THE PEOPLE v. KEVIN LEE REDMOND (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Defendant Kevin Lee Redmond appeals from the judgment entered following a jury trial in which he was convicted of possessing cocaine base for sale and selling cocaine base.   Defendant contends the trial court erred by admitting evidence of his prior conviction of possession of marijuana for sale, his attorney rendered ineffective assistance of counsel by failing to object to expert opinion testimony, and a prior prison term enhancement was not supported by sufficient evidence or an adequate admission.   We agree with respect to the prior prison term enhancement, but otherwise affirm.

BACKGROUND

About 4:00 p.m. on October 23, 2009, Los Angeles Police Department Officers Jason Malik and Eduardo Mendez and Sergeant Colomey were working as a crime impact team in the area of West 90th Street and Broadway in Los Angeles, an area known for “blatant use and sale of narcotics.”   They were in plainclothes and driving unmarked police vehicles.   Malik drove down West 90th Street and saw defendant standing on the sidewalk in front of a house at 219 West 90th Street.   He recognized defendant as someone he had seen 10 to 20 times in the same area in the last year or two.   Malik decided to create an observation post to watch defendant.   Colomey and Malik parked their car on West 90th Street, near its intersection with Main Street, and Malik asked Mendez to watch defendant from a different place on the block.   Malik testified he could see defendant on the sidewalk.   Mendez parked his minivan about four or five houses, or 50 to 100 feet, from 219 West 90th Street.

Mendez and Malik saw a gray Chevrolet Cobalt stop in the middle of the street directly in front of defendant.   Mendez could tell that the driver was a woman.   Defendant walked up to the driver's side of the car and appeared to have a brief conversation with her.   Mendez testified that defendant then walked up to a bush beside the porch in the yard of 219 West 90th Street and bent over the bush for 15 to 30 seconds.   He then straightened up and walked back to the driver's window with his left hand clenched and his right hand open.   As he walked, he looked up and down the street.   He put his left hand through the car window and handed something to the driver.   The driver then handed defendant paper currency.   Defendant walked back to the sidewalk and the Cobalt drove away.   Mendez's view was not obstructed in any way as he watched defendant interact with the driver of the Cobalt and go to and from the bush.   Malik also saw defendant walk up to the car, lean down, then walk away as the car drove away.   After Mendez told Malik what he had observed, Malik directed Officer Gary Koba and his partner to stop the Cobalt, then watched as they began following the Cobalt at the corner of Main and West 90th Street.

Koba testified that he pulled the Cobalt over on Main Street near 93rd Street.   He directed the driver, Alisa Ward, to get out of the car.   As she did so, she moved her hand to her mouth.   Koba asked her to open her mouth and saw a chip on her tongue that looked like rock cocaine.   Ward spat it out, and Koba recovered it.   Subsequent analysis revealed that it weighed 0.07 grams and contained cocaine base.   Malik testified that the rock recovered from Ward was consistent with possession for personal use and looked like one that would sell for about $5. Mendez testified it might sell for $5 or $10.

After Koba informed Malik that he had recovered what appeared to be cocaine base from Ward, Malik directed Officers John Kent and Troy Thomas to detain defendant.   Thomas searched defendant and recovered $208 in cash from his pocket.   Defendant had four $20 bills, two $10 bills, eleven $5 bills, and fifty-three $1 bills.   Kent began searching the yard of 219 West 90th Street.   Malik walked to the house.   Mendez directed Malik to the bush beside the porch, and there Malik found a clear plastic bag that contained a couple of large off-white solids and some smaller pieces resembling cocaine base.   Subsequent analysis revealed that one of the large pieces from the bag weighed 8.68 grams and contained cocaine base.

Malik also testified as an expert witness and opined that defendant possessed the cocaine base with the intent to sell it.   He explained that his opinion was based upon the totality of circumstances, including his own observations and those of other officers involved in the investigation, the quantity of cocaine base recovered, the amount and denominations of the currency recovered from defendant's person, and Malik's knowledge of both the location and defendant himself.   Malik explained that the quantity was far greater than a user would possess, and the large number of small bills was consistent with selling users small rocks for prices such as $3, $6, and $7. When presented with evidence that defendant had a prior conviction for possessing marijuana for sale, Malik testified that the conviction would enter into his opinion because it showed defendant had “done narcotics sales in the past.”

Defendant offered no evidence in defense.

