PEOPLE v. LLAMAS (1994)

A jury convicted Daniel Llamas of possessing cocaine base for sale (Health & Saf.Code, § 11351.5).   After trial, Llamas admitted he had two prior felony convictions within the meaning of Health and Safety Code section 11370.2 and had served a prior prison term within the meaning of Penal Code section 667.5, subdivision (b).   The court sentenced Llamas to prison for the upper term of four years for the possession for sale conviction, a consecutive three-year term for one of the prior convictions and a consecutive one-year term for the prior prison term.

On appeal, Llamas contends (1) defense counsel's failure to object to the introduction of evidence of a prior uncharged act to prove identity fell below the standard of reasonable competence and deprived him of a potentially meritorious defense and (2) improper jury instructions denied him substantial rights and deprived him of due process of law.   We conclude neither of these contentions has merit and accordingly affirm the judgment.

FACTS

On December 24, 1992, San Diego Police Officers Norman Ernsbarger and Henry Ingram responded to a call involving an assault at 303 Olivewood Terrace.   Llamas was present but had no connection to the assault.

Several hours later, Ernsbarger and Ingram responded to a domestic violence call about a quarter of a mile from their previous call.   They again saw Llamas, this time in the middle of the street.   Because Llamas appeared to be intoxicated or ill, the officers drove him to the hospital.   On the way there, Llamas told the officers that when they arrived at 303 Olivewood several hours earlier, he had swallowed five or six cocaine rocks.¹  When the officers saw Llamas several days later on another unrelated call, he thanked them for saving his life.

On December 31, 1992, Officers Ernsbarger and Ingram, along with Officer Daniel Coburn, returned to 303 Olivewood to conduct surveillance of cocaine trafficking at that address.   Coburn was assigned to identify possible suspects buying cocaine and to describe them to Ernsbarger and Ingram.

During the three-hour surveillance, Coburn saw at least 30 people walk up to the door and participate in hand-to-hand transactions that appeared to be drug sales.   This occurred either through a hole in the screen door or, on about five occasions, on the porch as Llamas stood outside.²  Coburn also noticed some of the buyers put something in their pockets or their mouths as they walked away.

Although Coburn did not see any actual exchanges outside the house, he clearly saw Llamas standing on the porch.   He also saw Llamas inside the house standing in between the closed screen door and the main door.

Several times during the surveillance, Coburn saw Llamas walk to the house next door.   Each time, all foot traffic to 303 Olivewood stopped and no sales were made.

Based on the description provided by Coburn, Ernsbarger stopped and questioned 10 or 12 people, all of whom admitted buying cocaine at 303 Olivewood.   Ernsbarger recovered cocaine from one person.

When the surveillance ended around 3:30 a.m., Ernsbarger and Ingram saw Llamas outside, walking away from the area.   Llamas admitted he was staying at 303 Olivewood.   At that time, Coburn had not informed the other officers he had identified Llamas as the one selling cocaine.   In fact, neither Ernsbarger nor Ingram knew Coburn had seen Llamas inside the house during the surveillance.

A few hours later, Ernsbarger prepared a search warrant.   After doing so, Coburn told him about seeing Llamas at the house.   Other than providing that information, Coburn did not participate in preparing the search warrant.

On January 8, 1993, the police executed the search warrant at 303 Olivewood.   Inside, they found Llamas and four other people, along with 102 cocaine rocks separated equally into two plastic baggies.   The police eventually released the four others and arrested Llamas for possession of cocaine for sale.

The police never determined who owned the house at 303 Olivewood.   They were unable to find any items in the house to indicate dominion and control.   They found no drugs or money on Llamas or the other occupants.   Although the police found what they considered to be a “pay-and-owe” sheet,³ they found no other drug paraphernalia.

At trial, Detective Ray Stanley testified as an expert on cocaine and the operation of crack houses.   In his opinion, the 102 rocks found inside 303 Olivewood were possessed for sale rather than personal use.   With respect to the operation of “rock houses,” Stanley explained a typical rock house has no items of dominion and control.   He testified drug dealers “feel very confident of the fact that because of lack of identity ․ [e]ven if the cops do come in, [they have a] how-are-you-going-to-prove-it-is-my-dope attitude.   Oftentimes, I'll go to a house, buy drugs in a hand-to-hand transaction, simply go to the front door, hi, remember me, you're under arrest.  [They will say] [y]ou may be able to get me for hand-to-hand, but you can't put anything else on me for the same thing.   You don't know who I am.   Nobody lives here, and it belongs to somebody else.”   Stanley also noted people do not “hang out” in a rock house unless they are working and one person is usually in charge inside that house.

