Filed 3/4/15 P. v. Allen CA2/2 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 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 This opinion has not been certified for publication 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. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

SECOND APPELLATE DISTRICT 

DIVISION TWO 

THE PEOPLE, 

 Plaintiff and Respondent, 

 v. 

TYLOR JEROME ALLEN, 

 Defendant and Appellant. 

 B250321 

 (Los Angeles County 

 Super. Ct. No. BA405442) 

APPEAL from a judgment of the Superior Court of Los Angeles County. Renee 

F. Korn, Judge. Affirmed. 

Melissa J. Kim, under appointment by the Court of Appeal, for Defendant and 

Appellant. 

Kamala D. Harris, Attorney General, Gerald Engler, Chief Assistant Attorney 

General, Lance E. Winters, Assistant Attorney General, Yun K. Lee and Peggy Z. Huang, 

Deputy Attorneys General, for Plaintiff and Respondent. 
2 

 Defendant and appellant Tylor Jerome Allen (defendant) appeals from his 

conviction of sale and possession for sale of cocaine base. He contends that prior crimes 

evidence amounted to inadmissible disposition or character evidence, and that the trial 

court erred in admitting the evidence pursuant to Evidence Code sections 352 and 1101, 

subdivision (b).1 Defendant also requests that we review the sealed record of the in 

camera Pitchess hearing to determine whether the trial court properly exercised its 

discretion in ordering discovery.2 We find no abuse of discretion in the admission of the 

prior crimes evidence or in the trial court’s determination that some documents described 

in the sealed record were not discoverable. We thus affirm the judgment. 

BACKGROUND

Defendant was charged in count 1 with the sale or offer to sell cocaine base, in 

violation of Health and Safety Code section 11352, subdivision (a), and in count 2, with 

possession for sale of cocaine base, in violation of Health and Safety Code section 

11351.5. As to both counts, the information alleged that defendant had suffered a prior 

serious or violent felony conviction within the meaning of the “Three Strikes” law (Pen. 

Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and had served a prior prison term 

within the meaning of Penal Code section 667.5, subdivision (b). In addition, the 

information alleged as to both counts pursuant to Health and Safety Code section 

11370.2, subdivision (a), that defendant had suffered a prior drug conviction, a violation 

of Health and Safety Code section 11352. A jury found defendant guilty of both counts 

as charged, and in a bifurcated trial, the jury found true the prior conviction allegations. 

On June 18, 2013, defendant was sentenced to a total prison term of nine years. 

For the base term (count 2) the court imposed the low term of three years, doubled as a 

second strike, and enhanced by three years pursuant to Health and Safety Code section 

 

1 All further statutory references are to the Evidence Code unless indicated 

otherwise. 

2 See Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess); section 1043; 

Penal Code sections 832.7 and 832.8. 
3 

11370.2. The court imposed a concurrent term of nine years in count 1, and struck the 

prior prison term allegation. The court ordered defendant to pay mandatory fines and 

fees and awarded a total of 1,004 days of presentence custody credit. 

Defendant filed a timely notice of appeal. 

Prosecution evidence

 Los Angeles Police Officer Jesus Toris testified that he was conducting 

surveillance on February 3, 2012, of San Julian Street between 7th and 6th Streets, an 

area known for blatantly open sales and consumption of cocaine. At about 7:30 a.m., 

while watching from a second floor of a building on San Julian Street, Officer Toris 

observed defendant approach a man later identified as McElyeen. After defendant and 

McElyeen engaged in an inaudible conversation, McElyeen handed money to defendant, 

who quickly placed it in his pocket. Defendant then took a step back, looked from east to 

west, walked about three or four feet to a red shopping cart located behind him, retrieved 

an object from the front part of the cart, and placed the object onto McElyeen’s open 

hand. McElyeen clenched his hand and walked away. Officer Toris and his partner left 

their surveillance post, found McElyeen, searched his person, and recovered 12 off-white 

solids resembling cocaine base. 

About 10 minutes later the officers returned to where they had seen the 

transaction. Defendant was still there, along with the red shopping cart which was filled 

with recyclables covered with a blanket. Officer Toris observed plastic wrap sticking out 

from under the blanket, examined it, and found numerous off-white solids resembling 

cocaine base. Each solid was a usable amount, in sizes that would sell for three to ten 

dollars each. In defendant’s pocket, the officers found crumpled currency totaling $173 

in denominations consistent with narcotic transactions. Criminalist Marie Chance later 

examined samples of the off-white solids, and determined that they contained cocaine 

base. 

