Opinion
Super. Ct. No. SCD194373
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
AARON, J.
APPEAL from a judgment of the Superior Court of San Diego County, Charles G. Rogers, Judge. Affirmed.
I.
INTRODUCTION
The People charged Bernard A. Hill with selling cocaine base (Health & Saf. Code, § 11352, subd. (a)) (count 1), possessing cocaine base for sale (§ 11351.5) (count 2), and possessing narcotics paraphernalia (§ 11364) (count 3). The People also alleged that Hill had suffered four prior narcotics-related convictions (§ 11370.2, subd. (a)), two
Unless otherwise specified, all subsequent statutory references are to the Health and Safety Code.
prior prison term convictions (Pen. Code, §§ 667.5, subd. (b), 668), and one prior strike conviction (Pen. Code, §§ 667, subds. (b)-(i), 668, 1170.12). A jury found Hill guilty on all counts. Hill subsequently admitted all prior conviction allegations.
At sentencing, the court refused to dismiss Hill's strike prior and sentenced him to a total term of 12 years in prison, comprised of eight years on count 1 pursuant to the Three Strikes law, three years for one of the four prior narcotics-related conviction enhancements, and one year for one of the prior prison term enhancements. The court imposed a sentence of 180 days on count 3, and ordered that this sentence run concurrently with the sentence imposed on count 1. The court stayed the sentence on count 2. In addition, the court struck the remaining enhancements.
On appeal, Hill claims there is insufficient evidence to support his convictions for selling cocaine base and possessing cocaine base for sale. In addition, Hill claims that the trial court erred in admitting evidence of Hill's commission of an uncharged offense, refusing to allow Hill to recall a witness for the purpose of conducting further examination, refusing to instruct the jury regarding the defense of entrapment, and refusing to dismiss his prior strike conviction. We affirm the judgment.
II.
FACTUAL BACKGROUND
A. The People's evidence
On October 14, 2005, officers from the San Diego Police Department were conducting an undercover narcotics operation in the 400 block of 15th Avenue in San Diego. San Diego Police Officer Vernon Peterson saw a female, later determined to be Carla King, who appeared to be "adjusting the front portion of her pants." Officer Peterson believed that King was taking some type of controlled substance from her pants. As Officer Peterson started to approach King, she walked away from him, toward two men. King began talking with the two men. Officer Peterson walked up to King and asked her if she had a "2-0, " which is slang for $20 worth of narcotics. King was standing near the two men at the time. King responded that she did not know Peterson. Officer Peterson walked away briefly, and then approached King again and said that he "just wanted a 2-0." King responded by stating that she was scared.
At this point, Hill walked up to the group. King said to Hill, "Bernard, here, he wants a 20, " and handed Hill an off-white substance. King then walked away, accompanied by the two men with whom she had been talking. Hill handed Officer Peterson the substance, which police later determined was .26 grams of cocaine base. Officer Peterson gave Hill a prerecorded $20 bill. After giving Hill the $20 bill, Officer Peterson alerted other police officers who were monitoring the transaction that a sale had been completed.
As San Diego Police Officer Jose Chavez arrived to arrest Hill, Hill dropped a lighter and a glass pipe on the ground. The pipe tested positive for cocaine. While Officer Chavez was handcuffing Hill, Hill stepped on some "crumpled-up money." Officer Chavez saw Hill attempt to push a bill toward a nearby planter box. Officer Chavez recovered the money, which police determined was the prerecorded $20 bill that Officer Peterson had given Hill.
After police transported Hill to the police station, Officer Peterson advised Hill of his "constitutional rights." Hill indicated that he understood those rights and that he was willing to waive them and speak with Officer Peterson. Officer Peterson asked Hill what had happened during the incident. Officer Peterson described Hill's response as follows: "[H]e was walking towards Island Avenue and someone told him, 'Don't you know him?' He said someone gave him a piece of rock and he gave it to me."