The jury convicted defendant of possessing cocaine base for sale and selling cocaine base.   Defendant waived a trial on an allegation he had served a prior prison term within the scope of Penal Code section 667.5, subdivision (b) and admitted “the prior allegation.”   The court sentenced defendant to five years in prison, including one year for the prior prison term enhancement.

DISCUSSION

1. Admission of prior conviction

Before trial, the prosecutor filed a motion seeking to introduce evidence of defendant's 2006 conviction of possession of marijuana for sale to establish intent under Evidence Code section 1101.   Defendant opposed the motion on the grounds that the prior offense was insufficiently similar to the charged offenses, evidence of the prior conviction was superfluous because the prosecution could use the officer's expert testimony to prove intent to sell without reference to the prior conviction, and admission of the prior would be unduly prejudicial and reduce the prosecution's burden of proof as to intent.   Defendant did not inform the court that he was not going to contest the element of intent.   The court allowed the prosecution to introduce evidence of the prior conviction.   Defendant renewed his objection during trial before the prosecutor introduced evidence of the prior conviction, and again argued that the prosecution's burden of proof would be reduced.   Defendant again failed to tell the court he was not going to contest the element of intent.   The court found no reason to alter its prior ruling.

Near the very end of its case, after Malik had testified that the totality of circumstances—including his observations and those of other officers involved in the investigation, the quantity of cocaine base recovered, the amount and denominations of currency recovered, and his knowledge of the location and defendant—led him to opine that defendant possessed the cocaine base for the purpose of sale, the prosecutor introduced a redacted, certified court docket reflecting defendant's April 2006 conviction for possessing marijuana for sale in violation of Health and Safety Code section 11359.   He asked Malik whether the conviction would “enter into your opinion in any way,” and Malik said it would because it “[s]hows he's done narcotics sales in the past.”

The trial court instructed the jury as follows, with respect to the prior conviction:  “The People presented evidence that the defendant committed another offense, the offense of Possession for Sale of Marijuana in violation of Health and Safety Code Section 11359, that was not charged in this case.  [¶] You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged offense.   Proof by a preponderance of the evidence is a different burden of proof than proof beyond a reasonable doubt.   A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true.  [¶] If the People have not met this burden, you must disregard this evidence entirely.  [¶] 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 cocaine base in this case.  [¶] In evaluating this evidence, consider the similarity or lack of similarity between the uncharged offense and the charged offense[.]  [¶] Do not consider this evidence for any other purpose.  [¶] Do not conclude from this evidence that the defendant has a bad character or is disposed to commit crime.  [¶] If you conclude that the defendant committed the uncharged offense, that conclusion is only one factor to consider along with all the other evidence.   It is not sufficient by itself to prove that the defendant is guilty of any crime in this case.   The People must still prove the charge beyond a reasonable doubt.”

Defendant contends that the trial court erred by admitting evidence of his prior conviction, and the admission of the evidence violated due process.

Evidence of other offenses or misconduct is inadmissible to prove criminal propensity, but may be admitted to prove matters such as motive, intent, identity, or a common design or plan.  (Evid.Code, § 1101, subd. (a), (b).)  Because evidence of uncharged offenses is highly prejudicial, it must have substantial probative value, and the trial court must carefully analyze the evidence under Evidence Code section 352 to determine if its probative value outweighs its inherent prejudicial effect.  (People v. Ewoldt (1994) 7 Cal.4th 380, 404 (Ewoldt ).)   If an element of an offense is not reasonably subject to dispute, the prejudicial effect of evidence of an uncharged offense will usually outweigh its probative value, as the evidence will be cumulative regarding the undisputed element.  (Id. at p. 406.)   Evidence of other crimes should be received with extreme caution, and any doubts about its admissibility should be resolved in favor of the accused.  (People v. Guerrero (1976) 16 Cal.3d 719, 724.)

The least degree of similarity is required where, as here, a prior offense is offered to prove intent.   The prior offense and the charged offense need only be similar enough to support an inference that the defendant probably had the same intent in each instance.  (Ewoldt, supra, 7 Cal.4th at p. 402.)   But the rule permitting introduction of a prior offense to prove intent is designed for cases in which the charged act is conceded or assumed, but the defendant claims self-defense, good faith, accident, inadvertence, or other innocent mental state.  (People v. Balcom (1994) 7 Cal.4th 414, 422;  Ewoldt, at pp. 394, fn. 2, 406.)

We review the trial court's decision for abuse of discretion.  (People v. Hayes (1990) 52 Cal.3d 577, 617.)

