P. v. Urciel

Filed 12/24/09 P. v. Urciel CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Ingrid Adamson Uhler, Judge. Affirmed with directions.

Harry Zimmerman, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Jeffrey J. Koch and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted defendant William Urciel of unlawful transportation of methamphetamine (Health & Saf. Code, 11379, subd. (a)), and made true findings on enhancement allegations that he had previously been convicted of a drug-related crime (Health & Saf. Code, 11370.2, subd. (c)), that he had previously served a prison term for a felony conviction (Pen. Code, 667.5, subd. (b)), and that he had previously been convicted of a serious or violent felony under the Strikes law. (Pen. Code, 667, subds. (b)-(i), 1170.12, subds. (a)-(d).) He appeals, claiming the trial court abused its discretion (1) when it allowed the prosecution to introduce an uncharged prior crime as a similar act (Evid. Code, 1101, subd. (b)), and (2) when it denied defendants motion to strike the prior serious or violent felony conviction, pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. We affirm.

BACKGROUND

Fontana Police Department Officers Tolerico and Tusant worked undercover in the Narcotics Unit in August 2007. On August 21, 2007, Officer Tolerico received information about drug dealing activity at a certain apartment complex, so he and Officer Tusant went to that location. Officer Tolerico had previously had dealings with defendant, who was also known as Weelo, earlier in the year when defendant offered to help the officers with a big drug deal by setting up a sale of a large quantity of methamphetamine in order to work off his own drug case. However, the arrangement was unsuccessful because defendant kept putting off setting up the deal.

When officers Tolerico and Tusant arrived at the apartment complex, they contacted a woman near the managers office and asked if Weelo was there. The woman said he was not there, but that she could contact him by telephone. Officer Tolerico told the woman his name was Anthony, and the woman placed the call. At some point the woman handed the phone to Officer Tolerico, who recognized the voice of the person on the telephone as belonging to defendant. Defendant asked Tolerico how much he wanted, and Tolerico told defendant he wanted an eight-ball, or one-eighth ounce of methamphetamine. Defendant told Tolerico to meet him at a pizza place near a particular intersection.

When he hung up, Officer Tolerico asked the woman what kind of vehicle the defendant drove, and was informed that defendant drove a blue Explorer. Tolerico and Tusant left the apartment complex and drove to the location where the meeting was to take place, arriving before the defendant. The officers decided to drive around the neighborhood to see if they could find defendants vehicle parked nearby, and they located it a short distance away parked in front of a residence nearby. The officers then returned to the designated meeting place.

At some point, defendant pulled up in a light blue Explorer that resembled the one the officers saw in front of the nearby residence. He was alone in the vehicle, and when he exited the Explorer, Officer Tolerico also exited his vehicle and contacted defendant. Defendant was surprised to see Tolerico, who asked defendant where the drugs were. Defendant said he did not have the drugs; that he would have to go pick them up from another individual. Tolerico patted defendant down and found nothing on his person.

The officers then searched the vehicle after Officer Tusant noticed a power converter with worn screws and a flat head screwdriver that was worn. Inside the power converter, Tolerico found a large ziplock baggie containing 10 smaller baggies of methamphetamine. A battery charger case for a cordless drill was also found in the vehicle. Inside it, officer Tolerico found $1,617 in various denominations. The officers then took defendant back to the address where the officers had seen defendants vehicle parked and searched his room after ascertaining that defendant did live there. Inside the room, the officers located an electronic gram scale and packaging materials.

Both officers were of the opinion that the drugs were possessed for the purpose of sales because of the amount of cash found in defendants vehicle (defendant said he was unemployed), because defendant offered to sell drugs in the telephone conversation, he was found in possession of an ounce of methamphetamine along with a scale and packaging materials.

Defendant was charged with offering to sell methamphetamine (Health & Saf. Code, 11379, subd. (a), count 1), and transporting methamphetamine. (Health & Saf. Code, 11379, subd. (a), count 2.) It was further alleged that defendant had been convicted previously of a drug-related offense (Health & Saf. Code, 11370.2, subd. (c)), that he had served a prison term for a prior felony conviction (Pen. Code, 667.5, subd. (b)), and that he had previously been convicted of a serious or violent felony, under the Strikes law.^[1] (Pen. Code, 667, subds. (b)-(i), 1170.12, subds. (a)-(d).)