DISCUSSION

I

Llamas contends defense counsel's failure to object to the introduction of improper evidence of a prior bad act to prove identity fell below the standard of reasonable competence and deprived him of a potentially meritorious defense.   Specifically, Llamas asserts Officer Coburn's testimony he saw someone who looked like Llamas selling drugs one week before Llamas's arrest was inadmissible to prove he was the person who possessed the cocaine found in the house.   Had counsel objected to this evidence, he argues, the court likely would have excluded it.

A.

 A defendant claiming ineffective assistance of counsel has the burden to show (1) counsel's performance was deficient, falling below an objective standard of reasonableness under prevailing professional norms and (2) such ineffectiveness was prejudicial, such that it is reasonably probable a more favorable determination would have resulted in the absence of counsel's failings.  (Strickland v. Washington (1984) 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 2064, 2068, 80 L.Ed.2d 674;  People v. Ledesma (1987) 43 Cal.3d 171, 216, 218, 233 Cal.Rptr. 404, 729 P.2d 839.)  “Judicial scrutiny of counsel's performance must be highly deferential.   It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.  [Citation.]  A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.   Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance;  that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’  [Citation.]  There are countless ways to provide effective assistance in any given case.   Even the best criminal defense attorneys would not defend a particular client in the same way.   [Citation.]”  (Strickland v. Washington, supra, 466 U.S. at pp. 689–690, 104 S.Ct. at p. 2065.)

B.

 Evidence of a person's character, including specific instances of his or her conduct, is inadmissible when offered to prove that conduct on a specified occasion.  (Evid.Code, § 1101, subd. (a).)  However, evidence a person committed an act is admissible when the evidence is relevant to prove some fact other than the disposition to commit the act, such as motive, opportunity, intent, preparation, plan, knowledge or identity.   (Evid.Code, § 1101, subd. (b).) ⁴  In applying this rule to criminal cases, the general test of admissibility is whether the evidence tends logically, naturally and by reasonable inference to establish any fact material for the People, or to overcome any material matter sought to be proved by the defense.  (People v. Schader (1969) 71 Cal.2d 761, 775, 80 Cal.Rptr. 1, 457 P.2d 841.)   If it does, the evidence is admissible even if it tends to prove the commission of another, unrelated crime.  (People v. Peete (1946) 28 Cal.2d 306, 315, 169 P.2d 924.)

 The admissibility of other crimes evidence depends on three principal factors:  “(1) the materiality of the fact sought to be proved or disproved;  (2) the tendency of the uncharged crime to prove or disprove the material fact;  and (3) the existence of any rule or policy requiring the exclusion of relevant evidence.  [Citations.]”  (People v. Thompson (1980) 27 Cal.3d 303, 315, 165 Cal.Rptr. 289, 611 P.2d 883;  emphasis original;  see also People v. Sully (1991) 53 Cal.3d 1195, 1224, 283 Cal.Rptr. 144, 812 P.2d 163.)

 To prove Llamas committed the charged offense, the prosecution had to show (1) he exercised control or the right to control the cocaine base, (2) he had knowledge of its presence, (3) he had knowledge of its nature as a controlled substance, (4) the cocaine base was in an amount sufficient to be used for sale as a controlled substance and (5) he possessed the cocaine base with the specific intent to sell it.  (See Health & Saf.Code, § 11351.5;  CALJIC No. 12.01.)   Included in the prosecution's burden of proving all the elements of the charged offense was its burden to prove the identity of the perpetrator of that offense.  (People v. Willoughby (1985) 164 Cal.App.3d 1054, 1064–1065, 210 Cal.Rptr. 880.)   As shown by defense counsel's arguments to the jury, Llamas's defense was not that the crime did not occur, but that Llamas was not the person who committed that crime, thus placing in issue Llamas's identity as the perpetrator.   Evidence of identity was offered at trial to prove Llamas was the person who possessed the cocaine base for sale, not to prove Llamas's identity as Daniel Llamas.   Because the identity of the perpetrator was “an ultimate fact in the proceeding” and was “ ‘actually in dispute,’ ” the requirement of materiality was satisfied.⁵  (People v. Thompson, supra, 27 Cal.3d at p. 315, 165 Cal.Rptr. 289, 611 P.2d 883.)

