P. v. Nowling

Filed 6/10/08 P. v. Nowling CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, William H. Kennedy, Judge. Affirmed.

A jury convicted Keith Nowling of transportation of cocaine base not for personal use (Health & Saf. Code,  11352, subd. (a); Pen. Code,  1210, subd. (a)), possession of cocaine base for sale (Health & Saf. Code,  11351.5), transportation of more than 28.5 grams of marijuana (id.,  11360, subd. (a)), possession of marijuana for sale (id.,  11359) and possession of methamphetamine (id.,  11377, subd. (a)). The jury acquitted Nowling of transporting or possessing ecstasy (id.,  11379, subd. (a), 11377, subd. (a)) and unlawfully possessing ammunition (Pen. Code,  12316, subd. (b)(1)). Nowling admitted having a prior conviction for selling cocaine base (Health & Saf. Code,  11352, subd. (a)) within the meaning of Health and Safety Code, sections 11370, subdivision (a) and 11370.2, subdivision (a). The court sentenced Nowling to a prison term of seven years.

Nowling contends his convictions must be reversed because the trial court erroneously allowed an expert witness to testify about the details of Nowling's previous sale of drugs. We affirm the judgment.[1]

FACTS

The police stopped Nowling for failing to signal when making a lane change. One of the passengers in the car appeared to be smoking a controlled substance, and there was an open bottle of cognac sitting on the center console of the car. Nowling appeared to be more nervous than people usually are when stopped for a traffic violation. When an

officer asked for his driver's license, Nowling stated his license was suspended and the car belonged to his girlfriend.

The police searched Nowling, first asking if he had anything sharp in his pocket. Nowling answered, "No, I just have some weed in my pocket." He had a razor blade with white residue in his pocket. The police also found $144 in currency, 23.31 grams of cocaine base, 1.04 grams of a mixture containing methamphetamine, 77.82 grams of marijuana, and two ecstasy tablets. The police did not find any drug paraphernalia in the car or on Nowling.

Nowling told the police that he started selling drugs when he was about 14 years old, had previously been arrested for selling drugs, was jailed, and had tried to change his life but he was not making enough money at his jobs. He was envious of the money, jewelry and clothing of his friends who were selling drugs, so he started selling drugs. He described himself as a mid-level dealer, saying he would probably sell the cocaine base for about $600 and make $100 profit. He said he intended to use the marijuana and ecstasy with friends.

During his interaction with the police, Nowling's cell phone rang numerous times, but he never reached for it or answered a call. There were 16 calls between 8:39 p.m. and 9:25 p.m. on Nowling's cell phone.

A San Diego police officer, testifying as an expert, stated that the cocaine base contained about 466 doses, its wholesale value was about $500 and if sold in single doses it could generate over $2,000. The marijuana, using a conservative estimate would cost between $240 and $300. It was sufficient to produce 255 joints, which would last a heavy user about a month. Marijuana, however, deteriorates over time, so typically it is not bought in bulk for personal use. The expert testified that in his opinion all the drugs were possessed for sale. He based his opinion on the police report including Nowling's statements, the amounts seized, the razor blade, the cell phone and a prior arrest of Nowling in May 2004 for selling drugs. When asked if his opinion would change if he were unaware of Nowling's prior arrest, the expert stated that "without a doubt" he would come to the same conclusion that the marijuana and cocaine base were possessed for sale but he would be "on the fence" as to the ecstasy.

