P. v. Wenthe
Filed 5/8/13 P. v. Wenthe 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
ERICK JEROME WENTHE,
Defendant
and Appellant.
E055536
(Super.Ct.No.
RIF10006327)
OPINION
APPEAL
from the Superior Court
of
County. Richard J.
Hanscom, Judge. (Retired judge of the
San Diego Super. Ct. assigned by
the Chief Justice pursuant to art. VI, § 6 of the Cal.
Const.) Affirmed with directions.
Donald
H. Glaser, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
Barry Carlton and Garrett Beaumont, Deputy Attorneys General, for Plaintiff and
Respondent.
Defendant
Erick Jerome Wenthe appeals his conviction for possession of methamphetamine
for the purpose of sales (Health & Saf. Code, § 11378), arguing that the
trial court abused its discretion by admitting evidence of his prior conviction
for the same offense. He also points out
that the sentencing minute orders must be corrected to show that a six-month
enhancement imposed for one of his misdemeanor counts was to run concurrently,
not consecutively. We will affirm the
conviction and order the record corrected.
and procedural history
On November 28, 2010, Riverside County
Sheriff’s Deputy Sean Denham encountered defendant in a parked car in the
Woodcrest area of the county. In a
lawful search, Denham found a total of four baggies of methamphetamine, three
hypodermic syringes with attached needles, a scale, a glass pipe for smoking
methamphetamine, a separate plastic baggie containing cotton swabs covered with
crystals of methamphetamine, and additional crystals of methamphetamine
scattered on the floor of the vehicle.
Three of the baggies each contained more than four grams (known as
“eight ballsâ€) of methamphetamine.
Defendant told Denham that all the methamphetamine was his.
On
June 23, 2011, in an
information filed in Riverside County Superior Court, defendant was charged
with one felony and two misdemeanors: possession of methamphetamine for sale
(Health & Saf. Code, § 11378, count 1); using and being under the influence
of a controlled substance (Health & Saf. Code, § 11550, subd. (a), count
2); and possessing paraphernalia for
injecting and smoking a controlled substance (Health & Saf. Code, §
11364, count 3). In relation to count 1,
the information alleged that defendant also had a prior conviction, on September 27, 1996, for violating
Health and Safety Code, section 11378.
In
a pre-trial conference on November
17, 2011, the trial court and counsel discussed the prosecutor’s
request to admit evidence of defendant’s 1996 conviction.
under Evidence Code § 1101, subdivision (b), to demonstrate defendant’s
“knowledge and intent†to sell, not merely use, methamphetamine in the current
instance. Defense counsel opposed the
request, arguing that the old conviction was too remote in time and that “the
risk of undue prejudice greatly exceeds the probative value.†In explaining its decision to admit the
prior, the court pointed out that, because the amounts defendant possessed at
the time of his current arrest could be either for personal use or for sales,
the prosecutor would need to prove illegal intent [to sell] to obtain a
conviction. This case was not like one
where someone is found in possession of two pounds of an illegal substance and
the intent to sell is obvious.
Regarding the
question of prejudice, the court reasoned that, although a potential for
prejudice existed, it did not outweigh the probative value of the
evidence. As to remoteness, the court
noted that defendant’s life in the 15 years since the prior had not been crime
free: he had had a firearm possession conviction in 2000 and had served a
prison term for controlled substance possession in 2007.
At trial, Denham
testified to the facts surrounding defendant’s arrest. Riverside Police Department narcotics detective
Matthew Lackey, who did not know defendant, testified about factors that
distinguish drug salesmen from mere users.
“Users don’t spread their methamphetamine over numerous bags. They don’t transport numerous bags with
them.†In this case, defendant had three
separate bags of “eight balls,†which can sell for anywhere from $160 to
$250. He had additional methamphetamine
in a separate bag, which appeared to be from a different source, for a total of
about 20 grams. This is “an absurd
amount for a user.â€
Detective Lackey
also testified about the different levels of dealers. Street level dealers sell small amounts of
the drug, usually under one ounce or 28.4 grams; mid-level dealers sell
quantities over one ounce and up to quarter pounds and more; large level
dealers traffic in multi-pound or kilo volumes.
A dealer who sells 20 grams can be a street or mid-level dealer. Frequently, a person who is addicted to
methamphetamine also sells it. He buys
the drug in large quantities and divides it into smaller ones to sell, usually
doubling his investment and using the profits to support his own habit. The amount of methamphetamine defendant had
in the different baggies when he was arrested totaled over 100 doses of the
drug and could have been worth as much as $1200. Users do not carry that many doses on their
persons.
Richard Prince,
the Riverside City Police Department investigator who had investigated
defendant’s 1996 crime testified as to the details of that offense. When defendant was arrested on that occasion,
he had various containers of methamphetamine, a baggie containing marijuana, a
pager, “pay-owe†sheets, and a plastic scale in his possession. Investigator Prince had not seen defendant
since 1996.
On recall,
Detective Lackey opined that the amount of methamphetamine defendant possessed
at the time of his current arrest, like the amount he possessed in 1996, along
with the other items found in his possession, indicated that on both occasions
he possessed the drug for the purpose of selling it. The crimes were similar and showed that
“defendant is not new. He’s not a
rookie.â€
Defendant also
testified. He admitted that he had been
using methamphetamine for 22 years and was addicted to it. He insisted he was only a user, not a seller,
but admitted that he had been convicted of possession for sales in 1996: “I was
dealing in ‘96.†On the day of his
current arrest, he bought enough to last him about a month or a month and a
half, in order to avoid the dangers associated with purchasing, like being
robbed or shot. The scale he had was to
check to make sure he was getting what he paid for and “didn’t get ripped
off.†He did not work but made his
living by gambling in casinos.
