Filed 3/4/15 P. v. Allen CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
                                     SECOND APPELLATE DISTRICT
                                                  DIVISION TWO

THE PEOPLE,                                                          B250321

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA405442)
         v.

TYLOR JEROME ALLEN,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County. Renee
F. Korn, Judge. Affirmed.


         Melissa J. Kim, under appointment by the Court of Appeal, for Defendant and
Appellant.


         Kamala D. Harris, Attorney General, Gerald Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Yun K. Lee and Peggy Z. Huang,
Deputy Attorneys General, for Plaintiff and Respondent.
       Defendant and appellant Tylor Jerome Allen (defendant) appeals from his
conviction of sale and possession for sale of cocaine base. He contends that prior crimes
evidence amounted to inadmissible disposition or character evidence, and that the trial
court erred in admitting the evidence pursuant to Evidence Code sections 352 and 1101,
subdivision (b).1 Defendant also requests that we review the sealed record of the in
camera Pitchess hearing to determine whether the trial court properly exercised its
discretion in ordering discovery.2 We find no abuse of discretion in the admission of the
prior crimes evidence or in the trial court’s determination that some documents described
in the sealed record were not discoverable. We thus affirm the judgment.
                                     BACKGROUND
       Defendant was charged in count 1 with the sale or offer to sell cocaine base, in
violation of Health and Safety Code section 11352, subdivision (a), and in count 2, with
possession for sale of cocaine base, in violation of Health and Safety Code section
11351.5. As to both counts, the information alleged that defendant had suffered a prior
serious or violent felony conviction within the meaning of the “Three Strikes” law (Pen.
Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and had served a prior prison term
within the meaning of Penal Code section 667.5, subdivision (b). In addition, the
information alleged as to both counts pursuant to Health and Safety Code section
11370.2, subdivision (a), that defendant had suffered a prior drug conviction, a violation
of Health and Safety Code section 11352. A jury found defendant guilty of both counts
as charged, and in a bifurcated trial, the jury found true the prior conviction allegations.
       On June 18, 2013, defendant was sentenced to a total prison term of nine years.
For the base term (count 2) the court imposed the low term of three years, doubled as a
second strike, and enhanced by three years pursuant to Health and Safety Code section

1     All further statutory references are to the Evidence Code unless indicated
otherwise.

2     See Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess); section 1043;
Penal Code sections 832.7 and 832.8.


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11370.2. The court imposed a concurrent term of nine years in count 1, and struck the
prior prison term allegation. The court ordered defendant to pay mandatory fines and
fees and awarded a total of 1,004 days of presentence custody credit.
        Defendant filed a timely notice of appeal.
Prosecution evidence
        Los Angeles Police Officer Jesus Toris testified that he was conducting
surveillance on February 3, 2012, of San Julian Street between 7th and 6th Streets, an
area known for blatantly open sales and consumption of cocaine. At about 7:30 a.m.,
while watching from a second floor of a building on San Julian Street, Officer Toris
observed defendant approach a man later identified as McElyeen. After defendant and
McElyeen engaged in an inaudible conversation, McElyeen handed money to defendant,
who quickly placed it in his pocket. Defendant then took a step back, looked from east to
west, walked about three or four feet to a red shopping cart located behind him, retrieved
an object from the front part of the cart, and placed the object onto McElyeen’s open
hand. McElyeen clenched his hand and walked away. Officer Toris and his partner left
their surveillance post, found McElyeen, searched his person, and recovered 12 off-white
solids resembling cocaine base.
        About 10 minutes later the officers returned to where they had seen the
transaction. Defendant was still there, along with the red shopping cart which was filled
with recyclables covered with a blanket. Officer Toris observed plastic wrap sticking out
from under the blanket, examined it, and found numerous off-white solids resembling
cocaine base. Each solid was a usable amount, in sizes that would sell for three to ten
dollars each. In defendant’s pocket, the officers found crumpled currency totaling $173
in denominations consistent with narcotic transactions. Criminalist Marie Chance later
examined samples of the off-white solids, and determined that they contained cocaine
base.
        Officer Toris summarized his expertise in recognizing narcotics and narcotics
sales, and opined that defendant possessed cocaine base for the purpose of sale. He based
his opinion on his observation of the transaction, the fact that no paraphernalia for


