Filed 4/28/14 P. v. Cornejo 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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                                     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,                                       E058617

v.                                                                       (Super.Ct.No. BLF1200243)

FRANCISCO FLORES CORNEJO,                                                OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. James S. Hawkins, Judge.

Affirmed with directions.

         Patrick J. Hennessey, Jr., 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, Charles C. Ragland and Stacy

Tyler, Deputy Attorneys General, for Plaintiff and Respondent.




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       Defendant Francisco Flores Cornejo appeals from his conviction of knowingly

possessing heroin while he was incarcerated in Ironwood State Prison, in violation of

Penal Code section 4573.6, subdivision (a). He contends the trial court abused its

discretion by permitting the People to introduce evidence of a prior uncharged incident in

which a handmade syringe was found in his cell in another state prison. According to

defendant, this evidence was inadmissible under Evidence Code1 section 1101,

subdivision (b), because it was not directly relevant to proving the current possession

charge. Even if the evidence was relevant, defendant contends the probative value of the

evidence was substantially outweighed by its prejudicial impact, and the trial court

abused its discretion by not excluding the evidence pursuant to section 352.

       We conclude the prior uncharged conduct was probative to proving defendant

knew the controlled substance he possessed was heroin, and its probative value was not

substantially outweighed by its prejudicial impact. We therefore affirm.

                                              I.

                                          FACTS

       Officer Hull testified he is a correctional officer at Ironwood State Prison

(Ironwood) and he worked with the prison’s Investigation Services Unit (ISU), which

investigates crimes committed by prisoners such as use of and trafficking in narcotics. If

a prisoner is suspected of possessing narcotics, the ISU’s protocol is to perform a search

of the unclothed prisoner, the prisoner’s clothing, and the prisoner’s body cavities and

       1   All further undesignated statutory references are to the Evidence Code.



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genitals. On a daily basis, the ISU found prisoners who hid contraband in their anal

cavity.

          On August 7, 2011, Hull was informed by prison staff defendant might be under

the influence of a controlled substance. When Hull made contact with defendant, he

checked defendant’s body for anything indicative of being under the influence of a

controlled substance and found what appeared to be two injection sites on defendant’s

arm. Hull then performed an unclothed body search of defendant and saw what appeared

to be a shiny lubricant around defendant’s anus, which Hull testified is indicative of

secreting contraband from prison staff. Defendant related to Hull he told staff he had

been drinking alcohol because he did not want them to know he took “a shot of heroin.”

Hull found no contraband on defendant, but placed defendant on contraband watch.

          Former Officer Sumbler testified he previously worked as a correctional officer at

Ironwood. Sumbler conducted a contraband watch of defendant on August 8, 2011.

When defendant defecated, Sumbler searched defendant’s feces and found a white latex

bindle. After washing off the bindle with soap and water, Sumbler handed the bindle

over to Officer Griego, the ISU officer for the day.

          Officer Griego testified she was assigned to the ISU at Ironwood during the time

in question, and she was an evidence custodian and drug test officer, among other things.

On August 8, 2011, Griego received a call from a sergeant directing her to collect the

contraband Sumbler discovered in defendant’s feces. Griego recovered the bindle from

Sumbler and conducted a presumptive field test on its contents, which showed the




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substance inside the bindle was heroin. Griego then placed the contents of the bindle into

an evidence envelope to be sent to the Department of Justice (DOJ) for further testing.

       Mrs. Hughes, a DOJ criminalist, testified she received for testing the substance

found in the bindle defendant defecated. After performing a chemical test on the

substance, Hughes concluded it was heroin.

       Officer Garcia testified he was assigned to the ISU at Calipatria State Prison

(Calipatria). On August 21, 2007, he and his partner conducted a surprise search of

defendant’s cell. When the officers opened the food port to the cell door, Garcia saw

defendant jump from the top bunk, grab something from the top of a desk with his right

hand, and then squat down between the desk and a locker. Defendant placed his right

hand between his boxer shorts and his buttocks. Garcia ordered defendant to lie down in

a prone position, and then sprayed defendant with pepper spray to make him comply.

The officers then removed defendant from the cell, searched defendant, and found

nothing on him.