The People also presented evidence regarding a 1999 incident in which Hill sold cocaine base.
B. Defense evidence
In an apparent attempt to establish that Hill did not harbor the requisite intent, a defense investigator testified that Hill did not appear to be sober in a photograph that was taken after his arrest. During closing argument, Hill argued that he had been "high" at the time of the transaction, that he had "no intent to sell, " and that the evidence the People presented did not demonstrate that he had "knowledge and an intent."
III.
DISCUSSION
A. There is sufficient evidence to support Hill's convictions for selling cocaine base and possessing cocaine base for sale
Hill claims there is insufficient evidence to support his convictions for selling cocaine base and possessing cocaine base for sale.
In determining whether the evidence presented is sufficient to support a conviction, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Jackson v. Virginia (1979) 443 U.S. 307, 319.) "[T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence — that is, evidence which is reasonable, credible, and of solid value — such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578.)
The elements of selling cocaine base are: (1) the sale of cocaine base, (2) knowledge of its presence, and (3) knowledge of its nature as a controlled substance. (See Judicial Council of Cal. Crim Jury Instns. (2006-2007), CALCRIM No. 2300 [outlining elements]; § 11352 [prohibiting the sale of controlled substances]; People v. Lechlinski (1976) 60 Cal.App.3d 766, 769 [noting that proof of the defendant's knowledge of the character of the substance sold is required]; Rideout v. Superior Court of Santa Clara County (1967) 67 Cal.2d 471, 474 [requiring proof of knowledge of the presence of the substance].)
In order to prove that a defendant possessed a controlled substance for sale, the People must prove that "(1) the defendant exercised dominion and control over the controlled substance, (2) the defendant was aware that he or she was in possession of a controlled substance, (3) the defendant was aware of the nature of a controlled substance, (4) the controlled substance was in an amount sufficient to be used for sale or consumption as a controlled substance, and (5) the defendant possessed a controlled substance with the specific intent to sell it." (People v. Parra (1999) 70 Cal.App.4th 222, 226 [outlining elements of possession of a controlled substance for sale under § 11351].)
Health and Safety Code section 11351 differs from Health and Safety Code section 11351.5 only in that section 11351.5 provides a lengthier prison term for possession of cocaine base for sale.
The evidence that supports Hill's conviction for selling cocaine base and possessing cocaine base for sale includes Officer Peterson's testimony regarding the transaction, Hill's post-arrest statement that he gave a "piece of rock" to Officer Peterson, the fact that money that was used to purchase the cocaine base was found on the ground near Hill, Officer Chavez's testimony that Hill attempted to hide the money while he was being placed under arrest, and the .26 grams of cocaine base that Hill handed to Officer Peterson. In addition, Hill's act of dropping a glass pipe with cocaine residue on it, and evidence of his prior conduct in selling cocaine base, constitute strong evidence that Hill knew that he had cocaine in his possession, and knew that he was participating in the sale of cocaine base.
Notwithstanding this evidence, Hill contends that the evidence is insufficient to support his convictions because Officer Peterson testified at trial that, just prior to the sale, King told Hill, "Bernard, here, he wants a 20, " but that on previous occasions, Officer Peterson did not testify that King referred to drugs in her statement to Hill. Specifically, at trial, Officer Peterson acknowledged during cross-examination that at the preliminary hearing, he had testified that King stated, "Bernard, here, he wants this, " and that at a prior trial of this case Peterson had agreed that King had said to Hill, "Here, hand him this." Any inconsistency in Officer Peterson's testimony regarding the wording of King's statement to Hill was for the jury to consider in evaluating Peterson's credibility. The inconsistency does not render the evidence insufficient to support the jury's finding of guilt on the two offenses.
The prior trial ended in a mistrial after the jury deadlocked.
