P. v. Wooderson

Filed 8/8/08 P. v. Wooderson CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

David Lynn Wooderson appeals his conviction by jury trial of transportation of a controlled substance (Health & Saf. Code,  11379, subd. (a)) (count 1) and possession for sale of a controlled substance (Health & Saf. Code,  11378) (count 2). The court found true allegations that appellant suffered four prior convictions (Health & Saf. Code,  11370.2, subd. (c)) and served three prior prison terms (Pen. Code,  667.5, subd. (b)).^[1] Appellant contends the trial court erred in denying his motion to suppress evidence (Pen. Code,  1538.5), admitting evidence of his prior uncharged misconduct and instructing on intent. We reject the contentions and affirm.

BACKGROUND

At approximately 11:30 p.m. on July 16, 2006, Vacaville Police Officer Gobron was on patrol when he pulled over a Ford Thunderbird because it had an expired registration tab. When Gobron approached the Ford, appellant was seated in the front passenger seat next to the driver, William Brown. Gobron decided to have the Ford towed after determining that Browns license was suspended. For officer safety, Gobron ordered appellant and Brown out of the Ford and, pursuant to police department standard policy, decided to conduct an inventory search of it. Vacaville Police Officers Uldall and Swanson responded to assist Gobron, and Uldall conducted an inventory search of the Ford.

On the Fords front passenger floorboard, Uldall found a digital scale, packaging material, several small coin plastic bags, a measuring bowl, a plastic spoon, a paper funnel, two glass methamphetamine pipes, a straw used for ingesting methamphetamine, and a police scanner. Directly underneath the front passenger seat was a red wallet containing a plastic bag with suspected methamphetamine. On the rear passenger floorboard directly behind where appellant was seated, Uldall found a black leather bag containing four more bags of suspected methamphetamine. A cell phone was recovered from the dashboard. Based on his training and experience, Uldall opined that the 3.2 grams of methamphetamine found in the Ford was possessed for sale.

Thereafter, appellant was arrested and searched. Inside appellants front left pocket, Uldall found a pay/owe sheet and $385 in cash. Appellants wallet and $590 in cash was recovered from his rear pocket.

Prior Uncharged Conduct

In February 1997, Vacaville Police Lieutenant Ashford went to a house in Vacaville looking for appellant. Inside the house, Ashford initially contacted Mr. Underwood, who said, Dave, the police are here. Ashford entered a back bedroom after hearing a noise, and confronted appellant, who was standing behind a desk. Ashford saw appellant throw two items onto the desk and noticed the odor of methamphetamine in the bedroom. Based on his training and experience, Ashford determined the items were baggies containing what appeared to be methamphetamine. A search of appellants jacket pocket incident to his arrest turned up several glass methamphetamine smoking pipes and a container with methamphetamine. Appellant told Vacaville Police Officer Gottlieb, who had responded to the scene, that the methamphetamine on the desk and found on his person was his, and that he both used and sold methamphetamine.

DISCUSSION

I. The Motion to Suppress Was Properly Denied

Appellant contends the trial court erred in denying his motion to suppress evidence. When we review a trial courts ruling on a motion to suppress evidence under [Penal Code] section 1538.5, we apply the substantial evidence test to the factual determination made by the court. We do not substitute our judgment for the credibility determinations of the trial court. Once the facts are established, however, we review such facts de novo to determine whether such facts justify the actions of the law enforcement officer. [Citations.] (People v. Oldham(2000) 81 Cal.App.4th 1, 9.)

At the hearing on the suppression motion, Gobron testified he initiated a traffic stop of the Ford after noticing it had an expired registration tab and seeing no Department of Motor Vehicles (DMV) temporary permit in the Fords rear window. Gobron also noticed the Ford had very dark tinted windows. Gobron then approached Brown, the driver of the Ford, and asked for his drivers license, registration and insurance. Brown gave Gobron the DMV paperwork for the vehicle and said the number in the rear window was given him by the DMV, who said the car could be driven. Gobron determined the permit in the window to be valid. However, Brown had not provided his drivers license and Gobron decided to check for the license before releasing him. When Gobron again asked Brown for his drivers license, Brown gave Gobron a California identification card (ID card). Gobron did a computer check of the ID card and discovered that Browns drivers license was suspended.

Gobron directed Brown to exit the Ford and asked whether he knew his license was suspended. Brown answered affirmatively. Gobron then asked the Fords passenger, appellant, whom Gobron had not met before, to exit the Ford. A minute or two later, Uldall searched the Ford and found suspected methamphetamine and drug paraphernalia, all on the passenger side of the vehicle. The suspected methamphetamine was later tested and determined to be 3.2 grams of methamphetamine, a usable quantity. A pat search of appellant for officer safety turned up a pay/owe sheet and $385 in cash in his left front pants pocket, and $590 in his wallet. The cash was in small denominations. In denying the motion to suppress, the court made the following findings: Gobron stopped the Ford for an apparent expired registration tab. Because of the tinted windows, Gobron could not see the permit on the rear window. After twice asking Brown for his drivers license, Brown gave Gobron an ID card from which Gobron ascertained that Browns drivers license was suspended. Gobron then intended to arrest Brown for driving with a suspended license and to inventory the Ford. Gobrons pat search of appellant for weapons revealed a pay/owe sheet and cash in small denominations. There was a one to two minute lapse between appellant and Brown being ordered out of the Ford and the vehicle search.