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ingesting cocaine base was found on defendant or in the cart, and the absence of signs
that defendant was a cocaine user. In addition, Officer Toris observed that defendant was
clean and neat, not in possession of items a homeless person usually had, such as a
toothbrush, toothpaste, soap, sleeping bag, or tent, and he gave an address for an
apartment about six miles from the area.
       Officer Jackeline Orellana testified regarding an incident which occurred on
October 26, 2007, when she was working undercover near the same Skid Row area. At
approximately 8:45 p.m., she approached defendant and asked whether he was
“working,” which was street vernacular or slang for selling narcotics. When defendant
asked what she needed, she replied, “I need a 20.” Defendant reached into a nearby
shopping cart and retrieved a clear plastic bindle which contained off-white solids
resembling cocaine base, and handed it to her. Officer Orellana paid defendant with two
$10 bills which she had previously photocopied, took the bindle, walked away, and gave
the predetermined signal to uniformed “chase” officers that she had concluded a narcotic
transaction. The two $10 bills were recovered from defendant, and the contents of the
bindle were later determined to contain cocaine base.
Defense evidence
       Defendant testified that he sold narcotics on October 26, 2007, and that he pled
guilty to the charges relating to that incident, but he explained that he was a homeless
addict at that time, and the shopping cart contained his belongings, not his narcotics.
Defendant claimed that the address on his identification in 2007 was his mother’s
address. He also claimed that in 2007, he sold the crack cocaine he possessed for
personal use in order to earn money to buy more narcotics for himself, and that he kept
the narcotics behind the cart, not in the cart.
       Defendant admitted that he had pled guilty to robbery in 2004, although he
thought of it as grand theft person, not robbery. He explained that while riding public
transportation he snatched a cell phone from another passenger’s hand and ran.
Defendant was soon apprehended, and the cell phone was returned to the victim.



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       Defendant denied he had been in possession of rock cocaine or cocaine base in
February 2012, when he was arrested by Officer Toris on the current charges, and denied
that he sold cocaine to McElyeen. He suggested that the police might have planted the
cocaine in the cart. Defendant claimed he was in the area selling cigarettes, which he
routinely purchased from a wholesale dealer and resold at a profit, and that McElyeen
bought two cigarettes for one dollar, thereby explaining the money he pocketed.
Defendant testified that when he was detained, he still had cigarettes in his jacket pocket,
consisting of two unopened packs and one opened pack, but Officer Toris threw them
away after telling him that he could not take them into the police station. Defendant
denied that his money was crumpled, except for a one dollar bill and a five dollar bill,
and claimed that the rest was folded. Defendant also denied that the shopping cart was
his. He claimed that when McElyeen was present there was a man next to him who he
saw get something out of the cart. There were six or seven other shopping carts nearby
belonging to people who slept outside in the area. Defendant explained that they were
near the mission, which was about to serve breakfast.
       Defendant claimed that the address on his 2012 identification was his
grandmother’s, that he used it only as a mailing address, and that he had been living with
a girlfriend but was out of the house due to an argument, sleeping in the nearby Veterans
of America drop-in center.
                                       DISCUSSION
I. Evidence of uncharged prior crimes
       Defendant contends that the trial court erred in admitting evidence of his sale of
cocaine base in 2007 to undercover Officer Orellana. He argues that the 2007 crime was
too dissimilar to the current offense to be relevant to the issues of intent and knowledge,
and that the prejudicial effect of the evidence outweighed its probative value. Defendant
also contends that the error resulted in a denial of his constitutional rights to due process
and a fair trial.
       The trial court found the prior crimes evidence admissible under sections 352 and
1101, subdivision (b), and relevant to show defendant’s intent to sell a controlled