Although defendant's not guilty plea put all elements of both charged offenses in issue, he did not contest his intent to sell the cocaine base.   He instead contended, in essence, that the police witnesses lied or were mistaken, no sales transaction occurred, and the police planted the cocaine base in the bush.   In addition, the prosecutor had ample other evidence to prove defendant's intent to sell.   Besides the testimony of Mendez and other police officers establishing that defendant sold cocaine base to Ward, Malik provided an expert opinion that the cocaine base was possessed with the intent to sell it based upon the quantity possessed, the large number of $1 and $5 bills defendant possessed, and his knowledge that narcotics sales were common on that block.   Thus, viewed in the context of the entire record at trial, admission of the prior conviction was arguably error because other evidence demonstrating defendant's unmistakable intent to sell the cocaine base severely reduced the probative value of the prior conviction to a level that was substantially outweighed by the inherent risk of undue prejudice.  (Evid.Code, § 352.)

If admission of the prior conviction was error, it was harmless.  (People v. Malone (1988) 47 Cal.3d 1, 22;  People v. Watson (1956) 46 Cal.2d 818, 836.)   Given the testimony of Mendez and Malik regarding their observations of what appeared to be a sale by defendant to Ward;  the recovery of a rock of cocaine base from Ward very soon after she drove away from defendant;  Ward's attempt to conceal the rock when stopped by the police;  the discovery of the stash of cocaine base in the bush that Mendez had seen defendant go to and bend over before returning to Ward's car to hand her something;  the quantity of cocaine base recovered from the bush;  the recovery of a large number of $1 and $5 bills from defendant;  Malik's expert testimony about the quantity of cocaine base commonly possessed for use, as opposed to the quantity recovered from the bush;  and the limiting instruction prohibiting the jury from considering defendant's prior conviction as “evidence that the defendant has a bad character or is disposed to commit crime” or for any purpose other than determining whether he “acted with the intent to sell cocaine base in this case,” we conclude it is not reasonably probable that defendant would have obtained a more favorable result if the trial court had not admitted evidence of his prior conviction.   For the same reasons, we conclude that the admission of defendant's prior conviction did not render his trial fundamentally unfair, and thus did not violate due process.

2. Ineffective assistance of counsel

Defendant contends that his trial attorney rendered ineffective assistance of counsel by failing to object to Malik's testimony that defendant “did intend to possess that cocaine base for sales.”   Defendant argues that his attorney should have objected on the ground that Malik's opinion “completely enveloped all of the elements of the allegation in count 1 [possession of cocaine base for sale] and constructively did nothing more than tell the jury that in his opinion this specific defendant was guilty of the offense of possession for sales of the cocaine base.”

A claim that counsel was ineffective requires a showing, by a preponderance of the evidence, of objectively unreasonable performance by counsel and a reasonable probability that, but for counsel's errors, the defendant would have obtained a more favorable result.  (In re Jones (1996) 13 Cal.4th 552, 561.)

3. Admission of prior prison term enhancement allegation

At the time for the court trial of the Penal Code section 667.5, subdivision (b) prior prison term allegation, the court stated, “We're here for a court trial in regards to the prior allegation that was alleged against you in this case․  [¶] ․ [¶] It's my understanding, [defendant] is prepared to admit the prior allegation;  is that correct?”   Defense counsel agreed it was.   The prosecutor addressed defendant:  “The People have alleged a prior conviction in case TA083855.   It's a Health and Safety Code section 11359, with conviction date of April 19, 2006, in the County of Los Angeles.  [¶] Do you understand the prior allegation against you?”   Defendant replied, “Yes.” The prosecutor advised defendant of his rights, including his right to a “formal hearing,” which defendant waived.   The prosecutor then asked defendant, “[D]o you admit or deny the prior allegation in cases [sic ] TA083855?”   Defendant said, “I admit.”   The court found the admission knowing, intelligent, and voluntary.   The court implicitly found the enhancement allegation true and imposed a one-year term for it.

Defendant contends that the enhancement must be stricken because he admitted only the existence of the prior conviction, not the remaining elements, and the prosecutor did not introduce evidence to prove those elements.   We agree because defendant was not asked to admit, and thus did not admit, the entire prior prison term enhancement allegation or the remaining statutory elements, but only an allegation that he had suffered the prior conviction.

