Filed 8/7/14 P. v. Lewis 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F066495
         Plaintiff and Respondent,
                                                                            (Super. Ct. No. MCR035047A)
                   v.

MELVIN CHARLES LEWIS,                                                                    OPINION
         Defendant and Appellant.


                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Madera County. Ernest J.
LiCalsi, Judge.
         Barbara Michel, 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, Louis M. Vasquez and Leanne
Le Mon, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-


*        Before Kane, Acting P.J., Detjen, J., and Franson, J.
                                    INTRODUCTION
       Appellant and defendant, Melvin Charles Lewis, was charged in an amended
information filed on September 3, 2010, with transporting cocaine base (Health & Saf.
Code, § 11352, subd. (a), count 1) and possessing cocaine base for the purpose of sale
(Health & Saf. Code, § 11351.5, count 2). The amended information further alleged that
defendant had two prior convictions within the meaning of Health and Safety Code
section 11370.2, subdivision (a) and a prior prison term enhancement (Pen. Code,
§ 667.5, subd. (b)). Defendant’s first trial ended on October 14, 2010, with a mistrial.
       Defendant’s retrial began on October 1, 2012. On October 3, 2012, the trial court
denied defendant’s motion for a mistrial. On October 9, 2012, the jury convicted
defendant of both counts. In a bifurcated proceeding, defendant waived his constitutional
rights and admitted the enhancement allegations. On January 4, 2013, the trial court
sentenced defendant to a total term of 11 years in county jail. Defendant was awarded
289 days of presentence custody credits.
       Defendant contends on appeal that the trial court abused its discretion in denying
his motion for mistrial based on the arresting officer’s reference to prior narcotics
convictions. The trial court advised the jury with instructions to disregard the officer’s
testimony in this regard. We affirm the judgment.
                                           FACTS
Execution of Search Warrant on Defendant’s Residence
       Madera Police Officer Shant Sheklanian has significant training and experience
with narcotics trafficking, sales, and possession. Sheklanian is cross-deputized as a
federal marshal with the Fugitive Apprehension Team, has experience working with the
Drug Enforcement Administration, and is a member of the Community Response Unit
(CRU). Sheklanian’s partner, Officer Jason Gutknecht, is also well trained in drug



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trafficking. In April 2009, the CRU was focused on narcotics trafficking in Madera.
Officers Kutz and Paul, and Sergeant Autry were also members of the CRU.
       On April 24, 2009, the CRU prepared to execute a search warrant at a residence
occupied by defendant and his girlfriend, Brandi Williams, on Pescara Way in Madera.
Defendant and Williams were suspected of conducting drug sales. Sheklanian was the
case agent in charge of the investigation. The officers waited outside defendant’s home
to execute the warrant because narcotics dealers often keep their drugs in a place where
they can flush them down the toilet if the police arrive.
       When defendant left his house, Kutz radioed Gutknecht and informed him
defendant was approaching his position. Williams was sitting in the front passenger seat
of defendant’s car. Kutz activated his red and blue emergency lights to stop defendant.
Sheklanian pulled in behind Gutknecht with his own vehicle. When police emergency
lights are activated in a residential neighborhood, the driver usually pulls over
immediately. Defendant did not pull over immediately, but drove about three-tenths of a
mile, or about four city blocks, before pulling over to an apartment complex and
stopping.
       Gutknecht detained defendant and Sheklanian detained Williams. Cell phones
were confiscated from both defendant and Williams. Sheklanian handed Gutknecht a cell
phone that was ringing. When Gutknecht answered it, a caller asked for defendant. The
phone was constantly ringing, at least 20 or 30 times, while defendant and Williams were
being detained.
       Defendant and Williams both had driver’s licenses with the address for the search
warrant. Defendant had $153 in small denominations in his wallet. Williams had $411
in the wallet found in her purse. Williams testified that she and defendant were not
employed at the time of their arrest. Williams and defendant were brought back to their
residence on Pescara Way so officers could execute the search warrant.