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substance, his knowledge of the nature of the substance and its presence in the shopping
cart, and that he had a plan or scheme to commit the charged offenses.
       Evidence that a person committed a crime is admissible “when relevant to prove
some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake or accident . . .) other than his or her disposition to commit such an
act.” (§ 1101, subd. (b).) “The court in its discretion may exclude evidence if its
probative value is substantially outweighed by the probability that its admission will (a)
necessitate undue consumption of time or (b) create substantial danger of undue
prejudice, of confusing the issues, or of misleading the jury.” (§ 352.)
       A. Similarity of prior and current crimes
       “Evidence of uncharged crimes is admissible to prove identity, common design or
plan, or intent only if the charged and uncharged crimes are sufficiently similar to support
a rational inference of identity, common design or plan, or intent. [Citation.]” (People v.
Kipp (1998) 18 Cal.4th 349, 369, citing People v. Ewoldt (1994) 7 Cal.4th 380, 402-403
(Ewoldt.) The prior and current crimes need not be identical. (See People v. Harris
(2013) 57 Cal.4th 804, 842.) The greatest degree of similarity is required when the
purpose of the evidence is to prove identity, whereas a lesser degree of similarity is
required when the issue is common design or plan, and the least degree of similarity is
required when the issue is intent. (People v. Kipp, supra, at pp. 370-371.) “On appeal,
the trial court’s determination of this issue, being essentially a determination of
relevance, is reviewed for abuse of discretion. [Citations.]” (Id. at p. 369.) “A court
abuses its discretion when its ruling ‘falls outside the bounds of reason.’ [Citation.]”
(Id. at p. 371.)
       Defendant contends that the 2007 crime was too dissimilar to the current crime to
support a rational inference of knowledge of the presence of cocaine base or intent to sell
it. Defendant points out several dissimilar circumstances, such as: the time of day,
evening in 2007 and morning in 2012; defendant’s admission to possession for sale in
2007, versus his denial of any drug possession in 2012; and the indisputable purchase by
an undercover officer in 2007 with prerecorded currency, versus the lack of conclusive


                                              6
evidence that McElyeen purchased his cocaine base from defendant. Defendant admits to
just three points of similarity: the use of a shopping cart, the location on Skid Row, and
the same drug.
       A few dissimilarities do not render a prior similar crime irrelevant to the issue of
intent; indeed, a single “crucial point of similarity” may be sufficient to establish the
relevance of the prior crime. (People v. Jones (2011) 51 Cal.4th 346, 371.) All three
points of similarity cited by defendant were crucial here, as they demonstrated a
particular modus operandi: the use of a shopping cart to hide the drugs; the nature of the
drug, cocaine base; and the occurrence of both incidents on Skid Row, in an area of open
drugs sales and use. When the modus operandi of the uncharged offense is markedly
similar to the charged offense, the evidence is sufficient to raise a rational inference not
only of intent, but also of a common design or plan. (See Ewoldt, supra, 7 Cal.4th at pp.
399, 402.)
       The evidence was also relevant to the issue of defendant’s knowledge of the nature
of the controlled substance and its presence in the shopping cart. “To obtain a conviction
for possession of a controlled substance for sale, the prosecution must prove that the
defendant had knowledge of both the presence of the contraband and its illegal character.
[Citation.] Prior incidents of possession of an illegal drug are relevant to prove the
knowledge element. [Citation.]” (People v. Ghebretensae (2013) 222 Cal.App.4th 741,
754, citing People v. Pijal (1973) 33 Cal.App.3d 682, 691.)
       The trial court thus did not abuse its discretion in determining that the current and
prior crimes were sufficiently similar to support a rational inference of intent, common
design or plan, and knowledge, and thus admissible under section 1101, subdivision (b).
       B. Prejudice and probative value
       A determination that evidence of an uncharged crime is admissible under section
1101 does not end the inquiry: “Evidence of uncharged offenses ‘is so prejudicial that its
admission requires extremely careful analysis. [Citations.]’ [Citations.] ‘Since
“substantial prejudicial effect [is] inherent in [such] evidence,” uncharged offenses are
admissible only if they have substantial probative value.’ [Citation.]” (Ewoldt, supra, 7