DISCUSSION

The prosecutor sought admission of Nowling's prior offense both under Evidence Code section 1101, subdivision (b), on the issues of knowledge and intent, and as a basis for the expert's opinion Nowling possessed the drugs for sale. The defense argued the prior arrest should be excluded under Evidence Code section 352 because it was cumulative to other evidence and its probative value was outweighed by a danger of undue prejudice. Following argument by the defense, the court commented to the prosecutor, "Why fiddle around with a ruling on 1101(b) and the admissibility of his prior similar act when it's going to come in via the expert anyway?" The prosecutor stated that if the court was inclined to allow introduction as part of the expert's testimony, then he would withdraw his Evidence Code section 1101, subdivision (b) motion. The court responded, "I don't see how I can keep it out under that." The prosecutor withdrew his Evidence Code section 1101, subdivision (b) motion. When the defense complained that having the expert testify to the prior offense allowing Evidence Code section 1101, subdivision (b) evidence to be admitted "through the back door," the court stated its "feeling" that the "prior sale of cocaine would be admissible under 1101(b)" but it was "double-kill" to have it admitted as such and also as a basis for the expert's opinion. The court also stated "for the sake of the record" that it was "more probative than prejudicial under [Evidence Code section] 352 and it otherwise would be admissible on the issue of knowledge and intent."

In the instructions to the jury, the court gave the standard instructions on considering expert witness testimony, which, inter alia, told the jury it "must decide whether information on which the expert relied was true and accurate." (Jud. Council of Cal.Crim. Jury Instrs. (2006) (CALCRIM) No. 332.) The court did not instruct the jury that evidence of an uncharged offense could only be used for a limited purpose.

The Evidence Code generally prohibits "evidence of a person's character or a trait of his or her character" when it is "offered to prove his or her conduct on a specified occasion." (Evid. Code,  1101, subd. (a).) However, under Evidence Code section 1101, subdivision (b), evidence of prior misconduct or crimes by a defendant may be admitted if relevant to prove some fact such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. "When a defendant pleads not guilty, he or she places all issues in dispute, and thus the perpetrator's identity, intent and motive are all material facts." (People v. Walker (2006) 139 Cal.App.4th 782, 796.)[2] As a general rule, "[t]he admissibility of other crimes evidence depends on (1) the

materiality of the facts sought to be proved, (2) the tendency of the uncharged crimes to prove those facts, and (3) the existence of any rule or policy requiring exclusion of the evidence." (People v. Carpenter (1997) 15 Cal.4th 312, 378-379.)

"[E]vidence of uncharged misconduct . . . ' "requires extremely careful analysis" ' and to be admissible, such evidence ' "must not contravene other policies limiting admission, such as those contained in Evidence Code section 352." ' [Citation.] Thus, '[t]he probative value of the uncharged offense evidence must be substantial and must not be largely outweighed by the probability that its admission would create a serious danger of undue prejudice, of confusing the issues, or of misleading the jury.' " (People v. Lewis (2001) 25 Cal.4th 610, 637.) On appeal, the trial court's determination of this issue, being essentially a determination of relevance, is reviewed for abuse of discretion. (People v. Carter (2005) 36 Cal.4th 1114, 1147.)

Expert testimony may be based "on material that is not admitted into evidence so long as it is material of a type that is reasonably relied upon by experts in the particular field in forming their opinions." (Evid. Code, 801, subd. (b); People v. Gardeley (1996) 14 Cal.4th 605, 618.) If "this threshold requirement of reliability is satisfied,

even matter that is ordinarily inadmissible can form the proper basis for an expert's opinion testimony. [Citations.] And because Evidence Code section 802 allows an expert witness to 'state on direct examination the reasons for his opinion and the matter . . . upon which it is based,' an expert witness whose opinion is based on such inadmissible matter can, when testifying, describe the material that forms the basis of the opinion." (People v. Gardeley, at p. 618.) However, the trial court " 'has considerable discretion to control the form in which the expert is questioned to prevent the jury from learning of incompetent [evidence].' [Citation.] A trial court also has discretion 'to weigh the probative value of inadmissible evidence relied upon by an expert witness . . . against the risk that the jury might improperly consider it as independent proof of the facts recited therein.' This is because a witness's on-the-record recitation of sources relied on for an expert opinion does not transform inadmissible matter into 'independent proof' of any fact." (Id. at p. 619.)

