P. v. Jenkins

Filed 7/21/08 P. v. Jenkins CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Frederick N. Wapner, Judge. Affirmed.

Deborah L. Hawkins, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Margaret E. Maxwell and Erika D. Jackson, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Kenneth Jenkins appeals from the judgment entered after a jury convicted him of furnishing or giving away cocaine base, and he admitted that he had suffered two prior serious felony convictions within the meaning of the Three Strikes law and one prior conviction for the sale of narcotics, and had served three prior prison terms. (Health & Saf. Code, 11352, subd. (a); Pen. Code, 1170.12, subds. (a) through (d), 667, subds. (b) through (i); Health & Saf. Code, 11370.2, subd. (a); Pen. Code,  667.5, subd. (b).) Defendant contends the trial court erred when it admitted evidence that he had engaged in a prior sale of narcotics and imposed the upper term for the violation of Health and Safety Code section 11352, subdivision (a). We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In March 2006, defendant was tried on a single count of possession of cocaine base for the purpose of sale (Health & Saf. Code, 11351.5), but the jury was unable to reach a verdict. Prior to retrial, the prosecution filed an amended information alleging three counts: possession of cocaine base for the purpose of sale, furnishing or giving away cocaine base, and possession of cocaine. (Health & Saf. Code, 11350, subd. (a).)

The prosecution also filed a motion seeking the admission of evidence that defendant had engaged in a prior sale of narcotics, arguing it was relevant pursuant to Evidence Code section 1101, subdivision (b). It wanted to introduce evidence that in December 2001, defendant was observed conducting a hand-to-hand sale of cocaine in the area of 5th Street and Main Street in Los Angeles, the same intersection where the offenses in the instant case occurred. The prosecution believed the prior act was relevant to prove that defendant possessed the cocaine in the present case with the intent to sell.

Defendant objected, claiming that the two incidents were dissimilar. In the prior case, he was seen exchanging money for narcotics. In the present case, the officers did not witness an exchange between defendant and a buyer, and when defendant was arrested no cocaine was found on his person (the officers did discover a small amount of a substance resembling marijuana). Defendant also complained that he had not received discovery in a timely fashion and the proffered evidence was more prejudicial than probative.

The trial court accepted the prosecutions argument that with regard to the purpose of establishing intent, the two incidents were sufficiently similar. It concluded: To prove intent, they dont have to be that similar. This isnt that similar, but its close enough.

The Prosecutions Case

Los Angeles Police Officer Leroy OBrien has been assigned to Central Division Patrol since 1999, where he has been involved in over 900 narcotics-related arrests. On August 27, 2005, at approximately 5:00 p.m., he was in the area of 5th Street and Main Street, a location where narcotics activity is blatant. He and Officer Michael Pettinato were in an observation post located across the street from 524 Main Street. Two other officers, John Armando and Michael Fernandez, were the designated chase unit, and were assigned the task of detaining individuals at the direction of the officers in the observation post.

From a distance of about 80 feet, with the aid of binoculars, OBrien observed defendant and an individual, later identified as Dwayne Bonds, sitting on a crate in front of 524 Main Street. Defendant had a clear plastic bindle in his hands that contained what appeared to be rocks of cocaine. Defendant opened the bindle, selected a few of the rocks, and handed them to Bonds, who placed the rocks into a Krazy Glue container. Bonds put the container into his rear waistband. (Pettinato testified that he made the same observations.)

OBrien notified the chase unit. He saw Armando and Fernandez approach Bonds and defendant. When Bonds stood, the container fell to the ground. (Fernandez testified that he was less than a foot away from Bonds when he saw the container fall from Bondss left pant leg. Fernandez said he opened the container and saw three rocks resembling rock cocaine inside.) Fernandez gave OBrien and Pettinato the Krazy Glue container. Armando gave them the items he found on defendant, a small baggie containing a substance resembling marijuana and $1,022 in cash, much of it in ten, five, and one dollar bills. Bonds also possessed a glass pipe with burnt wire and yellow residue resembling rock cocaine.

OBrien opined that defendant possessed the cocaine for the purpose of sale because he possessed currency in small denominations, common for street traffickers, and did not have any narcotics paraphernalia indicating that he used drugs. He testified sellers often have transients, like Bonds, hold the narcotics so that the seller is not arrested in possession of the drugs. Although OBrien saw defendant retain possession of the bindle after he handed the cocaine to Bonds, neither the bindle nor cocaine was found on defendant after his arrest.

