Filed 6/28/13 P. v. Lopez CA1/5

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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                       FIRST APPELLATE DISTRICT
                                                  DIVISION FIVE




THE PEOPLE,

         Plaintiff and Respondent,                                          A132444

         v.                                                                 (Humboldt County
                                                                            Super. Ct. No. CR1100590)
JOSE HERNANDEZ LOPEZ,

      Defendant and Appellant.
_________________________________/

         A jury convicted appellant Jose Hernandez Lopez of, among other things,
transportation to sell a controlled substance (Health & Saf. Code, § 11352, subd. (a)) and
the trial court sentenced him to state prison.
         On appeal, appellant contends the court erred by admitting evidence of his 2007
drug possession conviction. We affirm.
                         FACTUAL AND PROCEDURAL BACKGROUND
         In 2007, appellant pleaded guilty to possessing heroin for sale (Health & Saf.
Code, § 11351) and was placed on probation.
         In February 2011, the People charged appellant with possession of a controlled
substance for sale (Health & Saf. Code, § 11351), transportation to sell a controlled
substance (Health & Saf. Code, § 11352, subd. (a)), use of a false compartment (Health &
Saf. Code, § 11366.8, subd. (a)), and giving false information to a police officer (Pen.
Code, § 148.9, subd. (a)).
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       Before trial, appellant moved to exclude evidence of the 2007 conviction. The
prosecution opposed the motion, contending the evidence was admissible under Evidence
Code section 1101, subdivision (b)1 because the offense was “relevant to material facts in
issue which are identity, motive, opportunity, scheme and knowledge.” In 2007, Los
Angeles law enforcement officers “observed the defendant and another male make
contact. The two men were then approached by the law enforcement officers. The
defendant gave permission for his vehicle to be searched . . . . The defendant pled guilty
to the charge of possession for sale[ ] of heroin . . . .” The People argued the crimes were
sufficiently similar to permit introduction of the 2007 conviction and were relevant to
prove appellant was “the person responsible for the drugs concealed and that he knew of
the substance‟s nature as a controlled substance.”
       In arguing against the motion, the prosecutor explained law enforcement observed
a man approach appellant in a “high drug area[.]” The officers talked to appellant. “He
consented to a search of the car and in the left air duct of the vehicle they found a
quantity of heroin . . . five point three grams. . . .” The prosecutor argued the 2007 and
2011 incidents were sufficiently similar because, in “both cases [appellant had] custody
and control of a quantity of heroin. Both cases it‟s in a concealed compartment in the
vehicle. Both cases he consents presum[ably] because he doesn‟t believe that law
enforcement is actually going to find where he‟s concealed the heroin.”
       After hearing the parties‟ argument, the court denied the motion and admitted
evidence of appellant‟s 2007 conviction. The court concluded the evidence was relevant
under section 1101, subdivision (b) to support an inference of “common design and plan”
and that “the prejudicial effect is such that it outweighs the probative value.”
Prosecution Evidence
       Los Angeles Police Officer Enrique Hernandez testified about appellant‟s 2007
conviction. On August 3, 2007, Officer Hernandez was working in an area of Los
Angeles known for the “use and sales of narcotics.” Hernandez saw a known drug dealer


1
       Unless otherwise noted, all further statutory references are to the Evidence Code.
                                              2
named “Rivera” engage in two “hand-to-hand” drug transactions that day. That evening,
Hernandez saw a man — later identified as appellant — park a Chevy Tahoe with no
license plates in the middle of the street. Appellant got out of the car and began talking
to Rivera. Hernandez believed a “narcotics transaction was going to take place[,]” so he
approached appellant. He asked appellant for identification and appellant produced a
Mexican driver‟s license with the name “Esteban Ramirez.” After appellant consented,
officers searched the Chevy Tahoe and found a plastic baggie containing 5.33 grams of
heroin hidden in the driver‟s side air vent. The police arrested appellant for “possession
and transportation of narcotics.” Appellant pled guilty.
       Law enforcement officers also testified about the 2011 incident. On the afternoon
of February 1, 2011, a confidential informant told the Humboldt County Drug Task Force
that a drug sale would take place on Elinor Road. The task force — including member
Chris Ortega — began surveillance of the area. At approximately 3:48 p.m., a blue Ford
sedan matching the informant‟s description drove to the area where Elinor Road comes to
a dead-end. The car turned around and returned to the highway. A task force special
agent followed the car, which returned to the dead-end area on Elinor Road a second
time, rolled into the area slowly, and turned around to leave.
       Task force members stopped the car and Ortega walked to the driver‟s side door,
where he saw a man he later identified as appellant. There were a total of four people in
the car: two men in the front and two women in the back. Ortega asked appellant how he
was doing and whether he had a California driver‟s license; when appellant said he did
not, Ortega asked him “if he would mind stepping out of the vehicle.” Appellant said he
would not mind and he got out of the car. Ortega told appellant he was “investigating
drug activity in the area and . . . asked [appellant] if there were any drugs in his car.” At
that point, appellant said there were no drugs in the car and consented to a search of the
vehicle. He also consented to a search of his person. Ortega searched appellant and




