P. v. Cross CA4/1

Filed 4/5/13 P. v. Cross CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D061591
Plaintiff and Respondent,
v. (Super. Ct. No. SCD227465)
TERRENCE QUINTEN CROSS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Charles
Gill, Judge. Affirmed.
Terrence Cross appeals from a judgment convicting him of selling and possessing
cocaine base. (Health & Saf. Code, §§ 11352, subd. (a), 11351.5.) He contends the court
erred by admitting evidence of a prior similar drug sale. We reject this contention and
affirm.
FACTUAL AND PROCEDURAL SUMMARY
Defendant's arrest arose from a "buy-walk" operation, in which undercover
officers purchase drugs without immediately arresting the seller after the purchase. This
operation permits undercover officers to preserve their true identities for continued
undercover activities. Under the applicable procedures, an undercover officer will
purchase drugs from a drug seller, and then walk away. Shortly after, uniformed police
officers contact the suspected seller on a pretext and will obtain the seller's identity for
later arrest. During this contact, the officer merely conducts a weapons patdown and
does not engage in a full search.
In this case, the buy-walk undercover officer was San Diego Police Officer Joel
Tien. In June 2011, Officer Tien called Eric Robertson and arranged to buy some drugs.
When they met at 11th and C streets in the downtown San Diego area, Officer Tien asked
Robertson to help him purchase a $20 amount of rock cocaine. Robertson agreed, and
Officer Tien handed him a prerecorded $20 bill.
Officer Tien followed Robertson for a short while, and then saw Robertson
speaking with a person later identified as James Morgan. Morgan led Robertson to the
corner of 17th Street and Island Avenue, where defendant was standing.
Viewing the events from about 10 to 15 feet away, Officer Tien saw Morgan
communicating with defendant. Officer Tien then observed defendant turn away, lift his
shirt, lean over, and put his right hand towards the front of his pants. Officer Tien then
saw defendant and Morgan (who were standing right next to each other) make motions as
if they were exchanging something. Officer Tien saw Morgan turn around and place a
white rock-like substance (later identified as rock cocaine) on a soup lid that Robertson
was holding. Robertson then walked towards Officer Tien, and the officer took the
cocaine from Robertson. Officer Tien also saw Robertson take out the $20 bill from
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Robertson's pocket, hand the currency to Morgan, who then handed the money to
defendant. Officer Tien saw defendant physically take hold of the money.
As Officer Tien walked away from the group, Officer Tien gave Robertson a
prerecorded $5 bill in response to Robertson's request for compensation for his assistance
with the drug purchase.
Shortly after, Officer Tien radioed fellow police officers, described Morgan and
defendant, and asked the officers to contact these two men for later arrest. Defendant
was wearing a distinctive green shirt. Police Officer Dan Stanley responded, and
contacted defendant for questioning on another subject matter and confirmed his identity.
The officer conducted a patdown search of defendant only on areas where defendant
could be hiding a weapon. The officer did not find any prerecorded money during this
limited search. Officer Stanley then released defendant. Viewing the contact from a
distance, Officer Tien confirmed that Officer Stanley had detained the correct individual
who had sold the drugs. Another officer searched Morgan, and did not find any
prerecorded money.
Defendant was later arrested for selling the cocaine.
At trial, Officer Tien testified about the details of the transaction (as summarized
above) and said he was 100 percent certain and there was "no doubt" in his mind that
defendant was the person who gave the drugs to Morgan and that defendant received the
$20 bill for the drugs. Officer Tien also testified as an expert witness explaining that
drug dealers in this downtown area (known as the East Village) are aware of undercover
police officer tactics, including the use of prerecorded money, and that sellers often use
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third party intermediaries (known as "facilitators") to avoid being arrested. Officer Tien
also described the reasons and purposes for the buy-walk operation.
Over defense objections, San Diego Police Officer Jessie Zaldivar testified (as
detailed below) that while working undercover he purchased a similar amount of drugs
from defendant at the same location about five years earlier.