 Further, evidence of the uncharged offense, Llamas's prior sale of drugs, was probative of the material fact of identity because it logically, naturally, and by reasonable inference established who possessed the cocaine base for sale.  (See People v. Thompson, supra, 27 Cal.3d at p. 316, 165 Cal.Rptr. 289, 611 P.2d 883.)   The evidence showed that one week before his arrest, Llamas was seen selling drugs at 303 Olivewood.   Drug sales activity stopped whenever Llamas left the house.   Llamas told police officers he was staying at 303 Olivewood and admitted swallowing several cocaine rocks at the house when the officers responded to an unrelated call there.   Evidence that Llamas on a prior occasion sold cocaine from 303 Olivewood was sufficiently similar to the ultimate fact in dispute—that Llamas exercised control or the right to control the cocaine base found at that address with the intent to sell it.⁶  Where, as here, “there is a direct relationship between the prior offense and an element of the charged offense, introduction of that evidence is proper.  [Citations.]”  (People v. Daniels (1991) 52 Cal.3d 815, 857, 277 Cal.Rptr. 122, 802 P.2d 906 [introduction of other crimes evidence proper where there was direct relationship between police rendering defendant paraplegic and defendant murdering officers in retaliation].)

 Llamas asserts even if identity had been at issue, evidence of acts during the surveillance was nevertheless inadmissible to prove identity because those acts did not share “distinctive common marks” with the charged offense.   However, the comparison between selling cocaine base from 303 Olivewood and having dominion and control of 102 rocks of cocaine base at that address is apparent.   The inference of identity “need not depend on one or more unique or nearly unique common features;  features of substantial but lesser distinctiveness may yield a distinctive combination when considered together.  [Citation.]”  (People v. Miller (1990) 50 Cal.3d 954, 987, 269 Cal.Rptr. 492, 790 P.2d 1289.)   Here, the evidence of the prior cocaine base sales from a particular house shared sufficient common features with the charged offense to support the inference the same person committed both crimes.  (See People v. Ewoldt (1994) 7 Cal.4th 380, 403, 27 Cal.Rptr.2d 646, 867 P.2d 757.)

 Moreover, no rules or policies limit the admissibility of this evidence.   We recognize substantial prejudicial effect is inherent in evidence of uncharged offenses.  (People v. Thompson, supra, 27 Cal.3d at p. 318, 165 Cal.Rptr. 289, 611 P.2d 883.)   Nevertheless, because of the substantial probative value of the evidence in this case, its strong tendency to prove Llamas had dominion and control of the cocaine base, the crucial nature of the evidence to the prosecution's case and the jury instruction limiting its purpose, we cannot say it should have been excluded.⁷  Given the admissibility of this evidence, counsel's failure to object to it neither fell below the standard of reasonableness nor deprived Llamas of a potentially meritorious defense.

II

Llamas challenges several jury instructions.   He asserts CALJIC Nos. 2.90, 2.50 and 2.50.1 deprived him of the right to have only issues actually in dispute put before the jury and denied him the right to have the jury decide his guilt as to every disputed element of the charged crime beyond a reasonable doubt.

A.

Llamas asserts the terms “moral certainty” and “moral evidence” contained in CALJIC No. 2.90 violated his rights to due process and a jury trial.   However, since Llamas filed his brief in this appeal, the United States Supreme Court upheld the constitutionality of the instruction in CALJIC No. 2.90.   (Victor v. Nebraska (1994) 511 U.S. 1, –––– – ––––, 114 S.Ct. 1239, 1242–1250, 127 L.Ed.2d 583, 590–599.)

B.

The court instructed the jury with a modified version of CALJIC No. 2.50 as follows:  “Evidence has been introduced for the purpose of showing that the defendant may have committed a crime other than that for which he is on trial.  [¶] Such evidence, if believed, was not received and may not be considered by you to prove that the defendant is a person of bad character, that he has a disposition to commit crimes.  [¶] Such evidence [is] received and may be considered by you only for the limited purpose of determining if it tends to show:  [¶] [t]he identity of the person who committed the crime, if any, of which the defendant is accused․”  As we previously concluded, the identity of the person who possessed the cocaine base for sale was an issue in this case.   Thus, Llamas's challenge to CALJIC No. 2.50 on this ground fails.

