P. v. Pope

Filed 3/5/07 P. v. Pope 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Riverside County. Carl E. Davis, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art VI,  6 of the Cal. Const.) Affirmed.

Maureen J. Shanahan, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Peter Quon, Jr., Supervising Deputy Attorney General, and Pat Zaharopoulos, Deputy Attorney General, for Plaintiff and Respondent.

A jury convicted defendant and appellant Shirley Marie Pope of one count of possession of cocaine base for sale. (Health & Saf. Code,  11351.5, count 1.) The trial court found true the enhancement allegations that defendant had two prior narcotics convictions within the meaning of Health and Safety Code section 11370.2, and that she had served four prior prison terms within the meaning of Penal Code section 667.5, subdivision (b). The court sentenced defendant to four years on the substantive offense, two consecutive three-year terms on the prior narcotics convictions, and four consecutive one-year terms on the prison priors, for a total term of 14 years in state prison.

On appeal, defendant contends that: 1) the trial court abused its discretion under Evidence Code section 352^[1]by admitting evidence of a prior drug conviction; 2) the court erred in failing to strike a police officers opinion testimony that went to an ultimate fact that the jury was supposed to decide; and 3) the court abused its discretion in declining to strike one of the prior narcotics enhancements. We affirm.

FACTUAL BACKGROUND

On May 10, 2005, the police executed a search warrant at 1864 Enterprise Avenue, Apartment D, in Riverside (the apartment). The police had been conducting a drug buy program at that apartment complex, which was an area known for rock cocaine dealings. Approximately 50 controlled buys had taken place at that location. The police announced the search and then raised the garage door of the apartment. Defendant was standing inside the garage to the apartment (the garage) alone. The police detained her and searched the garage. Officer Ron Knoffloch observed a bed and a nightstand against the wall, a bakers rack with a microwave, spices, and food on it, and a refrigerator containing food. Officer Knoffloch also noticed that the nightstand drawer was open. Inside the drawer was a clear plastic bag that contained several individual bags of rock cocaine. There were no other indicia of sales items found, such as a cell phone, pager, money, or pay/owe sheets. Officer Knoffloch further observed womens clothing all over the garage ‑‑ enough to fill four or five garbage bags. He also saw a dresser with womens clothes in it, a hamper with dirty clothes in it, and a small sofa. He saw a note taped to the refrigerator giving instructions in case the author of the note had a seizure, and the note was signed with defendants initials, last name, and apparent birth date. During the course of the search on May 10, 2005, defendant suffered seizures, and an ambulance was summoned. Officer Knoffloch opined that someone was actually living in the garage.

Officer Scott Impola, who also participated in the search, testified at trial that he had been to the garage about one or two months prior to May 10, 2005, and saw defendant there. He had talked to her about where she lived, and she told him that she was staying in the garage because there were too many people coming and going from the apartment. Defendant set up a room in the garage since the apartment was not private enough.

At trial, Detective Ronald Kipp, a rock cocaine expert, testified that the rock cocaine found in the garage was in 12 individual packages. Each package contained about two-tenths of a gram of rock cocaine, which was a typical amount sold in individual packages. Based on his training and experience, he opined that the amount found was possessed for sale. Detective Kipp stated that this opinion would not change, even if the drugs were not found along with cash or pay/owe sheets, since cocaine dealers keep their money and drugs separate and rarely keep pay/owe sheets.

ANALYSIS

I. The Trial Court Did Not Abuse Its Discretion in Admitting the Evidence of Defendants Prior Drug Conviction

Defendant contends that the court abused its discretion under section 352 in admitting evidence of a prior possession of cocaine for sale conviction, since the evidence was more prejudicial than probative. We find no abuse of discretion.

A. Standard of Review

Evidence of other crimes committed by a defendant is admissible under section 1101 when relevant to prove some fact, such as motive, opportunity, intent, or knowledge, other than the defendants propensity or disposition to commit such acts. ( 1101, subd. (b).) Under section 352, the probative value of the proffered evidence must not be substantially outweighed by the probability that its admission would create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. [Citation.] (People v. Cole (2004) 33 Cal.4th 1158, 1195.) On appeal, we review the trial courts ruling for abuse of discretion. (Ibid.)

