Filed 4/30/14 P. v. Mercado 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                       E058612

v.                                                                       (Super.Ct.No. SWF1200673)

MANUEL ROJAS MERCADO,                                                    OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of Riverside County. Albert J. Wojcik, Judge.

Affirmed.

         John F. Schuck, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Lynne G.

McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.




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      Defendant and appellant Manuel Rojas Mercado appeals from a judgment of

conviction for possession of a controlled substance with intent to sell. (Health & Saf.

Code, § 11378.) He was sentenced to a total of 12 years in state prison.

      On this appeal, defendant argues that the trial court erred in admitting evidence

about previous instances in which he was found in possession of methamphetamine

under circumstances suggesting an intent to sell, and also that the trial court erred in

denying his motion to strike a prior “strike” conviction under People v. Superior Court

(Romero) (1996) 13 Cal.4th 497, 529-532. We find no error and affirm the judgment.

                                STATEMENT OF FACTS

      Corporal David Schell of the Riverside Sheriff’s Department knocked on the door

of a motel room. Eventually defendant answered. Corporal Schell asked him if he had

anything illegal in the room, and defendant, with admirable (or resigned) candor,

responded, “I’m not going to lie, I have some dope and a pipe.” He further pointed out

where the drugs were, and Corporal Schell found 25.9 grams of methamphetamine

inside a camera case on a table by the television. After searching the motel room and

defendant’s vehicle, Corporal Schell also found about 200 small plastic baggies and a

glass smoking pipe with residue inside, four cell phones, and $84 in currency. It was

also established that the room had been rented in defendant’s name the day before.1

      The only real point of contention was whether the methamphetamine had been

possessed for the purpose of sale rather than for personal use. Corporal Schell testified

      1   The motel clerk could not, however, identify defendant.


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that in his opinion the methamphetamine was to be sold, giving the opinion that the

quantity was far more than a mere user would possess at any given time. A police

expert also testified that the amount indicated possession for sale as the total cost to a

user would be between $650 and $850; furthermore, that the possession of the baggies

indicated an intent to package and sell. Finally, the possession of multiple cell phones

was an indicator of sales.

      The defense, on the other hand, stressed that no set of scales was found in the

motel room, nor were there any “cutting devices, anything to separate substances.” The

defense also established that Corporal Schell had never determined whether the four cell

phones were operative.

      It is in this context that the evidentiary issue arose. The trial court allowed the

People to introduce evidence that on two separate occasions in 2005, defendant had been

the subject of traffic stops while in possession of methamphetamine. On the first

occasion he was holding 15.8 grams of methamphetamine concealed in his socks and

also had three operative and two inoperative cell phones in his possession, while a

search of defendant’s bedroom revealed a digital scale and assorted Ziploc packaging.

On that occasion defendant was carrying only $94. On the second occasion a few

months later, defendant was carrying two working cell phones and was carrying over

$1,800 in cash, although he only possessed 2.7 grams of methamphetamine. The

witness who described the stops testified that in both instances, in his opinion, the

methamphetamine was possessed for sale.



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      At sentencing, defendant made an oral motion to strike a “strike prior.” The

information before the court was that defendant had been convicted of first degree

burglary in 20072 (Pen. Code, § 459) and possession of a controlled substance for sale in

2005 and 2006. The probation officer’s report also reflected a 2005 misdemeanor

conviction for disobeying a court order (Pen. Code, § 166, subd. (a)(4)) and

misdemeanor convictions in 2006 for driving without a license and with a false

identification card. (Veh. Code, § 14601.1, subd. (a); Pen. Code, § 529.5, subd. (c).)

After being released on parole after his second drug conviction, defendant in 2011 was

convicted of misdemeanor petty theft and failure to appear. (Pen. Code, §§ 490.5,

1214.1, subd. (a).) Later in the same year he suffered a misdemeanor conviction for

possession of a controlled substance and failure to appear. (Health & Saf. Code,

§ 11377, subd. (a); Pen. Code, § 1214.1, subd. (a).) Still later in that year he was

convicted of misdemeanor failing to stop at the scene of a traffic accident and, yet again,

failure to appear. (Veh. Code, § 20001, subd. (a); Pen. Code, § 1214.1, subd. (a).) At

the time the probation report was prepared, two more traffic matters were pending.

      Defendant’s mother addressed the court and informed it that defendant had

suffered an accident and since then “he has never been the same.” She asked that he be

placed in a treatment program for drug abuse. Defendant’s former sister-in-law, a Los

Angeles County probation officer, also told the court that defendant had been a “great


      2  Defendant admitted this conviction as well as the two drug convictions
described.


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family [] guy” until his accident, which resulted in several months of hospitalization and

rehabilitation. She indicated that defendant had never received treatment for his drug

issues and that he had a young daughter who needed him.

      Defendant’s younger sister added that after defendant had been incarcerated for

two years, he remained “clean” for a couple of months, but then returned to using drugs;

she argued that prison did not rehabilitate him and that he needed treatment. A cousin

and defendant’s ex-wife also told the court that defendant had been a responsible, hard-

working man before his 2004 accident. The former wife described a serious head injury

and related the warnings by defendant’s doctor that he had suffered possibly permanent

frontal lobe damage. She expressed the view that defendant began using drugs to cope

with his disabilities and changed circumstances. Finally, defendant sought leniency

from the court, essentially repeating what his family members had said, blaming his

accident for his drug use and indicating that he had never been offered rehabilitation.