We similarly reject Hill's contention that the fact that the money used in the sale was found on the ground near Hill rather than on his person indicates that the evidence is insufficient to support the convictions. As with Officer Peterson's testimony, the significance of this fact, if any, in determining whether Hill committed the offenses charged was for the jury to determine.
Accordingly, we conclude that the evidence is sufficient to support Hill's convictions for selling cocaine base and possessing cocaine base for sale.
B. The trial court did not abuse its discretion in admitting evidence of Hill's commission of an uncharged offense
Hill contends that the trial court erred in admitting evidence of his commission of a prior uncharged offense. We review the trial court's admission of the evidence in question for an abuse of discretion. (See People v. Guerra (2006) 37 Cal.4th 1067, 1113 [abuse of discretion standard of review applies to any ruling by a trial court on the admissibility of evidence and is particularly appropriate for questions regarding relevance and undue prejudice]; People v. Lenart (2004) 32 Cal.4th 1107, 1123 [admission of uncharged crime evidence is reviewed for abuse of discretion].)
1. Factual and procedural background
Prior to trial, the People brought a motion in limine to admit evidence that Hill had sold cocaine base in 1999. The People argued that the evidence was admissible on the issues of whether Hill intended to sell cocaine base, and whether he had knowledge of the narcotic character of the substance. Hill opposed the admission of the evidence, arguing that there was little evidence of his commission of the charged offense, particularly with respect to his "knowledge of what . . . [King] was handing [him]" at the time of the charged offense. The court ruled that evidence of the 1999 incident would be admissible on the issues of intent to sell and knowledge.
At trial, San Diego Police Sergeant Daniel Smyth testified that on March 5, 1999 he was working as undercover narcotics detective in the area of 17th and K Streets in San Diego. Officer Smyth saw a person who was driving a car approach Hill. The driver honked the horn of the car. After the driver honked, Hill got into the car and the driver drove away with Hill. Approximately five minutes later, Smyth saw Hill again. Hill went to a street corner and took something from his mouth. Hill then gave the object to another person, who handed Hill money. Officer Smyth saw Hill engage in a similar transaction with a second person. Hill then engaged in another transaction with a third person. Immediately thereafter, the third person attempted to smoke the item that Hill had given him. Police officers arrested Hill and the third person. The officers found $40 in Hill's pocket and determined that there was cocaine base in the third person's pipe.
During Officer Smyth's testimony, the court instructed the jury that it was not to consider the evidence pertaining to the 1999 incident for the purpose of concluding that Hill had "a propensity to deal drugs." The court further instructed the jury that it was to consider the evidence only for the limited purposes of determining whether, with respect to the charged offenses, Hill had the intent to sell, had the intent to aid and abet, and had knowledge of the substance involved. During final jury instructions before deliberations, the court again instructed the jury that it could consider the evidence pertaining to the 1999 incident only for the limited purposes of determining Hill's knowledge and intent.
2. Governing law
"Evidence Code section 1101, subdivision (a), generally prohibits the admission of [an uncharged] [] criminal act against a criminal defendant 'when offered to prove his or her conduct on a specified occasion.'subdivision (b), however, provides that such evidence is admissible 'when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity . . .).'" (People v. Harrison (2005) 35 Cal.4th 208, 229.)
In People v. Ewoldt (1994) 7 Cal.4th 380, 402 (Ewoldt) superseded by statute on other grounds as stated by People v. Britt (2002) 104 Cal.App.4th 500, 505, the Supreme Court explained the theory underlying the admissibility of evidence of an uncharged offense to prove a defendant's intent in committing the charged offense:
"'[T]he recurrence of a similar result . . . tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such an act. . . .' [Citation.] In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant ' "probably harbor[ed] the same intent in each instance." [Citations.]'"
The Ewoldt court went on to state, "The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent. [Citation.]" (Ibid.)