Defendant did not testify or call any witnesses, but his counsel challenged the
prosecution's case on many grounds, including claiming that Officer Tien was biased and
emphasizing there was no physical evidence to show defendant's involvement in the
crime.
After deliberations, the jury found defendant guilty of possessing and selling the
cocaine. The court imposed a seven-year sentence, which included the lower term for the
cocaine sale, doubled because of a prior strike, plus a consecutive one-year term for a
prior prison term finding.
DISCUSSION
Defendant contends the court erred in permitting the prosecution to present the
facts of his prior drug sale.
I. Background Facts
Before trial, the prosecutor requested the court's permission to introduce evidence
of defendant's 2007 conviction for selling $20 worth of rock cocaine to an undercover
officer on the same street corner where the current alleged drug sale took place. After
extensive arguments and a motion for reconsideration, the court ruled the prosecution
could present evidence of the prior sale and arrest to show defendant's knowledge of
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undercover operations and to establish a common plan or scheme to sell drugs. However,
to avoid any undue prejudice, the court refused to permit the prosecution to present
evidence that defendant was convicted of the prior drug sale or that police officers found
prerecorded money in defendant's sock after he was arrested for the prior offense.
Thereafter, the prosecutor called Officer Zaldivar, the undercover police officer in
the prior drug sale. Before the testimony, the court instructed the jury on the limited
purposes of the prior acts evidence (defendant's prior knowledge of police officer
undercover tactics and defendant's use of a common scheme or plan). The court also
admonished the jury that: "If you conclude that the defendant committed the uncharged
offense, that conclusion is only one factor to consider with all the other evidence. It is
not sufficient by itself to prove that the defendant is guilty of selling cocaine base or
possessing cocaine base for the purpose of sale. The People must still prove each charge
and allegation beyond a reasonable doubt."
Officer Zaldivar then testified that on November 8, 2006, while working
undercover, he encountered defendant on 17th Street and Island Avenue. Officer
Zaldivar made a hand signal indicating he wanted to buy $20 worth of cocaine base, and
asked defendant if he had any drugs to sell. Defendant responded by asking, " 'Are you a
police officer?' " and after satisfying himself with Officer Zaldivar's answer, he walked
south with Officer Zaldivar and reached into his pocket and asked Officer Zaldivar for
money. Officer Zaldivar gave him four prerecorded $5 bills. In exchange, defendant
took a rock cocaine substance out of his pocket and placed it in the officer's hand.
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At the conclusion of the evidence in the current trial, the court repeated its earlier
instruction regarding the relevance of Zaldivar's testimony. During closing arguments,
both the prosecutor and defense attorney also cautioned the jury as to the limited purpose
of Zaldivar's testimony. The prosecutor argued that the jury could consider the evidence
to infer that defendant's common plan was to sell the cocaine because of the similarities
between the prior sale and the current sale ("same quantity, $20, same controlled
substance, crack cocaine, same exact street corner, 17th and Island . . .") and to show
defendant's knowledge of the undercover tactics used by law enforcement officers to
explain why no money was found on his person, i.e., that he quickly hid the money or
transferred it shortly after the sale. But the prosecutor devoted most of his argument in
discussing Officer Tien's eyewitness testimony, and emphasized that the prior drug sale
evidence was only a "very small" part of the prosecution's case.
Defense counsel likewise told the jury it could not consider the prior-sale evidence
to infer that "because [defendant] did it before, that he's guilty again," and reiterated that
the jury was permitted to consider the evidence only "for the limited purpose of deciding
whether or not [defendant] knew about the undercover tactics . . . when he allegedly acted
in the case or whether [defendant] had a common plan or scheme to commit the offenses
alleged."
II. Applicable Law
Generally, evidence of the defendant's other crimes or misconduct is inadmissible
when it is offered to show the defendant had the criminal propensity to commit the
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charged crime. (Evid. Code,1 § 1101, subd. (a).) However, prior acts evidence may be
admitted when relevant to prove some other fact, such as knowledge or common plan.