                                              7
Cal.4th at p. 404.) Undue prejudice may result from an “increased danger that the jury
[would be] inclined to punish defendant for the uncharged offenses, regardless whether it
considered him guilty of the charged offenses.” (Id. at p. 405.) We review the ruling
under the deferential abuse of discretion standard and reverse only if it was arbitrary,
whimsical, or capricious as a matter of law. (People v. Robertson (2012) 208
Cal.App.4th 965, 991.)
       Defendant argues that prejudice was demonstrated by the undue amount of time
consumed in presenting the evidence of the 2007 crimes. He also contends that prejudice
was demonstrated by the prosecutor’s argument in summation and her disproportionate
emphasis on the prior crimes. Finally, defendant contends that because the evidence of
the current offense presented at trial demonstrated “beyond dispute” that the drugs were
possessed with the intent to sell, the 2007 evidence was cumulative on the issue of intent.
       In essence, defendant argues that in light of the proceedings which occurred after
the court’s ruling, the evidence should not have been admitted. However, we review the
trial court’s discretionary ruling “‘at the time it was made, . . . and not by reference to
evidence produced at a later date.’ [Citation.]” (People v. Robertson, supra, 208
Cal.App.4th at p. 991, quoting People v. Welch (1999) 20 Cal.4th 701, 739.)3
       Defendant appears to conflate the danger of undue prejudice which must be
weighed by the trial court under section 352, with the appellate court’s review for
prejudice caused by trial court error, under the test of People v. Watson (1956) 46 Cal.2d
818, 836 (Watson), which asks whether it is reasonably probable defendant would have
achieved a more favorable result absent the error. As defendant must first show that the

3       Moreover, we do not agree that the evidence consumed an undue amount of time.
The court stated on the record that the examination of the first two witnesses took about
15 minutes. The testimony of the third witness covered less than five pages of the
reporter’s transcript. Defendant argues that it is not clear that the court was referring to
the evidence of the 2007 crime as taking 15 minutes. We disagree. The court’s meaning
was reasonably clear. Further, defendant’s contention regarding the prosecutor’s remarks
begs the question whether the 2007 evidence was properly admitted prior to summation.
If so, the prosecutor was entitled to vigorously argue all inferences warranted by the
evidence. (See People v. Hill (1998) 17 Cal.4th 800, 819.)

                                               8
trial court erred at the time of its ruling, it is premature to argue that any error was
prejudicial. Nevertheless, there is some overlap of the analysis of the two issues. Even if
defendant established that the court’s section 352 analysis was flawed, defendant would
not meet his burden to show reversible error under the Watson test unless he also
demonstrated that the other crimes evidence was in fact “‘so extraordinarily prejudicial,
and of so little relevance to guilt, that it threaten[ed] to sway the jury to convict
regardless of defendant’s actual guilt.’ [Citation.]” (People v. Peyton (2014) 229
Cal.App.4th 1063, 1079.)
       Defendant has failed to satisfy his initial burden to demonstrate that the other
crimes evidence was unduly prejudicial. As respondent observes, the prior and current
crimes were both violations of Health and Safety Code sections 11352 and 11351.5,
committed under similar circumstances; thus the 2007 incident was no more
inflammatory than the current incident. Such a circumstance decreases the potential for
prejudice. (See Ewoldt, supra, 7 Cal.4th at p. 405.) The potential for prejudice was
further diminished by the prosecutor’s offer to prove that defendant had already been
convicted of the 2007 offenses, eliminating the danger that the jury would be inclined to
punish defendant for the uncharged crimes or the danger of confusing the issues.4 (See
People v. Balcom (1994) 7 Cal.4th 414, 427 [potential for prejudice reduced by
defendant’s conviction on uncharged offenses]; cf. Ewoldt, supra, at p. 405 [increased the
danger of jury punishment when uncharged acts did not result in criminal convictions].)
       Finally, before the prosecutor presented Officer Orellana’s testimony, the court
instructed the jury extensively regarding the limited purpose of the evidence, admonished
the jury not to conclude from the evidence that defendant had a bad character or was
disposed to commit crime, and reminded the jury that the prosecution was still obligated
to prove each of the current charges beyond a reasonable doubt. Such instructions were
sufficient to attenuate any remaining potential prejudice. (See People v. Ghebretensae,