Officer Toris summarized his expertise in recognizing narcotics and narcotics 

sales, and opined that defendant possessed cocaine base for the purpose of sale. He based 

his opinion on his observation of the transaction, the fact that no paraphernalia for 
4 

ingesting cocaine base was found on defendant or in the cart, and the absence of signs 

that defendant was a cocaine user. In addition, Officer Toris observed that defendant was 

clean and neat, not in possession of items a homeless person usually had, such as a 

toothbrush, toothpaste, soap, sleeping bag, or tent, and he gave an address for an 

apartment about six miles from the area. 

 Officer Jackeline Orellana testified regarding an incident which occurred on 

October 26, 2007, when she was working undercover near the same Skid Row area. At 

approximately 8:45 p.m., she approached defendant and asked whether he was 

“working,” which was street vernacular or slang for selling narcotics. When defendant 

asked what she needed, she replied, “I need a 20.” Defendant reached into a nearby 

shopping cart and retrieved a clear plastic bindle which contained off-white solids 

resembling cocaine base, and handed it to her. Officer Orellana paid defendant with two 

$10 bills which she had previously photocopied, took the bindle, walked away, and gave 

the predetermined signal to uniformed “chase” officers that she had concluded a narcotic 

transaction. The two $10 bills were recovered from defendant, and the contents of the 

bindle were later determined to contain cocaine base. 

Defense evidence 

 Defendant testified that he sold narcotics on October 26, 2007, and that he pled 

guilty to the charges relating to that incident, but he explained that he was a homeless 

addict at that time, and the shopping cart contained his belongings, not his narcotics. 

Defendant claimed that the address on his identification in 2007 was his mother’s 

address. He also claimed that in 2007, he sold the crack cocaine he possessed for 

personal use in order to earn money to buy more narcotics for himself, and that he kept 

the narcotics behind the cart, not in the cart. 

 Defendant admitted that he had pled guilty to robbery in 2004, although he 

thought of it as grand theft person, not robbery. He explained that while riding public 

transportation he snatched a cell phone from another passenger’s hand and ran. 

Defendant was soon apprehended, and the cell phone was returned to the victim. 
5 

Defendant denied he had been in possession of rock cocaine or cocaine base in 

February 2012, when he was arrested by Officer Toris on the current charges, and denied 

that he sold cocaine to McElyeen. He suggested that the police might have planted the 

cocaine in the cart. Defendant claimed he was in the area selling cigarettes, which he 

routinely purchased from a wholesale dealer and resold at a profit, and that McElyeen 

bought two cigarettes for one dollar, thereby explaining the money he pocketed. 

Defendant testified that when he was detained, he still had cigarettes in his jacket pocket, 

consisting of two unopened packs and one opened pack, but Officer Toris threw them 

away after telling him that he could not take them into the police station. Defendant 

denied that his money was crumpled, except for a one dollar bill and a five dollar bill, 

and claimed that the rest was folded. Defendant also denied that the shopping cart was 

his. He claimed that when McElyeen was present there was a man next to him who he 

saw get something out of the cart. There were six or seven other shopping carts nearby 

belonging to people who slept outside in the area. Defendant explained that they were 

near the mission, which was about to serve breakfast. 

Defendant claimed that the address on his 2012 identification was his 

grandmother’s, that he used it only as a mailing address, and that he had been living with 

a girlfriend but was out of the house due to an argument, sleeping in the nearby Veterans 

of America drop-in center. 

DISCUSSION

I. Evidence of uncharged prior crimes

 Defendant contends that the trial court erred in admitting evidence of his sale of 

cocaine base in 2007 to undercover Officer Orellana. He argues that the 2007 crime was 

too dissimilar to the current offense to be relevant to the issues of intent and knowledge, 

and that the prejudicial effect of the evidence outweighed its probative value. Defendant 

also contends that the error resulted in a denial of his constitutional rights to due process 

and a fair trial. 

The trial court found the prior crimes evidence admissible under sections 352 and 

1101, subdivision (b), and relevant to show defendant’s intent to sell a controlled 
6 

substance, his knowledge of the nature of the substance and its presence in the shopping 

cart, and that he had a plan or scheme to commit the charged offenses. 

Evidence that a person committed a crime is admissible “when relevant to prove 

some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, 

absence of mistake or accident . . .) other than his or her disposition to commit such an 

act.” (§ 1101, subd. (b).) “The court in its discretion may 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.” (§ 352.) 

A. Similarity of prior and current crimes 

“Evidence of uncharged crimes is admissible to prove identity, common design or 

plan, or intent only if the charged and uncharged crimes are sufficiently similar to support 

a rational inference of identity, common design or plan, or intent. [Citation.]” (People v. 

