Filed 2/16/16 P. v. Gant CA2/7
Received for posting 2/17/16
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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 This opinion has not been certified for publication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

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


THE PEOPLE,                                                          B261442

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA425476)
         v.

ANTHONY GANT,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County, Richard
Kemalyan, Judge. Affirmed.
         Tyrone A. Sandoval, 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, Paul M. Roadarmel, Jr.
and Stacy S. Schwartz, Deputy Attorneys General, for Plaintiff and Respondent.
                                        _________________________
       A jury convicted Anthony Gant of selling a controlled substance (cocaine base) in
violation of Health and Safety Code section 11352, subdivision (a). On appeal he argues
the trial court committed prejudicial error in admitting evidence he was in possession of
marijuana at the time of his arrest and had previously (in 2003) sold cocaine base to an
undercover officer. We affirm.
                  FACTUAL AND PROCEDURAL BACKGROUND
       1. The Evidence Gant Sold Cocaine Base
       While working undercover near the intersection of Arlington and West Vernon
Avenues, Los Angeles Police Officers Henry Merin and Brett Rutkowski, both of whom
testified at trial and identified Gant, observed a hand-to-hand transaction between Gant
                                                                  1
and a woman subsequently identified by the last name of Oday. After engaging in
conversation, Oday gave money to Gant (described by the officers as a “green item
resembling U.S. currency”). Gant then reached inside the back of his pants—to “his
buttocks area” according to Merin; to his “back anal region” according to Rutkowski—
and produced a plastic bag containing an off-white substance. Gant broke off a piece of
the substance and handed it to Oday. Oday placed the item inside a tissue in her left hand
and walked away, followed by Merin and Rutkowski, who kept her within their line of
sight. Merin and Rutkowski detained Oday about six blocks from the site of the
transaction and recovered an off-white rock-like substance resembling cocaine base
inside a small, clear plastic container (a “bindle”) in a white tissue Oday held in her left
hand. The parties stipulated the chemical analysis of the substance established it was .02
grams of cocaine base.
       As the officers pursued Oday, Officer Merin notified Los Angeles Police Officer
James Moon they had seen a hand-to-hand drug sale. After detaining Oday, Merin gave
Gant’s description to Moon, who began looking for Gant in the general area of the
transaction. According to Moon, he was told the suspect was a male Black, bald, wearing

