Opinion
G052413
03-15-2017
THE PEOPLE, Plaintiff and Respondent, v. LUIS ARTURO MARTINEZ, Defendant and Appellant.
Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Scott C. Taylor and Junichi P. Semitsu, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14CF3604) OPINION Appeal from a judgment of the Superior Court of Orange County, Michael J. Cassidy, Judge. Affirmed. Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Scott C. Taylor and Junichi P. Semitsu, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury convicted defendant Luis Arturo Martinez of possession of a firearm within 1,000 feet of a school, being a felon in possession of a firearm, sale or transportation of methamphetamine, possession for sale of methamphetamine, sale or transportation of heroin, and possession for sale of heroin. Defendant admitted the enhancement allegations for counts 3 through 6 that he had previously been convicted of possession for sale of heroin and the sale or transportation of methamphetamine. The trial court sentenced defendant to eight years in county jail.
Defendant contends the admission of evidence of a prior uncharged offense deprived him of due process and a fair trial because it was more prejudicial than probative. He also argues the jury erroneously convicted him of both the sale or transportation of controlled substances and the lesser included offenses of possession for sale of controlled substances. We disagree and affirm the judgment.
FACTS
In October 2014, police officer Armando Chacon conducted an undercover operation near Borchard Avenue, a residential neighborhood in Santa Ana close to Madison Elementary School and Madison Park, a known high traffic area for narcotics, especially heroin and methamphetamine. He saw three men including defendant standing and talking near a black SUV. At some point, defendant walked to the driver's side of the SUV, opened the door, and bent forward into the car while two other men monitored the area. Defendant then stood up, shook hands with the other two, and rode away on his bicycle.
Chacon radioed nearby police officers in a marked police car to stop defendant. Defendant rode his bicycle into the parking lot of a strip mall with a bar, while the marked police car was following. Defendant looked back over his shoulder and made eye contact with detective Tyler Salo in the police car, at which point defendant began pedaling faster and threw a tubular object on the ground. Defendant then got off his bicycle, parked it, and entered the bar. Believing defendant was fleeing from him, Salo exited the police car and made contact with defendant inside the bar.
Defendant agreed to go outside the bar with Salo. Once outside, Salo searched defendant and found, in defendant's front pants pockets, two cell phones and $477 cash, consisting of two $100 bills, two $50 bills, seven $20 bills, two $10 bills, one $2 bill, and 15 $1 bills. Salo also discovered the key to the black SUV attached to the belt loop of defendant's pants.
In the meantime, another detective recovered the item discarded by defendant. It consisted of a plastic tube containing seven plastic bags of heroin and three plastic bags of methamphetamine. Salo found 3.2 grams of methamphetamine in a plastic bag at defendant's residence and a .45 caliber firearm in the black SUV.
At the police station, defendant waived his rights under Miranda v. Arizona (1966) 384 U.S. 436 and admitted the methamphetamine in his apartment was for his personal use, and the black SUV belonged to him. He claimed he never used heroin and found the gun a few days earlier. He denied tossing the tubular object.
DISCUSSION
1. Other Crimes Evidence
Defendant contends the court abused its discretion in admitting evidence of his prior possession of heroin and methamphetamine for sale in order to show a common plan under Evidence Code section 1101, subdivision (b). In the prior incident, a police officer was patrolling the area of Borchard Avenue and Madison Park on March 25, 2014, which is down the street from where defendant lived on Borchard Avenue. The officer saw defendant, who was riding a bicycle, stop in the parking lot of the park to talk to men in a vehicle. The officer contacted defendant and upon searching him found $319, in various denominations including "large amounts of small currency," and two cell phones containing text messages related to drug sales. In the area where he had first seen defendant, the officer also retrieved a discarded plastic bag holding nine bags of heroin and four bags of methamphetamine. Defendant pleaded guilty to possessing for sale usable quantities of heroin and methamphetamine.
In this case, the trial court admitted the March 25 evidence after concluding it was more probative than prejudicial and was relevant to show a common plan under Evidence Code section 1101, subdivision (b). The court instructed the jury the March 25 evidence was admitted for the limited purpose of showing a common plan. After closing arguments, the court instructed the jury that evidence admitted for a limited purpose may only be considered for that purpose, as part of its instructions on the law applicable to the case.
Evidence of a defendant's uncharged misconduct is generally inadmissible to prove his or her conduct on a specific occasion or his or her propensity for criminal activity. (Evid. Code, § 1101, subd. (a).) However, such evidence may be admitted to prove some other material fact in the case, such as a common plan. (Id., subd. (b).) Under Evidence Code section 1101, subdivision (b), "evidence of a defendant's uncharged misconduct is relevant where the uncharged misconduct and the charged offense are sufficiently similar to support the inference that they are manifestations of a common design or plan." (People v. Ewoldt (1994) 7 Cal.4th 380, 401-402.)
"'If evidence of prior conduct is sufficiently similar to the charged crimes to be relevant to prove the defendant's intent [or] common plan, . . . 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.] "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.]'" (People v. Johnson (2013) 221 Cal.App.4th 623, 635.)