Kipp (1998) 18 Cal.4th 349, 369, citing People v. Ewoldt (1994) 7 Cal.4th 380, 402-403 

(Ewoldt.) The prior and current crimes need not be identical. (See People v. Harris

(2013) 57 Cal.4th 804, 842.) The greatest degree of similarity is required when the 

purpose of the evidence is to prove identity, whereas a lesser degree of similarity is 

required when the issue is common design or plan, and the least degree of similarity is 

required when the issue is intent. (People v. Kipp, supra, at pp. 370-371.) “On appeal, 

the trial court’s determination of this issue, being essentially a determination of 

relevance, is reviewed for abuse of discretion. [Citations.]” (Id. at p. 369.) “A court 

abuses its discretion when its ruling ‘falls outside the bounds of reason.’ [Citation.]” 

(Id. at p. 371.) 

Defendant contends that the 2007 crime was too dissimilar to the current crime to 

support a rational inference of knowledge of the presence of cocaine base or intent to sell 

it. Defendant points out several dissimilar circumstances, such as: the time of day, 

evening in 2007 and morning in 2012; defendant’s admission to possession for sale in 

2007, versus his denial of any drug possession in 2012; and the indisputable purchase by 

an undercover officer in 2007 with prerecorded currency, versus the lack of conclusive 
7 

evidence that McElyeen purchased his cocaine base from defendant. Defendant admits to 

just three points of similarity: the use of a shopping cart, the location on Skid Row, and 

the same drug. 

A few dissimilarities do not render a prior similar crime irrelevant to the issue of 

intent; indeed, a single “crucial point of similarity” may be sufficient to establish the 

relevance of the prior crime. (People v. Jones (2011) 51 Cal.4th 346, 371.) All three 

points of similarity cited by defendant were crucial here, as they demonstrated a 

particular modus operandi: the use of a shopping cart to hide the drugs; the nature of the 

drug, cocaine base; and the occurrence of both incidents on Skid Row, in an area of open 

drugs sales and use. When the modus operandi of the uncharged offense is markedly 

similar to the charged offense, the evidence is sufficient to raise a rational inference not 

only of intent, but also of a common design or plan. (See Ewoldt, supra, 7 Cal.4th at pp. 

399, 402.) 

The evidence was also relevant to the issue of defendant’s knowledge of the nature 

of the controlled substance and its presence in the shopping cart. “To obtain a conviction 

for possession of a controlled substance for sale, the prosecution must prove that the 

defendant had knowledge of both the presence of the contraband and its illegal character. 

[Citation.] Prior incidents of possession of an illegal drug are relevant to prove the 

knowledge element. [Citation.]” (People v. Ghebretensae (2013) 222 Cal.App.4th 741, 

754, citing People v. Pijal (1973) 33 Cal.App.3d 682, 691.) 

The trial court thus did not abuse its discretion in determining that the current and 

prior crimes were sufficiently similar to support a rational inference of intent, common 

design or plan, and knowledge, and thus admissible under section 1101, subdivision (b). 

B. Prejudice and probative value 

A determination that evidence of an uncharged crime is admissible under section 

1101 does not end the inquiry: “Evidence of uncharged offenses ‘is so prejudicial that its 

admission requires extremely careful analysis. [Citations.]’ [Citations.] ‘Since 

“substantial prejudicial effect [is] inherent in [such] evidence,” uncharged offenses are 

admissible only if they have substantial probative value.’ [Citation.]” (Ewoldt, supra, 7 
8 

Cal.4th at p. 404.) Undue prejudice may result from an “increased danger that the jury 

[would be] inclined to punish defendant for the uncharged offenses, regardless whether it 

considered him guilty of the charged offenses.” (Id. at p. 405.) We review the ruling 

under the deferential abuse of discretion standard and reverse only if it was arbitrary, 

whimsical, or capricious as a matter of law. (People v. Robertson (2012) 208 

Cal.App.4th 965, 991.) 

Defendant argues that prejudice was demonstrated by the undue amount of time 

consumed in presenting the evidence of the 2007 crimes. He also contends that prejudice 

was demonstrated by the prosecutor’s argument in summation and her disproportionate 

emphasis on the prior crimes. Finally, defendant contends that because the evidence of 

the current offense presented at trial demonstrated “beyond dispute” that the drugs were 

possessed with the intent to sell, the 2007 evidence was cumulative on the issue of intent. 

