Filed 4/1/16 P. v. Celis CA2/2
                     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                        SECOND APPELLATE DISTRICT

                                                     DIVISION TWO


 THE PEOPLE,                                                             B260622

           Plaintiff and Respondent,                                     (Los Angeles County
                                                                         Super. Ct. No. KA098528)
           v.

 IZAEL C. CELIS,

           Defendant and Appellant.



           APPEAL from a judgment of the Superior Court of Los Angeles County.
 Daniel B. Feldstern, Judge. Affirmed.


           Paul R. Kraus, under appointment by the Court of Appeal, for Defendant and
 Appellant.


           Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
 General, Lance E. Winters, Senior Assistant Attorney General, Scott A. Taryle,
 Supervising Deputy Attorney General, and Rene Judkiewicz, Deputy Attorney General,
 for Plaintiff and Respondent.


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       Izael Celis (defendant) appeals his convictions for the transportation of cocaine
base for sale and possession of cocaine base for sale, and the resulting six year sentence.
Defendant contends that there was insufficient evidence to support his convictions, and
that the trial court erroneously admitted two pieces of evidence: (1) evidence that he
possessed cocaine two months before; and (2) gang expert testimony bearing on his guilt
of the charged crimes. We conclude that none of defendant’s arguments has merit, and
accordingly affirm.
                  FACTUAL AND PROCEDURAL BACKGROUND
       On July 24, 2013, Los Angeles Police Department officers saw defendant sitting in
the front passenger seat of a blue Nissan Maxima that was stopped in front of a known
drug user’s house. The drug user approached the car, leaned into the driver’s side
window, and returned to his house moments later. The car made two more stops; at each
stop, someone was waiting to meet the car, that person got into the back seat, and within
a minute, exited the car and walked away. Because this behavior looked like a
“textbook” case of “call and delivery” drug sales, police detained defendant and the
driver after they got out of the car in the parking lot of defendant’s apartment complex.
Police also searched the car and found a hidden compartment in the center console easily
within the reach of the driver and passenger; inside the compartment was a loaded .38-
caliber revolver, ammunition, individual baggies containing small amounts of cocaine
powder and rock cocaine, and $10,000 in cash.
       The People charged defendant with aiding and abetting the transportation and
possession of cocaine base for sale. (Health & Saf. Code, §§ 11352, subds. (a), (c) & (d),
11351.5; Pen. Code, § 31). The People further alleged that the crimes were committed
for the benefit of, at the direction of, or in association with a criminal street gang (Pen.
Code, § 186.22, subd. (b)(1)(A)) and that defendant was personally armed with a firearm
(Pen. Code, § 12022, subd. (c)).
       At trial, over defendant’s objection, the People introduced two other pieces of
evidence: (1) evidence that defendant had, a few months before the July 2013 sales,
tossed to the ground a bundle of baggies containing small amounts of cocaine and rock

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cocaine as a police officer approached him; and (2) testimony by a gang expert that
defendant had identified himself as a member of the Bryant Street gang (Bryant Street)
and had the street moniker of “Chicle”; that the facts of this case closely fit the pattern of
call and deliver drug sales—that is, sales in which the passenger serves as a lookout and
security for the driver who is making customer contacts and sales; and that Bryant Street
was heavily involved in drug sales in the locality in which defendant and the driver made
their four stops in July 2013.
       A jury convicted defendant of both charges, and found the enhancement
allegations true. The trial court sentenced defendant to six years in state prison—the low
term of three years for the transportation for sale count plus three years for the firearm
enhancement. The court stayed the sentence for the possession for sale count and for the
gang enhancement.
       Defendant appeals.
                                       DISCUSSION
I.     Sufficiency of the evidence
       Defendant does not dispute that the driver transported drugs and possessed them
for sale. Instead, he argues that there was insufficient evidence to support a finding that
he aided and abetted the driver’s crimes. In evaluating the sufficiency of the evidence,
we ask whether there was “substantial evidence”—namely, evidence that is reasonable,
credible and of solid value—to support the jury’s finding. (People v. Banks (2014) 59
Cal.4th 1113, 1156, overruled in part on other grounds in People v. Scott (2015) 61
Cal.4th 363, 391.) In so doing, we view the evidence in the light most favorable to the
jury’s findings and draw all reasonable inferences to support those findings. (Ibid.) We
also look to the entire record, including those portions that a defendant argues on appeal
were improperly admitted. (E.g., In re Z.A. (2012) 207 Cal.App.4th 1401, 1425-1426
[“a reviewing court must consider even improperly admitted evidence in determining
whether there is sufficient evidence to support a trier of fact’s finding of guilt”]; People v.
Story (2009) 45 Cal.4th 1282, 1297-1298 [same].)


