Opinion
H030861
11-16-2007
THE PEOPLE, Plaintiff and Respondent, v. SON KIM NGUYEN, Defendant and Appellant.
NOT TO BE PUBLISHED
Defendant Son Kim Nguyen appeals from a judgment of conviction entered after a jury found him guilty of possession of cocaine base (Health & Saf. Code, § 11350, subd. (a)), using or being under the influence of cocaine or methamphetamine (Health & Saf. Code, § 11550, subd. (a)), and resisting arrest (Pen. Code, § 148, subd. (a)(1)). Defendant admitted that he had served four prior prison terms (Pen. Code, § 667.5, subd. (b)) and suffered a prior strike conviction (Pen. Code, §§ 667, subds. (b)-(i), 1170.12). The trial court sentenced defendant to 32 months in prison. On appeal, defendant contends that the trial court erred in admitting evidence of uncharged cocaine offenses. We conclude that the error was not prejudicial to defendant and affirm the judgment.
I. Statement of Facts
At approximately 1:00 a.m. on October 19, 2005, Officer Richard Bravo began following a car without license plates. After the car turned onto 12th Street, it pulled to the curb. The passenger, who was later identified as defendant, exited the car while the driver remained inside. Defendant then walked by Bravos patrol car as it pulled in behind the car. Meanwhile, Bravo approached the driver, told her the reason for the stop, and asked for identification.
As Bravo was talking to the driver, defendant returned to the car. At about the same time, a backup officer arrived. Bravo was standing in the street at the drivers side of the car, when defendant asked him what was going on. Bravo noticed that defendant was sweaty, nervous, speaking rapidly, unable to stand still, and scratching his arms. He concluded that defendant was under the influence of either cocaine or methamphetamine. The driver did not appear to be under the influence of a stimulant.
Bravo asked defendant for his name, date of birth, and whether he had any weapons. Defendant initially said, "Son Nguyen," then said, "Kim Nguyen." He gave his date of birth as September 30, 1968, and said that he had a box cutter in his right front pocket. When Bravo asked defendant if he had any tattoos, defendant pulled up his shirt and revealed a tiger and a dragon on his chest. Bravo requested a records check based on defendants name, date of birth, and tattoos. While Bravo was waiting for the results, he removed the box cutter from defendants pocket. Noting a lump in defendants left front pocket, Bravo also removed a wad of cash totaling $15. However, Bravo did not conduct a standard pat check in which he would have checked all of defendants pockets. Bravo learned that defendants name was Son Kim Nguyen, his date of birth was September 30, 1969, and he had an outstanding arrest warrant.
Based on the arrest warrant and defendants intoxication, Bravo decided to arrest him. Bravo ordered defendant to turn around and interlace his fingers so Bravo could handcuff him. When Bravo attempted to take hold of defendants hands, defendant spun around, faced Bravo, and began to back away. Bravo grabbed defendants shirt, but defendant turned and left his shirt in Bravos hands. Bravo dropped the shirt, reached for his baton, and swung at defendant. However, Bravos baton became entangled in his microphone cord, and he dropped it. At that point, defendant turned, stepped out of his shoes, and ran in a southeast direction toward the houses on the other side of the street. Bravo began chasing defendant, who had a 15- or 20-foot lead.
Bravo followed defendant through one residential backyard, but stopped pursuing him when defendant jumped over a fence. Bravo left the backyard and went around the corner to 13th Street to look for defendant. However, Bravo never found him. Bravo did not see defendant throw anything on the ground at the scene or as he was running away.
While Bravo was attempting to arrest defendant, the backup officer was standing near the stopped car between Bravo and the driver, who was standing at the rear of the car. The backup officer "had sort of a visual on both" Bravo and the driver. The backup officer started to follow Bravo as he pursued defendant, but the backup officer stopped when he got across the street and stayed to secure the scene. The driver was left by the car "[j]ust momentarily."
When Bravo returned to the scene, Officer Kenneth Davis had arrived to assist in the search for defendant. There were also five or six other officers who had secured the area and the backup officer was still standing near the driver. Davis found two tin foil bindles, which contained cocaine base, in the middle of the street close to the car. Defendants shoes, shirt, and the bindles formed a "straight path" from where Bravo confronted defendant and extended in the direction in which defendant fled. When Bravo had first arrived on the scene, the street had been clear of any debris.
