People v. Lewis CA2/8

Filed 6/12/23 P. v. Lewis CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B321109
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA152990)
v.
ANDREW TERREL LEWIS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County. Michelle M. Ahnn, Judge. Affirmed.
Olivia Meme, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews and Ryan M. Smith,
Deputy Attorneys General, for Plaintiff and Respondent.
**********
A jury convicted defendant and appellant Andrew Terrel
Lewis of one count of possession for sale of a controlled substance.
Defendant contends the court prejudicially erred by excluding
third party culpability evidence and that the verdict is not
supported by substantial evidence.
We affirm.
FACTUAL AND PROCEDURAL SUMMARY
Defendant was charged with one count of possession for
sale of methamphetamine (Health & Saf. Code, § 11378). It was
also alleged defendant had suffered a prior strike conviction in
2010 (a violation of Pen. Code, § 207 arising from a domestic
violence incident).
At the start of trial, defendant made a request to present
third party culpability evidence. We summarize the relevant
facts in part 1.a. of the Discussion, post.
The testimony at trial established the following facts
regarding the charged offense. Around midnight on
September 16, 2020, Officer Carlos Tovar of the Los Angeles
Police Department (LAPD) was on patrol with his partner,
Officer Alex Casillas. They were driving in the vicinity of 88th
Street and Menlo in Los Angeles, an area known for narcotics
activity.
Officer Tovar saw a Mazda parked illegally in a red zone on
the north side of 88th Street. There was a light on in the interior
of the car. Officer Casillas stopped near the Mazda and Officer
Tovar, who was wearing a body camera, got out and approached
the driver’s side of the car. He asked defendant, who was seated
in the driver’s seat of the Mazda, for his identification.
Defendant was cooperative. He gave his license to Officer Tovar
and told him the car was a rental car so he did not have
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registration. There was a male passenger in the front seat and a
female in the back seat.
Officer Casillas attempted to get identification from the
male passenger who was wearing a Michael Jordan jersey and
was being uncooperative. He was unable or unwilling to produce
any form of identification. He eventually provided a name to the
officers. It was later determined the male passenger was Louis
Henry Watson and he had provided a false name at the scene.
Defendant and both of his passengers were told to get out of
the car. Defendant complied and consented to a patdown search.
He did not have any weapons.
Officer Tovar told defendant to stand off to the side near a
wall and then went to the passenger side of the car to assist
Officer Casillas. Once they were able to get the male passenger
to step out of the car, it was discovered he was wearing a taser on
his hip. He was told to stand near defendant next to the wall, as
was the female passenger.
Officer Tovar then searched the car, starting with the front
passenger seat area. On the floorboard, he found a glass pipe
with white residue “resembling methamphetamine” and a lunch
pail containing a lighter and numerous small clear plastic
baggies, all of which were empty. A cell phone was found in the
passenger door panel. The back seat contained nothing of
interest.
The trunk was “cluttered” and contained clothes, shoes,
miscellaneous papers, a number of plastic shopping bags and a
red backpack with a Michael Jordan logo. Officer Tovar found a
scale inside the backpack.
From the driver’s seat area, Officer Tovar collected three
empty plastic baggies. He had seen them on the seat when
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defendant initially got out of the car. Officer Tovar also found a
slightly larger plastic bag “[w]edged in between the center
console” and the driver’s seat. The bag contained a “crystal-like
substance” which was later analyzed and determined to be
8.97 grams of methamphetamine.
The two passengers were not cited and were allowed to
leave with their cell phones. Before leaving, the male passenger
asked to retrieve his belongings, and he was allowed to take
multiple plastic shopping bags that had been in the trunk.
Defendant was taken to the station and booked. An
inventory search of his personal items included his wallet which
contained money in the amount of $2,734.31, including
45 twenty-dollar bills.
Redacted portions of the footage from Officer Tovar’s body
camera were played for the jury.
Officer Richard Larson testified to his training and years of
experience as a member of the LAPD’s narcotics enforcement
detail, including working on numerous multi-agency task forces
investigating drug trafficking and various drug-related crimes.
In response to a hypothetical question posed to him based on the
facts of the case, Officer Larson said the baggies, the scale, and
the quantity of methamphetamine found in the car indicated the
drugs were possessed for purposes of sale. The fact that a large
amount of money, including numerous $20 bills, was recovered
with those items further supported an intent to sell. Officer
Larson said that in the area where the detention occurred,
methamphetamine was normally packaged in 1 gram quantities
and sold for approximately $20, referred to in street vernacular
as a “dub.” In his opinion, it would be unusual for someone to be
in possession of 9 grams of methamphetamine solely for personal
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use, as even a “hard core” meth user would ordinarily consume
around 1 gram or 1.5 grams per day. A hard-core user would
have the recognizable characteristics of someone who regularly
abused methamphetamine, including sunken eyes, missing teeth
and open sores.
Defendant did not testify and did not present any
witnesses.
