Filed 1/30/15 P. v. Berna CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F066764
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. 12CM2572)
                   v.

MICHAEL ALLEN BERNA,                                                                     OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Kings County. Donna L.
Tarter, Judge.
         Emily J. Haden, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Jeffrey
D. Firestone, Deputy Attorneys General for Plaintiff and Respondent.
                                                        -ooOoo-
         Michael Allen Berna was convicted of being a felon in possession of a firearm,
receiving a stolen firearm, carrying a loaded firearm in a vehicle in a public place, and

         *Before     Levy, Acting P.J., Cornell, J., and Smith, J.
driving without a license. He argues that the trial court erroneously admitted evidence
that, along with the gun, he was in possession of paraphernalia indicative of possible drug
selling. He also argues that the court erred by not giving, on its own motion, a jury
instruction on the limited admissibility of that evidence. We find no error and affirm.
                        FACTS AND PROCEDURAL HISTORY
       In the afternoon of July 19, 2012, Officer Alvaro Santos of the Lemoore Police
Department pulled over Berna’s Chevrolet Suburban. The Suburban had wide tires that
extended six inches beyond the fenders, violating Vehicle Code section 27600 (mud flaps
required if tires wider than body of vehicle). Berna presented an expired driver’s license.
Santos had Berna get out so he could have the Suburban towed, which was the usual
procedure in cases of unlicensed drivers.
       Santos then spoke to James Green, who was in the passenger seat. In response to
Santos’s questions, Green admitted he had “some weed” in his pocket, which turned out
to be “enough for about one use.” Green also had some plastic baggies, on which there
was a four-leaf clover logo. Santos handcuffed Green and put him in the patrol car.
Green ultimately was cited and released.
       Santos told Berna he was going to impound the Suburban and would need to
conduct an inventory search. Berna became argumentative. He clenched his fist and
yelled that Santos could not search the car. Santos told Berna to put his hands behind his
back, but Berna failed to do so and continued to yell that Santos could not search the car.
As two other officers grabbed Berna’s hands, Santos drew his Taser from its holster and
held it at his side. Berna was handcuffed.
       Santos searched the Suburban. He found about four changes of men’s clothes on
the back seat. Later, during booking, Berna told Santos he was homeless and had been
living in the Suburban. In the middle of the front seat, between the driver and passenger,
Santos found a black nylon bag. The bag was open and Santos saw the handle of a gun


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inside. He took the bag and emptied its contents onto the hood of the patrol car. The
gun, which was loaded and in a holster, was a Colt .45-caliber semiautomatic. Santos
reported its serial number to a dispatcher and found that the gun had been reported stolen.
A debit card and a credit card, both bearing Berna’s name, were inside the bag as well.
       The bag also contained a small digital scale and 66 small plastic baggies. Some of
the baggies had the clover leaf logo and others had a Superman logo. One baggie had a
white crystalline substance inside. The scale had a small amount of residue of the same
substance. Seven of the baggies were inside an unlabeled prescription drug vial.
       Other items in the bag were a watch, a small pocketknife, a larger knife, a pair of
sunglasses, a bottle of cologne, an unlabeled prescription drug vial containing some pills
of the prescription drug Soma, and another pill bottle with another kind of pill inside.
       The district attorney filed an information charging Berna with four counts:
(1) being a felon in possession of a firearm (Pen. Code, § 29800, subd. (a)(1));1
(2) carrying a loaded firearm in a vehicle, while in a public place in an incorporated city
or a prohibited area of unincorporated territory, and while having a prior felony
conviction (§ 25850, subds. (a), (c)); (3) receipt of stolen property (§ 496, subd. (a)); and
(4) driving without a license (Veh. Code, § 12500, subd. (a)).
       At trial, Santos testified to the above facts, except that he did not, during the
prosecution’s case in chief, refer to the scale, baggies, pills, or pill vials. Berna testified
on his own behalf and admitted that the black nylon bag was his. He said he used the bag
to carry his things to a college gym for a physical education class. He identified as his
the debit and credit cards, as well as the watch, sunglasses, cologne, and small
pocketknife. He also had some speakers and headphones for his phone. In his gym class,
students linked their phones to a public address system that allowed them to hear the



       1Subsequent   statutory references are to the Penal Code unless otherwise noted.