Evidence of a defendant's commission of prior narcotics-related offenses or use of narcotics may be admissible to prove a defendant's knowledge and intent with respect to a charged narcotics-related offense. (E.g., People v. Thornton (2000) 85 Cal.App.4th 44, 49-50 [evidence of defendant's use of heroin admissible to show knowledge of its narcotic character]; People v. Pijal (1973) 33 Cal.App.3d 682, 691 (Pijal) ["evidence of [defendant's] prior narcotic offenses was clearly admissible to show his guilty knowledge, motive and intent, and the court properly instructed the jury to this limited effect of the evidence"].)
However, even if a defendant's commission of other crimes is relevant for some purpose under Evidence Code section 1101, subdivision (b), in order to be admissible, such evidence "'must not contravene other policies limiting admission, such as those contained in Evidence Code section 352. [Citations.]'" (Ewoldt, supra, 7 Cal.4th at p. 404.) Evidence Code section 352 authorizes a trial court to "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." "'"The prejudice which [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." [Citations.] "Rather, the statute uses the word in its etymological sense of 'prejudging' a person or cause on the basis of extraneous factors. [Citation.]" [Citation.]' [Citation.]" (People v. Mullens (2004) 119 Cal.App.4th 648, 658.)
3. The trial court did not abuse its discretion in admitting evidence of the prior uncharged offense
The uncharged offense and the charged offenses were similar in that the underlying incidents both involved Hill selling cocaine base. Evidence that Hill had previously sold cocaine base was relevant to the issues of his intent and knowledge in committing counts 1 and 2. Thus, while it is not entirely clear from Hill's opening brief on appeal whether he intends to claim that the evidence was inadmissible pursuant to Evidence Code section 1101, subdivision (a), insofar as Hill is making this claim, we reject it. The trial court did not abuse its discretion in concluding that the evidence was admissible pursuant to Evidence Code section 1101, subdivision (b) as to these issues. (See Pijal, supra, 33 Cal.App.3d at p. 691.)
We limit our discussion to the admissibility of the evidence as to counts 1 and 2, since Hill does not discuss separately the admissibility of the evidence with respect to count 3, possessing narcotics paraphernalia (§ 11364).
In light of our rejection of Hill's claim on the merits, we need not consider the People's contention that Hill forfeited his claim that the evidence was inadmissible under Evidence Code section 1101, subdivision (a) by failing to object on this ground at trial.
Hill's primary claim on appeal is that the trial court abused its discretion under Evidence Code section 352 in admitting the evidence. In support of this claim, Hill argues that "there was a lack of evidence in the current case" in that the "[e]vidence that
[Hill] even knew what he was handing [Officer] Peterson was limited." Assuming that the evidence in this case was lacking as to one or more of the elements for which the uncharged offense evidence was offered, this would increase, rather than decrease, the probative value of the uncharged offense evidence. In addition, the fact that the uncharged offense evidence was relevant and inculpatory does not mean that it was likely to cause "undue prejudice" as the phrase is used in Evidence Code section 352. (See People v. Karis (1988) 46 Cal.3d 612, 638 ['In applying section 352, "prejudicial" is not synonymous with "damaging."' [Citation]"].) Further, since Hill argued that he had "no knowledge of what was going on, " in opposing the admission of the uncharged offense, the trial court could have reasonably determined that the uncharged offense evidence would be relevant to an issue that was seriously contested, i.e. Hill's knowledge of the nature of the transaction in which he participated.
Hill also argues that there was a "dissimilarity in the factual situations, " between the charged and uncharged offenses such that the probative value of the uncharged offense evidence was minimal. We disagree. There were a number of probative similarities between the charged and uncharged offenses: both incidents involved the sale of cocaine base, both incidents occurred in the same general area, and in both incidents Hill acquired the drugs from another person at the location and then sold the drugs to a nearby customer.
Finally, Hill suggests that the evidence was inadmissible because there was a danger that the jury would improperly consider the uncharged evidence as propensity evidence. The trial court twice instructed the jury as to the limited purpose for which it could consider the evidence. We may presume that the jury followed these instructions. (E.g., People v. Prince (2007) 40 Cal.4th 1179.) We therefore reject Hill's argument.
