Filed 5/16/07 P. v. Hollomon CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

A jury convicted defendant Benjyman Anthony Hollomon of two counts of possessing cocaine base for sale. (Health & Saf. Code,  11351.5.) The court found that defendant had a prior conviction for the same offense and sentenced him to an aggregate prison term of eight years and four months. (Health & Saf. Code,  11370.2, subd. (a).) At trial before the jury, the court admitted evidence of that prior conviction for the limited purpose of determining whether defendant acted with the intent to sell cocaine in this case, or knew the substances nature or character as a controlled substance. (Evid. Code,  1101, subd. (b).) Defendant claims the trial court abused its discretion in allowing any admission of the prior conviction because the evidence was more prejudicial than probative. (Evid. Code,  352.) We reject the claim and affirm the judgment.

I. facts

On two nights, about five months apart, defendant was found in the back seat of a parked car with two different women. In each instance, multiple rocks of crack cocaine were located nearby.

The first instance occurred on June 14, 2005, around 9:00 p.m. The police responded to a report of a suspicious vehicle in a parking lot and found defendant and Karen Davis in the backseat. The police investigated and, as defendant was gathering his things from the car, a glass smoking pipe with scorch marks dropped to the ground and rolled away from him. The police knew that pipes are commonly used to smoke crack cocaine, and focused their attention on defendant. Defendant showed signs of crack cocaine use: dilated pupils, pupils unresponsive to light; elevated heart rate; dry lips; and rapid speech.

The police questioned Davis at the scene and she said that defendant picked up crack cocaine before they drove to the parking lot and told Davis that he needed the drugs to make money. Davis also told the police that defendant had been using cocaine in the car, and that the drugs were outside the car on the ground in a brown paper bag. The police located a paper bag about three to four feet from the rear of the car, on the side where defendant had been sitting. The paper bag contained a plastic sandwich bag with 13 individually wrapped rocks of cocaine, and 5 additional unwrapped rocks. Defendant was arrested and searched. The search found a razor blade with a white substance on the blade in his wallet. Defendant admitted smoking crack cocaine  earlier  in the evening, but denied ownership of the pipe and crack cocaine. Defendant said he did not know who owned the cocaine.

A similar incident occurred on November 6, 2005, around 11:20 p.m. A patrolling police officer saw a parked car with condensation on the rear window. As the officer passed the car, the officer saw defendant pop his head up from the rear seat. The officer drove around the block and returned in about a minute. The officer found defendant and a woman in the back seat, both naked from the waist down and with the womans blouse pulled up. When asked what they were doing, defendant said  [h]aving sex. 

Other officers responded to the scene, and one recognized defendant from the earlier incident with Davis. The police searched the car and found a glass smoking pipe with burn marks on one end and a white coating on the inside. The police searched around the car and found a rolled napkin or tissue on the sidewalk within three to four feet of the car, on the same side that defendant had been sitting. It was a wet night but the tissue was dry. The tissue contained a plastic bag with 25 individually wrapped rocks of cocaine.

When the cocaine was discovered, the woman in the car said  [t]hat belongs to Tony,  who is the defendant. The woman, Lynne Brand, was examined and arrested for being under the influence of a narcotic. While being booked, Brand spontaneously said, Tony told me that I will die if I tell the cops the rock is his. Tony said that he will not even have to be out of jail for it to happen. Brand later told the police that she and defendant smoked crack cocaine on defendants pipe, and defendant placed the drugs outside the car where they were found by the police.

After his arrest, defendant admitted threatening Brand if she told the police the drugs were his. Defendant said he made the threat because he knew Brand was scared and did not want her to start saying the rocks were his in order to help herself out. Defendant did not, however, pin drug ownership on Brand. Defendant told the police:  I know she did not have any rocks. 

Brand testified at trial in substantial accord with police accounts. Brand has a prior conviction for possessing heroin. She admitted being a crack addict and, at times, selling crack to finance her addiction. But Brand denied selling crack in November 2006, or possessing the drugs seized by the police when she and defendant were arrested.

Davis, who was detained with defendant in the first drug incident, also testified at trial consistent with police accounts. Davis admitted prior misdemeanor convictions for petty theft and child abuse. Davis also admitted drinking and using heroin on the day of her detention in June 2005. Davis has used crack cocaine in the past and said it was possible that she snorted cocaine on the night of her detention. But, like Brand, Davis denied owning the crack cocaine discovered by the police. Davis said the drugs belonged to defendant.

At trial, a police officer was designated as an expert witness in the field of possession of cocaine base for sale. The officer testified that the usual size of a rock of crack cocaine is between .1 and .2 grams, and costs $20 to buy. The officer noted that drug deals do not always involve money; drug dealers sometimes trade drugs for sex. Only drug dealers, according to the officer, keep large quantities of crack cocaine rocks because the drug is expensive and risky to have in large quantities. The officer never knew a person to keep more than four rocks for personal use. The officer opined, based on the large amount of crack cocaine seized in this case, that the cocaine was possessed to sell.