1
      Officer Merin estimated they were approximately 20 to 30 feet away from Oday
and Gant; Officer Rutkowski estimated they were 30 to 50 feet away.
                                              2
a white T-shirt, black pants and white shoes. Eventually Moon saw someone fitting the
description he had been given enter an apartment building and then leave the building
approximately 30 to 45 minutes later. The suspect sat on a bus bench, where he was
arrested and taken into custody by uniform officers after Merin confirmed he was the
individual Merin had seen engage in the hand-to-hand drug sale. At the police station
Rutkowski and Moon conducted a strip search of Gant. They recovered $28 in cash, a
black bottle containing marijuana and a piece of plastic containing a white residue from
Gant’s anus.
       2. Defense Motions To Exclude Evidence Gant Was in Possession of Marijuana at
          the Time of His Arrest and Had Previously Sold Cocaine Base to an
          Undercover Police Officer
       Prior to opening statements defense counsel moved to exclude photographs
showing marijuana recovered from Gant at the time of his arrest, arguing it was irrelevant
to the charge of selling cocaine base and unduly prejudicial. The prosecutor proposed
admitting the photographs to give the jury “a complete picture of what occurred here.”
The court permitted the evidence, explaining the People were entitled to show everything
that was seized from Gant, but indicated it would give a limiting instruction that Gant’s
possession of marijuana could not be considered in determining his guilt. In addition to
introducing the photographs, Officers Merin and Moon testified that marijuana had been
recovered from Gant following his arrest. The court subsequently instructed the jury, “In
deciding whether or not defendant committed the offense charged in count I, you may not
consider whether defendant was in possession of marijuana at the time of his arrest.”
       Defense counsel also moved prior to opening statements to exclude evidence of
Gant’s 2003 drug sale. The prosecutor explained the People sought to introduce Gant’s
prior conviction under Health and Safety Code section 11352, subdivision (a), which
involved a small street sale of cocaine base, to show a common plan or scheme. Gant’s
counsel argued the prior offense was not relevant and, even if relevant, was more
prejudicial than probative. The court initially indicated it believed it was relevant to
show common plan, but reserved its final ruling on how the evidence could be used until
                                              3
it knew more about the case. Immediately prior to opening statements the court ruled the
evidence was admissible on the issue of intent.
         At trial Los Angeles Police Detective Edward Zavala, who had arrested Gant in
2003 testified, based on information in the police report he had prepared at that time, he
purchased 0.30 grams of rock cocaine (cocaine base) for $20 from Gant in the
neighborhood of Vernon Avenue and Sixth Avenue (approximately six blocks from the
location of the sale witnessed by Officers Merin and Rutkowski). According to the
report, Gant removed a white plastic bindle from his rear pants pocket. Gant then placed
the bindle, which contained an off-white solid that was subsequently determined to be
cocaine base, into Zavala’s hand. Evidence of Gant’s 2003 conviction was not
introduced.
         The court instructed the jury in accordance with CALCRIM No. 375 that it could
consider evidence Gant sold cocaine base in 2003 only if the People had proved Gant
committed that offense by a preponderance of the evidence and, if they had, could then
consider that evidence only for the limited purpose of deciding whether Gant had acted
                                                  2
with the intent to sell cocaine base in this case. The court further instructed, if the jury
concluded Gant had committed the uncharged offense, that fact was not sufficient by
itself to prove he was guilty of the current charge and also cautioned the jury not to
conclude from this evidence that Gant had a bad character or was disposed to commit
crime.




2
       The court instructed, in part, “If you decide that the defendant committed the
uncharged offense, you may, but are not required to, consider that evidence for the
limited purpose of deciding whether or not the defendant acted with the intent to sell,
furnish, administer, give away, transport, import cocaine base in this case.”
                                              4
       3. Closing Arguments
       In closing argument, given after the court instructed the jury, the prosecutor
argued Gant, who had not testified in his own defense or presented any defense
witnesses, “is a small town drug dealer. He sells on the streets small amounts of street-
level narcotics.” The prosecutor reminded the jury Gant had a small amount of money on
him, when arrested, “which is common for street-level narcotics. He also had some
marijuana on him.” She added, Gant “knew what it was [that he sold to Oday]. This
isn’t Mr. Gant’s first rodeo, as you have all heard. He’s had interaction with police
officers before. He knew it was rock cocaine; he knew it’s a small amount. He engaged
in these types of sales.”
       Defense counsel, for his part, noted the distance Officers Merin and Rutkowski
were from the scene they had described (somewhere between 20 and 50 feet) and
emphasized the difficulty of clearly seeing the purported exchange of currency for a
small packet of drugs. Stressing the People’s burden to prove Gant’s guilt beyond a
reasonable doubt, counsel suggested Oday had the cocaine with her before she interacted
with Gant and the officers, who were working undercover in an area known for narcotics
trafficking, simply assumed they had seen a drug sale take place. Counsel also asked the
jury not to give undue weight to the evidence Gant had previously been arrested for the
sale of cocaine.
       4. Jury Deliberations, Verdict and Sentencing
       After final instructions the jury began deliberating at 2:45 p.m. on December 8,
2014. At 3:30 p.m. the jury submitted a request to the court: “We need the description of
defendant, i.e., what clothing he was wearing, by all 3 officers before his arrest.” The
court informed counsel of the request, and the jury was advised a read-back would occur
the following day. The jury was excused for the day at 4:00 p.m. Read-back occurred
the following day in the jury room shortly after deliberations resumed at 9:00 a.m. (The
record on appeal does not reflect what portions of the testimony were reread.) At
10:00 a.m. the jury reported it had a verdict.