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       Sheklanian searched the master bedroom of the defendant-Williams residence.
Sheklanian found a backpack with $450 in mostly small currency. Sheklanian found a
Cricket phone bill addressed to Williams for that address. Drug dealers commonly have
two or more cell phones. One phone is typically a “clean” phone for friends and family.
Drug dealers will have another phone from Cricket for drug transactions because unlike
other carriers, Cricket does not require personal information for one to become a
subscriber on its network. This makes it more difficult for law enforcement to wiretap
the phone or subpoena phone records.
       Sergeant Autry answered one of the cell phones and conversed with someone who
identified herself as Sheri. Sheri asked if she could have “3 for 25.” This meant that the
caller wanted three rocks of cocaine for $25. Gutknecht found a pipe underneath a couch
cushion that was used for smoking methamphetamine. There was burnt white residue on
the bottom of the bulbous part of the pipe.1 Williams testified that the pipe belonged to
her. Williams claimed that she was the only one using drugs, defendant was not using
drugs, and she did not use drugs in front of defendant.
       Female Officers Paul and Keiser took Williams to the garage during the search.
Williams did not appear to be under the influence of any drug. Although Williams was
initially calm, she became upset and was crying. Williams said she had last used drugs
one or two months earlier. The officers asked Williams if she had anything illegal on her
person. Williams told the officers that defendant handed her drugs. Williams admitted
she had drugs inside her underwear. Paul undid Williams’s pants and retrieved a bag of
rock cocaine from her pants.2


1      Methamphetamine was not found in the residence.
2      The officers recorded their questioning of Williams and Williams’s replies. The
recording was played to the jury.


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        The bag was turned over to Sheklanian. It contained 25 smaller wrapped bindles
of rock cocaine. A single bindle weighed .15 grams and all of the bindles were a similar
size. Drug users could not use 25 bindles of rock cocaine in a day and maintain a normal
home. Williams’s residence was very clean and well kept. The typical rock cocaine user
carries one or two rocks with them. Pre-packaging bindles of drugs in set quantities
makes sales of the drugs easy and quick by way of hand-to-hand transactions that draw
little attention.
        Sheklanian opined that defendant and Williams possessed the cocaine base for
sale. Sheklanian based his opinion on several facts. Williams had 25 separate bindles,
individually packaged that were also the same size and weight. Defendant and Williams
had cell phones and received 25 calls on one phone and 26 calls on the other. Defendant
and Williams had cash in small bills and separate locations in the amounts of $450, $411,
and $153.
        Sheklanian explained that drug dealers are aware police officers are going to
search a male more thoroughly than a female and commonly use female companions who
carry narcotics for them. Women hide contraband in their bras and panties because they
know a police officer is not going to touch those places during a regular patdown search.
Because defendant took a long time to pull over, he had plenty of time to give the rock
cocaine to Williams.
Testimony of Defendant’s Prior Convictions and Court’s Admonition to Jury
        During trial, Sheklanian said that defendant had been arrested, convicted, and sent
to prison twice. Defense counsel immediately objected that the statement assumed facts
not in evidence and the court excused the jury. The court told the prosecutor he could
introduce evidence that defendant had been arrested for possession of narcotics, but not
that he had prior convictions. The prosecutor explained that he did not admonish
Sheklanian not to mention the convictions, but did not expect him to talk about them.

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The court indicated it would admonish the jury that there was no evidence before it that
defendant had a prior conviction or had been to prison.
       Defense counsel moved for a mistrial, arguing that the bell had been rung and it
could not be unrung. The court denied defendant’s motion for a mistrial and found
generally that evidence of defendant’s prior drug transactions was prejudicial, but highly
probative to show the identity of the possessor as well as to show the knowledge and
intent of the possessor.
       The court told the jury that it had stricken Sheklanian’s testimony to the
prosecutor’s last question and the jury would not hear any evidence concerning defendant
going to prison or being convicted, such information was irrelevant, and the jury was not
to consider it in any way. The court further instructed the jury that defendant’s
punishment was totally irrelevant on the issue of guilt and the evidence the jury was
hearing was only relevant to show the identity of the perpetrator, or the knowledge and
intent of the perpetrator.
Evidence of Defendant’s Prior Arrests
       Officer Jeremy Harlow testified that on August 16, 2006, he was on routine patrol
when he saw defendant driving. Harlow was aware defendant did not have a valid
driver’s license. Defendant pulled over without being stopped by Harlow. Harlow’s
search of defendant’s car yielded a baggie with 13 individually wrapped doses of rock
cocaine in the car collectively weighing 4.2 grams. There were no devices to ingest
cocaine in the car. Defendant had two cell phones and $1,800 in cash. Harlow believed
defendant possessed cocaine base for sale.
       Sergeant Giachino Chiaramonte participated in the execution of a search warrant
on August 28, 2006, on a home defendant shared with his mother. Defendant was
detained after he left his residence. He was carrying a Cricket cell phone. Inside
defendant’s bedroom, investigators found one-by-one inch plastic resealable baggies used