During deliberations, the jury made several requests. They
asked to rewatch the body camera footage and asked for a
clarification of the phrase “intent to sell.” The footage was
replayed for the jury and they were told to refer back to the jury
instructions on the issue of intent. After further deliberations,
the jury asked how they should proceed since they were divided,
with six votes for guilt on count 1 and six votes for the lesser
offense of simple possession. When asked by the court if there
was anything it could do to assist them in further deliberations,
the jury asked for additional argument on “intent to sell” and
how the backpack and scale were connected to defendant. The
parties provided additional argument limited to those two issues.
The jury continued their deliberations and then returned a
verdict finding defendant guilty as charged. The court sentenced
defendant to a 16-month low term to be served in county jail.
Defendant was credited with 17 days of presentence custody
credits (nine actual, eight conduct) and fines and fees were
waived.
This appeal followed.
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DISCUSSION
1. Third Party Culpability Evidence
Defendant contends the court committed reversible
evidentiary error by excluding his third party culpability
evidence. We disagree.
a. Background
On the third day of trial, defense counsel informed the
court in the morning that her investigator had e-mailed her a
report about an interview he had conducted two days earlier of a
woman named Barbara Carter. Counsel provided copies of the
report to the court and prosecutor and advised the court she
wished to present Ms. Carter as a witness. She said Ms. Carter
would provide testimony regarding an incident with Louis Henry
Watson, the same person who had been in the front passenger
seat of the car on the day defendant was arrested and had been
allowed to leave. Ms. Carter told the investigator she had been
with Mr. Watson in his car sometime before the incident
involving defendant. Mr. Watson had been driving and was
pulled over by a police officer. Before the officer walked up to the
car, Mr. Watson unexpectedly tossed a handgun into Ms. Carter’s
lap. She was scared and did not know what to do, so she hid the
gun in her sweatpants. The gun was not discovered, and
Ms. Carter was not arrested.
The court asked the date when the incident allegedly
occurred and whether it involved any of the same officers
involved in the arrest of defendant. Defense counsel said she had
no further details about the incident and would have to ask her
investigator.
Defense counsel argued Ms. Carter’s testimony was
admissible third party culpability evidence because it showed
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Mr. Watson was willing to cast blame on others for his
contraband when confronted by police. Defense counsel said that
during the incident here, Mr. Watson gave a false name to the
police and was generally uncooperative. A glass pipe, plastic
baggies, a cell phone and a flashlight were found on the floor
where Mr. Watson was seated, and it was reasonable to infer the
methamphetamine found in the car was his. He claimed
ownership of multiple plastic shopping bags from the trunk
where the backpack with the scale was located, but the police
allowed him to leave the scene with those bags and his cell phone
and without anyone attempting to verify his identity.
The court asked counsel whether she anticipated any
testimony connecting Mr. Watson specifically to the drugs found
in the car, such as evidence he made movements toward the
driver’s seat to hide the drugs as Officer Tovar approached.
Defense counsel said she had been unable to locate Mr. Watson to
subpoena him for trial and did not anticipate calling the female
passenger who had been in the back seat.
The court excluded the proffered evidence, reasoning that
the incident described by Ms. Carter had low relevance to the
facts of the case against defendant because it involved a handgun
and not narcotics, and because it would cause an undue
consumption of time, requiring a minitrial on the other incident.
b. Applicable law
In People v. Dworak (2021) 11 Cal.5th 881, 895 (Dworak),
the Supreme Court said, “[w]e have rejected any special rule
governing evidence of third party culpability, explaining that
‘courts should simply treat third-party culpability evidence like
any other evidence: if relevant it is admissible ([Evid. Code,]
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§ 350) unless its probative value is substantially outweighed by
the risk of undue delay, prejudice, or confusion ([id.,] § 352).’ ”
Evidence tending to show a third party committed the
crime is relevant. (People v. Brady (2010) 50 Cal.4th 547, 558
(Brady).) The evidence must be capable of raising a reasonable
doubt as to the defendant’s guilt, but need not amount to
“ ‘ “substantial proof of a probability” ’ ” the third party actually
committed the crime. (Dworak, supra, 11 Cal.5th at p. 895.)
Evidence of mere motive or opportunity is not sufficient to raise a
reasonable doubt. (Ibid.) “ ‘[T]here must be direct or
circumstantial evidence linking the third person to the actual
perpetration of the crime.’ ” (Ibid.; accord, People v. Bracamontes
(2022) 12 Cal.5th 977, 1001 [“ ‘We have repeatedly upheld the
exclusion of third party culpability evidence when the third
party’s link to a crime is tenuous or speculative.’ ”].)
Third party culpability evidence “that is relevant still may
be excluded if it creates a substantial danger of prejudicing,
confusing, or misleading the jury, or would consume an undue
amount of time.” (Brady, supra, 50 Cal.4th at p. 558; see also
Evid. Code, § 352.)