Defendant was tried by a jury, which was unable to reach a verdict on count 1 (offering to sell drugs), but which returned a guilty verdict on count 2, the charge of transporting methamphetamine. The jury also returned true findings on the allegations that defendant had been previously convicted of a drug-related offense (Health & Saf. Code, 11370.2), and that defendant had served a prison term for a prior felony conviction. (Pen. Code, 667.5, subd. (b).) Count 1 was dismissed.

On December 19, 2008, defendant was sentenced to the middle term of three years on count 2, which was doubled (pursuant to the Strikes law) for a term of six years. The court imposed a three-year enhancement for the prior drug-related conviction, and an additional one-year enhancement for the prior prison term, for an aggregate sentence of 10 years in prison.^[2] Defendant appealed.

DISCUSSION

1.                  The Trial Court Did Not Abuse Its Discretion in Admitting the Evidence of Defendants Prior Uncharged Act.

Defendant contends that the trial court abused its discretion in admitting evidence of defendants 2000 conviction for possession of methamphetamine for the purpose of sales (Health & Saf. Code, 11378), to show defendants knowledge of the illegal nature of the controlled substance he was transporting, as well as his intent. We disagree.

Evidence Code section 1101, subdivision (a), generally prohibits the use of character evidence to prove defendants conduct on a specified occasion. However, Evidence Code section 1101, subdivision (b), provides for the admission of evidence of similar acts of misconduct (or uncharged crimes, as the case may be) when it is relevant to prove some fact, such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, other than the defendants disposition to commit such an act. To be admissible, in addition to meeting one of these criteria, the probative value of the evidence must not be substantially outweighed by its prejudicial effect. (People v. Lenart (2004) 32 Cal.4th 1107, 1123; People v. Tapia (1994) 25 Cal.App.4th 984, 1020-1022; People v. Simon (1986) 184 Cal.App.3d 125, 129; Evid. Code, 352).) We review the trial courts ruling for an abuse of discretion. (People v. Barnett (1998) 17 Cal.4th 1044, 1118.)

Whether evidence of a prior act is admissible depends on three factors: (1) the materiality of the fact sought to be proved or disproved; (2) the tendency of the uncharged crime to prove or disprove the material fact; and (3) the existence of any rule or policy requiring the exclusion of relevant evidence. (People v. Lindberg (2008) 45 Cal.4th 1, 22.) Evidence may be excluded under Evidence Code section 352 if its probative value is substantially outweighed by the probability that its admission would create substantial danger or undue prejudice, of confusing the issues, or of misleading the jury. (Ibid.)

Knowledge of the narcotic nature of the substance and intent to sell are elements of the charged drug crimes. (People v. Winston (1956) 46 Cal.2d 151, 158.) Thus, evidence that defendant previously had been convicted of possessing methamphetamine for sale was admissible under Evidence Code section 1101, subdivision (b) to prove those elements. (People v. Williams (2009) 170 Cal.App.4th 587, 607 [Fourth Dist., Div. Two]; see also, People v. Ellers (1980) 108 Cal.App.3d 943, 953.)

Regarding intent, where a person acts similarly in similar situations, uncharged misconduct is admissible to show that he or she probably harbored the same intent in each instance. (People v. Robbins (1988) 45 Cal.3d 867, 879.) Although the uncharged act must be sufficiently similar to the charge offense to raise an inference that the charged offense was committed with the same intent (People v. Carter (1993) 19 Cal.App.4th 1236, 1246), it need not reach the same quantum of similarity as when the uncharged conduct is used to prove identity. (People v. Gallego (1990) 52 Cal.3d 115, 172; see also, People v. Robbins, supra, 45 Cal.3d at p. 880.)

Since defendant denied he possessed drugs for the purpose of sale (the offense charged in count 1), it was necessary for the prosecution to prove the requisite mental states of knowledge and intent, in addition to the fact of possession of the methamphetamine. The fact that on April 1, 2000, defendant was in possession of 40 individually wrapped baggies of methamphetamine weighing over three ounces is sufficiently similar to the facts alleged in the current case, where 10 individually wrapped baggies of methamphetamine weighing approximately one ounce were found in defendants vehicle. The prior conviction of possession of methamphetamine for sale was relevant to prove that defendants possession of 10 baggies of methamphetamine on the date of the current offense was for the purpose of selling them.

