P. v. Sandoval

Filed 3/11/08 P. v. Sandoval CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County. Jerry E. Johnson, Judge. Affirmed.

Jennifer Peabody, 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, Senior Assistant Attorney General, Paul M. Roadarmel, Jr. and Timothy M. Weiner, Deputy Attorneys General, for Plaintiff and Respondent.

_______________________

Alejandro Sandoval was convicted of controlled substance and firearms offenses. On appeal, he contends that the admission of evidence of a prior instance of possession and sales of narcotics and a weapon violated Evidence Code section 1101 and the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution; that the evidence of the prior acts should have been excluded under Evidence Code section 352; that CALCRIM No. 375 violated his due process rights by creating an improper permissive inference; and that he received ineffective assistance of counsel. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Acting on a tip from an out-of-town police officer that they would find a parolee named Alex in possession of narcotics and a handgun in a hidden compartment of a tan Honda, the Sheriffs Department began surveillance on a Carson residence on March 9, 2006. Detectives soon saw Sandoval, who matched the description given by the officer, arrive at the home in a tan Honda. When Sandoval left the location, he was followed, then stopped for traffic violations.

Sandoval consented to the search of his person and his vehicle. $5,000 was found in his pants pocket, which Sandoval said he had earned in construction and was planning to use as a down payment on an apartment. The first search of the car turned up nothing, but on a second search the police discovered a compartment at the base of the steering column that contained cocaine, methamphetamine, black cloth bags, a digital scale, empty baggies, and a loaded handgun. Sandoval told detectives that he made his money by transporting and selling drugs and that he is a broker who sets up drug transactions. He stated that he knew about the hidden compartment, that the drugs were worth $18,000, and that he kept the gun for his own protection.

Sandoval was charged with sale or transportation of a controlled substance (Health & Saf. Code,  11352, subd. (a)), sale of a controlled substance (Health & Saf. Code,  11379, subd. (a)); possession for sale of a controlled substance (methamphetamine) (Health & Saf. Code,  11351); possession for sale of a controlled substance (cocaine) (Health & Saf. Code.  11378); possession of a controlled substance with a firearm (Health & Saf. Code,  11370.1, subd. (a)); possession of a firearm by a felon (Pen. Code,[1] 12021, subd. (a)(1)); and possessing, using, and controlling a false compartment with the intent to store, conceal, smuggle and transport a controlled substance (Health & Saf. Code,  11366.8, subd. (a)). It was alleged as to all counts that Sandoval had three prior convictions within the meaning of section 667.5, subdivision (b) and that he had suffered a conviction within the meaning of the Three Strikes Law. ( 667, subds. (b)-(i), 1170.12, subds. (a)-(d).) With respect to the first four counts, three prior convictions were alleged that qualified under Health and Safety Code section 11370.2, subdivision (a).

At trial, over Sandovals objection, the prosecution presented evidence concerning a 1993 narcotics investigation involving Sandoval. At that time, Sandoval was selling methamphetamine through a system involving a pager number. An undercover officer paged Sandoval and then arranged to meet him to buy narcotics. After the purchase, the officers obtained a search warrant for Sandovals residence, where they discovered cocaine, heroin, marijuana, a semi-automatic handgun, a digital scale, and more than $2,100. Sandoval was arrested, admitted possessing all the items, denied possessing them for purpose of sale, and did not go to trial on the charges. With respect to this evidence, the jury was instructed with CALCRIM No. 375, which permitted it, if it found by a preponderance of the evidence that Sandoval had committed the prior acts, to use the evidence of the prior acts for the limited purposes of deciding whether or not Sandoval acted with the specific intent to transport, sell, and/or possess a controlled substance in this case, or whether or not he knew he possessed a controlled substance and/or firearm in this case.

Sandoval was convicted as charged. He admitted two prior offenses. The court imposed the midterm sentence of four years on count 1, doubled it under the Three Strikes Law, and added three years for each prior offense (Health & Saf. Code,  11370.2, subd. (a)), for a total of 14 years in state prison. The sentences on the remaining counts were stayed under section 654. This appeal follows.

DISCUSSION

I. Admission of Prior Acts Evidence

At an Evidence Code section 402 hearing before the start of trial, the trial court considered the admissibility of evidence of the 1993 incident of selling narcotics and possessing a firearm. The prosecutor argued that the evidence concerning the 1993 offense was relevant in the present case because it was anticipated that Sandovals defense would be that the drugs were not his, and that he did not intend to possess them for sale. Sandoval opposed the introduction of the evidence, but the trial court ruled it admissible under Evidence Code section 1101, subdivision (b).