The parties stipulated that both bindles contained cocaine base and that the net weight of one of the bindles was .23 grams. Based on Daviss experience and training, each bindle contained a usable amount of rock cocaine. According to Davis, he believed the cocaine belonged to defendant, because "[o]ne, it was within close proximity of where the officer was involved in the altercation with the suspected individual; two, it was in close proximity to the clothing that was in the street; and three, its not very often that you come across drugs that are just l[]ying in the middle of the street." Bravo had seen drugs lying in the street "maybe half a dozen times," and only in "parking lots, usually in the vicinity of people who leave an area right away."
On November 25, 2005, Officer Paul Guerra was investigating a house on South 8th Street for narcotic activity. While Guerra was standing in front of the residence with other officers, defendant walked up and began speaking to Sergeant Ray Barrera, who was about five feet away from Guerra. Defendant exhibited symptoms of being under the influence of a stimulant, including excited speech, sweating, and dry mouth. Barrera searched defendant for weapons and felt a hard object in his pocket. After obtaining defendants permission to search, Barrera removed a phone from defendants pocket. As Barrera removed the phone, a crack pipe fell out of defendants pocket. A crack pipe is only used to smoke crack cocaine, not powder cocaine. Defendant was booked into the county jail. A test of his urine was positive for the presence of cocaine.
II. Discussion
Defendant contends that the trial court erred in admitting evidence of uncharged cocaine offenses.
A. Background
Prior to trial, defense counsel brought a motion to exclude evidence of the uncharged offenses that occurred on November 25, 2005. In his written motion, defense counsel described the incident as follows: "As the officers were at the residence, the defendant Son Nguyen, walked up to the immediate area. Two officers spoke with him and the defendant `soon took off running. He was tackled by an officer and was seen discarding a crack pipe and was under the influence of a controlled substance. Def[endant] also allegedly provided a false name to the officer but his true name was discovered." Defense counsel argued that the admission of this evidence "would clearly allow the jury to conclude the defendant was guilty based on his character as opposed to the facts of this specific case. Since the defendant has run away from the police more than once and is guilty of the latter event, the jury could conclude that the defendant is guilty of the current case pending before the court. Furthermore, since the event occurred a month after the current case, it is sufficiently remote in time that [it] has no relevance to this case."
At the hearing on the motion, defense counsel argued that the evidence was not relevant to any disputed issue in the case. Defense counsel offered to stipulate that defendant "does know what cocaine is and has knowledge that it is a controlled substance." In response to the trial courts suggestion that the prosecution was not required to accept a stipulation, defense counsel acknowledged that case law supported that proposition, but argued that allowing the prosecution to reject a stipulation would allow the admission of character evidence in violation of Evidence Code section 1101, subdivision (b). Defense counsel also argued that the evidence was unduly prejudicial, because the facts of the subsequent incident showed that defendant "went to a house where substantial quantities of drugs were located [and] sales activity [was] going on[.]"
The prosecutor stated that only some of the facts of the subsequent incident would be introduced into evidence, that is, that Officer Guerra was investigating a suspected crack house when defendant approached the house, that defendant was under the influence of a controlled substance, that defendant ran away and discarded a crack pipe, and that defendant gave a false name when he was eventually apprehended. The prosecutor argued that the evidence was admissible to show defendants motive, that is, his "motive to knowingly possess drugs" and his "motive to be under the influence of drugs." The prosecutor also stated that defendants presumed defense would be that "the drugs were on the street, so it was a complete coincidence that it happened to be near the defendants clothes, or perhaps it wasnt the defendant." The prosecutor then argued that the evidence was more probative than prejudicial.
Officer Guerra did not testify that defendant gave a false name. Instead of testifying that defendant discarded a crack pipe, Officer Guerra testified that the crack pipe fell out of defendants pocket during a search.
The trial court denied the motion to exclude the evidence of uncharged offenses. The trial court gave a limiting instruction immediately prior to the admission of the evidence and at the end of the case in which it instructed the jury that the evidence was admitted only for the purposes of showing motive, knowledge, "whether the defendant acted because of lack of mistake or whether he lacked or had mistake of symptoms or to show lack of accident in connection with alleged possession of drugs."