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teacher; he used the devices for this purpose. He did not know there was a gun in the bag
or in the car.
       Berna disputed some aspects of Santos’s description of what happened when
Berna was arrested. At least one of the bank cards was not in the gym bag, but was on
the car seat. When Berna said Santos had no right to search the car, Santos did not hold
his Taser at his side, but instead pointed it at Berna’s face, two inches away. As he was
doing this, Santos was angry and asked whether Berna was resisting. Berna held his
hands in the air and did not clench his fist. He explained that the reason he did not want
Santos to search the car was that Green had been drinking beer and there was an open
beer can in the car. Berna did not remember telling Santos he was homeless; instead,
Berna told Santos he had an address.
       At one point while defense counsel was examining Berna about the contents of the
bag and whether there was a gun in it, Berna said: “No, just useless junk like headphones
and stuff for class, that was it.” This led to a request by the prosecution for permission to
cross-examine Berna about the scale, baggies, pills, and vials. Defense counsel argued
that evidence of these items would be irrelevant and would be subject to exclusion under
Evidence Code section 352. The court ruled that it would allow questioning about the
items. It said there “certainly is no prejudicial effect of baggies and a scale” because,
without expert testimony about the significance of those items, “it really doesn’t mean
anything.”
       On cross-examination, Berna testified that he had no knowledge of the scale or
baggies. He acknowledged that the Soma pills and the unlabeled vial containing them
were his, but he did not recognize the other unlabeled vial with baggies inside. He had a
prescription for the Soma. A second knife was not his.
       The prosecutor called Santos as a rebuttal witness and questioned him about the
scale and baggies. Defense counsel objected on relevance grounds. The court overruled


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the objection, but then held a conference outside the jury’s presence to discuss the matter.
The court said: “Those items have nothing to do with identification, there is nothing in
there that would show that Mr. Berna owned those. He has denied that he has had any
knowledge of that. However, if there is other testimony as to what those items would be
for, then of course that would go to motive .…”
       The prosecutor argued that presenting evidence of all the items in the bag would
be a more compelling showing that the items belonged to Berna than presenting evidence
of just some of them. He said, “[T]here is sort of a cumulative effect but not in a 352
way, but cumulative way in the circumstantial evidence type of way .…” The prosecutor
also said it was unlikely that Green would have been able to transfer the drug-related
materials into the bag along with the gun without Berna or the police noticing, so those
materials helped to discredit Berna’s story.
       After these remarks, the court continued to develop the idea that expert testimony
about the purpose of the scale and baggies would be relevant to Berna’s motive for
possessing the gun. It stated, “This officer, I don’t know if he has the expertise, but I
imagine he does because those in the criminal system know what those things mean .…”
With this prompting, the prosecutor proffered Officer Santos as an expert, and the court
determined that the testimony would be relevant and not subject to an Evidence Code
section 352 objection. It would be “prejudicial,” but also “highly probative.” The court
also said that, even if the prosecution did not present expert testimony, “the evidence is
still admissible based on your earlier representation .…”
       Officer Santos was then qualified as an expert and questioned about why Berna
might have the scale and baggies together with the gun. Santos answered, “It indicated to
me that there was possibly—Mr. Berna was possibly dealing drugs.” He explained that
the baggies and scale could be a sign of drug transactions and that the gun and knife
could be used by a dealer to protect himself and his drugs from theft. A drug dealer


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would likely keep these items concealed in a container and keep them together in one
place.
         Defense counsel cross-examined Santos and asked him whether he searched
Green. He did, and found some marijuana and some baggies with the four-leaf clover
logo. On redirect, Santos testified as an expert that drug dealers often work in pairs.
         In his closing argument, defense counsel said circumstantial evidence supported
the conclusion that the gun belonged to Green, who possessed it without Berna’s
knowledge, and who placed it in the bag after the police told Berna to get out of the car,
so Green would not be caught with the gun as well as the marijuana and baggies.
         During its deliberations, the jury sent a note to the court asking if it could see the
police report written at the time of Berna’s arrest and the record of the inventory taken of
the car’s contents. The jurors wanted to know whether an open alcoholic beverage
container was found. The court denied the request on the ground that the police report
and inventory were not admitted into evidence. The jury found Berna guilty as charged.
         The court sentenced Berna to three years, as follows: On count 2, the court
imposed the upper term of three years. On count 4, it imposed a concurrent term of 29
days. Sentences for counts 1 and 3 were stayed pursuant to section 654.
                                         DISCUSSION
I.       Admissibility of drug evidence
         Berna argues that the court committed reversible error by admitting evidence that
the bag contained a scale, baggies with logos, and pills. He maintains that this evidence
was irrelevant; that, even if relevant, its probative value was substantially outweighed by
its prejudicial effect within the meaning of Evidence Code section 352; and that it was
inadmissible character evidence under Evidence Code section 1101, subdivision (a). The
trial court’s decisions on these matters were committed to its sound discretion and we




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cannot disturb them absent a showing of abuse of discretion. (People v. Crittenden
(1994) 9 Cal.4th 83, 132; People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.)
       The court could reasonably find that the evidence was relevant. Relevant evidence
is that which has “any tendency in reason to prove or disprove any disputed fact that is of
consequence to the determination of the action.” (Evid. Code, § 210.) The drug-related
evidence had a tendency to prove that the possessor of the bag had a motive to be in
possession of the gun: The bag contained the tools and supplies of a drug dealer, and a
drug dealer has a motive to carry a weapon. Proof of motive is one of the acceptable,
non-character-related grounds for admitting evidence of an uncharged criminal act.
(Evid. Code, § 1101, subd. (b).) Further, as the prosecutor argued, the presence of the
drug-related evidence made it less believable that Green put all the contraband, including
the gun, into the bag when Berna was not looking. In light of these points, the court
could reasonably find that the probative value of this evidence was not substantially
outweighed by its prejudicial effect, so Evidence Code section 352 did not require its
exclusion.
       Berna argues that the drug-related evidence was highly prejudicial partly because
the jury was shown photographs in which the drug-related items appeared beside items
Berna admitted owning. We do not see what difference this makes. The relevance of the
items depended on the jury knowing that they were found inside Berna’s bag. It would
have known this regardless of whether the photos showed the items together or
separately.
       Berna also argues that the prejudicial effect of the evidence was aggravated by the
length of time taken to present it. He says it “took longer than the prosecution’s case in
chief” and “constituted more than half of the prosecution’s case.” This claim is based on
Berna’s calculation that the prosecution’s case-in-chief is reported in 53 pages of the
reporter’s transcript while an additional 61 pages are “devoted entirely to evidence of