                                              3
found a “found a large bundle of money” totaling $1,249 in the right pocket of
appellant‟s pants.2
       Another task force member, agent Kirkpatrick, searched the car with the assistance
of a drug-detection dog and found a hidden compartment in the center console. The
hidden compartment contained a clear plastic bag with 722.8 grams of heroin. When
Ortega saw the “large quantity of suspected heroin[,]” he arrested appellant. Ortega
Mirandized appellant, showed him the heroin, and “asked him if he wanted to talk . . .
about” it. Appellant “stated that he did.” Although appellant did not seem surprised
when Ortega showed him the heroin, he spontaneously stated, “„I don‟t know anything
about that stuff.‟” When Ortega asked appellant whether he knew about the “drugs in the
hidden compartment[,]” appellant “continued to deny it.”
       Ortega then told appellant he would process the package for fingerprints and asked
Lopez whether he “would find his fingerprints on the package.” In response, appellant
said he “might.” Later, he said, “„Why go through anymore drama?‟ It‟s mine. . . . I‟ll
take the blame and nobody in the vehicle has anything to do with it.” Appellant claimed
a man in Los Angeles hired him to deliver the car with the drugs to Eureka. He admitted
knowing the car contained drugs but denied knowing “specifically what kind of drugs[.]”
Appellant said the man put the drugs into the hidden compartment but admitted he “may
have touched it when the guy showed it to him.” He also admitted the money in his
pocket was payment for delivering the drugs and told Ortega there were about 20 ounces
of heroin in the car.
Defense Evidence
       Appellant claimed that a man he met at a Los Angeles bar asked him to drive a car
to Eureka and “leave it at K-Mart.” The man left $1,249 in the car for “the trip and
expenses” and agreed to pay Ortega $2,000 when he returned to Los Angeles. Appellant
agreed to drive the car to Eureka because he needed the money to pay his rent; he, his
wife, and his friends planned to take a bus to Los Angeles after dropping off the car.

2
       Appellant gave Ortega a Mexican driver‟s license and a Mexican identification
card identifying him as Arcenio Larios.
                                             4
Appellant testified he picked the car up at a gas station on February 1, 2011 and drove it
toward Eureka. He testified he drove to the area where Elinor road dead-ended two times
on the afternoon of February 1, 2011 because he was “looking for a bathroom” for his
pregnant wife. Appellant denied receiving a package from a man in Los Angeles, denied
knowing about the drugs in the car, denied telling Ortega that the drugs were his, and
denied telling Ortega that his fingerprints might be on the package of heroin. He claimed
he did not know there were drugs in the car.
       Regarding the 2007 incident, appellant testified he did not know his car contained
heroin. He explained he had “just bought the car from the dealer. . . .” Appellant denied
pleading guilty; he claimed he did not know why the police officers “took [him] to jail
and lock[ed] [him] up.”
Verdict and Sentencing
       A jury convicted appellant of all of the charges and the trial court sentenced him to
state prison.
                                       DISCUSSION
       Appellant‟s sole claim on appeal is the court erred by admitting evidence of his
2007 conviction. “As a general rule, evidence of uncharged crimes is inadmissible to
prove the defendant had the propensity or disposition to commit the charged crime.
[Citations.] „The reason for this rule is not that such evidence is never relevant; to the
contrary, the evidence is excluded because it has too much probative value.‟ [Citations.]
„“The natural and inevitable tendency”‟ is to give excessive weight to the prior conduct
and either allow it to bear too strongly on the present charge, or to take the proof of it as
justifying a conviction irrespective of guilt of the present charge. [Citations.] [¶]
Evidence of other crimes is admissible, however, when relevant for a noncharacter
purpose—that is, when it is relevant to prove some fact other than the defendant‟s
criminal disposition, such as „motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake [of fact] or accident.‟ [Citations.]” (People v. Hendrix
(2013) 214 Cal.App.4th 216, 238 (Hendrix), citing § 1101, subd. (b); see also Simons,
Cal. Evidence Manual (2013 ed.) § 6:10, pp. 491-493.) Evidence of a relevant prior