Accordingly, we conclude that the trial court did not abuse its discretion in admitting evidence of Hill's commission of an uncharged offense.
C. The trial court did not err in refusing to allow Hill to recall Officer Peterson to conduct further examination
Hill claims the trial court erred in refusing to allow him to recall Officer Peterson to the stand for the purpose of conducting examination on the issue whether Officer Peterson was wearing a one-way or a two-way wire transmitter on the day of the incident. Hill claims that the trial court's refusal to allow the additional examination violated his constitutional right to confront adverse witnesses.
1. Factual and procedural background
During the People's case in chief, Officer Peterson testified that on the day in question, he was acting as an undercover officer, attempting to purchase narcotics from street-level dealers in a "buy/bust operation." Peterson was assisted in the operation by "observing officers, " who were monitoring his activities, and by "scoop officers, " who would arrest a suspect after a transaction was completed. During such operations, Officer Peterson wears a one-way wire that allows him to transmit audio signals to the observing officers. Officer Peterson explained that the observing officers and the scoop officers communicate with each other via police radios. On cross-examination, Officer Peterson stated that the police maintained a "tactical tape" of the radio frequency that they were using that day.
Officer Chavez explained that this audiotape recorded a radio frequency different from the one-way wire the undercover officer wears. Officer Chavez also testified that his voice could be heard on the audiotape asking Officer Peterson whether a lighter that Officer Peterson had seen Hill drop at the time of the arrest was blue. The audiotape contains the recording of a voice that responds to Officer Chavez's question by stating, "Yeah, it was a blue lighter."
After the prosecution rested, Hill informed the court that he wanted to call Officer Peterson as a witness for the purpose of inquiring how Officer Peterson could have responded to Officer Chavez's question if, in fact, Officer Peterson had been wearing a one-way wire, as he had testified. The court reviewed the transcript of the audiotape and determined that the statements to which Hill was referring were made after Hill had been placed under arrest, and that Officer Peterson was either in the presence of other officers or was speaking to them via the police radio. The court refused to allow Hill to call Officer Peterson as a witness, ruling that Hill would not be "introducing any relevant evidence, " by virtue of the proposed examination.
2. Governing law
a. Relevant evidence and a party's ability to recall a witness
"'Relevant evidence' means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code § 210.) "No evidence is admissible except relevant evidence." (Evid. Code § 350.)
Evidence Code section 774 provides: "A witness once examined cannot be reexamined as to the same matter without leave of the court, but he may be reexamined as to any new matter upon which he has been examined by another party to the action. Leave may be granted or withheld in the court's discretion."
Similarly, Evidence Code section 778 provides: "After a witness has been excused from giving further testimony in the action, he cannot be recalled without leave of the court. Leave may be granted or withheld in the court's discretion."
A trial court's ruling that evidence is inadmissible because it is irrelevant is reviewed for an abuse of discretion. (See People v. Guerra, supra, 37 Cal.4th at p. 1113.) The abuse of discretion standard of review also applies to review of a trial court's denial of a defendant's request to recall a witness. (See People v. Levesque (1995) 35 Cal.App.4th 530, 545 [concluding trial court did not abuse its discretion in denying defense request to recall witness].)
b. A defendant's right to confront adverse witnesses
"The confrontation clauses of both the federal and state Constitutions guarantee a criminal defendant the right to confront the prosecution's witnesses. (U.S. Const., 6th Amend.; Cal. Const. art. I, § 15.) That right is not absolute, however." (People v. Cromer (2001) 24 Cal.4th 889, 892.)