B. Background

Before trial, the prosecution sought to introduce evidence under section 1101, subdivision (b), that defendant sold rock cocaine in 1997, in order to show that she possessed the rock cocaine to sell. The court tentatively ruled that the prior conviction evidence could be used in rebuttal or for impeachment, depending on the defense. The court instructed the prosecution not to make any reference to the evidence without approaching the bench and obtaining a ruling.

When cross-examining Detective James Simons, who had participated in the search of the garage, defense counsel asked whether the transactions that occurred during the buy program involved defendant. Detective Simons responded that defendant was present during some of the transactions, but the police did not purchase rock cocaine from her. The prosecution requested a bench conference and stated that it wanted to present evidence to counter the false impression that had been left with the jury that defendant had not been known to sell drugs during the buy programs in Riverside. The prosecution wanted to have the evidence admitted to prove defendants knowledge of the narcotic nature of the drug. The court felt that it would be even-handed to permit evidence of the fact that defendant did sell drugs in the same general area where the current buy program occurred. The court took judicial notice of the court records that showed that defendant was convicted of unlawful possession of cocaine base for sale on November 26, 1997, and advised the jury that it thus had to consider the prior conviction as fact. The court later instructed the jury as follows: Evidence has been introduced for the purpose of showing that the defendant committed a crime other than that for which shes on trial. Except as you should otherwise be instructed, this evidence, if believed, may not be considered by you to prove that the person that the defendant is a person of bad character or that she has a disposition to commit crimes. It may be considered by you only for the limited purpose of determining if it tends to show the existence of the intent, which is a necessary element of the crime charged, or the defendant had the knowledge of the nature of things found in her possession. In closing arguments, defense counsel emphasized to the jury that it was prohibited from considering the prior conviction as evidence that defendant sold drugs now, since she sold them before.

C. The Court Did Not Abuse Its Discretion

The court properly exercised its discretion in admitting evidence of defendants prior conviction for possession of cocaine base for sale. The evidence showed that defendant was previously convicted of the same offense for which she was charged in the current case. Since defense counsel had elicited testimony from Detective Simons that the police did not purchase rock cocaine from defendant in the current drug buy program, the evidence of defendants prior conviction was relevant to counter the false impression that she had never sold cocaine and might not know of its narcotic nature. The evidence showed that defendant knew of the narcotic nature of the cocaine that she possessed in the current case.

Defendant argues that because the court took judicial notice of the prior conviction and advised the jury to consider it as fact, the prior conviction evidence probably led the jury to convict her because of her past conviction for the same offense. However, the jury was expressly instructed not to do just that. When the proper admonition is given to the jury by the court, as here, it must be presumed that the jury heeded the admonition. [Citations.] (People v. Robles (1962) 207 Cal.App.2d 891, 897.)

Furthermore, the instructions given clearly advised the jury of their duty to find the facts based solely on the evidence. We presume the jury followed those instructions and found that defendant committed the crime charged based on the evidence in the current case.

Defendant further argues that the prior conviction was so remote that it was less likely [she] would have the same intent over 7 years later. However, the remoteness of a conviction affects the weight of the evidence rather than its admissibility. (People v. Ing (1967) 65 Cal.2d 603, 612, questioned on other grounds by People v. Tassell (1984) 36 Cal.3d 77, 89, fn. 8.)

We conclude that the court did not abuse its discretion in admitting the prior conviction for its proper limited purpose.

II. Defendant Was Not Prejudiced by the Courts Failure to Strike Detective Simonss Opinion Testimony

Defendant contends that her conviction must be reversed because the trial court failed to strike Detective Simonss testimony regarding his opinion about the owner of the cocaine found in the garage. We conclude that the courts failure to strike the testimony did not prejudice defendant.