                                                 5
       The jury found Gant guilty on the single count charged, sale of a controlled
substance, cocaine base, in violation of Health and Safety Code section 11352,
subdivision (a). The court sentenced Gant to the middle term of four years to be served
in county jail and elected not to impose an additional three-year term under Health and
Safety Code section 11370.2, subdivision (a), for his prior conviction for sale of a
                      3
controlled substance. The court awarded Gant 172 days of presentence custody credit
and imposed statutory fines, fees and assessments.
                                       DISCUSSION
       1. Governing Law and Standard of Review
       “Only relevant evidence is admissible at trial. (Evid. Code, § 350.) Under
Evidence Code section 210, relevant evidence is evidence ‘having any tendency in reason
to prove or disprove any disputed fact that is of consequence to the determination of the
action.’ A trial court has ‘considerable discretion’ in determining the relevance of
evidence.” (People v. Merriman (2014) 60 Cal.4th 1, 74.) Similarly, the court “has
broad discretion to exclude relevant evidence under Evidence Code section 352 ‘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.’ [Citations.] We review
rulings regarding relevancy and Evidence Code section 352 under an abuse of discretion
standard.” (People v. Linton (2013) 56 Cal.4th 1146, 1181.) “We will not reverse a
court’s ruling on such matters unless it is shown ‘“the trial court exercised its
discretion in an arbitrary, capricious, or patently absurd manner that resulted in a
manifest miscarriage of justice.”’” (Merriman, at p. 74.)
       Similarly, the trial court’s determination of the admissibility of evidence of
uncharged offenses is reviewed for abuse of discretion. (People v. Kipp (1998)

3
       Prior to opening statements Gant moved to bifurcate trial of the special allegation
he had been convicted of the sale of cocaine base in 2003, waived his right to a jury trial
and stipulated to the conviction.
                                              6
18 Cal.4th 349, 369 [“[o]n appeal, the trial court’s determination of this issue, being
essentially a determination of relevance, is reviewed for abuse of discretion”].) Although
California law has long precluded use of evidence of a person’s character (a
predisposition or propensity to engage a particular type of behavior), including evidence
of character in the form of specific instances of uncharged misconduct, as a basis for an
inference that he or she acted in conformity with that character on a particular occasion
(Evid. Code, § 1101, subd. (a);4 People v. Ewoldt (1994) 7 Cal.4th 380, 393), 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.” (Ewoldt,
at p. 393; see Evid. Code, § 1101, subd. (b);5 People v. Leon (2015) 61 Cal.4th 569, 597-
598; see also People v. Falsetta (1999) 21 Cal.4th 903, 914 [“the rule against admitting
evidence of the defendant’s other bad acts to prove his present conduct [is] subject to far-
ranging exceptions”].) However, even if evidence of uncharged crimes is relevant for a
purpose other than the person’s character or disposition, before admitting the evidence a
trial court must also find it has substantial probative value that is not largely outweighed
by its potential for undue prejudice under Evidence Code section 352. (Leon, at p. 599;
Kipp, at p. 371.) Whether the probative value is outweighed by the prejudicial effect of
the evidence, like other evidentiary rulings by the trial court, is subject to abuse-of-
discretion review. (Leon, at p. 599; People v. Davis (2009) 46 Cal.4th 539, 602.)