A. Evidence Code section 1101, subdivision (b)

Sandoval first argues that the evidence was improperly admitted under Evidence Code section 1101, subdivision (b) because it was not relevant to show intent. He contends that the crimes were not sufficiently similar (People v. Ewoldt (1994) 7 Cal.4th 380, 401-402 (Ewoldt)) because in 1993, Sandoval was selling drugs but in the present offense he was not actually conducting direct sales, but was instead a drug broker. Moreover, the 1993 offense did not involve a hidden compartment or the transportation of drugs. Sandoval argues that evidence that appellant possessed drugs for sale and, in fact, sold the drugs in 1993 was not probative to show that in this particular instance, appellant had knowledge of or possessed the intent to transport the drugs found in the hidden compartment of the car he was driving which did not belong to him.

The trial court did not err in concluding that the two crimes were sufficiently similar that the evidence was admissible under Evidence Code section 1101, subdivision (b). Sandovals prior conduct was relevant to the question of intent that the prosecutor was charged with proving in the instant case. In 1993, police learned that Alex Sandoval was selling narcotics through use of a pager, arranged a purchase, and then recovered methamphetamine, cocaine, heroin, and marijuana, as well as a gun, a pager, a digital scale, and cash. This time, the police learned that Alex was in possession of a large amount of narcotics and a handgun, and the search resulted in the recovery of cocaine, methamphetamine, a digital scale, empty baggies, and a loaded handgun. While the crimes are not wholly identical, they are similar and indicative of an intent to traffic in narcotics, which was not only relevant as an element of the charged offenses but also to rebut the defense that the prosecutor anticipated from Sandoval.

Sandoval also argues that the evidence was not admissible because it was merely cumulative. Sandoval observes that one of the police officers testified that it was his opinion that the drugs were possessed for purposes of sale based on their quantity, their concealment, and the presence of a scale and baggies. Thus, Sandoval reasons, if the jury believed the officer, it could have reasonably inferred that Sandoval had the requisite intent, and the evidence of the other offense was therefore cumulative. (Ewoldt, supra, 7 Cal.4th at pp. 405-406 [cumulative evidence of uncharged acts not admissible under Evidence Code 1101, subd. (b)].) The flaw in this argument is evident on its face: the fact that the jury could have inferred intent from one piece of evidence, if believed, does not automatically render cumulative another piece of evidence from which intent could also be inferred.

The court did not abuse its discretion in ruling the evidence admissible under Evidence Code section 1101, subdivision (b).

B. Evidence Code section 352

Sandoval also argues that any probative value of the evidence was substantially outweighed by its prejudicial impact, and so the evidence should have been excluded under Evidence Code section 352. Evidence properly excluded as overly prejudicial under Evidence Code section 352 is evidence that uniquely tends to evoke an emotional bias against a party as an individual, while having only slight probative value with regard to the issues. (People v. Crittenden (1994) 9 Cal.4th 83, 134.) We review the courts ruling under Evidence Code section 352 for an abuse of discretion. (People v. Valdez (2004) 32 Cal.4th 73, 108.)

Emphasizing the difference between the 1993 offense and the present actsnamely that in 1993 he was engaged in direct sales but by 2006 was working as a narcotics broker, as he explained to the police, Sandoval claims that [a]bsent the evidence of the 1993 offense, there was a heightened probability that appellant would have been acquitted. No physical evidence was introduced to support the prosecutions contention that appellant had knowledge of the narcotics contained in a vehicle which was not registered to him. This contention is untenable. Sandoval cannot with any plausibility simultaneously argue that the offenses were dissimilar because Sandoval was now by his own admission a drug broker rather than a direct seller, and that he would not have been convicted if the evidence of the 1993 offense had not been admitted. There may have been no physical evidence introduced to support the prosecutions contention that Sandoval knew he was transporting narcotics, but his admission to the police that the drugs belonged to him and that he was a middle man or broker completely undermines his contention that absent the admission of the 1993 offense he would have had a heightened probability of being acquitted. Accordingly, even if the prior acts evidence was more prejudicial than probative, there is no reasonable probability that Sandoval would have received a more favorable outcome at trial if this evidence had been excluded. (People v. Lamb (2006) 136 Cal.App.4th 575, 582 [Rulings under Evidence Code section 352 are reviewed under an abuse of discretion standard, and a trial courts determination will not be overturned on appeal in the absence of a clear abuse of that discretion, upon a showing that the trial courts decision was palpably arbitrary, capricious, or patently absurd, and resulted in injury sufficiently grave as to amount to a miscarriage of justice. [Citation]].)