(§ 1101, subd. (b); see People v. Ewoldt (1994) 7 Cal. 4th 380, 393-403 (Ewoldt.) If the
evidence is admissible on a proper basis, the court should conduct a section 352
balancing analysis to ensure there is no undue prejudice. (People v. Lindberg (2008) 45
Cal. 4th 1, 22-23.) " 'Because this type of evidence can be so damaging, "[i]f the
connection between the uncharged offense and the ultimate fact in dispute is not clear,
the evidence should be excluded.". . .' " (People v. Fuiava (2012) 53 Cal. 4th 622, 667.)
We review the trial court's rulings on the admission of evidence under sections 1101 and
352 for abuse of discretion. (Id. at pp. 667-668.)
III. Analysis
The trial court found the evidence of defendant's prior drug sale was admissible to
show the existence of a common plan or scheme and to show defendant's knowledge of
undercover operations. The court's conclusions were proper and did not constitute an
abuse of discretion. The court also did not err in refusing to exclude the evidence under
section 352.
A. Common Plan
With respect to common plan, the evidence of a very similar prior drug sale at the
same location supported an inference that defendant was engaged in a plan or scheme to
sell drugs at this location, and therefore the current offense was part of that plan. (See
1 All further statutory references are to the Evidence Code.
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Ewoldt, supra, 7 Cal.4th at pp. 393-403.) " 'The presence of a design or plan to do or not
to do a given act has probative value to show that the act was in fact done or not done.' "
(Id. at p. 393.) In this case, defendant claimed the prosecution did not prove he
participated in the drug sale. The evidence of defendant's prior drug sale was relevant to
refute this defense and establish defendant's involvement in the drug transaction. The
evidence supported an inference that defendant was involved in a plan to sell drugs and
that the transaction with Morgan was part of this plan.
Defendant acknowledges that the California Supreme Court in Ewoldt held that
prior misconduct evidence may be admitted to show that the defendant committed the
current charged offenses "pursuant to the same design or plan defendant used to commit
the uncharged misconduct." (Ewoldt, supra, 7 Cal.4th at p. 393.) But he argues Ewoldt
was incorrectly decided and the admission of the evidence under this exception violates
his constitutional rights. However, defendant acknowledges that this court is bound by
Ewoldt, and states he is asserting this argument solely to preserve the argument for
review by the California Supreme Court and the federal courts. We agree that we are
bound by the California Supreme Court's decision (Auto Equity Sales, Inc v. Superior
Court (1962) 57 Cal. 2d 450, 455) and thus we do not further discuss this contention.
Defendant alternatively contends the court erred because the two drug sales were
not sufficiently similar. A substantial similarity between the prior and the charged
offense is required to prove the existence of a common scheme or plan. (Ewoldt, supra, 7
Cal.4th at pp. 393-403.) " '[A] common scheme or plan focuses on the manner in which
the prior misconduct and the current crimes were committed, i.e., whether the defendant
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committed similar distinctive acts of misconduct against similar victims under similar
circumstances.' " (People v. Walker (2006) 139 Cal. App. 4th 782, 803.) "To establish the
existence of a common design or plan, the common features must indicate the existence
of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need
not be distinctive or unusual." (Ewoldt, supra, 7 Cal.4th at p. 403.)
The court did not err in finding defendant's methodology to sell cocaine in both
instances was sufficiently similar to show he employed a plan in committing the charged
offense. In both instances, defendant was at the same exact location (17th Street and
Island Avenue), and thus it can be inferred he was using this corner as his home base to
engage in street drug sales. In addition, defendant was carrying the drugs on his person,
had a $20 amount of unwrapped rock cocaine, and was wary of undercover police
officers.
The fact that these elements are common to many street level drug sales does not
negate the admissibility of the evidence to show a common plan or scheme. Unlike
evidence of uncharged acts used to prove identity, the plan need not be unusual or
distinctive; it need only exist to support the logical inference that the defendant employed
that plan in committing the charged offense. (Ewoldt, supra, 7 Cal.4th at p. 402.) The
trial court found the evidence "clearly falls within the exception common plan or scheme
because it's the same behavior, same location, allegedly, from the prior conviction." The
court did not abuse its discretion in admitting the evidence on this basis.