In People v. Quartermain (1997) 16 Cal.4th 600, 623-624 (Quartermain), the Supreme Court explained the scope of the right of confrontation in the context of examining an adverse witness on issues related to the witness's credibility:
"Although the right of confrontation includes the right to cross-examine adverse witnesses on matters reflecting on their credibility, "trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination." [Citation.] In particular, notwithstanding the confrontation clause, a trial court may restrict cross-examination of an adverse witness on the grounds stated in Evidence Code section 352. [Citation.] A trial court's limitation on cross-examination pertaining to the credibility of a witness does not violate the confrontation clause unless a reasonable jury might have received a significantly different impression of the witness's credibility had the excluded cross-examination been permitted. [Citations.]"
3. The trial court did not abuse its discretion nor violate Hill's constitutional right to confront adverse witnesses in refusing to allow Hill to recall Officer Peterson
The trial court did not abuse its discretion in refusing to allow Hill to call Officer Peterson as a witness for the purpose of conducting further examination, for two reasons. First, at the time Hill initially cross-examined Officer Peterson, Hill had access to the tactical tape on which he bases his claim that Officer Peterson was wearing a two-way wire. Thus, Hill could have examined Officer Peterson regarding this issue during his initial cross-examination, if Hill believed the issue was relevant.
Second, the trial court did not abuse its discretion in determining that no relevant evidence would be elicited by examination concerning this topic. The record indicates that the trial court reviewed the transcript of the tactical tape and concluded that that Officer Peterson's comments on the tape had been prompted by information provided to him through a police radio frequency after Hill's arrest, rather than via the one-way wire Officer Peterson was wearing. We have also reviewed the transcript, and conclude that the trial court did not abuse its discretion in making this preliminary factual determination. Thus, the trial court did not abuse its discretion in determining that examination of Officer Peterson on this issue would not have elicited relevant evidence.
Whether Officer Peterson was wearing a one-way or two-way wire was a collateral issue in this case. Thus, even assuming that there was evidence that impeached Officer Peterson's testimony that he was wearing a one-way wire, the trial court would not have abused its discretion by refusing to allow Hill to recall Officer Peterson to conduct examination on this issue. (See People v. Sapp (2003) 31 Cal.4th 240, 289 [Evidence Code section 352 "'empowers courts to prevent criminal trials from degenerating into nitpicking wars of attrition over collateral credibility issues'"].)
In light of our conclusion that the trial court did not abuse its discretion in determining that the proposed examination would not have produced relevant evidence, we further conclude that the trial court's refusal to allow the additional examination did not violate Hill's constitutional right to confront adverse witnesses. (See Quartermain, supra, 16 Cal.4th at pp. 623-624.)
D. The trial court did not err in refusing to instruct the jury regarding the defense of entrapment
Hill claims that the trial court erred in refusing his request to instruct the jury regarding the defense of entrapment, pursuant to CALCRIM No. 3408.
CALCRIM No. 3408 provides:
"Entrapment is a defense. The defendant has the burden of proving this defense by a preponderance of the evidence. This is a different standard from proof beyond a reasonable doubt. To meet this burden, the defendant must prove that it is more likely than not that (he/she) was entrapped.
"A person is entrapped if a law enforcement officer [or (his/her) agent] engaged in conduct that would cause a normally law-abiding person to commit the crime.
"Some examples of entrapment might include conduct like badgering, persuasion by flattery or coaxing, repeated and insistent requests, or an appeal to friendship or sympathy.
"Another example of entrapment would be conduct that would make commission of the crime unusually attractive to a normally law-abiding person. Such conduct might include a guarantee that the act is not illegal or that the offense would go undetected, an offer of extraordinary benefit, or other similar conduct.
"If an officer [or (his/her) agent] simply gave the defendant an opportunity to commit the crime or merely tried to gain the defendant's confidence through reasonable and restrained steps, that conduct is not entrapment.