4      At trial, defendant admitted his guilty plea and conviction of the 2007 crimes.

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supra, 222 Cal.App.4th at p. 755.) We presume that the jury understood and followed the
court’s instructions. (See People v. Peyton, supra, 229 Cal.App.4th at p. 1079.)
       We reject defendant’s contention that the 2007 incident had no probative value.
Defendant relies on People v. Lopez (2011) 198 Cal.App.4th 698, 715-716, in which
evidence of an uncharged crime had been admitted to prove the defendant’s intent, which
was error because the only disputed issue in the case was the identity of the perpetrator.
Although the facts are very different from those presented here, defendant reasons that
because the evidence in this case established beyond dispute that the drugs were
possessed with intent to sell, any evidence of intent provided by the 2007 incident was
cumulative and irrelevant.
       While the evidence that defendant possessed cocaine base with the intent to sell it
was strong, we cannot say that possession and intent were not contested issues, since
defendant testified that he had no drugs, the shopping cart was not his, and he was selling
only cigarettes. Defendant thus placed not only intent and possession at issue, but also
knowledge of the location and nature of the drugs. As the 2007 incident provided
evidence of a similar modus operandi, it was certainly probative of those issues. (See
Ewoldt, supra, 7 Cal.4th at pp. 399, 402; People v. Ghebretensae supra, 222 Cal.App.4th
at p. 754.) We conclude that the probative value of the evidence of the 2007 incident
outweighed any potential prejudice, and we find no abuse of discretion in its admission.
       Regardless, if the ruling had been error, we would also conclude that it was
harmless. Despite defendant’s contention that possession with intent to sell was
established beyond dispute, defendant argues that due to weaknesses in the prosecution’s
evidence, it was reasonably probable that the jury would have acquitted him if the
evidence of the 2007 incident had been excluded. In essence, defendant argues that
Officer Toris could have been mistaken in what he saw from his vantage point, defendant
and McElyeen were out of his sight for a time, and McElyeen gave no statement or
testimony. We construe defendant’s reasoning as an argument that because much of the
evidence was circumstantial, the jury would probably have rejected it. That is unlikely
however, considering that the circumstantial evidence of the current offenses was


                                            10
overwhelming. McElyeen handed money to defendant, who quickly placed it in his
pocket, and then looked around before he retrieved something from the shopping cart and
placed it into McElyeen’s hand. Within 10 minutes, Officer Toris recovered cocaine base
from McElyeen and from the shopping cart, and found in defendant’s pocket, crumpled
currency in denominations consistent with narcotic transactions. Further, the trial court
read CALCRIM Nos. 223, 224, and 225, defining direct and circumstantial evidence,
explaining the proper use of circumstantial evidence, and instructing that neither type of
evidence was more reliable than the other. We presume that the jurors understood and
followed those instructions. (People v. Sanchez (2001) 26 Cal.4th 834, 852.)
       In sum, as defendant failed to demonstrate that the prior crimes evidence had little
relevance to guilt or that it was extraordinarily prejudicial, he has not met his burden to
demonstrate either an abuse of discretion under section 352 or reversible error under the
standard of Watson, supra, 46 Cal.2d at page 836. (See People v. Peyton, supra, 229
Cal.App.4th at p. 1079.)
II. Pitchess motion
       Defendant seeks review of the sealed transcript of the trial court’s in camera
review of Officer Toris’s personnel files and other confidential records. The trial court
granted defendant’s Pitchess motion, but limited any discovery to relevant evidence
relating to any false reports. The court found several documents relevant to this issue and
ordered the custodian to turn them over to the defense. Defendant requests a review of
the trial court’s determination that there were no other discoverable items in the records
produced.
       We review the trial court’s determination for an abuse of discretion. (People v.
Jackson (1996) 13 Cal.4th 1164, 1220-1221.) The records produced in the trial court
were not retained, but the sealed transcript of the in camera hearing demonstrates that the
trial judge examined and described each one. We thus find the transcript sufficiently
detailed to review the trial court’s discretion. (See People v. Mooc (2001) 26 Cal.4th
1216, 1228-1229.) Upon review of the sealed record of the in camera proceedings, we
conclude the trial court properly exercised its discretion in determining that the


                                             11
documents produced complied with the scope of the Pitchess motion, and in determining
that the documents which were not ordered disclosed to the defense did not fall within the
scope of the motion as granted.
                                    DISPOSITION
      The judgment is affirmed.
      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.



                                                ____________________________, J.
                                                CHAVEZ

We concur:



__________________________, P. J.
BOREN



__________________________, J.
HOFFSTADT




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