4
        Evidence Code section 1101, subdivision (a), provides, “Except as provided in this
section and in Sections 1102, 1103, 1108, and 1109, evidence of a person’s character or a
trait of his or her character (whether in the form of an opinion, evidence of reputation, or
evidence of specific instances of his or her conduct) is inadmissible when offered to
prove his or her conduct on a specified occasion.”
5
       Evidence Code section 1101, subdivision (b), provides, “Nothing in this section
prohibits the admission of evidence that a person committed a crime, civil wrong, or
other act when relevant to prove some fact (such as motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake or accident, or whether a
defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act
did not reasonably and in good faith believe that the victim consented) other than his or
her disposition to commit such an act.”
                                              7
       2. Any Evidentiary Error Was Harmless
              a. Evidence that Gant possessed marijuana
       To prove Gant was guilty of selling a controlled substance, the People were
required to prove, in addition to the actual sale of a usable amount of a controlled
substance, that Gant knew of the substance’s nature or character as a controlled substance
(that is, that he knew he was selling rock cocaine to Oday). Although Gant’s defense at
trial was simply that a reasonable doubt existed whether the undercover officers had
actually witnessed a sale at all, not that he did not know what he was selling, “‘[t]he
prosecution’s burden to prove every element of the crime is not relieved by a defendant’s
tactical decision not to contest an essential element of the case.’” (People v. Jones (2011)
51 Cal.4th 346, 372; accord, People v. Ewoldt, supra, 7 Cal.4th at p. 400, fn. 4.)
Accordingly, the People were entitled to introduce evidence to prove Gant’s knowledge.
       On appeal the People argue evidence of Gant’s possession of marijuana was
admissible to show “the absence of error regarding his knowledge of the illegality of the
cocaine base,” citing case law for the proposition that similar acts are admissible to show
the absence of mistake. There are two problems with this argument. First, while it is true
as a general matter that in prosecutions involving controlled substances evidence of prior
drug convictions may be relevant to prove knowledge of the illegal nature of the
substance (see, e.g., People v. Williams (2009) 170 Cal.App.4th 587, 607), to be
admissible on this theory it is necessary “that the controlled substance be the same.”
(People v. Hendrix (2013) 214 Cal.App.4th 216, 241; see also id. at pp. 242-243 [“to
establish knowledge when the element is akin to the absence of mistake, the uncharged
events must be sufficiently similar to the circumstances of the charged offense to support
the inference that what defendant learned from the prior experience provided the relevant
                                       6
knowledge in the current offense”].)


6
      At pages 4 to 5 of her respondent’s brief the Attorney General cites Hendrix in
support of her argument in the following manner: “see also People v. Hendrix (2013)
214 Cal.App.4th 216, 241-42, citing United States v. Vo (9th Cir. 2005) 413 F.3d 1010,
                                            8
       Second, the evidence Gant possessed marijuana at the time of his arrest was not
admitted to demonstrate his knowledge of the controlled nature of the substance he
allegedly sold Oday, nor was the jury given a limiting instruction to that effect. In the
trial court the prosecutor argued the evidence was admissible simply “to give the jury a
complete picture of what occurred here,” that is, that it was one of the items recovered
from Gant at the time of his arrest; and the trial court admitted the evidence on the
express condition it would instruct the jury it could not consider Gant’s possession of
marijuana for purposes of determining his guilt—that is, the court apparently determined
the evidence was not relevant (or its limited relevance was outweighed by undue
prejudice) but allowed its introduction in any event. That was error.
       Nonetheless, the erroneous admission of the marijuana evidence was harmless.
(See Evid. Code, § 353 [“[a] verdict or finding shall not be set aside, nor shall the
judgment or decision based thereon be reversed, by reason of the erroneous admission of
evidence unless . . . the error or errors complained of resulted in a miscarriage of
justice”]; People v. Rowland (1992) 4 Cal.4th 238, 264 [prejudicial effect of erroneous
admission of evidence that is not federal constitutional error is evaluated under People v.
Watson (1956) 46 Cal.2d 818, 836, standard of whether it is reasonably probable
defendant would have received a more favorable result if evidence had been excluded].)
Although the prosecutor improperly referred to Gant’s possession of marijuana in her
                  7
closing argument, the trial court instructed the jury not to consider that evidence in