Defendant argues the March 25 incident "was not similar because it involved a hand-to hand transaction" and "stronger indicia of sales." We are not persuaded.
"To establish the existence of a common design or plan, the common features [between the uncharged act and the charged offense] 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 . . . . [T]he 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." (People v. Ewoldt, supra, 7 Cal.4th at p. 402.) The crimes do not need to be identical. (People v. Jones (2013) 57 Cal.4th 899, 931; People v. Carter (2005) 36 Cal.4th 1114, 1149.)
Here, both incidents involved defendant's: possession and transportation of heroin and methamphetamine for sale in the same general area; use of a bicycle to travel through the neighborhood to sell drugs; discarding of similarly sized packages of heroin and methamphetamine on the street before officers could approach him; a proportionately equivalent of heroin to methamphetamine bags; and defendant's possession of two cell phones together with over $300 in cash in both large and small bills. These similarities support the inference of the existence of a common plan rather than a series of comparable spontaneous acts and that defendant was employing that plan in committing the charged offense.
People v. Thompson (1980) 27 Cal.3d 303, cited by defendant, is inapposite. Aside from involving the admission of other crimes evidence to show intent, as opposed to a common plan, "[t]he only similarities were that in both instances the actor demanded an automobile and left the scene with a set of his victim's car keys" (id. at p. 320), neither of which established the necessary specific intent to steal. (Id. at pp. 320-321.)
This case contains numerous similarities between the charged and uncharged offenses sufficient to give rise to an inference of a common plan. Thus, the trial court did not abuse its discretion in admitting the March 25 incident for that purpose. 2. Lesser Included Offense
Defendant asserts that possession of a controlled substance for sale is a lesser included offense of the sale or transportation of the same controlled substance. For that reason, he contends, his convictions of both possession for sale (counts 4 & 6) and the sale or transportation (counts 3 & 5) of the same heroin and methamphetamine were improper.
"In California, a single act or course of conduct can lead to convictions 'of any number of the offenses charged.' [Citations.] However, a judicially created exception to this rule prohibits multiple convictions based on necessarily included offenses. [Citations.] [¶] There are two tests for determining whether one offense is necessarily included in another: the 'elements' test and the 'accusatory pleading' test. [Citation.] We apply the 'elements' test here because this case involves the conviction of multiple alternative charged offenses. 'Courts should consider [both] the statutory elements and accusatory pleading in deciding whether a defendant received notice, and therefore may be convicted, of an uncharged crime, but only the statutory elements in deciding whether a defendant may be convicted of multiple charged crimes.' [Citation.] Under the 'elements' test, we look strictly to the statutory elements, not to the specific facts of a given case. [Citation.] We inquire whether all the statutory elements of the lesser offense are included within those of the greater offense. In other words, if a crime cannot be committed without also committing a lesser offense, the latter is a necessarily included offense." (People v. Ramirez (2009) 45 Cal.4th 980, 984-985.)
Both Health and Safety Code sections 11379, subdivision (b) (sale or transportation of methamphetamine; count 3) and 11352, subdivision (b) (sale or transportation of heroin; count 5) mandate that "any person who transports any controlled substances specified in subdivision (a) within this state from one county to another noncontiguous county shall be punished by imprisonment . . . ." For purposes of both statutes, "'transports' means to transport for sale." (Health & Saf. Code, §§ 11379, subd. (c), 11352, subd. (c).) As relevant here, the elements of these offenses are (1) the defendant transported a controlled substance for the purpose of sale, (2) the transportation occurred through at least two noncontiguous counties, (3) the defendant knew of its presence, (4) the defendant knew of the substance's nature or character as a controlled substance, (5) the controlled substance was methamphetamine, and (6) the controlled substance was in a usable amount. (See CALCRIM No. 2300.)
By contrast, Health and Safety Code section 11378 (count 4; possession for sale of methamphetamine) punishes by imprisonment "a person who possesses for sale a controlled substance." Health and Safety Code section 11351 (count 6; possession for sale of heroin) does the same for "every person who possesses for sale or purchases for purposes of sale . . . any controlled substance . . . ." The elements for both offenses are (1) the defendant unlawfully possessed a controlled substance, (2) the defendant knew of its presence, (3) the defendant knew of the substance's nature or character as a controlled substance, (4) when the defendant possessed the controlled substance, he or she intended to sell it, (5) the controlled substance was methamphetamine or heroin, and (6) the controlled substance was in a usable amount. (See CALCRIM No. 2302.)
Applying the statutory elements test, possession for sale is not an essential element of transportation for sale. A person can sell or transport for sale a controlled substance that is within the exclusive possession of another. (See People v. Murphy (2007) 154 Cal.App.4th 979, 983-984; People v. Peregrina-Larios (1994) 22 Cal.App.4th 1522, 1524 [lesser related, not necessarily included]; see also People v. Rogers (1971) 5 Cal.3d 129, 134 [transportation does not require personal possession by the defendant].) Defendant was properly convicted of the sale or transportation of methamphetamine and heroin and of possession for sale of those same controlled substances.
DISPOSITION
The judgment is affirmed.
THOMPSON, J. WE CONCUR: BEDSWORTH, ACTING P. J. MOORE, J.