"In evaluating this defense, you should focus primarily on the conduct of the officer. However, in deciding whether the officer's conduct was likely to cause a normally law-abiding person to commit this crime, also consider other relevant circumstances, including events that happened before the crime, the defendant's responses to the officer's urging, the seriousness of the crime, and how difficult it would have been for law enforcement officers to discover that the crime had been committed.
"When deciding whether the defendant was entrapped, consider what a normally law-abiding person would have done in this situation. Do not consider the defendant's particular intentions or character, or whether the defendant had a predisposition to commit the crime.
"[As used here, an agent is a person who does something at the request, suggestion, or direction of an officer. It is not necessary that the agent know the officer's true identity, or that the agent realize that he or she is actually acting as an agent.]
"If the defendant has proved that it is more likely than not that (he/she) <insert charged crime, e.g., committed embezzlement> because (he/she) was entrapped, you must find (him/her) not guilty of <insert charged crime>."
1. Factual and procedural background
During a conference regarding jury instructions, Hill requested that the court instruct the jury pursuant to CALCRIM 3408 concerning the defense of entrapment. Hill argued that law enforcement officers had used King as a tool to entrap him into committing the charged offenses. Hill maintained that he was entitled to the instruction under the theory of "entrapment by way of a third person, " as discussed in People v. McIntire (1979) 23 Cal.3d 742, 747 (McIntire). The People argued that the state of the evidence did not warrant giving the instruction.
The court ruled that McIntire did not apply, and that the instruction was not warranted. The court reasoned:
"[T]here was no entrapping conduct, no harassing, no cajoling, no preying on sympathy, no offer of excessive consideration directed at Mr. Hill. Anything that might even approach that kind of conduct was directed only to Ms. King."
2. Governing law
A trial court is required to instruct the jury on a defendant's defense if, but only if, substantial evidence supports the defense. (People v. Watson (2000) 22 Cal.4th 220, 223 (Watson).) In Watson, the Supreme Court outlined the contours of the defense of entrapment under California law:
"In California, the test for entrapment focuses on the police conduct and is objective. Entrapment is established if the law enforcement conduct is likely to induce a normally law-abiding person to commit the offense. [Citation.] '[S]uch a person would normally resist the temptation to commit a crime presented by the simple opportunity to act unlawfully. Official conduct that does no more than offer that opportunity to the suspect ─ for example, a decoy program ─ is therefore permissible; but it is impermissible for the police or their agents to pressure the suspect by overbearing conduct such as badgering, cajoling, importuning, or other affirmative acts likely to induce a normally law-abiding person to commit the crime.' [Citation.]" (Watson, supra, 22 Cal.4th at p. 223.)
In McIntire, supra, 23 Cal.3d at page 747, the Supreme Court held that one may establish the defense of entrapment where "manipulation of a third party by law enforcement officers to procure the commission of a criminal offense by another renders the third party a government agent for purposes of the entrapment defense." In McIntire, the court concluded that an entrapment instruction was warranted where the defendant presented evidence that an undercover law enforcement officer continually pressured the defendant's brother, over a period of weeks, to ask the defendant to sell him marijuana, and the defendant's brother acted in accordance with the officer's repeated requests. (Id. at pp. 746-747.)
3. The trial court did not err in refusing to instruct the jury pursuant to CALCRIM No. 3408
Hill acknowledges that no law enforcement officer ever approached him to attempt to get him to commit the charged offenses. However, he contends that Officer Peterson's "persistent contacts" with King constituted substantial evidence of entrapment warranting an entrapment instruction pursuant to McIntire. In this case, unlike in McIntire, there was no evidence that the People used King as their agent, and no evidence that King pressured Hill to commit the charged offenses. Further, even assuming for the sake of argument that Hill might be entitled to an entrapment instruction even in the absence of any evidence that King pressured Hill to commit the charged offenses, there is no substantial evidence that law enforcement pressured King to commit a crime. The fact that Officer Peterson testified that he twice requested that King sell him $20 worth of cocaine base does not rise to the level of "overbearing conduct such as badgering, cajoling, importuning, " as is required under California law to support an entrapment defense. (Watson, supra, 22 Cal.4th at p. 223.)