       Inside the cell, Garcia found a handmade syringe on the desk within arm’s reach

from where he saw defendant squat. In a bucket between the desk and the locker, close

to where defendant squatted down, Garcia found two bindles containing a black tar-like

substance. Garcia testified prisoners are not permitted to have syringes, and typically

handmade syringes are used for intravenously injecting narcotics such as

methamphetamine and heroin. On cross-examination, Garcia testified the bindles and

handmade syringe were accessible to both defendant and his cellmate.




                                             4
       Officer Dominguez, an investigator at Calipatria, testified he spoke to defendant

about the August 21, 2007, search of his cell. Defendant told Dominguez when Garcia

and his partner arrived at the door to his cell, he jumped from the top bunk, retrieved a

handmade syringe, then squatted down and placed the syringe between his buttocks.

Defendant also told Dominguez after Garcia sprayed him with pepper spray, defendant

removed the syringe from his buttocks and placed it on the top shelf of a locker as he was

getting down to a prone position on the floor.

       The judge instructed the jury if it concluded the People proved the uncharged 2007

offense by a preponderance of the evidence, it could only consider the evidence for the

limited purpose of deciding whether defendant knew the nature of the controlled

substance he was alleged to have possessed in the current offense. The court also

instructed the jury in evaluating the evidence of the uncharged 2007 offense, it was to

consider the similarity or dissimilarity between the uncharged offense and the charged

offense of possession.

       The jury found defendant guilty on the sole count of knowingly possessing heroin

while in state prison, in violation of Penal Code section 4573.6, subdivision (a).

Defendant then admitted he suffered four strike priors (Pen. Code, §§ 667, subds. (c),

(e)(1), 1170.12, subd. (c)(1)), and admitted he suffered three prison priors (Pen. Code,

§ 667.5, subd. (b)). The trial court sentenced defendant to the middle term of three years

in state prison for the drug possession conviction, which was doubled pursuant to the two

strikes law, and imposed three one-year terms for each of the admitted prison priors, for a




                                             5
total of nine years in prison to run consecutively2 to the term defendant was already

serving.

       Defendant timely appealed.

                                             II.

                                       DISCUSSION

       Defendant contends the trial court erred prejudicially by permitting the People to

introduce evidence of the 2007 uncharged incident in which a handmade syringe was

discovered in his cell at Calipatria. According to defendant, the prior uncharged incident

was not probative to proving he knew the nature of the contents of the bindle he

defecated because the People introduced no evidence the syringe contained heroin. We

disagree.

       “‘Subdivision (a) of [Evidence Code] section 1101 prohibits admission of

evidence of a person’s character, including evidence of character in the form of specific

instances of uncharged misconduct, to prove the conduct of that person on a specified

occasion. Subdivision (b) of section 1101 clarifies, however, that this rule does not

prohibit admission of evidence of uncharged misconduct when such evidence is relevant

to establish some fact other than the person’s character or disposition,’ such as identity,


       2  Neither the oral sentence nor the minute order and abstract of judgment reflect
defendant’s sentence in this case must be served fully consecutively to the prison
sentence he was serving at the time of his in-prison offense. (Pen. Code, §§ 667,
subd. (c)(8), 1170.1, subd. (c); see People v. White (1988) 202 Cal.App.3d 862, 869-870.)
We will direct the superior court clerk to correct the minutes of sentencing and prepare an
amended abstract of judgment.



                                              6
common plan, or intent. [Citation.] Evidence of uncharged crimes is admissible to prove

identity, common plan, and intent ‘only if the charged and uncharged crimes are

sufficiently similar to support a rational inference’ on these issues. [Citation.]” (People

v. Edwards (2013) 57 Cal.4th 658, 711.)

       “‘The admissibility of other crimes evidence depends on (1) the materiality of the

facts sought to be proved, (2) the tendency of the uncharged crimes to prove those facts,

and (3) the existence of any rule or policy requiring exclusion of the evidence.’

[Citation.]” (People v. Lindberg (2008) 45 Cal.4th 1, 22.) “‘Because this type of

evidence can be so damaging, “[i]f the connection between the uncharged offense and the

ultimate fact in dispute is not clear, the evidence should be excluded.” [Citation.]’