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       To hold a defendant liable for a crime as an aider and abettor, the People must
prove that he (1) by act or advise aided, promoted, encouraged or instigated the
commission of the crime, (2) with knowledge of the perpetrator’s unlawful purpose, and
(3) with intent to promote, facilitate or encourage the charged offenses (in this case,
transporting and possessing cocaine for sale). (People v. Nguyen (2015) 61 Cal.4th 1015,
1054; People v. Smith (2014) 60 Cal.4th 603, 611; see also People v. McCoy (2001) 25
Cal.4th 1111, 1117 [“a person who aids and abets a crime is guilty of that crime even if
someone else committed some or all of the criminal acts”]; Pen. Code, § 31.)
       Defendant argues that there is insubstantial evidence that he did anything to help
the driver sell drugs because (1) defendant testified that he had been asleep in the car
during the July 2013 drug transactions, and (2) even if he had been awake, he was
“merely present” because (a) “nobody saw him do anything” and (b) he had no drugs on
his person when he was arrested. (People v. Allen (1985) 165 Cal.App.3d 616, 625
[“(m)ere presence at the scene of a crime, . . . even if combined with knowledge that the
crime is being committed, does not amount to aiding and abetting”].)
       However, there is substantial evidence to the contrary. At least one police officer
saw defendant, the passenger, “seated upright” in the car, not slouched over in a sleeping
position. Multiple officers testified that the driver’s conduct was consistent with call and
delivery drug sales. With such sales, the driver negotiates the drug sales and the
passenger acts as a lookout, as security, and as a back-up seller to the driver. It is
therefore of no moment that no one saw defendant do anything because his job was
simply to keep his eyes open and to discourage theft or violence by being there. Further,
in call and delivery drug transactions, it is unheard of for the passenger to be unaware of
what is going on because he has access to the drugs, the money, and the loaded gun. In
fact, this case does more than just fit the general pattern of call and delivery drug deals:
Both defendant and the driver are documented members of Bryant Street, the gang
engaged in drug sales, and defendant knows of the gang’s drug sale activities. Defendant
was also found in possession of drugs just two months before, which is admissible to
show he was aware of the cocaine in the Maxima.

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       Although defendant presented conflicting evidence, that conflict does not preclude
the People’s evidence from being substantial. (People v. Panah (2005) 35 Cal.4th 395,
489.) It was substantial, and we accordingly have no basis for reversal.
II.    Evidentiary rulings
       Defendant also argues that the trial court erred in admitting (1) evidence regarding
his possession of cocaine in May 2013, and (2) gang expert testimony to prove his guilt
of the underlying crimes. We review evidentiary rulings for an abuse of discretion.
(People v. Harris (2005) 37 Cal.4th 310, 337.)
       A.     Evidence of defendant’s possession of drugs in May 2013
       “As a general rule, evidence of prior uncharged [conduct] is inadmissible to prove
the defendant had the propensity or disposition to commit the charged crime.” (People v.
Hendrix (2013) 214 Cal.App.4th 216, 238 (Hendrix); Evid. Code, § 1101, subd. (a).)
However, the People may introduce prior uncharged conduct to prove matters other than
a defendant’s criminal disposition, such as his intent or knowledge. (§ 1101, subd. (b)
[enumerating permissible purposes]; People v. Williams (2009) 170 Cal.App.4th 587, 607
(Williams).) The admissibility of “1101(b) evidence” depends upon three factors:
(1) whether the uncharged conduct is being used to prove an ultimate fact at issue in the
current case (Hendrix, at pp. 238-240); (2) whether the uncharged conduct has the
requisite level of similarity to the charged crime(s) to have “substantial probative value”
(Ibid.; People v. Kelly (2007) 42 Cal.4th 763, 783); and (3) whether the uncharged
conduct is substantially more probative than prejudicial under Evidence Code section 352
(People v. Lindberg (2008) 45 Cal.4th 1, 22-24 (Lindberg)).
       The trial court admitted evidence of defendant’s possession of cocaine in May
2013 “for the limited purpose of determining whether on the date of the charged offenses
[he] knew of the presence of the cocaine and knew the substance’s nature or character as
a controlled substance when he allegedly acted on July 24th of 2013.” Defendant
concedes that his knowledge is an ultimate fact at issue in this case, but asserts that the
evidence of his earlier drug possession (1) is too dissimilar to have substantial probative
value, or (2) has such minimal probative value that it is substantially outweighed by other

