Filed 5/8/13 P. v. Wenthe 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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



THE PEOPLE,

         Plaintiff and Respondent,                                       E055536

v.                                                                       (Super.Ct.No. RIF10006327)

ERICK JEROME WENTHE,                                                     OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Richard J. Hanscom,

Judge. (Retired judge of the San Diego Super. Ct. assigned by the Chief Justice pursuant

to art. VI, § 6 of the Cal. Const.) Affirmed with directions.

         Donald H. Glaser, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Barry Carlton and Garrett Beaumont, Deputy Attorneys General, for Plaintiff and

Respondent.




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                                      INTRODUCTION

       Defendant Erick Jerome Wenthe appeals his conviction for possession of

methamphetamine for the purpose of sales (Health & Saf. Code, § 11378), arguing that

the trial court abused its discretion by admitting evidence of his prior conviction for the

same offense. He also points out that the sentencing minute orders must be corrected to

show that a six-month enhancement imposed for one of his misdemeanor counts was to

run concurrently, not consecutively. We will affirm the conviction and order the record

corrected.

                           FACTS AND PROCEDURAL HISTORY

       On November 28, 2010, Riverside County Sheriff’s Deputy Sean Denham

encountered defendant in a parked car in the Woodcrest area of the county. In a lawful

search, Denham found a total of four baggies of methamphetamine, three hypodermic

syringes with attached needles, a scale, a glass pipe for smoking methamphetamine, a

separate plastic baggie containing cotton swabs covered with crystals of

methamphetamine, and additional crystals of methamphetamine scattered on the floor of

the vehicle. Three of the baggies each contained more than four grams (known as “eight

balls”) of methamphetamine. Defendant told Denham that all the methamphetamine was

his.

       On June 23, 2011, in an information filed in Riverside County Superior Court,

defendant was charged with one felony and two misdemeanors: possession of

methamphetamine for sale (Health & Saf. Code, § 11378, count 1); using and being

under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a),


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count 2); and possessing paraphernalia for injecting and smoking a controlled substance

(Health & Saf. Code, § 11364, count 3). In relation to count 1, the information alleged

that defendant also had a prior conviction, on September 27, 1996, for violating Health

and Safety Code, section 11378.

       Pre-trial Issues

       In a pre-trial conference on November 17, 2011, the trial court and counsel

discussed the prosecutor’s request to admit evidence of defendant’s 1996 conviction.1

The prosecutor argued that the prior was admissible under Evidence Code § 1101,

subdivision (b), to demonstrate defendant’s “knowledge and intent” to sell, not merely

use, methamphetamine in the current instance. Defense counsel opposed the request,

arguing that the old conviction was too remote in time and that “the risk of undue

prejudice greatly exceeds the probative value.” In explaining its decision to admit the

prior, the court pointed out that, because the amounts defendant possessed at the time of

his current arrest could be either for personal use or for sales, the prosecutor would need

to prove illegal intent [to sell] to obtain a conviction. This case was not like one where

someone is found in possession of two pounds of an illegal substance and the intent to

sell is obvious.

       Regarding the question of prejudice, the court reasoned that, although a potential

for prejudice existed, it did not outweigh the probative value of the evidence. As to

remoteness, the court noted that defendant’s life in the 15 years since the prior had not

      1 The prosecutor proposed to call the detective who had investigated defendant’s
1996 case.


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been crime free: he had had a firearm possession conviction in 2000 and had served a

prison term for controlled substance possession in 2007.

       Trial

       At trial, Denham testified to the facts surrounding defendant’s arrest. Riverside

Police Department narcotics detective Matthew Lackey, who did not know defendant,

testified about factors that distinguish drug salesmen from mere users. “Users don’t

spread their methamphetamine over numerous bags. They don’t transport numerous bags

with them.” In this case, defendant had three separate bags of “eight balls,” which can

sell for anywhere from $160 to $250. He had additional methamphetamine in a separate

bag, which appeared to be from a different source, for a total of about 20 grams. This is

“an absurd amount for a user.”