      In denying the motion, the court stated that it could not find that defendant fell

outside the scheme or scope of the “Three Strikes” law and rejected his excuses, noting

that there had been no indication that defendant had ever sought help or attempted to

enter a rehabilitation program on his own.

                                      DISCUSSION

                                             A.

      Defendant argues both that the evidence of his prior drug possessions was simply

“bad character” evidence and not admissible under Evidence Code section 1101,



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subdivision (b), and that, if it was admissible, it should have been excluded as more

prejudicial than probative. (Evid. Code, § 352.) We review for abuse of discretion.

(People v. Hovarter (2008) 44 Cal.4th 983, 1003.)

      Evidence Code section 1101, subdivision (a), prohibits the introduction of

“evidence of a person’s character . . . evidence of specific instances of his or her

conduct” if offered to prove the defendant’s conduct on a particular occasion. However,

subdivision (b) allows “evidence that a person committed a crime, civil wrong, or other

act when relevant to prove some fact such as motive, opportunity, [or] intent . . . .” As

defendant argues, such evidence is to some extent inherently prejudicial and the decision

whether to admit it must be made with care even when it falls within the permissive

scope of subdivision (b). (People v. Ewoldt (1994) 7 Cal.4th 380, 404.)

      Admissibility under Evidence Code section 1101, subdivision (b), is contingent

upon similarity between the uncharged conduct and that involved in the case at bar.

However, as between identity, common plan, and intent, the least amount of similarity is

necessary when, as here, the prior conduct is introduced to prove intent in the current

case. (People v. Hovarter, supra, 44 Cal.4th at pp. 1002-1003; People v. Cortes (2011)

192 Cal.App.4th 873, 916.) With this in mind, the distinctions drawn by defendant

between the previous conduct and our case are not persuasive. The fact that defendant

was in a motel room rather than a car is insignificant, especially when he had evidently

driven to the motel in a vehicle. A fortiori the distinction that in the first two instances

defendant’s vehicle did not have license plates, while in this case it did. Defendant



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points out that in one of the prior instances he was transporting the drug in his socks,

while here it was in a camera bag; again, these are trivial distinctions. The essential

similarity is that defendant possessed a substantial amount of methamphetamine along

with one or more indicia that the drug was possessed for the purpose of sale.3 In this

context the precise physical and situational circumstances surrounding the possession

are not crucial. What matters is whether there is sufficient similarity to support the

inference that the defendant harbored the same intent here as the evidence suggests he

did in the previous instances. (People v. Ewoldt, supra, 7 Cal.4th at p. 402; People v.

Cortes, supra, 192 Cal.App. 4th at p. 916.) We find that there is.

       Defendant then contends that the evidence, if admissible, was unduly prejudicial.

Of course any evidence that is damaging may be said to be “prejudicial” in one sense,

but that is not the sense in which the statute uses the word “prejudice.” (People v. Lopez

(2013) 56 Cal.4th 1028, 1059.) What the judicious application of the statute is designed

to avoid is the introduction of evidence that uniquely tends to invoke an emotional bias

against the defendant and has little effect on the merits of the issues. (Ibid.) In this

case, the evidence of prior offenses was not more inflammatory than that introduced

       3  Defendant also argues that he had a scale in one of the previous instances, but
not in this one. But if every indicator of intended sales were present in this case, there
would have been no need to introduce the evidence of prior conduct, and indeed a much
stronger argument could have been made for exclusion under Evidence Code section 352
as cumulative or time-consuming. The whole point of introducing “prior conduct”
evidence is to fill in lacunae in the current case. It is axiomatic that proof of other crimes
is appropriate where there is no doubt that the defendant committed the act currently
charged, but the evidence of intent is ambiguous. (People v. Guerrero (1976) 16 Cal.3d
719, 726.)


                                              7
with respect to the charged offense. (See People v. Cortes, supra, 192 Cal.App. 4th at

p. 916.) All three matters involved defendant’s peaceable possession of a significant,

but not staggering, amount of contraband. On the other hand, the fact that defendant had

possessed similar amounts of methamphetamine in the past with significant indicia of

intent to sell was clearly probative to this case. The trial court properly exercised its

discretion under Evidence Code section 352.

                                             B.

      Although the trial court has discretion to strike a “strike” prior that has been

pleaded and proved as required by law, this discretion may be exercised in the

defendant’s favor only in extraordinary circumstances, which justify a finding that he

falls outside the spirit of the law. (People v. Carmony (2004) 33 Cal.4th 367, 378.) In

this case, defendant made a viable showing that his problems with drugs and the law

stemmed from the consequences of his injury. However, as the People pointed out at

trial, defendant was absolutely ineligible for probation. (Pen. Code, § 667, subd. (c)(2).)

There was therefore, if unfortunately, no way in which the trial court could order that he

receive rehabilitation treatment outside of prison. As the court observed, defendant had

made no efforts to self-treat his drug use, for example by turning to Alcoholics

Anonymous or Narcotics Anonymous. Absent such a commitment by defendant and

given his record of consistent lawbreaking connected to drugs over the last several years,

the possible genesis of his criminal activities did not take him outside the spirit of the

Three Strikes law.



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                                   DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                 HOLLENHORST
                                                           Acting P. J.
We concur:



KING
                         J.



MILLER
                         J.




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