Llamas claims the language of CALJIC No. 2.50 implicitly suggested to the jury it could assume the criminal act of possession had occurred.   Focusing on the phrase “the identity of the person who committed the crime,” Llamas asserts this instruction improperly relieved the jury of its responsibility to decide a disputed issue—whether he had committed the act of possessing cocaine base for sale—and thus denied him due process.

 Our reading of the instruction does not suggest the jury was relieved of its responsibility to decide whether a criminal act occurred.   Rather, the instruction, given its common sense meaning, tells the jury it can consider evidence of an uncharged crime for the limited purpose of establishing the identity of the person who committed the charged crime, if any such charged crime was committed.   The jury was given other instructions whereby it was required to determine whether the prosecution proved all the elements of the charged crime beyond a reasonable doubt.  (See, e.g., CALJIC Nos. 2.90, 3.31, 12.01.)   The jury is presumed to follow instructions given by the court.  (People v. Dehnel (1979) 99 Cal.App.3d 404, 408, 160 Cal.Rptr. 279.)   The instruction as given did not deny Llamas due process.

C.

With respect to the jury's use of evidence of Llamas's prior drug sales, the court gave the following instruction:  “[S]uch other crime or crimes purportedly committed by defendant must be proved by a preponderance of the evidence.   You must not consider such evidence for any purpose unless you are satisfied that [the] defendant committed such other crime or crimes.  [¶] The prosecution has the burden of proving these facts by a preponderance of the evidence.”   Llamas argues the court should have modified this instruction, contained in CALJIC No. 2.50.1, to insure the jury would not convict him by a preponderance of the evidence.

 “Although a person charged with [a] crime cannot be convicted thereof unless he is proved guilty beyond a reasonable doubt, other uncharged offenses introduced to show the existence of some element of the charged crime need only be proved by a preponderance of substantial evidence.   [Citations.]”  (People v. Durham (1969) 70 Cal.2d 171, 187, fn. 15, 74 Cal.Rptr. 262, 449 P.2d 198;  see also People v. Simon (1986) 184 Cal.App.3d 125, 134, 228 Cal.Rptr. 855.)   The instruction given comports with this rule.   We have not been cited to, nor have we found, any authority for raising the standard of proof for other crimes evidence to proof beyond a reasonable doubt.

The prosecution here was required to, and did, prove every element of the charged offense beyond a reasonable doubt.   Llamas's prior criminal activity of selling cocaine base at 303 Olivewood was not an element of the charged offense but only a fact, if proven by a preponderance of the evidence, probative of Llamas's identity as the person who exercised dominion and control of the cocaine base.   The instruction as given was proper.

DISPOSITION

The judgment is affirmed.

FOOTNOTES

FOOTNOTE.  

1.   At trial, the parties stipulated the substance Llamas had ingested was cocaine.

2.   Coburn recognized Llamas because he was also present when the other officers responded to the assault call on December 24, 1992.

3.   At trial, the parties stipulated the writing on the pay-and-owe sheet was consistent with Llamas's handwriting, but it lacked sufficient unique characteristics for a positive identification.

4.   The court instructed the jury it could consider evidence of other crimes only for the limited purpose of determining if it tends to show “[t]he identity of the person who committed the crime, if any, of which the defendant is accused.”

5.   Because the evidence tends to prove a material fact, it is necessarily relevant.  (Evid.Code, § 210;  People v. Thompson, supra, 27 Cal.3d at p. 316, fn. 15, 165 Cal.Rptr. 289, 611 P.2d 883.)

6.   The parties stipulated the substance seized was cocaine base.   The evidence was undisputed that Llamas had knowledge of the presence of the cocaine base as well knowledge of its nature as a controlled substance.   The evidence was also undisputed the cocaine base, 102 rocks separated into two plastic baggies, was in an amount sufficient to be used for sale as a controlled substance.

7.   In light of our conclusion the prior acts evidence was admissible to prove identity, we need not address Llamas's further contention the evidence was inadmissible to show knowledge, intent or common plan or scheme.

DiFIGLIA, Justice.* FN* Assigned by the Chairperson of the Judicial Council.

KREMER, P.J., and WORK, J., concur.