We review the whole record in the light most favorable to the judgment to decide whether substantial evidence supports a true finding on the enhancement allegation, so that a reasonable trier of fact could find the allegation true beyond a reasonable doubt.  (People v. Ceja (1993) 4 Cal.4th 1134, 1138.)

Penal Code section 667.5, subdivision (b) provides as follows:  “Except where subdivision (a) [pertaining to a ‘violent’ new offense] applies, where the new offense is any felony for which a prison sentence is imposed, in addition and consecutive to any other prison terms therefor, the court shall impose a one-year term for each prior separate prison term served for any felony;  provided that no additional term shall be imposed under this subdivision for any prison term served prior to a period of five years in which the defendant remained free of both prison custody and the commission of an offense which results in a felony conviction.”   Due process requires proof of each of these elements in order to impose the enhancement.  (People v. Tenner (1993) 6 Cal.4th 559, 563, 566.)

As defendant argues, he admitted just one of several elements required to establish the truth of a Penal Code section 667.5, subdivision (b) enhancement allegation.   Although he was asked whether he admitted “the prior allegation in cases [sic ] TA083855,” he was not asked whether he admitted the allegation in this case that he had served a prior prison term for his conviction in case No. TA083855, nor was the enhancement allegation in this case described by reference to its nature or statutory source.   There was no reference, for example, to “an allegation that you previously served a prison term for your conviction in case No. TA083855” or even to “a Penal Code section 667.5, subdivision (b) enhancement allegation based upon your conviction in case No. TA083855.”   The court did not even commence the hearing by saying something like, “We're here for the court trial of the prior prison term allegation.”   No statement during the hearing or other circumstance supports an inference that defendant admitted any element of the enhancement allegation other than the existence of the prior conviction.   Nor did the prosecution introduce any evidence to prove the remaining elements of the enhancement allegation, either in the trial of the charges or post-verdict.   The evidence the prosecution introduced during trial under Evidence Code section 1101, subdivision (b), was also limited to the mere existence of the prior.   The evidence was thus insufficient to support imposition of the prior prison term allegation.  (People v. Epperson (1985) 168 Cal.App.3d 856, 864–865;  People v. Lopez (1985) 163 Cal.App.3d 946, 951.)

The failure to mention the service of a prison term for the prior conviction distinguishes this case from People v. Franco (1970) 4 Cal.App.3d 535, upon which the Attorney General relies.   Just before Franco's trial commenced, he admitted a prior conviction of petty theft for the purpose of elevating his current offense to a felony under section 666.   The court read the prior conviction allegation to Franco, including the allegation that he served a term for his prior petty theft conviction in the Ventura County jail.  (Id. at p. 539) The court then asked, “ ‘Do you admit or deny that prior offense?’ ”   Franco admitted it.   On appeal, he challenged the sufficiency of his admission to elevate his offense to a felony.   The appellate court found the admission sufficient, noting that it “included an admission that he had served a term therefor as alleged in the information, even though he was not asked, separately, whether he had served such term.”  (Id. at p. 540.)   Here, neither the court nor counsel referred to service of a prison term for defendant's prior conviction, either by reading the allegation to him, referring at any time to a “prison term,” or even referring to its statutory basis.  Franco is thus readily distinguishable and fails to support a different result.

The Attorney General also relies upon the prosecutor's reference to “a one year prison prior” at the time the trial court bifurcated trial of the Penal Code section 667.5, subdivision (b) enhancement allegation.   She argues, “Moreover, the prosecutor specifically informed [defendant] that the prior conviction allegation was for a ‘one year prison prior.’ ”   A review of the record reveals that this reference occurred in a sidebar conference between the court and counsel during voir dire.   Because defendant was not present at sidebar, the prosecutor's reference to the nature of the enhancement allegation on a prior occasion and outside the presence of defendant cannot be deemed to support a finding that defendant later admitted he served a prison term for his prior conviction.

Accordingly, we reverse the true finding on the enhancement allegation.   If the prosecutor wishes, the allegation may be retried.  (Monge v. California (1998) 524 U.S. 721, 734 [118 S.Ct. 2246];  People v. Anderson (2009) 47 Cal.4th 92, 111.)

DISPOSITION

The Penal Code section 667.5, subdivision (b) enhancement is reversed.   The judgment is otherwise affirmed, and the cause is remanded for a retrial of the section 667.5, subdivision (b) enhancement allegation, if the prosecutor so desires.

NOT TO BE PUBLISHED.

We concur:

CHANEY, J. JOHNSON, J.