C. Use of Prior Offense at Closing/Jury Issues

Sandoval asserts that the prosecutor improperly used the 1993 offense and Sandovals other prior offenses, which were admitted to impeach him when he testified, to argue that he was a career drug salesman who was simply engaging in the trade he knows best. Not only did Sandoval not object to this argument, but the prosecutors argument was not improper propensity argument as Sandoval now claims. The prosecutor simply observed that Sandoval has been earning money by selling and transporting drugs, which goes to the intent that Sandoval had in possessing the narcotics here. Moreover, this argument did not ensure[] that the jury used the prior acts evidence improperly. The jury was instructed with a limiting instruction as to the appropriate use of the evidence, and we presume that it followed the instructions given. (People v. Horton (1995) 11 Cal.4th 1068, 1121.)

II. CALCRIM No. 375

Sandoval argues that his due process rights were violated by the use of CALCRIM No. 375, concerning the appropriate use of the prior acts evidence, because it permitted the jury to draw an improper and illogical inference of guilt in the instant case from the evidence of the 1993 offense. Sandoval argues that because the prior acts evidence was purely propensity evidence, it was a violation of his due process rights for the jury to be given the opportunity to draw that permissive inference of guilt. We have, however, already determined above that the prior act evidence was not mere propensity evidence, but was instead relevant to the issue of intent. Accordingly, this is not a circumstance in which there is no rational way the trier [of facts] could make the connection permitted by the inference (County Court ofUlster County v. Allen (1979) 442 U.S. 140, 157), and there was no risk that the permissive inference instruction caused the presumptively rational factfinder to make an erroneous factual determination. (Ibid.) Sandoval has not established any due process violation here.

III. Ineffective Assistance of Counsel

Sandoval testified that one of his prior convictions was set aside because of a dirty police officer who, Sandoval claimed, was setting people up. The prosecutor later brought in court records demonstrating that the relevant conviction was affirmed in full on appeal and that although a dismissal was later granted under section 1203.4, the court subsequently issued another order indicating that the dismissal was not as to Sandoval but as to his brother. There was no evidence that the police officers in Sandovals earlier case were involved in any kind of misconduct.

Sandoval claims that his trial counsels failure to thoroughly investigate his prior convictions to ensure that his testimony was accurate constituted ineffective assistance of counsel within the meaning of Strickland v. Washington (1984) 466 U.S. 668. To establish ineffective assistance of counsel, Sandoval must demonstrate that (1) counsels representation was deficient in falling below an objective standard of reasonableness under prevailing professional norms, and (2) counsels deficient representation subjected the petitioner to prejudice, i.e., there is a reasonable probability that, but for counsels failings, the result would have been more favorable to the petitioner. (In re Neely (1993) 6 Cal.4th 901, 908.)

As a general rule, ineffective assistance of counsel claims are more suited to petitions for habeas corpus than direct appeals. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267 [a claim of ineffective assistance of counsel relating to why counsel acted or failed to act in the manner challenged . . . is more appropriately decided in a habeas corpus proceeding].) This case is no exception. Here, the record before us does not demonstrate objectively unreasonable or deficient conduct on the part of Sandovals counsel with respect to inquiring into the prior conviction during Sandovals testimony. The probation report stated that Sandovals prior conviction was set aside/dismissed under section 1203.4, which tended to confirm Sandovals account of events. Nothing in this record demonstrates to us that counsel had a duty to perform additional investigation into the prior criminal proceedings under these circumstances. If additional facts exist that should have prompted counsel to further investigate the prior proceedings, proof of such matters requires a showing beyond the scope of the record on appeal and may be presented in a petition for habeas corpus. (People v. Jones (2003) 29 Cal.4th 1229, 1263 [issues requiring review of matters outside the record are better raised on habeas corpus rather than on direct appeal].)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

ZELON, J.

We concur:

WOODS, J., Acting P.J.

WILEY, J.*

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[1] Unless otherwise indicated, all further statutory references are to the Penal Code.

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.