B. Analysis
Evidence of prior or subsequent uncharged offenses is inadmissible if its only relevance is to establish that the defendant possessed a disposition or propensity to commit the charged offense. (People v. Balcom (1994) 7 Cal.4th 414, 423-425; Evid. Code, § 1101, subd. (a).) This rule does not apply to an uncharged offense that is "relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . . .)" (Evid. Code, § 1101, subd. (b); People v. Ewoldt (1994) 7 Cal.4th 380, 404 (Ewoldt).) Since substantial prejudice is inherent in admitting evidence of uncharged offenses, such offenses are admissible "`only if they have substantial probative value." (Ewoldt, at p. 404.) If relevant, the probative value of the uncharged offense must be weighed against the danger "of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.) Admissibility of such evidence is committed to the sound discretion of the trial court, whose discretionary decision will not be reversed on appeal absent clear abuse of discretion. (People v. Kipp (1998) 18 Cal.4th 349, 369, 371.)
In People v. Hall (1980) 28 Cal.3d 143 (Hall), our Supreme Court outlined the rules applicable to a defendants offer to stipulate to an element of the charged offense in exchange for exclusion of evidence of uncharged offenses. (Hall, supra, 28 Cal.3d 143, overruled on another ground in People v. Newman (1999) 21 Cal.4th 413.) "[I]f a defendant offers to admit the existence of an element of a charged offense, the prosecutor must accept that offer and refrain from introducing evidence of other crimes to prove that element to the jury. Ordinarily, the jury is informed that the specific element of the offense has been admitted by the defendant. [Citations.] [¶] There is one narrow exception to this rule of exclusion. If the facts to which the defendant has offered to stipulate retain some probative value, then evidence of such facts may be introduced. For example, if evidence remains relevant to an issue not covered by the stipulation or admission, the evidence is admissible on the remaining issue. [Citations.] If the stipulation would force the prosecution to elect between theories of guilt, or would hamper a coherent presentation of the evidence on the remaining issues, evidence of the stipulated facts is admissible. [Citation.]" (Hall, at pp. 152-153.)
"The essential elements of possession of a controlled substance are dominion and control of the substance in a quantity usable for consumption or sale, with knowledge of its presence and of its restricted dangerous drug character. Each of these elements may be established circumstantially." (People v. Palaschak (1995) 9 Cal.4th 1236, 1242, internal quotation marks omitted.)
Here, defendant offered to admit the existence of a charged offense by offering to stipulate that he knew what cocaine was and knew that it was a controlled substance. Thus, the question is whether the evidence of uncharged offenses was relevant on any other issue. The People argue that this evidence was relevant to show that the presence of drugs near defendants shirt and shoes on the street was not a coincidence or accident, and thus defendant was in possession of the recovered drugs.
The People do not claim the challenged evidence was relevant to prove motive or Officer Bravos lack of mistake, presumably recognizing that it was inadmissible on these grounds.
Bamattre-Manoukian, Acting P.J.
I CONCUR IN THE JUDGMENT ONLY.
There is no merit to this argument. There was no issue as to whether the presence of the drugs was a coincidence or accident, because the defense theory was that the drugs were placed in the street by the driver. Moreover, the Peoples position that defendants subsequent drug use tended to prove that the drugs were dropped by defendant rather than by someone else depends upon the impermissible propensity inference. The case of People v. Valentine (1988) 207 Cal.App.3d 697 (Valentine), illustrates this point. In Valentine, the defendant was charged with cultivation of marijuana and possession of marijuana for sale. (Id. at p. 699.) The trial court admitted evidence of the defendants intravenous drug use "`to establish the fact that the marijuana plants would be owned by the defendant." (Id. at p. 700, italics omitted.) The reviewing court held that the trial court erred in admitting the evidence "for the purpose of establishing an inference of [the defendants] propensity or disposition to commit crimes in general and `drug crimes in particular." (Id. at p. 704.) Similarly, here the trial court abused its discretion in admitting the uncharged offenses to prove that defendant possessed the drugs in the present case.
However, the error was harmless. Here it was uncontested that defendant resisted arrest and fled. The evidence that defendant was under the influence of a controlled substance was very strong and uncontradicted. The evidence to support a conviction of possession of cocaine base was also very strong. The record established that there was nothing in the street when Bravo arrived, the two bindles of crack cocaine, defendants shoes, and shirt formed a "straight path" from where Bravo confronted defendant and extended in the direction in which defendant fled. Both officers also testified that it was unusual to find bindles of rock cocaine lying in the street. The defense theory that the driver managed to throw the drugs so that they landed on defendants flight path was highly implausible, given that the backup officer was watching her during the incident and left her only "momentarily" to cross the street. Accordingly, it was not reasonably probable that the jury would have returned a more favorable verdict if the evidence of the November 25 incident had not been admitted. (People v. Watson (1956) 46 Cal.2d 818, 836.)
III. Disposition
The judgment is affirmed.
I Concur:
McAdams, J.