A. Background

During the direct examination of Detective Simons, the prosecutor asked him why he did not attempt to lift fingerprints from the bag of cocaine found in the nightstand. Detective Simons responded, For me there was no question as to who the narcotics belong[ed] to. Defense counsel objected to Detective Simonss opinion testimony as irrelevant, and the court sustained the objection. The prosecutor then asked Detective Simons about the basis of his determination that it was not necessary for the bag to be fingerprinted. Detective Simons responded, The cocaine was found in the garage that was occupied by [defendant]. Defense counsel objected again, asserting that the response pertained to an ultimate question and was improper. Initially, the court overruled the objection as untimely, but then called a bench conference and excused the jury. The court determined that Detective Simonss opinion as to who the cocaine belonged to invaded the province of the jury and was improper opinion testimony that should be stricken. The court indicated that it would strike the testimony when the jury returned. The court apparently forgot to strike the testimony, and the defense never reminded the court to do so.

B. The Courts Failure to Strike the Testimony Was Harmless Error

Detective Simonss opinion testimony regarding who the drugs belonged to was not prejudicial to defendant. There was ample other evidence from which the jury could conclude that the drugs belonged to defendant. The cocaine base was found in a nightstand in the garage, and defendant had previously told the police that she lived in the garage. When the police arrived to search the garage, defendant was inside the garage. The garage contained a bed, a nightstand, a microwave, a refrigerator, food, a sofa, a dresser with womens clothing in it, and a hamper with dirty clothes in it ‑‑ all signs that defendant was living there. Moreover, there was a note taped to the refrigerator giving instructions in case defendant had a seizure. In addition, the evidence showed that defendant had previously been convicted of possessing cocaine base for sale, and thus knew the narcotic nature of the drugs. In view of this evidence, it is not reasonably probable that a more favorable result for defendant would have been reached had the court stricken Detective Simonss testimony. (People v. Watson (1956) 46 Cal.2d 818, 836.)

III. The Trial Court Did Not Abuse Its Discretion in Refusing to Strike a Prior Conviction Enhancement

Defendant contends that the court abused its discretion in denying her request to strike at least one of the three-year enhancements. We disagree.

A. Standard of Review

A trial court has the discretion to strike an enhancement pursuant to Penal Code section 1385. (Pen. Code,  1385; People v. Meloney (2003) 30 Cal.4th 1145, 1155.) A ruling on a motion to strike for abuse of discretion is reviewed for abuse of discretion and will be affirmed unless the trial courts decision was irrational or arbitrary. (People v. Myers (1999) 69 Cal.App.4th 305, 309-310.)

B. There Was No Abuse of Discretion

Defense counsel requested the trial court to strike at least one of defendants enhancements and sentence her to six years in prison so that she would be eligible to participate in a California Rehabilitation Center drug program. The trial court declined to strike defendants enhancement because it felt that no matter what her sentence ‑‑ whether it placed her on probation or imposed the maximum punishment ‑‑ her conduct would still be the same. The court noted that defendants conduct was too well established and that any possibility of rehabilitation was out of the question at that point. The record supports the courts decision. The record shows that defendant had a long history of drug-related convictions, including convictions for possession of controlled substances, possession of drug paraphernalia, and possession of controlled substances for sale. Her first conviction occurred in 1988, followed by convictions in 1989, 1992, 1994, 1995, 1997, and 2000. She has been placed on probation, served multiple state prison terms, and violated her parole numerous times. As noted by the probation officer, probation, prison, and parole have failed to deter the defendants downward spiral. Defendant was offered a drug diversion program in 1989, but she failed to complete it.

In view of defendants extensive history of drug offenses, along with her current conviction for possession of cocaine base for sale, we cannot say that the trial courts decision not to strike a Health and Safety Code section 11370.2 enhancement was arbitrary or capricious.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST

J.

We concur:

RAMIREZ

P.J.

RICHLI

J.

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^[1] All further statutory references are to the Evidence Code unless otherwise indicated.