       Detective Lackey also testified about the different levels of dealers. Street level

dealers sell small amounts of the drug, usually under one ounce or 28.4 grams; mid-level

dealers sell quantities over one ounce and up to quarter pounds and more; large level

dealers traffic in multi-pound or kilo volumes. A dealer who sells 20 grams can be a

street or mid-level dealer. Frequently, a person who is addicted to methamphetamine

also sells it. He buys the drug in large quantities and divides it into smaller ones to sell,

usually doubling his investment and using the profits to support his own habit. The

amount of methamphetamine defendant had in the different baggies when he was arrested

totaled over 100 doses of the drug and could have been worth as much as $1200. Users

do not carry that many doses on their persons.




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       Richard Prince, the Riverside City Police Department investigator who had

investigated defendant’s 1996 crime testified as to the details of that offense. When

defendant was arrested on that occasion, he had various containers of methamphetamine,

a baggie containing marijuana, a pager, “pay-owe” sheets, and a plastic scale in his

possession. Investigator Prince had not seen defendant since 1996.

       On recall, Detective Lackey opined that the amount of methamphetamine

defendant possessed at the time of his current arrest, like the amount he possessed in

1996, along with the other items found in his possession, indicated that on both occasions

he possessed the drug for the purpose of selling it. The crimes were similar and showed

that “defendant is not new. He’s not a rookie.”

       Defendant also testified. He admitted that he had been using methamphetamine

for 22 years and was addicted to it. He insisted he was only a user, not a seller, but

admitted that he had been convicted of possession for sales in 1996: “I was dealing in

‘96.” On the day of his current arrest, he bought enough to last him about a month or a

month and a half, in order to avoid the dangers associated with purchasing, like being

robbed or shot. The scale he had was to check to make sure he was getting what he paid

for and “didn’t get ripped off.” He did not work but made his living by gambling in

casinos.




                                             5
       Verdict

       The jury found defendant guilty of counts 1 and 3.2 In a separate hearing, the

court found the allegations of defendant’s priors true. Defendant was sentenced to a total

of six years pursuant to Penal Code section 1170, subdivision (h): three years in county

jail and three years on supervised release with probation terms and conditions.

                                        DISCUSSION

       Defendant argues that the trial court erred by admitting the evidence of his prior

conviction, and that the error was prejudicial. The People reply that there was no error

and that, even if there was, it did not prejudice defendant. We agree with the People.

       He also claims that the record must be corrected to reflect that his sentence on

count 3 was imposed to run concurrently to his sentence on count 1. On this point,

defendant is correct.

The Prior Conviction

       Standard of Review

       We review a trial court’s decision to admit or exclude evidence under section 352

for abuse of discretion. (People v. Brady (2010) 50 Cal.4th. 547, 558.) “ . . . [A] trial

court’s determination ‘will not be overturned on appeal in the absence of . . . a showing

that the . . . decision was palpably arbitrary, capricious, or patently absurd, and resulted in

injury sufficiently grave as to amount to a miscarriage of justice.’ [Citation.]” (People v.



      2 On motion of the prosecution, count 2 had been dismissed at the close of the
People’s case.


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Lamb (2006) 136 Cal.App.4th 575, 582, quoting In re Ryan N. (2001) 92 Cal.App.4th

1359, 1385.)

       Evidence Code Section 352

       Evidence Code section 352 provides for the exclusion of evidence if its probative

value is substantially outweighed by the probability that its admission will create

“substantial danger of undue prejudice, of confusing the issues, or of misleading the

jury.” (People v. Harrison (2005) 35 Cal.4th 208, 230; Accord, People v. Tran (2011) 51

Cal.4th 1040, 1047 (Tran).) However, nothing in the statute “prohibits the admission of

evidence that a person committed a crime, civil wrong, or other act when relevant to

prove some fact (such as . . . intent . . . ) other than his or her disposition to commit such

an act.” (Evid. Code, § 1101, subd. (b).) “In cases . . . where evidence is admitted under

Evidence Code section 1101, subdivision (b), the evidence is probative because of its

tendency to establish an intermediary fact from which the ultimate fact of guilt of a

charged crime may be inferred. [Citations.]” (Tran, supra, 51 Cal.4th at p. 1048.)