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B. Defendant's Knowledge
Defendant also challenges the court's admission of the prior-sale evidence to show
his awareness of law enforcement undercover tactics. However, the evidence was
strongly probative to show defendant's knowledge of undercover operations in the East
Village area to explain why defendant sold the drugs through facilitators and why
defendant did not have the prerecorded buy money on him when he was searched. The
prior sale evidence helped the jury understand defendant's actions and was relevant to
establish that defendant committed the crime even if he did not have the prerecorded
money in his pocket shortly after the transaction and did not directly sell drugs to Officer
Tien.
Defendant does not challenge that the evidence was relevant to prove these facts.
Instead, he argues the evidence should not have been admitted on these grounds because
the evidence was cumulative, noting that Officer Tien provided expert testimony on these
same points. However, the court had a reasonable basis to conclude the evidence of
defendant's specific knowledge was much stronger than, and not merely cumulative of,
Officer Tien's testimony. Although Officer Tien explained the general characteristics of
a street drug sale, the prosecution was entitled to present evidence to show that
defendant's specific knowledge and actions were consistent with these general
characteristics. The prior sale evidence was highly probative to assist in the jury's
understanding of defendant's method of selling drugs through facilitators, and why the
money was not found on his person shortly after the sale.
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C. Section 352 and Prejudice
Defendant additionally contends that even if the evidence was relevant and
material on common plan and knowledge grounds, the court should have excluded the
evidence under section 352. Section 352 states: "The court in its discretion may exclude
evidence if its probative value is substantially outweighed by the probability that its
admission will (a) necessitate undue consumption of time or (b) create substantial danger
of undue prejudice, of confusing the issues, or of misleading the jury."
On our review of the entire record, we conclude the court did not abuse its
discretion in refusing to exclude the evidence under section 352. As explained above, the
prior drug sale evidence was strongly probative of a common design or plan and
defendant's knowledge of undercover operations to explain his actions. On the other
hand, the danger of unfair prejudice or jury confusion was limited. The prior drug sale
evidence was brief and straightforward, and was not particularly egregious or likely to
inflame the jury against defendant.
Defendant argues that the "inflammatory effect" of the evidence "was increased in
this case because there was no evidence that appellant's uncharged act resulted in
conviction or punishment." However, the trial court specifically excluded the evidence
of the conviction to reduce the likelihood that the jury would improperly use the evidence
to conclude that the defendant was a bad person or had a criminal disposition. Defendant
cannot now change his position and argue he was unduly prejudiced because the court
agreed to limit the scope of the evidence to be presented to the jury.
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Additionally, the trial court took appropriate steps to instruct the jury on the
limited uses of the evidence. Although the court did not specifically state the jury could
not use the evidence to show defendant had the propensity or criminal disposition to
commit the crime, the court expressly instructed the jury on the proper use of the
evidence and both counsel were careful to reiterate the limited purpose of the evidence in
their closing arguments. There is no reasonable probability the jurors improperly relied
on defendant's prior drug sale to conclude he was a person of bad character or had a
predisposition to commit the current crime.
Likewise, there is no likelihood the verdict would have been different without the
prior misconduct evidence. The evidence of defendant's guilt was overwhelming. The
officer who testified at trial was standing about 10 to 15 feet away when he saw
defendant hand Morgan the drugs and saw defendant take the money from Morgan. The
officer was 100 percent certain that defendant was the person who committed this crime.
Shortly after, a police officer stopped defendant and obtained his identity. Although the
prerecorded money was not found on defendant's person, only a cursory search was
performed (because of the nature of the buy-walk operation) and the evidence supported
that defendant was aware of the fact that undercover officers use prerecorded money and
of the need to hide or quickly transfer the money after a street drug sale.
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DISPOSITION
Judgment affirmed.
HALLER, J.
WE CONCUR:
MCCONNELL, P. J.
IRION, J.
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