We review the trial court’s ruling excluding the evidence
under the deferential abuse of discretion standard. (Dworak,
supra, 11 Cal.5th at p. 895; accord, Brady, supra, 50 Cal.4th at
p. 558.)
c. Analysis
In Dworak, supra, 11 Cal.5th at page 895, the Supreme
Court upheld the exclusion of third party culpability evidence by
the trial court which had, like the court here, found the probative
value of the proffered evidence of two different third parties to be
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substantially outweighed by the risk of undue delay, prejudice or
confusion.
The female murder victim in Dworak was found on a
deserted stretch of beach. (Dworak, supra, 11 Cal.5th at p. 887.)
She had last been seen alive at a party at the home of Robyn
Jones, the mother of a friend of hers. (Id. at p. 894.) The
defendant sought to introduce evidence regarding two individuals
associated with that home, Jay Campbell and Danny Carroll.
(Ibid.) The evidence included a pair of Campbell’s jeans found in
a bucket of sandy water at the home. Campbell said his jeans
had gotten sandy during a date at the beach with his girlfriend,
and he had changed clothes at Jones’s home afterward. (Ibid.)
As to Carroll, a local drug dealer, the defendant sought to
introduce testimony from Jones that Carroll had written a letter
“musing” about what might have happened to the victim, as well
as testimony from Jones’s son that Carroll had stolen his
mother’s car on the night the victim went missing, and when it
was recovered, the car was full of sand. (Ibid.)
Dworak concluded the trial court had not abused its
discretion in excluding the evidence related to both Campbell and
Carroll, explaining “there was no evidence placing Carroll in
proximity to [the victim] at the time of her death, and any link
between the jeans found in Jones’s garage and [the victim’s]
death rested on speculation. Although the jeans could be seen as
circumstantial evidence that Campbell was involved in [the
victim’s] death, such an inference requires speculation that the
sand and water on the jeans were from the beach on which [the
victim’s] body was found, combined with additional speculation
that this was the result of Campbell’s presence at [the victim’s]
murder and not, as Campbell stated, a separate visit to the beach
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that same weekend. The trial court reasonably concluded that
the probative value of this evidence related to Carroll and
Campbell, which produced only speculative inferences, was
substantially outweighed by the risk that it would cause undue
delay, prejudice, or confusion.” (Dworak, supra, 11 Cal.5th at
p. 895.)
Similarly here, the evidence that Mr. Watson, the male
passenger in the car with defendant at the time of the charged
incident, may have, at some unspecified previous time, tossed a
handgun into the lap of Ms. Carter when he was pulled over in an
unrelated traffic stop was not sufficiently probative to warrant
consuming trial time and confusing the jury. Defendant has not
established the trial court abused its discretion in excluding the
testimony of Ms. Carter.
d. Substantial evidence
Defendant contends his conviction is not supported by
substantial evidence. He says there is insufficient evidence as to
both possession and intent to sell. We review the record under
the familiar standard. (See People v. Lee (2011) 51 Cal.4th 620,
632.) We find there is ample evidence to support the verdict.
“ ‘Unlawful possession of a controlled substance for sale
requires proof the defendant possessed the contraband with the
intent of selling it and with knowledge of both its presence and
illegal character.’ ” (People v. Harris (2000) 83 Cal.App.4th 371,
374 (Harris).) As the jury here was correctly instructed, the
elements of the offense of possession with the intent to sell may
be proved by circumstantial evidence and the reasonable
inferences drawn therefrom. (CALCRIM Nos. 224, 225.)
Moreover, possession of the controlled substance may be
constructive or joint with another person. (People v. Williams
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(1971) 5 Cal.3d 211, 215 [constructive possession includes areas
accessible to and under “the joint dominion and control of the
accused and another”]; see also CALCRIM No. 2302 [“Two or
more people may possess something at the same time.”].)
The evidence here established that defendant was in an
area known for narcotics activity, late at night, in a car he was
driving, with almost 9 grams of methamphetamine in a bag
wedged between his seat and the center console, numerous
plastic baggies, a scale and over $2,700 in cash in his wallet,
including 45 twenty-dollar bills. On such evidence, the jury could
reasonably conclude defendant possessed the meth for sale,
notwithstanding the fact there were two other individuals in the
car with him at the time.
This evidence was bolstered by the expert testimony of
Officer Larson, an experienced narcotics officer. He testified that
in his opinion, based on the evidence found in the car, that
defendant possessed the meth for purposes of sale. The jury was
justified in relying on that opinion in finding defendant guilty.
(Harris, supra, 83 Cal.App.4th at pp. 374-375 [“ ‘experienced
officers may give their opinion that the narcotics are held for
purposes of sale based upon such matters as the quantity,
packaging and normal use of an individual’ ”].)
DISPOSITION
The judgment of conviction is affirmed.
GRIMES, J.
WE CONCUR:
STRATTON, P. J. WILEY, J.
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