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uncharged acts.” This means, he says, that “more than half of the trial was devoted to
prejudicial evidence of uncharged acts,” so the evidence of the drug-related items
“clearly formed a dominant part of the evidence against” him.
       Berna exaggerates. The entire trial, from opening instructions to verdict, is
reported in 253 pages of the reporter’s transcript. Examination of witnesses in the
prosecution’s case-in-chief, excluding recesses, bench conferences and the like, took 61
pages. The examination of Berna, the sole defense witness, took 47 pages. The
examination of Santos as a rebuttal witness, including direct and cross-examination, took
49 pages, of which 30 were filled by questions and answers about the drug-related
evidence. The testimony presented on rebuttal pertaining to the drug-related evidence
thus was 12 percent of the trial, 19 percent of the testimony, and 27 percent of the
testimony of prosecution witnesses. There is no reason to think this evidence dominated
the jury’s attention because of its quantity.
       For all these reasons, the court did not abuse its discretion in admitting the
evidence.
II.    Limiting instruction
       Berna argues that the trial court erred by not giving the jury an instruction on the
limited purposes for which it could consider the evidence that he possessed materials
consistent with drug dealing. He acknowledges that his trial counsel did not request such
an instruction and that, ordinarily, an instruction limiting the purposes for which evidence
of an uncharged act can be considered need not be given unless requested. (People v.
Collie (1981) 30 Cal.3d 43, 64 (Collie).) He asserts, however, that this is one of those
extraordinary cases in which the evidence of an uncharged offense is such a “dominant
part of the evidence against the accused” that it would be “highly prejudicial” without a
limiting instruction, and therefore the court was required to give one sua sponte. (Ibid.)




                                                8
         In Collie, the defendant was convicted of attempting to murder his wife. (Collie,
supra, 30 Cal.3d at pp. 48-49.) The jury heard evidence of the defendant’s previous
assaults on his wife. (Id. at p. 63.) Our Supreme Court rejected the contention that the
trial court was required to instruct the jury, sua sponte, that evidence of the prior assaults
could be considered for limited purposes only. This is required only in rare cases:

         “Neither precedent nor policy favors a rule that would saddle the trial court
         with the duty either to interrupt the testimony sua sponte to admonish the
         jury whenever a witness implicates the defendant in another offense, or to
         review the entire record at trial’s end in search of such testimony. There
         may be an occasional extraordinary case in which unprotested evidence of
         past offenses is a dominant part of the evidence against the accused, and is
         both highly prejudicial and minimally relevant to any legitimate purpose.
         In such a setting, the evidence might be so obviously important to the case
         that sua sponte instruction would be needed to protect the defendant from
         his counsel’s inadvertence.” (Collie, supra, 30 Cal.3d at p. 64.)
         In this case, the evidence of drug dealing was not a dominant part of the case. The
case was dominated by the evidence that the stolen gun was found in Berna’s car in a bag
Berna admitted was his, along with items with Berna’s name on them and other items
Berna admitted he owned. The evidence of drug dealing was a subsidiary part of the
case, included to show Berna’s motive and undermine his theory that Green put all the
incriminating items in the bag without his knowledge. Its presentation did not consume a
disproportionate amount of time, contrary to Berna’s contention. It was not “so
obviously important” (Collie, supra, 30 Cal.3d at p. 64) as to require an unrequested
instruction. At the same time, the evidence was not only “minimally relevant to any
legitimate purpose.” (Ibid.) For the reasons we have stated, it had substantial probative
value.
         Berna finally argues that the court should have given the instruction on its own
motion because it was the court’s idea to use expert testimony. There is no authority for
this notion. People v. Morrisson (1979) 92 Cal.App.3d 787, 790-791, which Berna cites,
states only that the defendant waived his right to argue that the court should have given
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such an instruction sua sponte because it was he who first brought the uncharged acts to
the jury’s attention. The opinion does not state that the defendant would have been
entitled to a sua sponte instruction if someone else had raised the uncharged acts; and, in
fact, it cites several cases holding that an instruction of this kind must be requested.
(Ibid.) Further, if the opinion had said no request was necessary, it would have been
effectively overruled when Collie was decided two years later.
       No sua sponte instruction was required.
                                       DISPOSITION
       The judgment is affirmed.




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