The crack cocaine seized in June 2005 consisted of 13 individually wrapped rocks, and 5 additional rocks that were large enough to be broken down into more rocks. The November 2005 incident netted 25 individually wrapped rocks of crack cocaine. Several of the individually wrapped rocks from both the June and November arrests were weighed without packaging, and each rock weighed about .2 grams. Twenty-five rocks of .2 grams have a combined street value of $500. Defendant was an unemployed painter at the time of his November 2005 arrest.

In addition to the above evidence admitted at trial, the jury was also informed, over defense objection, that defendant was convicted in 1993 of possessing cocaine base with the intent to sell. Admission of that evidence was accompanied by an instruction that the jurors may, but are not required to, consider the evidence for the limited purpose of deciding whether or not the defendant acted with the intent to sell cocaine base in this case, and/or the defendant knew of the substances nature or character as a controlled substance. The jury was cautioned not to consider this evidence for any other purpose except for the limited purpose as described in this instruction. [] Do not conclude from this evidence that the defendant has a bad character or that he is disposed to commit a crime. If you conclude that the defendant committed the uncharged crime, that conclusion is only one factor to consider, along with all the other evidence. [] It is not sufficient by itself to prove that the defendant is guilty of possession for sale of cocaine in the case before you. The People must still prove each element of every charge beyond a reasonable doubt.

Ii. discussion

On appeal, defendant claims that the trial court abused its discretion in admitting evidence of the prior drug conviction, and that his case was unfairly prejudiced because he would likely have been acquitted without that evidence. We conclude that the trial court acted well within the bounds of its discretion in admitting the challenged evidence because defendants prior drug dealing was relevant to show defendants knowledge about drugs and intent to sell them.

Evidence that a defendant has committed crimes other then those currently charged is not admissible to prove that the defendant is a person of bad character or has a criminal disposition. (People v. Kipp (1998) 18 Cal.4th 349, 369; Evid. Code,  1101, subd. (a).) But this rule does not prohibit admission of evidence of uncharged misconduct when such evidence is relevant to establish some fact other than the persons character or disposition. (People v. Ewoldt (1994) 7 Cal.4th 380, 393.) Evidence of prior crimes is admissible to prove, among other things, the intent with which the perpetrator acted in the commission of the charged crimes and the perpetrators state of knowledge relevant to the charged crimes. (People v. Kipp, supra, at p. 369; Evid. Code,  1101, subd. (b).)

Knowledge by the defendant of both the presence of the drug and its narcotic character is essential to establish unlawful transportation, sale, or possession of narcotics. (Rideout v. Superior Court (1967) 67 Cal.2d 471, 474.) Specific intent to sell is also an essential element of possessing cocaine base for sale. (In re Christopher B. (1990) 219 Cal.App.3d 455, 465-467.) Where a defendants intent to sell and knowledge of the narcotic contents of the drug are at issue, evidence of the defendants prior narcotic offenses is clearly admissible. (People v. Pijal (1973) 33 Cal.App.3d 682, 691.)

Defendant acknowledges these well settled legal principles but argues that the element of knowledge was not contested here, and that the intent to sell element was not seriously disputed. Defendant says his defense was founded on lack of possession, not ignorance of the narcotic character of the drugs nor lack of intent to sell. Defendant grudgingly admits that the intent to sell element was disputed at trial but maintains that prosecution evidence relevant to intent was inadmissible because the intent element was not the focus of the defense.

The focus of the defense is immaterial. Defendants not guilty plea put in issue all the elements of the charged offenses. (People v. Catlin (2001) 26 Cal.4th 81, 146.) Evidence of prior crimes that tend to prove an element of the currently charged offense is admissible, regardless of whether those elements are actively disputed by the defense at trial. (People v. Thornton (2000) 85 Cal.App.4th 44, 48-49; People v. Ellers (1980) 108 Cal.App.3d 943, 953.) Generally, evidence proving an element of the offense is admissible even where the defense offers to stipulate to the existence of the element. (People v. Thornton, supra, at p. 49.) The defense cannot stipulate away evidence by stipulating away issues. (Ibid.) Here, there was not even a stipulation. While intent to sell may not have been the focus of the defense, it was disputed by the defense. In defense counsels opening statement to the jurors, counsel said: I dont believe you are going to see all the usual things that we would typically see when drugs are possessed for the purposes of sale.

A trial courts ruling admitting evidence of prior crimes to prove an element of the charged offense must be affirmed absent an abuse of discretion. (People v. Gray (2005) 37 Cal.4th 168, 202.) There was no abuse of discretion here. The evidence of defendants prior conviction for selling crack cocaine was properly admitted to show defendants knowledge about crack cocaine and intent to sell it.

Iii. disposition

The judgment is affirmed.

_________________________

Sepulveda, J.

We concur:

_________________________

Reardon, Acting P.J.

_________________________

Rivera, J.

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