       In Tran, our state Supreme Court identified factors that “might serve to increase or

decrease the probative value or the prejudicial effect of evidence of uncharged

misconduct and thus are relevant to the weighing process required by Evidence Code

section 352.” (Tran, supra, 51 Cal.4th at pp. 1047-1048.) Probative value is increased,

the court said, when the evidence emanates from an independent source and when the

uncharged acts [i.e. the prior conduct] resulted in a conviction. Prejudicial effect is

increased when there was no conviction for the prior acts and the jury might thus be

confused and tempted to punish the defendant for those acts rather than for the current


                                               7
offense. “The potential for prejudice is decreased, however, when testimony describing

the defendant’s uncharged acts is no stronger or more inflammatory than the testimony

concerning the charged offense.” (Ibid.)

       Here, the probative value of the evidence of defendant’s prior conviction to the

issue of his intent in the present offense emanated from an independent source, narcotics

investigator Lackey. And despite defendant’s argument to the contrary, the testimony

describing his 1996 offense was no more inflammatory than the testimony concerning his

current offense. In both cases, defendant possessed amounts of methamphetamine and

sales equipment [scales, packaging] that tended to show he intended to sell the drug, not

just use it himself. The trial court, aware that the prosecutor was required to prove

criminal intent, did not abuse its discretion in deciding to admit evidence of defendant’s

prior conviction. As defendant acknowledges in citing to People v. Lenart (2004) 32

Cal.4th 1107, 1123, admission for this purpose is legitimate.

       Harmless Error

       Assuming for the sake of argument that the trial court should have excluded the

evidence of defendant’s prior conviction for selling drugs, any error in its admission was

harmless. “The controlling consideration . . . is whether the error has resulted in a

‘miscarriage of justice.’” (People v. Watson (1956) 46 Cal.2d 818, 835-836.) A

miscarriage of justice occurs only when it appears that the defendant would have

obtained a more favorable result absent the error. (Id., at p. 836.)

       Here, evidence of defendant’s guilt was so overwhelming that there is virtually no

chance that the jury would have reached a different verdict had it not known about his


                                              8
prior conviction. Detective Lackey testified at length about the differences between

sellers and users. Defendant fit well into the former category. “Users don’t spread their

methamphetamine over numerous bags. They don’t transport numerous bags with them.”

Defendant did both. He was carrying a scale; users also don’t carry scales. Together, the

packages of “eight balls” he was carrying equaled about 100 doses of methamphetamine.

Users don’t carry that many doses around for their own use. An addict sells to support

his or her own habit, buying in large quantities, breaking it down into smaller amounts,

and re-selling it for about twice the original investment. The amount defendant had in his

possession would sell for about $1200. Defendant admitted to long-term addiction; he

said he had no job and supported himself and his habit by gambling at local casinos. This

story was so lacking in credibility as to call his veracity into question in the mind of

reasonable jurors.

       In sum: the trial court did not err by admitting evidence of defendant’s prior

conviction and no miscarriage of justice occurred as a result of its decision.

Correction of the Record

       At sentencing, regarding count 3, the court imposed six months, to run

concurrently with his sentence on count 1. The minute order incorrectly provided that the

sentence on count 3 was to run consecutively to the sentence on count 1, and the “nunc

pro tunc” corrected minute order did not remedy the mistake. We will order the minute

order corrected.




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                                       DISPOSITION

       The superior court clerk is directed to correct the sentencing minute orders of

January 20 and 25, 2012, and the abstract of judgment to indicate that defendant’s six-

month sentence on count 3 is to be served concurrently with his sentence on count 1. The

corrected order is to be forwarded to the Riverside County Sheriff.

       In all other respects, the judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                               CODRINGTON
                                                                                          J.


We concur:

KING
                Acting P. J.

MILLER
                          J.




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