1017-1019 [evidence of a prior cocaine trafficking conviction admissible in
methamphetamine trafficking case to establish absence of mistake because the evidence
showed that defendant had familiarity with drug trafficking in general].)” Far from
supporting her position, however, Hendrix directly contradicts the Attorney General’s
argument, permitting evidence of a prior controlled substance incident to prove
knowledge only if the controlled substances in the past and current incidents are the
same. United States v. Vo, supra, 413 F.3d 1010, a federal case without precedential
value that takes a contrary view, was cited by Hendrix, but with a “but see” signal that
the Attorney General has curiously omitted.
7
       Gant’s counsel neither objected to the prosecutor’s reference to the fact Gant had
                                             9
deciding the issue of Gant’s guilt of the charged offense and also instructed the jury
counsel’s arguments were not evidence. “[A]bsent some indication to the contrary, we
assume a jury will abide by a trial court’s admonitions and instructions.” (People v.
Seumanu (2015) 61 Cal.4th 1293, 1336.)
       In addition, the evidence supporting the jury’s finding of guilt was overwhelming.
Officers Merin and Rutkowski witnessed the crime. They identified Gant at trial as the
individual they saw engage in the hand-to-hand transaction with Oday and confirmed
Gant’s identity to Officer Woods after Woods later detained Gant. Moreover, when
Oday was detained, after being under continuous observation by the officers, she was still
holding in her left hand a bindle containing cocaine base. In addition, when Gant was
searched following his arrest, officers found a piece of plastic containing white residue in
his anus, linking Merin and Rutkowski’s description of Gant’s actions before transferring
the bindle to Oday (reaching inside his “buttocks area” or “anal region”) to the cocaine
base recovered from Oday’s hand. The jury’s request to have reread testimony regarding
the officers’ description of Gant’s clothing, submitted only 45 minutes after deliberations
began, does not indicate, as Gant now argues, this was a close case or the jurors struggled
with relying on the officers’ identifications of Gant as the seller. To the contrary, the fact
the jury deliberated for only two hours and 15 minutes, including the time for read-back,
suggests it found the officers’ testimony credible and persuasive. It is not reasonably
probable Gant would have obtained a more favorable result if the marijuana evidence had
been excluded.




marijuana on him when he was arrested nor requested a curative admonition. (See
People v. Ledesma (2006) 39 Cal.4th 641, 726 [a claim of prosecutorial misconduct
during closing argument is generally preserved for appeal “only if the defendant objects
in the trial court and requests an admonition, or if an admonition would not have cured
the prejudice caused by the prosecutor’s misconduct”]; see also People v. Centeno (2014)
60 Cal.4th 659, 675 [“‘[t]he decision facing counsel in the midst of trial over whether to
object to comments made by the prosecutor in closing argument is a highly tactical
one’”].)
                                             10
              b. Evidence of Gant’s 2003 arrest for sale of cocaine base
       As discussed, prior to opening statements the court limited use of the evidence of
Gant’s 2003 arrest for sale of cocaine base to the issue of intent, implicitly rejecting the
prosecutor’s argument it was admissible to show a common plan or scheme. The court’s
instructions expressly limited the jury’s consideration of the evidence to that element of
the charged offense. We agree with Gant that the limited probative value of the evidence
of the 2003 drug sale to prove intent was significantly outweighed by the substantial
prejudicial effect of the evidence and that the trial court abused its discretion in
permitting the evidence to be introduced for that purpose.
       In People v. Balcom (1994) 7 Cal.4th 414, a case decided the same day as People
v. Ewoldt, supra, 7 Cal.4th 380, the Supreme Court explained, “‘Evidence of intent is
admissible to prove that, if the defendant committed the act alleged, he or she did so with
the intent that comprises an element of the charged offense. “In proving intent, the act is
conceded or assumed; what is sought is the state of mind that accompanied it.”
[Citation.]’” Although the Court acknowledged a plea of not guilty puts at issue all of the
elements of the offense, including defendant’s intent, in many instances if the jury found
that defendant committed the act alleged, “there could be no reasonable dispute that he
harbored the requisite criminal intent.” (Balcom, at p. 422.) Thus, although evidence
that defendant had committed uncharged similar offenses would have some relevance
regarding his intent in the pending case, “evidence of defendant’s uncharged similar
offenses would be merely cumulative on this issue.” (Id. at p. 423.) That is exactly the
situation here. If the jury accepted the evidence that Gant sold cocaine base to Oday,
there could be no reasonable dispute he did so with the required general criminal intent;
yet the potential for undue prejudice from the jury hearing of a prior similar sale in the
same general location was considerable. (See Ewoldt, at p. 404; Evid. Code, § 352.)
       Nonetheless, we agree with the Attorney General the prior offense was sufficiently
similar to the charged crime to justify its admission to prove a common plan. (See
People v. Chism (2014) 58 Cal.4th 1266, 1307, fn. 13 [“‘“a ruling or decision, itself