The parties stipulated that the items in the Krazy Glue container were off-white solids weighing .25 grams and containing cocaine base.

Officer Debbie Lopez testified that on December 13, 2001, she was assigned to the Narcotics Division in Central. On that date, she observed defendant standing in front of the Frontier Hotel, located at 5th Street and Main Street. She saw an individual, later identified as Ali Shabazz, approach defendant, and the two men had a brief conversation. She saw Shabazz hand defendant some folded U.S. currency and defendant give Shabazz a small object. Shabazz was detained, and he had a rock-like substance in his possession. The parties stipulated that the substance taken from Shabazz contained cocaine base.

Lopez continued to watch defendant, and she saw another male approach him. The male gave defendant money, and defendant gave him a small object. Defendant was detained a short time later. He had $561 in his possession, however, officers did not locate any additional narcotics on his person.

The Defense Case

The jury heard the prior testimony of David Johns that had been offered in the first trial. Johns was defendants parole agent. Between July and September 2005, defendant complained that his money had been taken from the halfway house where he was staying. Johns told defendant to file a crime report with the police and to carry his cash on his person.

Kristi Gabel testified that she is defendants wife of five years. She lives in Sacramento, and at the time of defendants arrest in August 2005, she was a nurse with an annual income of $90,000. Defendant was forced to live in Los Angeles because the parole authorities would not allow him to come to Sacramento. As defendant was not working, she would send him cash every two weeks through Western Union. Gabel identified her bank statement, which reflected a number of cash withdrawals ranging from $100 to $800. She stated that she sent those monies to defendant. During the month of August 2005, she sent him $382.00.

The Verdict and Sentencing

On August 2, 2006, the jury convicted defendant of furnishing or giving away a controlled substance. It was unable to reach a verdict on the two remaining counts, and the prosecution moved to dismiss them. On November 9, defendant admitted the prior allegations. The prosecution moved to strike one of the prior serious felony convictions for sentencing purposes, and asked the court to sentence defendant to 16 years, due to his long criminal history. The court denied defendants request that it strike the remaining serious prior conviction, and sentenced him to the upper term of five years, which was doubled to 10 years pursuant to the Three Strikes law. The court did not impose sentence for the prior narcotics conviction or the three prior prison commitments. This timely appeal followed.

DISCUSSION

I. Evidence of the Prior Sale

As noted, the prosecution was allowed to present evidence that defendant had sold cocaine on a prior occasion. He contends that the two incidents were too dissimilar, even for the purpose of establishing intent, in that the prior uncharged crime involved two hand-to-hand sales, while the instant case did not. Further, he argues, the evidence of the prior sale was more prejudicial than probative and should have been excluded pursuant to Evidence Code section 352. Defendant asserts that the evidence of a prior bad act allowed the prosecution to improperly bolster a weak case.

The rules governing the admissibility of evidence of other crimes are familiar and well settled. Evidence Code section 1101, subdivision (b) provides in pertinent part that evidence of other crimes is admissible when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . . ) other than his or her disposition to commit such an act. (People v. Gray (2005) 37 Cal.4th 168, 202.) Such evidence is not admissible to show the accused has bad character, and its admissibility depends upon proof that the charged and uncharged offenses share distinctive common marks sufficient to raise an inference of identity. (Ibid.) A somewhat lesser degree of similarity is required to show a common plan or scheme and still less similarity is required to show intent. [Citation.] On appeal, we review a trial courts ruling under Evidence Code section 1101 for abuse of discretion. [Citation.] (People v. Roldan (2005) 35 Cal.4th 646, 705.)

The prosecution sought to use evidence of the prior incident to show defendants intent for possessing the cocaine. As he was charged with possession of cocaine for the purpose of sale, it was critical to establish that defendant did not possess the drug solely for personal use. We disagree that the two incidents were substantially dissimilar. In each case, the narcotics activity took place on the corner of 5th and Main, defendant was arrested with a large amount of currency in his possession, he was seen handing narcotics to another individual and, despite his almost immediate detention, narcotics were not found on his person.

The courts have long recognized that where a person acts in a similar fashion in a similar situation, he or she probably has the same intent in each instance. (People v. Roldan, supra, 35 Cal.4th at p. 706.) If the jury believed that defendant had the intent to sell the cocaine in his possession during the incident in December 2001, it could legitimately infer that he had the same intent with respect to the cocaine that he possessed in the present case. We cannot say that the courts ruling constituted an abuse of discretion.