The court concluded the Ford was lawfully stopped, Gobron had probable cause to arrest Brown for driving with a suspended license and therefore it was appropriate to do an inventory search of the Ford. The court also concluded the traffic stop was not an unlawful detention of appellant, appellants being ordered out of the Ford was appropriate police conduct, and the pat search for officer safety while the vehicle search was conducted was also appropriate. The court also concluded that the ultimate search of appellant was conducted after contraband was found in the Ford and, therefore, was justified either as a search incident to arrest or under the inevitable discovery doctrine.

Subsequent to filing of the information, appellant renewed his suppression motion. After reviewing the prior suppression motion evidence, the court denied the motion, finding the officers conduct appropriate and that inevitable discovery prevail[ed].

The crux of appellants argument is that, following the initial stop to determine whether the Ford had current registration, no additional facts concerning either the driver, the passenger (appellant), or the vehicle justified appellants continued detention. For that reason the detention was unduly prolonged after the officer became satisfied that the registration was current.

The Fourth Amendment to the United States Constitution and article I, section 13 of the California Constitution proscribe seizures of persons, even brief investigative detentions, that are unreasonable. [Citation.] (People v. Britton (2001) 91 Cal.App.4th 1112, 1118.) In order to warrant an investigative detention, a police officer must be able to   point to specific and articulable facts which, taken together with rational inferences from those facts, would warrant the intrusion. [Citations.] (Ibid.) Moreover, [t]here is no rigid time limitation imposed on a detention. The court must determine the purpose of the stop as well as the time reasonably needed to effectuate the purpose. [Citation.] The question is whether the police diligently pursued a means of investigation likely to confirm or dispel their suspicions quickly while the suspect was detained. (People v. Dasilva (1989) 207 Cal.App.3d 43, 50.)

We conclude appellants detention was not unduly prolonged. Once the Ford was lawfully stopped for the suspected registration tab violation, the police were entitled to demand the drivers license and registration. (People v. Saunders (2006) 38 Cal.4th 1129, 1135; In re Arturo D. (2002) 27 Cal.4th 60, 67; Veh. Code,  4462, subd. (a), 12951, subd. (b).)^[2] When Brown produced an ID card in response to Gobrons request for his drivers license, Gobron could have reasonably suspected that Brown did not have a valid drivers license, justifying the computer check of his license status.

II. Evidence of Appellants Prior Uncharged Act Was Properly Admitted

Appellant contends the court erred in admitting evidence of his 1997 uncharged misconduct, resulting in a violation of his right to due process. According to appellant, the only relevance of the 1997 uncharged incident is to show his propensity or character to possess methamphetamine for sale.

Prior to trial, the parties filed cross-motions regarding the admissibility of this evidence.^[3] Appellant argued that the evidence was offered only to establish his bad character in violation of Evidence Code section 1101, subdivision (b), and any relevance of the evidence was outweighed by its undue prejudice under Evidence Code section 352. The People argued that the prior uncharged act evidence was relevant to establishing appellants knowledge that the substance seized in the instant case was methamphetamine and his intent to sell the methamphetamine. The People also argued the probative value of the evidence was not outweighed by its prejudicial effect. Appellant opposed the Peoples motion, arguing there was an insufficient foundation for the conclusion that he had a similar intent in the prior incident and the evidence was too remote to be probative.

The following evidence was adduced at an Evidence Code section 402 hearing on the prior act evidence: Consistent with his trial testimony, Ashford testified that on February 14, 1997, he went to a house looking for appellant. Ashford entered a rear bedroom where he confronted appellant. Appellant had his hands clasped, then made a throwing motion and baggies containing approximately 25 grams of methamphetamine landed on a nearby desk. Ashford also noted an odor consistent with that of methamphetamine. A search of appellant turned up a coin purse containing some glass smoking pipes and a baggie with about seven grams of methamphetamine. Ashford opined that appellant possessed the methamphetamine for sale based on the number of packages and the amount of methamphetamine found. Following appellants arrest, Gottlieb took a statement from him at the police station. Appellant told Gottlieb that all of the seized methamphetamine belonged to him, and he both used and sold methamphetamine.

The trial court ruled the evidence of the 1997 incident admissible. It rejected the Evidence Code section 352 objection, finding that presentation of the evidence would not be unduly time consuming. It also found the evidence relevant to the fact that [appellant] has a prior [modus operandi]. He has done this before. There was not a lack of misunderstanding. [] All the other elements would establish a pattern of conduct in terms of sales, intent[,] knowledge, et cetera. Subsequently, the jury was instructed pursuant to CALCRIM No. 375, that it could consider the evidence regarding the 1997 incident for the limited purpose of deciding whether appellant acted with the specific intent and knowledge required to prove the charged offenses.