Verdict
The
jury found defendant guilty of counts 1 and 3.
allegations of defendant’s priors true.
Defendant was sentenced to a total of six years pursuant to Penal Code
section 1170, subdivision (h): three years in county jail and three years on
supervised release with probation terms and conditions.
Defendant
argues that the trial court erred by admitting the evidence of his prior
conviction, and that the error was prejudicial.
The People reply that there was no error and that, even if there was, it
did not prejudice defendant. We agree
with the People.
He also claims
that the record must be corrected to reflect that his sentence on count 3 was
imposed to run concurrently to his sentence on count 1. On this point, defendant is correct.
The Prior Conviction
We review a trial
court’s decision to admit or exclude evidence under section 352 for abuse of
discretion. (People v. Brady (2010) 50 Cal.4th. 547, 558.) “ . . . [A] trial court’s
determination ‘will not be overturned on appeal in the absence
of . . . a showing that
the . . . decision was palpably arbitrary, capricious, or
patently absurd, and resulted in injury sufficiently grave as to amount to a
v. Lamb (2006) 136 Cal.App.4th 575, 582, quoting In re Ryan N. (2001) 92 Cal.App.4th 1359, 1385.)
Evidence Code
section 352 provides for the exclusion of evidence if its probative value is
substantially outweighed by the probability that its admission will create
“substantial danger of undue prejudice, of confusing the issues, or of
misleading the jury.†(
208, 230; Accord, People v. Tran
(2011) 51 Cal.4th 1040, 1047 (Tran).) However, nothing in the statute “prohibits
the admission of evidence that a person committed a crime, civil wrong, or
other act when relevant to prove some fact (such
as . . . intent . . . ) other than his
or her disposition to commit such an act.â€
(Evid. Code, § 1101, subd. (b).) “In cases . . . where
evidence is admitted under Evidence Code section 1101, subdivision (b), the
evidence is probative because of its tendency to establish an
ultimate fact of guilt of a charged crime may be inferred. [Citations.]â€
(Tran, supra, 51 Cal.4th at p. 1048.)
In
our state Supreme Court identified factors that “might serve to increase or
decrease the probative value or the prejudicial effect of evidence of uncharged
misconduct and thus are relevant to the weighing process required by Evidence
Code section 352.†(Tran, supra,
when the evidence emanates from an independent source and when the uncharged
acts [i.e. the prior conduct] resulted in a conviction. Prejudicial effect is increased when there
was no conviction for the prior acts and the jury might thus be confused and
tempted to punish the defendant for those acts rather than for the current
offense. “The potential for prejudice is
decreased, however, when testimony describing the defendant’s uncharged acts is
no stronger or more inflammatory than the testimony concerning the charged
offense.†(Ibid.)
Here, the
probative value of the evidence of defendant’s prior conviction to the issue of
his intent in the present offense emanated from an independent source,
narcotics investigator Lackey. And
despite defendant’s argument to the contrary, the testimony describing his 1996
offense was no more inflammatory than the testimony concerning his current
offense. In both cases, defendant
possessed amounts of methamphetamine and sales equipment [scales, packaging]
that tended to show he intended to sell the drug, not just use it himself. The trial court, aware that the prosecutor
was required to prove criminal intent, did not abuse its discretion in deciding
to admit evidence of defendant’s prior conviction. As defendant acknowledges in citing to
this purpose is legitimate.
Assuming for the
sake of argument that the trial court should have excluded the evidence of
defendant’s prior conviction for selling drugs, any error in its admission was
harmless. “The controlling consideration . . . is
whether the error has resulted in a ‘miscarriage of justice.’†(People
v. Watson (1956) 46 Cal.2d 818, 835-836.)
A miscarriage of justice occurs only when it appears that the defendant
would have obtained a more favorable result absent the error. (Id.,
at p. 836.)
Here, evidence of
defendant’s guilt was so overwhelming that there is virtually no chance that
the jury would have reached a different verdict had it not known about his
prior conviction. Detective Lackey
testified at length about the differences between sellers and users. Defendant fit well into the former
category. “Users don’t spread their
methamphetamine over numerous bags. They
don’t transport numerous bags with them.â€
Defendant did both. He was
carrying a scale; users also don’t carry scales. Together, the packages of “eight balls†he
was carrying equaled about 100 doses of methamphetamine. Users don’t carry that many doses around for
their own use. An addict sells to
support his or her own habit, buying in large quantities, breaking it down into
smaller amounts, and re-selling it for about twice the original
investment. The amount defendant had in
his possession would sell for about $1200.
Defendant admitted to long-term addiction; he said he had no job and
supported himself and his habit by gambling at local casinos. This story was so lacking in credibility as
to call his veracity into question in the mind of reasonable jurors.
In sum: the trial
court did not err by admitting evidence of defendant’s prior conviction and no
result of its decision.
Correction of the Record
At
sentencing, regarding count 3, the court imposed six months, to run
concurrently with his sentence on count 1.
The minute order incorrectly provided that the sentence on count 3 was
to run consecutively to the sentence on count 1, and the “nunc pro tuncâ€
corrected minute order did not remedy the mistake. We will order the minute order corrected.
The
superior court clerk is directed to correct the sentencing minute orders of
January 20 and 25, 2012, and the abstract of judgment to indicate that
defendant’s six-month sentence on count 3 is to be served concurrently with his
sentence on count 1. The corrected order
is to be forwarded to the Riverside County Sheriff.
In
all other respects, the judgment is affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We concur:
KING
Acting
P. J.
MILLER
J.
name="_ftn1" title=""> [1]
the detective who had investigated defendant’s 1996 case.
name="_ftn2" title=""> [2]
of the People’s case.