                                               5
criminal act “may be excluded under section 352 if its probative value 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.‟” (Hendrix, supra,
214 Cal.App.4th at p. 238.)
       “Thus, the admissibility of uncharged crimes depends upon three factors: (1) the
materiality of the facts sought to be proved; (2) the tendency of the uncharged crimes to
prove or disprove the material fact (i.e., probative value); and (3) the existence of any
rule or policy requiring the exclusion of relevant evidence (i.e., prejudicial effect or other
§ 352 concern).‟ [Citations.]” (Hendrix, supra, 214 Cal.App.4th at p. 238.) We review
the admission of “other crimes evidence . . . for abuse of discretion.” (Ibid.)
       Appellant contends the court abused its discretion by admitting evidence of the
2007 conviction because the two offenses were insufficiently similar and did not establish
a “common design or plan.” According to appellant, “[t]he fact that a person transporting
drugs in a car conceals the drugs does not rise to a „common design and plan.‟” “To
establish the existence of a common design or plan, the common features must indicate
the existence of a plan rather than a series of similar spontaneous acts, but the plan thus
revealed need not be distinctive or unusual.” (People v. Ewoldt (1994) 7 Cal.4th 380,
403 (Ewoldt).) “[E]vidence that the defendant has committed uncharged criminal acts
that are similar to the charged offense may be relevant if these acts demonstrate
circumstantially that the defendant committed the charged offense pursuant to the same
design or plan he or she used in committing the uncharged acts. Unlike evidence of
uncharged acts used to prove identity, the plan need not be unusual or distinctive; it need
only exist to support the inference that the defendant employed that plan in committing
the charged offense.” (Ibid.) “„[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.‟” (People v. Walker (2006) 139 Cal.App.4th 782, 803, quoting
People v. Scheer (1998) 68 Cal.App.4th 1009, 1020.)


                                              6
       Here, the similarities between the offenses are sufficiently distinctive to create a
pattern and to evidence a common plan or scheme. 3 In both incidents, appellant was
found in an area known for drug trafficking. Both times, appellant consented to a search,
presumably to create the impression of innocence. Both times, appellant concealed
heroin in a deliberate way in a car he was driving. The 2007 and 2011 offenses were
therefore sufficiently similar to support an inference that appellant employed a common
scheme to transport heroin.
       We also conclude evidence regarding the 2007 incident was sufficiently similar to
be probative on the disputed issues of intent and knowledge. (People v. Soper (2009) 45
Cal.4th 759, 778-779; D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 19 [a
ruling, “itself correct in law, will not be disturbed on appeal merely because given for a
wrong reason. If right upon any theory of the law applicable to the case, it must be
sustained regardless of the considerations which may have moved the trial court to its
conclusion”].) Appellant put all of the elements of the charged offenses at issue —
including intent and knowledge — by: (1) pleading guilty in the prior offense but
claiming not to know why officers “locked him up;” and (2) denying the heroin in the
current offense was his. (People v. Cowan (2010) 50 Cal.4th 401, 476.) Evidence of the
2007 conviction refuted appellant‟s claim that he was the victim of bad luck, i.e., that he
was innocently driving a car that happened to be filled with heroin. Additionally, we
conclude that while the evidence may have been prejudicial to appellant, it was not more
prejudicial than probative. (Ewoldt, supra, 7 Cal.4th at p. 405 [potential prejudice is

3
       In his reply brief and at oral argument, appellant suggested certain facts — such as
his use of fake identification in both incidents — could not be used to justify the trial
court‟s ruling because these facts were not before the court when it ruled on the
admissibility of his 2007 conviction. To support this argument, appellant cites People v.
Hartsch (2010) 49 Cal.4th 472 (Hartsch), where the California Supreme Court held
appellate review of a trial court‟s ruling on motions to suppress “is limited to the
evidence before the court when it heard the motion” to suppress. (Id. at p. 491.) Hartsch
does not concern review of trial court rulings on admissibility of evidence under section
1101. In any event, we do not rely on appellant‟s repeated use of fake identification to
reach our conclusion that the 2007 and 2011 incidents were sufficiently similar to
establish the existence of a common design or plan.
                                              7
lessened when prior crimes evidence is “no more inflammatory” than evidence
concerning charged offenses].)
       We cannot conclude the court‟s decision to admit evidence of appellant‟s 2007
conviction was “arbitrary, capricious, or patently absurd[.]” (People v. Geier (2007) 41
Cal.4th 555, 585, overruled on another point in Melendez-Diaz v. Massachusetts (2009)
557 U.S. 305.)4
                                      DISPOSITION
       The judgment is affirmed.




                                                        _________________________
                                                        Jones, P.J.




We concur:


_________________________
Simons, J.


_________________________
Needham, J.


4
         We reject appellant‟s claim that the admission of the evidence deprived him of a
fair trial. In addition, we decline to consider appellant‟s suggestion that the court made
“matters worse” by allowing the jury to “consider propensity evidence which was
otherwise irrelevant” because his critique of the jury instructions does not comply with
California Rules of Court, rule 8.204(a)(1)(B), which requires an appellant to present
each point separately under an appropriate heading and which to support each argument
with record citations. (People v. Myles (2012) 53 Cal.4th 1181, 1222, fn. 14;
Consolidated Irrigation Dist. v. City of Selma (2012) 204 Cal.App.4th 187, 201.)
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