Nor do we agree that the admitted evidence was more prejudicial than probative. The testimony regarding the prior sale was brief. The jury heard defendant had exchanged one rock of cocaine for cash, and had perhaps participated in a second single rock transaction. The evidence was no more inflammatory than that presented in support of the charges in this case. Defendant complains that the admission of the evidence had the effect of bolstering the weaknesses in the officers testimony, and telling the jury that the act of possession had been conceded and the only question to be decided was the intent behind the act. We disagree.

The evidence regarding the presence of cocaine was undisputed. The only question was whether defendant gave Bonds the narcotics found in the Krazy Glue container. Officers OBrien and Pettinato saw defendant hand items to Bonds, who placed them into the container and put the container in his waistband. When the container was located immediately after it fell from Bondss pants, it had only the rocks of cocaine inside. The proof that defendant gave the cocaine to Bonds was compelling. The only question the jury struggled with, as evidenced by its inability to reach a verdict on the possession for sale count, related to defendants intent when he gave the cocaine to Bonds.

Regarding defendants argument that the jury was told the act of possession had been conceded, the trial court read CALCRIM No. 375 to the jury twice. It read the instruction immediately before Officer Lopezs testimony concerning the prior sale and again when it charged the jury prior to closing argument. The instruction informed the jury, in pertinent part, of the following: If you decide that the defendant committed the uncharged offense, you may, but are not required to consider that evidence for the limited purpose of deciding whether or not the defendant acted with the intent to sell cocaine base in this case. In evaluating the evidence, consider the similarity or lack of similarity between the uncharged offense and the charged offenses. Do not consider this evidence for any other purpose except for the limited purpose of determining the defendants intent. Do not conclude from this evidence that the defendant has a bad character or is disposed to commit crime. (Italics added.) Thus, the jury was told that it could not use the evidence of the prior sale when considering whether defendant possessed the narcotics in the instant case. It was admonished that the evidence was relevant only on the issue of defendants intent. We presume the jury followed the courts instructions. (People v. Anderson (2007) 152 Cal.App.4th 919, 938.)

Even if we were to conclude the evidence should not have been admitted, any error was harmless. The fact that the jury was unable to reach a verdict on two of the three counts indicates that it evaluated the testimony relating to the prior sale carefully and considered it in accordance with the courts instructions. Moreover, as we have discussed, the evidence that defendant gave the cocaine to Bonds was strong. As it is not reasonably probable that the jury would have returned a verdict more favorable to defendant absent the admission of the evidence in question, he has failed to establish prejudice. (People v. Watson (1956) 46 Cal.2d 818, 836.)

Defendant also asserts that the admission of the evidence violated his right to due process under the federal Constitution. We have discussed the limited testimony the prosecution presented in this regard, and are not persuaded that its admission resulted in a fundamentally unfair trial requiring reversal of the conviction. (See Estelle v. McGuire (1991) 502 U.S. 62, 75.)

II. Alleged Sentencing Error

Relying on Cunningham v. California (2007) 549 U.S. 270 (Cunningham), defendant contends that the courts imposition of the upper term for the violation of Health and Safety Code section 11352, subdivision (a) violated his right to a jury trial. Defendant acknowledges that in People v. Black (2007) 41 Cal.4th 799, 813 (Black), our Supreme Court held that a judge may impose the upper term and engage in fact-finding at sentencing as long as there is a single aggravating factor that has been proven or admitted that makes a defendant eligible for the upper term. Here, the trial court recognized defendants long criminal history when it declined to strike all of the prior serious felony convictions and observed that defendant doesnt fall wholly outside the scope of the Three Strikes[] law. Defendant claims that the holding in Black is contrary to the principles set forth in Cunningham. We, of course, are bound by the Black decision. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)[1]

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

SUZUKAWA, J.

We concur:

EPSTEIN, P. J.

WILLHITE, J.

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[1] Defendant also attacks the remand procedure outlined in People v. Sandoval (2007) 41 Cal.4th 825. He alleges the use of a reformed determinate sentencing law violates his federal right to due process and equal protection. As we have concluded that defendants sentence comports with Cunningham and remand is unnecessary, we need not address his claim.