[Citation.]” (People v. Fuiava (2012) 53 Cal.4th 622, 667 (Fuiava).)

       “‘If evidence of prior conduct is sufficiently similar to the charged crimes to be

relevant to prove the defendant’s intent, common plan, or identity, the trial court then

must consider whether the probative value of the evidence “is ‘substantially outweighed

by the probability that its admission [would] . . . create substantial danger of undue

prejudice, of confusing the issues, or of misleading the jury.’ (Evid. Code, § 352.)”

[Citation.]’” (People v. Rogers (2013) 57 Cal.4th 296, 326 (Rogers).) Although

evidence of uncharged offenses is inherently “damaging” to the defendant’s case (Fuiava,

supra, 53 Cal.4th at p. 667), exclusion under section 352 is only merited when the

prejudicial impact of the evidence substantially outweighs its probative value. “The

prejudice which exclusion of evidence under Evidence Code section 352 is designed to

avoid is not the prejudice or damage to a defense that naturally flows from relevant,

                                              7
highly probative evidence. ‘[All] evidence which tends to prove guilt is prejudicial or

damaging to the defendant’s case. The stronger the evidence, the more it is “prejudicial.”

The “prejudice” referred to in Evidence Code section 352 applies to evidence which

uniquely tends to evoke an emotional bias against the defendant as an individual and

which has very little effect on the issues. In applying section 352, “prejudicial” is not

synonymous with “damaging.”’ [Citation.]” (People v. Karis (1988) 46 Cal.3d 612,

638.)

        “‘“Rulings made under [Evidence Code sections 1101 and 352 . . .] are reviewed

for an abuse of discretion. [Citation.]” [Citation.] “Under the abuse of discretion

standard, ‘a trial court’s ruling will not be disturbed, and reversal . . . is not required,

unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd

manner that resulted in a manifest miscarriage of justice.’ [Citation.]” [Citation.]’

[Citation.]” (Rogers, supra, 57 Cal.4th at p. 326.)

        “‘It is well settled, of course, that in a prosecution for unlawful possession of

narcotics, it is incumbent upon the prosecution to present evidence from which the trier

of the facts reasonably may infer and find that the accused had dominion and control over

the contraband with knowledge of its presence and narcotic character. . . .’ [Citation.]

It is also well settled, however, that each of these essential elements may be proved by

circumstantial evidence and any reasonable inferences drawn from such evidence.

[Citations.]” (People v. Tripp (2007) 151 Cal.App.4th 951, 956 (Tripp).)

        As defendant states in his opening brief, his knowledge of the nature of the

substance found inside the bindle he defecated was at issue. He did not stipulate to such

                                                8
knowledge and, at trial, evidence was introduced that prisoners hide other forms of

contraband in their anuses, such as tobacco. Therefore, the People could seek to

introduce evidence of uncharged drug offenses under section 1101, subdivision (b), to

prove such knowledge. (People v. Ewoldt (1994) 7 Cal.4th 380, 400, fn. 4 (Ewoldt).) “In

prosecutions for drug offenses, evidence of prior drug use and prior drug convictions is

generally admissible under Evidence Code section 1101, subdivision (b), . . . to prove

knowledge of the narcotic nature of the drugs. [Citation.]” (People v. Williams (2009)

170 Cal.App.4th 587, 607 [Fourth Dist., Div. Two]; see also People v. Perez (1974) 42

Cal.App.3d 760, 767-768 [Fourth Dist., Div. Two].)

       The evidence of defendant’s prior drug offense was sufficiently similar to the

current charge and was probative to proving his knowledge of the nature of the substance

he hid in his anus. In the 2007 incident, defendant grabbed a handmade syringe from a

desk and tried to hide it between his buttocks during a search of his cell. Along with the

syringe, officers found two bindles containing a black tar-like substance in a bucket near

where defendant squatted down. Officer Garcia testified prisoners use handmade

syringes to intravenously inject narcotics such as methamphetamine and heroin. In the

current offense, Officer Hull saw what appeared to be two injection sites on defendant’s

arm, where he may have injected himself with narcotics, and defendant told Hull he lied

to prison staff about drinking alcohol to cover up the fact he took “a shot of heroin.”