Reversal for the erroneous admission of evidence is required only when it is reasonably probable a result more favorable to the defendant would have occurred absent the error. (People v. Harris (2005) 37 Cal.4th 310, 336.)

We find error in the trial court's rationale that so long as the uncharged prior was a basis for an expert's opinion, rather than being admitted under Evidence Code section 1101, subdivision (b), the court was not required to engage in any analysis of whether the evidence was prejudicial or improper propensity evidence. As the Supreme Court noted in People v. Gardeley, supra, 14 Cal.4th at page 619, the court does have discretion to exclude such evidence and thus should consider an Evidence Code section 352 objection. The expert here, by testifying that Nowling's prior drug sale offense showed he possessed the drugs in this case for sale, essentially told the jury he had a propensity to sell drugs and could be convicted on this basis. Evidence that an individual has a propensity to commit crimes, however, is not generally admissible. Further, the court's erroneous analysis contributed to the lack of any jury instructions limiting its use of the evidence, instructions that likely would have been given if the evidence had been admitted under Evidence Code section 1101, subdivision (b).

Nonetheless, given the facts of this case, we find the error was harmless. Nowling admitted to the police that he was a drug dealer and that he had a propensity to sell drugs. He stated he had started selling drugs when he was about 14 years old, had been convicted and jailed for selling drugs, and started selling drugs again because he wanted the extra money and was envious of his drug-selling friends.

Nowling specifically admitted to the police that he possessed the cocaine base for sale. He even told the police how much profit he hoped to make on its sale. Thus, there is no doubt the error was harmless.

As to the ecstasy, Nowling was not charged with possessing it for sale, but only transporting and the jury acquitted him of that count. Nowling admitted that he had the ecstasy, stating he was planning to share it with friends. Thus, the expert's opinion clearly had no prejudicial impact.

As to possessing the marijuana for sale, although Nowling testified it was for personal use and he was intending to share it with friends, there was strong evidence that the marijuana was not possessed for personal use. The amount of marijuana was inconsistent with personal use. Further, the marijuana was found inside Nowling's back pocket inside a baggie along with two empty baggies, a fact consistent with sales and not personal use. Additionally, except for the razor blade, there was no drug paraphernalia either in the car or on Nowling's person consistent with personal use of the drugs.

Finally, there was the testimony of the expert that even without considering Nowling's past drug sales, he would "without a doubt" conclude the marijuana was possessed for sale. There is no reasonable probability the jury convicted Nowling of possessing marijuana for sale based on the expert's testimony about Nowling's May 2004 drug sale rather than based on the abundant other evidence establishing his guilt.

DISPOSITION

The judgment is affirmed.

McCONNELL, P. J.

WE CONCUR:

BENKE, J.

HUFFMAN, J.

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[1] The Attorney General contends Nowling's notice of appeal was untimely because it was filed on August 6, 2007, two days after the 60-day period for filing a notice of appeal. (California Rules of Court (Rules), rule 8.308(a).) However, as the Attorney General acknowledges, August 4, 2007, was a Saturday. Under the Rules, "The time in which any act provided by these rules is to be performed is computed by excluding the first day and including the last, unless the last day is a Saturday, Sunday, or other legal holiday, and then it is also excluded." (Rule 1.10(a).) "Unless otherwise provided by law, if the last day for the performance of any act that is required by these rules to be performed within a specific period of time falls on a Saturday, Sunday, or other legal holiday, the period is extended to and includes the next day that is not a holiday." (Rule 1.10(b).) Nothing in the Rules specifically exempts the filing of a notice of appeal from these rules. Thus, Nowling's notice of appeal was timely.

[2] Generally, a defendant may not prevent the prosecutor from presenting evidence by attempting to stipulate it away (People v. Thornton (2000) 85 Cal.App.4th 44, 48-49), however, the trial court in assessing admissibility and prejudice may consider limits on the details presented by the prosecutor.