a party to this appeal.