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considerations under Evidence Code section 352—namely, that it is cumulative and
unduly prejudicial. We disagree on both accounts.
       Where, as here, evidence of an uncharged act is admitted to prove a defendant’s
knowledge or intent, the People need only show “sufficient[] similar[ity] to the charged
offense to support the inference that the defendant probably acted with the same intent in
each instance.” (Lindberg, supra, 45 Cal.4th at p. 23; Hendrix, supra, 214 Cal.App.4th at
pp. 242-243.) Although, as defendant points out, the current charges involve defendant’s
possession of small quantities of cocaine packaged for sale when defendant was in a car,
while the prior incident involves his possession of small quantities of cocaine packaged
for sale when defendant was on foot, both incidents nevertheless involve his possession
of small quantities of cocaine packaged for sale. In this respect, because the prior
incident was admitted to show defendant’s knowledge of the drugs in the car and his
intent to assist in their sale, that incident is not only similar to the current charges; it is
effectively identical. (See People v. Ghebretensae (2013) 222 Cal.App.4th 741, 754
[“prior incidents of possession of an illegal drug are relevant to prove the knowledge
element”].)
       The admission of this evidence was also not cumulative or unduly prejudicial.
Here, defendant disputed his awareness of the cocaine in the car, and the May 2013
incident is the only prior incident admitted to prove his knowledge to the contrary. (Cf.
Williams, supra, 170 Cal.App.4th at p. 611 [excluding evidence where it “‘would be
merely cumulative regarding an issue that was not reasonably subject to dispute’
(citation)”].) Evidence of the prior incident was surely prejudicial to defendant (as is all
relevant evidence introduced by the People), but it was not unduly so. The trial court
confined the evidence of the prior incident to the key details of defendant’s prior
possession, to the testifying officer’s prior contacts with defendant, and to the fact that
the incident occurred within Bryant Street territory. Moreover, the jury was instructed to
consider the evidence solely for the limited purpose of proving defendant’s knowledge.
We presume the jury understood and followed the court’s instructions. (Williams, at
p. 607.)

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       In sum, there was no abuse of discretion.
       B.     Gang expert testimony
       In addition to being relevant to prove gang enhancement allegations, gang expert
testimony can also be relevant to prove one or more elements of a substantive crime if
such testimony is “logically relevant to some material issue in the particular prosecution
other than as [bad] character [] evidence.” (People v. Ruiz (1998) 62 Cal.App.4th 234,
240; People v. Avitia (2005) 127 Cal.App.4th 185, 192; accord, People v. Carter (2003)
30 Cal.4th 1166, 1194). Because such testimony is “potentially inflammatory,” a trial
court must “carefully scrutinize gang related evidence before admitting it.” (People v.
Albarran (2007) 149 Cal.App.4th 214, 224.)
       In this case, the trial court admitted the testimony of two gang experts
demonstrating (1) defendant’s self-admitted membership in Bryant Street, (2) his
documented role as a drug dealer for Bryant Street, and (3) the role of a lookout in a call
and delivery drug sale. Defendant argues that this was error because (1) this evidence
was not relevant to prove his guilt of the charged crimes, and (2) its probative value was
substantially outweighed by the danger of unfair prejudice and therefore should have
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been excluded under Evidence Code section 352.
       We conclude the trial court did not abuse its discretion in admitting the gang
expert testimony. By disavowing any knowledge of the drugs in the car and testifying
that he was asleep the whole time, defendant placed his knowledge and intent in dispute.
The gang expert testimony was directly relevant to establish not only the charged gang
enhancement, but also defendant’s knowledge of the drugs in the car through his prior
association with Bryant Street and its drug-dealing activities. The court was also careful
to ensure that the probative value of this testimony was not unduly prejudicial to
defendant: The court specifically excluded evidence of the driver’s admissions of guilt to


1      Before trial, defendant unsuccessfully argued that any gang expert testimony was
relevant solely to the gang enhancement allegation and that the trial on the allegation
should be bifurcated from the trial on the underlying crimes. Defendant does not
challenge this bifurcation ruling on appeal.
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obviate any inference of guilt by association; the court also advised the jury to consider
the evidence solely as it bore on defendant’s knowledge and intent.
                                     DISPOSITION
       The judgment is affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

                                                         _______________________, J.
                                                         HOFFSTADT
We concur:

________________________, P.J.
BOREN

________________________, J.
CHAVEZ




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