Finally, Hull saw defendant had a shiny lubricant around his anus, which indicated

defendant was hiding something in his anal cavity, and the bindle defendant subsequently

defecated contained heroin. Although the handmade syringe was not tested for the

                                             9
presence of narcotics, both incidents relate to possession and use of narcotics that may be

injected intravenously. Defendant’s prior possession of a syringe, which most assuredly

was not for the purpose of consuming contraband tobacco, was relevant to establishing

defendant knew the bindle he hid in his anus contained heroin and not something else.

       Nor was the probative value of the prior incident substantially outweighed by the

prejudicial impact the evidence would have on defendant’s jury. In determining whether

evidence of the uncharged offense prejudiced defendant, one factor we weigh is whether

“[t]he testimony describing defendant’s uncharged acts . . . was no stronger and no more

inflammatory than the testimony concerning the charged offenses.” (Ewoldt, supra,

7 Cal.4th at p. 405.) The evidence of defendant’s current offense, which involved fairly

graphic testimony about shiny lubricant around defendant’s anus and a white bindle

found in defendant’s feces, was by itself sufficiently damaging to defendant. The

additional evidence that four years earlier defendant was found possessing a handmade

syringe was not likely to inflame the jury so much that it could not fairly consider the

evidence. Moreover, the judge took great pains to properly instruct the jury it was only to

consider the evidence of the syringe incident for the purpose of determining whether the

People proved defendant knew the nature of the contents of the bindle. We must presume

the jury understood and followed that instruction. (People v. Homick (2012) 55 Cal.4th

816, 853.) Therefore, we conclude the trial court did not abuse its discretion by

permitting the People to introduce evidence of the uncharged syringe incident under

section 1101, subdivision (b).




                                             10
       Finally, even if we were to find the trial court abused its discretion by permitting

the People to introduce evidence of the syringe incident, we may only reverse the

judgment if we conclude the error resulted in a miscarriage of justice. (Cal. Const., art.

VI, § 13; People v. Richardson (2008) 43 Cal.4th 959, 1001; see also § 353, subd. (b).)

Evidentiary error is harmless unless it is reasonably probable defendant would have

received a more favorable result absent the error. (People v. Watson (1956) 46 Cal.2d

818, 836; see People v. Fudge (1994) 7 Cal.4th 1075, 1103.)

       Officer Hull testified defendant had two possible injection sites on his arm, and

defendant admitted he took a shot of heroin. That defendant was familiar with narcotics

that are injected intravenously, in particular with heroin, was evidence from which a jury

could reasonably conclude defendant knew the substance he possessed was in fact heroin.

(See Tripp, supra, 151 Cal.App.4th at p. 956 [“knowledge of a substance’s narcotic

nature may be shown by evidence . . . showing a familiarity with the substance, such as

needle marks or other physical manifestations of drug use or instances of prior drug

use”].) Moreover, defendant hid the bindle containing heroin inside his anal cavity. The

lengths to which defendant went to hide the bindle from prison staff is also circumstantial

evidence from which a jury could reasonably have concluded defendant knew the nature

of what was contained inside it. (Ibid. [“suspicious conduct indicating a consciousness of

guilt” is circumstantial evidence the defendant knew the nature of the narcotics he

possessed].) Because it is not reasonably probable a jury would have acquitted defendant

if the trial court had excluded the prior offense evidence, we must conclude any error was

harmless.

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                                           III.

                                     DISPOSITION

       The clerk of the superior court is directed to amend the minutes of sentencing and

prepare an amended abstract of judgment to reflect defendant’s sentence in this case shall

be served fully consecutively to the prison term he was serving when he committed his

in-prison offense of possessing narcotics. (Pen. Code, §§ 667, subd. (c)(8), 1170.1, subd.

(c).) The clerk shall then forward the amended minute order and abstract of judgment to

the Department of Corrections and Rehabilitation. In all other respects, the judgment is

affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                              McKINSTER
                                                                                           J.

We concur:



RAMIREZ
                       P. J.



KING
                          J.




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