Instances of a defendants prior conduct are inadmissible to prove a defendants conduct on a specific occasion except where they are relevant to some fact in issue other than the defendants disposition, such as motive, opportunity, intent, plan, or knowledge, and their probative value is not substantially outweighed by any undue prejudice caused. (Evid. Code,  352, 1101, subd. (b); People v. Gunder (2007) 151 Cal.App.4th 412, 416; People v. Miller (2000) 81 Cal.App.4th 1427, 1447.)   [A]dmissibility [of other crimes evidence] depends upon three principal 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. [Citation.] [Citation.] (Miller, at p. 1447.) We review a trial courts ruling under Evidence Code section 1101 for abuse of discretion. (People v. Rogers(2006) 39 Cal.4th 826, 862.)

Appellant recognizes two species of knowledge were elements of the offenses: knowledge of the contrabands presence, and knowledge of the contrabands nature or character as a controlled substance. Appellant contends the charged and uncharged incidents are so dissimilar that the prior incident has no tendency in reason to prove such knowledge. We disagree. To prove appellant guilty of the charged crimes, the prosecution had to establish his guilty knowledge of the contraband nature of the seized methamphetamine and its presence in the car, as well as his intent to possess it for sale. The evidence that appellant had previously possessed methamphetamine and methamphetamine paraphernalia and admitted possessing methamphetamine for sale was therefore relevant to prove appellant had knowledge of the contraband nature of the substance and an intent to possess it for sale on the date charged. (See People v. Goodall (1982) 131 Cal.App.3d 129, 142 [prior presence where PCP possessed relevant to defendants knowledge of contraband nature of PCP on date charged].)^[4] In addition, the court could reasonably conclude that Evidence Code section 352 did not require exclusion.

In any event, we also conclude that any error in admitting evidence of appellants 1997 prior uncharged misconduct is harmless. (People v. Watson (1956) 46 Cal.2d 818, 836.) The pay/owe sheet recovered from appellants pocket, the quantity of methamphetamine seized, and the large amount of cash in two different pants pockets was compelling evidence of drug dealing. Moreover, all of the methamphetamine and paraphernalia found in the Ford was located on appellants side of the vehicle, on the floorboards in front of and behind him.

III. There Was No Instructional Error

Finally, appellant contends the courts CALCRIM No. 375 instruction was erroneous because it failed to advise the jury that the 1997 prior misconduct evidence could be considered as to whether he acted with general intent regarding the transportation of a controlled substance charge and with specific intent regarding the possession of a controlled substance charge. The CALCRIM No. 375 instruction given stated in relevant part: If you decide that the defendant committed the uncharged acts, you may, but are not required to, consider that evidence for the limited purpose of deciding whether or not: [] The defendant acted with the specific intent required to prove the offenses alleged in this case. The instruction is not incorrect as a matter of law; its use of the word specific, rather than the phrase type of may, however, render the instruction ambiguous.^[5]

As an initial matter, appellants failure to preserve an objection to the adequacy of the instruction below forfeits the challenge on appeal. (People v. Hudson (2006) 38 Cal.4th 1002, 1011-1012 [[g]enerally, a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete [without requesting] appropriate clarifying or amplifying language].) In any case, appellants claim is without merit. In reviewing challenges to a jury instruction as being incorrect or incomplete, we evaluate the instructions given as a whole, not in isolation. The test for ambiguous instructions is whether there is a reasonable likelihood that the jury misunderstood and misapplied the instruction. (People v. Rundle (2008) 43 Cal.4th 76, 149.)

Based on our review of the totality of the instructions no error is demonstrated. The jury was instructed pursuant to CALCRIM No. 225 (circumstantial evidence: intent or mental state) that the instruction for each crime charged explains the intent and/or mental state required. It was instructed pursuant to CALCRIM No. 250 that the offense of transportation of a controlled substance requires a general criminal intent, and pursuant to CALCRIM No. 251 that the offense of possession of a controlled substance requires a specific intent or mental state. The jury is presumed to have followed these instructions and understood the different intent/mental state required for each of the charges.

DISPOSITION

The judgment is affirmed.

SIMONS, Acting P.J.

We concur.

NEEDHAM, J.

REARDON, J.^*

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^[1] Appellant was sentenced to 18 years in state prison.

^[2] Vehicle Code sections 4462 and 12951 require that the person in the immediate control of an automobile present evidence of registration and a drivers license upon proper command of a peace officer.

^[3] The People also unsuccessfully sought to introduce evidence of three other drug-related prior convictions.

^[4] For the first time in his reply brief, appellant argues that the evidence of the 1997 incident was cumulative because the amount of methamphetamine found inside the Ford and the pay/owe sheets found on him were sufficient to conclusively establish the requisite intent.  Points raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument. [Citation.] (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764.)   Hence the rule is that points raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before.  [Citation.] (Ibid.) Here, no good reason has been shown.

^[5] Appellant argues the trial court should have instructed the jury that the evidence [of the prior misconduct] could be used to demonstrate in [count 1] that the defendant acted with general criminal intent, or in [count 2] that he acted with specific intent to possess with the intent to sell. We confess to no little mystification as to how such an instruction would have benefitted appellant.

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