Accordingly, we conclude that the trial court did not err in refusing to instruct the jury on entrapment.
E. The trial court did not abuse its discretion in refusing to dismiss Hill's prior strike conviction
Hill claims that the trial court erred in refusing to dismiss his prior strike conviction.
1. Governing law
The law governing a trial court's consideration of whether to dismiss a prior strike conviction is well established:
"[A] trial court is required to consider whether, given "the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161 (Williams).)
Our standard of review of the trial court's decision is also well established:
"A trial court's decision to strike prior felony convictions is subject to review under the 'deferential abuse of discretion standard. Under that standard an appellant who seeks reversal must demonstrate that the trial court's decision was irrational or arbitrary. It is not enough to show that reasonable people might disagree about whether to strike one or more of his prior convictions. Where the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court's ruling, even if we might have ruled differently in the first instance. [Citation.]' [Citation.]" (People v. Romero (2002) 99 Cal.App.4th 1418, 1434.)
"Following Williams, supra, 17 Cal.4th 148, the overwhelming majority of California appellate courts have reversed the dismissal of, or affirmed the refusal to dismiss, a strike of those defendants with a long and continuous criminal career." (People v. Strong (2001) 87 Cal.App.4th 328, 338.)
2. Factual and procedural background
Prior to sentencing, the People filed a brief in which they opposed the dismissal of Hill's strike prior. In their brief, the People stressed Hill's lengthy criminal history, noting that Hill had suffered seven felony convictions and 13 misdemeanor convictions since suffering a prior strike conviction in 1983. At sentencing, the court listed the Williams factors and stated that in view of Hill's "persistent criminality, " the court would decline to exercise its discretion to dismiss the prior strike conviction.
The record does not indicate that Hill filed a written motion to dismiss the strike or that he orally requested that the court do so at sentencing.
3. The trial court did not abuse its discretion in refusing to strike Hill's prior strike conviction in light of Hill's persistent criminality
While the nature and circumstances of the present offense were not particularly aggravated, we reject Hill's characterization of the current offenses as being "clearly minor." The Legislature has determined that the selling of cocaine base is a significant crime, and has specified a term of imprisonment of either three, four, or five years for this offense. Similarly, with respect to Hill's prior strike conviction, while a residential burglary is not the most aggravated of such convictions, it is nonetheless a serious crime.
Further, Hill has a lengthy criminal history. This criminal history includes a 1985 conviction for petty theft, a 1990 conviction for selling a controlled substance, a 1992 conviction for possession of a controlled substance, a 1995 conviction for conspiracy, and a 1999 conviction for selling a controlled substance. Hill has also suffered numerous misdemeanor convictions for drug-related and theft offenses. He committed the present offenses only a few days after a residential drug treatment program terminated him from its program.
We reject Hill's contention that the fact that he suffered the strike conviction approximately 23 years prior to the imposition of the sentence in this case demonstrates that the court abused its discretion in refusing to dismiss the strike, particularly in light of Hill's significant intervening criminal history. (See, e.g., People v. Gaston (1999) 74 Cal.App.4th 310, 321 ["the remoteness in time of the 1981 strike priors is not significant in light of Gaston's continuous crime spree, which has substantially spanned his entire adult life"].) Neither does the fact that Hill was, according to his own admission, intoxicated at the time of the offense, cause us to conclude that the trial court abused its discretion in refusing to strike the strike. Hill points to nothing in his background, character, or prospects to demonstrate that the trial court abused its discretion in refusing to dismiss the strike.
Accordingly, we conclude the trial court did not abuse its discretion in refusing to dismiss his prior strike conviction.
IV.
DISPOSITION
The judgment is affirmed.
WE CONCUR: HALLER, Acting P. J., McINTYRE, J.