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as packaging material and $490 in cash in male clothing in the closet. On the floor in the
bedroom near the foot of the bed, investigators also found a pair of pants with two plastic
bags in a pocket. One of those plastic bags contained cocaine base residue. Defendant
pulled a bag from his buttocks with 82 individually wrapped pieces of cocaine base
weighing 19.2 grams. Chiaramonte opined that defendant possessed the drugs for sale.
Defense Evidence
       Williams described defendant as a good friend and dated him off and on over the
past six years. Williams admitted that as a result of the events that transpired in this case,
she pled guilty to possession of drugs for sale. Williams said she lied to police when she
told them defendant handed the drugs to her. Williams said defendant was not selling
drugs, he did not know she had drugs in her underwear, and the two were not working
together.
       Williams thought she was high on drugs when she talked to the police officers.
Williams said she was using both methamphetamine and cocaine base. Williams
explained that she did not remember answering the officers’ questions. Williams denied
that she or defendant were drug dealers and stated that she bought the 25 packets from a
drug dealer whose name she did not remember. Williams said she probably could smoke
25 rocks of cocaine in one day. Just prior to her arrest, Williams received a tax refund of
a little over $5,800. Williams gave some money to defendant and had money in her purse
to pay bills.
                             OTHER CRIMES EVIDENCE
       Defendant contends that the other crimes evidence admitted by the trial court, as
well as Officer Sheklanian’s testimony concerning his convictions and imprisonment,
was unduly prejudicial and require the reversal of his convictions. Defendant calls the
“highly inflammatory” evidence concerning other crimes “the skunk in the jury box.”



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       Generally, evidence that a defendant has committed crimes other than those for
which he or she is on trial is inadmissible to prove bad character, predisposition to
criminality, or the defendant’s conduct on a specific occasion. Evidence Code section
1101, subdivision (b), however, permits evidence of a defendant’s past criminal acts
when identity, motive, or knowledge are relevant to prove a material fact at issue.
Evidence of prior drug use and convictions is generally admissible under Evidence Code
section 1101, subdivision (b) to establish that drugs were possessed for sale rather than
for personal use and to prove knowledge of the narcotic nature of the drugs.3 (People v.
Williams (2009) 170 Cal.App.4th 587, 607 (Williams).)
       A trial court should grant a motion for mistrial only when a defendant’s chance of
receiving a fair trial has been irreparably damaged. The prejudice must be incurable by
admonition or instruction. Whether a particular incident is incurably prejudicial is
speculative by its nature. The trial court is vested with considerable discretion in ruling
on motions for mistrial. We review the trial court’s ruling on a motion for mistrial for
abuse of discretion. (People v. Avila (2006) 38 Cal.4th 491, 573 (Avila); see also People
v. Lightsey (2012) 54 Cal.4th 668, 718.) In Avila, reference to a defendant being recently
in prison was cured by the trial court’s admonition to the jury to not consider the
statement for any purpose. (Avila, at p. 574.) The jury is presumed to have followed the
court’s instructions. (Ibid.; People v. Boyette (2002) 29 Cal.4th 381, 436.)
       Defendant’s right to a fair trial was not undermined by the trial court when,
following Evidence Code section 1101, subdivision (b), it permitted Officers Sheklanian,
Harlow, and Chiaramonte to testify concerning defendant’s prior arrests in 2006 for

3      The Williams case further found that evidence of prior arrests that did not result in
convictions was inadmissible as proof of guilt or for impeachment. (Williams, supra, 170
Cal.App.4th at p. 610.) Because defendant was convicted of the drug offenses referred to
by Officers Harlow and Chiaramonte, they could be used to show identity, knowledge,
and intent pursuant to Evidence Code section 1101, subdivision (b).


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narcotics sales. These incidents were relevant to show that defendant had knowledge of
the nature of illegal narcotics and to show his intent to sell rather than to merely possess
rock cocaine for his personal use.
       Officer Sheklanian also referred to defendant’s prior convictions for drug sales
and his time in prison for those offenses. The court admonished the jury that it was to
disregard these statements because they were stricken from the record. The court further
advised the jury that any reference to defendant’s other crimes was admitted solely for
the purpose of establishing identity, or the defendant’s knowledge and intent. On
appellate review, we presume that the jury followed the trial court’s instructions and did
so in the instant action. We find Avila and Williams controlling on the contentions raised
by defendant and find no error in the trial court’s denial of the new trial motion.
                                      DISPOSITION
       The judgment is affirmed.




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