                                              11
correct in law, will not be disturbed on appeal merely because given for a wrong
reason”’”]; see also People v. Balcom, supra, 7 Cal.4th at p. 423 [evidence of uncharged
offense admissible to prove the existence of a common design or plan, although not to
              8
prove intent].) “[E]vidence of a common design or plan is admissible to establish the
defendant committed the act alleged. Unlike evidence used to prove intent, where the act
is conceded or assumed, [i]n proving design, the act is still undetermined . . . . To
establish a common design or plan the evidence must demonstrate not merely a similarity
in results, but such a concurrence of common features that the various acts are naturally
to be explained as caused by a general plan of which they are the individual
manifestations.” (Balcom, at pp. 423-423, internal quotation marks and citations
omitted.) That degree of similarity is present here: Both the 2003 incident and the
charged offense involved the street sale of a small amount of similarly packaged cocaine
base in a hand-to-hand transaction in the same part of the Los Angeles. (See People v.
Walker (2006) 139 Cal.App.4th 782, 803 [“‘a common scheme or plan focuses on the
manner in which the prior misconduct and the current crimes were committed, i.e.,
whether the defendant committed similar distinctive acts of misconduct against similar
victims under similar circumstances’”].) And for this purpose, the substantial probative
value of the evidence was not plainly outweighed by the potential for undue prejudice.
(See People v. Karis (1988) 46 Cal.3d 612, 638 [“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, highly probative evidence. ‘[A]ll
evidence which tends to prove guilt is prejudicial or damaging to the defendant’s case.
The stronger the evidence, the more it is “prejudicial.”’”].)




8
       The 2003 sale of cocaine base may also have been admissible to prove Gant’s
knowledge he was selling a controlled substance since, unlike the evidence of his
possession of marijuana, the substances in the 2003 incident and the current offense were
the same. (See People v. Hendrix, supra, 214 Cal.App.4th at p. 241.)
                                             12
       Although the trial court admitted the evidence for the wrong reason and limited
the jury’s consideration of it to an essentially undisputed issue, that restriction worked to
the detriment of the prosecution, not Gant. The jury was instructed to consider the 2003
sale only to determine, if it found that Gant had sold cocaine base to Oday, whether he
did so with the requisite criminal intent, and not for any other purpose (that is, not to
decide whether he in fact had made a further sale as part of a common plan to traffic in
small amounts of rock cocaine). (See People v. McKinnon (2011) 52 Cal.4th 610, 670
[jurors are presumed to understand and follow the court’s instructions].) Moreover,
notwithstanding the prosecutor’s reference in closing argument to the prior incident and
                                                            9
her comment that Gant “engaged in these types of sales,” for the reasons discussed
above, any error in how this evidence was admitted, or the jury instructed to consider it,
was harmless. Similarly, given the strength of the People’s evidence, even when we
consider the cumulative effect of the evidentiary errors Gant has identified, it is not
reasonably probable the jury would have reached a result more favorable to Gant in the
absence of those errors. Gant was not deprived of a fair trial. (See generally People v.
McDowell (2012) 54 Cal.4th 395, 442 [the few errors that occurred, whether considered
individually or collectively, were harmless; defendant “was entitled to a fair trial but not
a perfect one”].)




9
       As with the prosecutor’s comment regarding Gant’s possession of marijuana,
defense counsel did not object to the prosecutor’s statements during her closing argument
regarding his prior arrest for sale of cocaine base. (See footnote 7, above.)
                                              13
                                   DISPOSITION
      The judgment is affirmed.




                                               PERLUSS, P. J.

      We concur:



             SEGAL, J.



             BLUMENFELD, J.*




*     Judge of the Los Angeles County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
                                          14