In addition to meeting the threshold requirement of similarity, a trial court must weigh the probative value of the evidence against its potential for prejudice under Evidence Code section 352, a process that requires extremely careful analysis. (People v. Ewoldt (1994) 7 Cal.4th 380, 404, quoting People v. Smallwood (1986) 42 Cal.3d 415, 428.) The probative value of the uncharged offense evidence must substantially outweigh the probability of prejudicial effect in order for such evidence to be admissible. (Ewoldt,supra, at pp. 404-407.)

Here, there is no possibility that the admission of the uncharged acts created a risk of undue prejudice. First, the jury was unable to reach a verdict on the possession for sale count (for which it was proffered). Second, the evidence of the prior conviction would inevitably have been admitted to prove the enhancement allegation of the prior drug-related conviction, pursuant to Health and Safety Code section 11370.2, subdivision (c). Finally, the evidence that defendant transported methamphetamine (the crime of which he was convicted) was overwhelming.

The trial court did not abuse its discretion in admitting the evidence of defendants prior drug-related conviction as a prior similar act pursuant to Evidence Code section 1101, subdivision (b).

2. The Trial Court Did Not Abuse Its Discretion In Declining to Strike the Defendants Strike.

Defendant contends the trial court abused its discretion by denying his request that the court exercise its discretion to strike the Strike allegations (Pen. Code, 1385; People v. Superior Court (Romero), supra, 13 Cal.4th 497). We disagree.

Penal Code section 1385 permits a trial court to exercise its discretion and dismiss a prior strike conviction if the dismissal is in the furtherance of justice. (People v. Williams (1998) 17 Cal.4th 148, 158.) A courts refusal or failure to strike a prior conviction allegation is subject to review under the deferential abuse of discretion standard. (People v. Carmony (2004) 33 Cal.4th 367, 374.) A trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it. (Id. at p. 377.)

The Three Strikes law was intended to restrict courts discretion in sentencing repeat offenders. (People v. Superior Court (Romero), supra, 13 Cal.4th at p. 528.) In deciding whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, the sentencing court must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions and the particulars of his background, character, and prospects, the defendant may be deemed outside the schemes spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies. (People v. Williams, supra, 17 Cal.4th at p. 161.)

Reviewing defendants background, character, and prospects, we conclude the defendant may not be deemed outside the spirit of the Three Strikes scheme, and was properly sentenced. The court did consider the information favorable to the defendant, particularly the letters in support of defendant, and the fact defendant was 50 years of age. However, the court also had to consider the fact that defendant had only been out of state prison for three months when he engaged in the illegal drug selling activity leading to the instant conviction, that he failed to take responsibility for his conduct, and that he has repeatedly violated parole. Additionally, defendant has a history of gang membership and a continuous history of criminal law violations going back to the early 1980s. The fact that defendants Strike is remote in time is not a mitigating factor considering his continuous involvement in criminal activity in the intervening period.

We agree with the trial courts conclusions that defendant did not fall outside the scheme of the Three Strikes law, and that it would not be in the furtherance of justice to strike one or more of the defendants prior felony convictions. To the contrary, this defendant is an exemplar of the revolving door career criminal to whom the Three Strikes law is addressed (People v. Stone (1999) 75 Cal.App.4th 707, 717), and he is fortunate that the People charged him with only a single Strike, instead of two Strikes, which would have made him eligible for an indeterminate term of 25 years to life.^[3] There was no abuse of discretion.

DISPOSITION

The clerk is directed to amend the abstract of judgment to indicate that defendant was sentenced pursuant to the Strikes law, on line 4. Except as modified, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

s/Gaut

J.

We concur:

s/Richli

Acting P. J.

s/Miller

J.

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^[1] The information also alleged that the crimes were committed for the benefit of a criminal street gang (Pen. Code, 186.22, subd. (b)), but those enhancements were stricken by the court following defendants motion to dismiss pursuant to Penal Code section 995.

^[2] We note that the abstract of judgment fails to indicate that the sentence was imposed pursuant to the Strikes law (line 4).

^[3] The People only charged the 1983 prior conviction of assault with a firearm (Pen. Code, 245, subd. (a)(2)) as a Strike. However, in the 1983 Los Angeles prosecution which produced that conviction, defendant was also convicted of shooting at an occupied dwelling (Pen. Code, 246), which is also a Strike.