In essence, defendant argues that in light of the proceedings which occurred after 

the court’s ruling, the evidence should not have been admitted. However, we review the 

trial court’s discretionary ruling “‘at the time it was made, . . . and not by reference to 

evidence produced at a later date.’ [Citation.]” (People v. Robertson, supra, 208 

Cal.App.4th at p. 991, quoting People v. Welch (1999) 20 Cal.4th 701, 739.)3

Defendant appears to conflate the danger of undue prejudice which must be 

weighed by the trial court under section 352, with the appellate court’s review for 

prejudice caused by trial court error, under the test of People v. Watson (1956) 46 Cal.2d 

818, 836 (Watson), which asks whether it is reasonably probable defendant would have 

achieved a more favorable result absent the error. As defendant must first show that the 

 3 Moreover, we do not agree that the evidence consumed an undue amount of time. 

The court stated on the record that the examination of the first two witnesses took about 

15 minutes. The testimony of the third witness covered less than five pages of the 

reporter’s transcript. Defendant argues that it is not clear that the court was referring to 

the evidence of the 2007 crime as taking 15 minutes. We disagree. The court’s meaning 

was reasonably clear. Further, defendant’s contention regarding the prosecutor’s remarks 

begs the question whether the 2007 evidence was properly admitted prior to summation. 

If so, the prosecutor was entitled to vigorously argue all inferences warranted by the 

evidence. (See People v. Hill (1998) 17 Cal.4th 800, 819.) 
9 

trial court erred at the time of its ruling, it is premature to argue that any error was 

prejudicial. Nevertheless, there is some overlap of the analysis of the two issues. Even if 

defendant established that the court’s section 352 analysis was flawed, defendant would 

not meet his burden to show reversible error under the Watson test unless he also 

demonstrated that the other crimes evidence was in fact “‘so extraordinarily prejudicial, 

and of so little relevance to guilt, that it threaten[ed] to sway the jury to convict 

regardless of defendant’s actual guilt.’ [Citation.]” (People v. Peyton (2014) 229 

Cal.App.4th 1063, 1079.) 

Defendant has failed to satisfy his initial burden to demonstrate that the other 

crimes evidence was unduly prejudicial. As respondent observes, the prior and current 

crimes were both violations of Health and Safety Code sections 11352 and 11351.5, 

committed under similar circumstances; thus the 2007 incident was no more 

inflammatory than the current incident. Such a circumstance decreases the potential for 

prejudice. (See Ewoldt, supra, 7 Cal.4th at p. 405.) The potential for prejudice was 

further diminished by the prosecutor’s offer to prove that defendant had already been 

convicted of the 2007 offenses, eliminating the danger that the jury would be inclined to 

punish defendant for the uncharged crimes or the danger of confusing the issues.4 (See 

People v. Balcom (1994) 7 Cal.4th 414, 427 [potential for prejudice reduced by 

defendant’s conviction on uncharged offenses]; cf. Ewoldt, supra, at p. 405 [increased the 

danger of jury punishment when uncharged acts did not result in criminal convictions].) 

Finally, before the prosecutor presented Officer Orellana’s testimony, the court 

instructed the jury extensively regarding the limited purpose of the evidence, admonished 

the jury not to conclude from the evidence that defendant had a bad character or was 

disposed to commit crime, and reminded the jury that the prosecution was still obligated 

to prove each of the current charges beyond a reasonable doubt. Such instructions were 

sufficient to attenuate any remaining potential prejudice. (See People v. Ghebretensae,

 4 At trial, defendant admitted his guilty plea and conviction of the 2007 crimes. 
10 

supra, 222 Cal.App.4th at p. 755.) We presume that the jury understood and followed the 

court’s instructions. (See People v. Peyton, supra, 229 Cal.App.4th at p. 1079.)

We reject defendant’s contention that the 2007 incident had no probative value. 

Defendant relies on People v. Lopez (2011) 198 Cal.App.4th 698, 715-716, in which 

evidence of an uncharged crime had been admitted to prove the defendant’s intent, which 

was error because the only disputed issue in the case was the identity of the perpetrator. 

Although the facts are very different from those presented here, defendant reasons that 

because the evidence in this case established beyond dispute that the drugs were 

possessed with intent to sell, any evidence of intent provided by the 2007 incident was 

cumulative and irrelevant. 

While the evidence that defendant possessed cocaine base with the intent to sell it 

was strong, we cannot say that possession and intent were not contested issues, since 

defendant testified that he had no drugs, the shopping cart was not his, and he was selling 

only cigarettes. Defendant thus placed not only intent and possession at issue, but also 

knowledge of the location and nature of the drugs. As the 2007 incident provided 

evidence of a similar modus operandi, it was certainly probative of those issues. (See 

Ewoldt, supra, 7 Cal.4th at pp. 399, 402; People v. Ghebretensae supra, 222 Cal.App.4th 

at p. 754.) We conclude that the probative value of the evidence of the 2007 incident 

outweighed any potential prejudice, and we find no abuse of discretion in its admission. 

 Regardless, if the ruling had been error, we would also conclude that it was 

harmless. Despite defendant’s contention that possession with intent to sell was 

established beyond dispute, defendant argues that due to weaknesses in the prosecution’s 

evidence, it was reasonably probable that the jury would have acquitted him if the 

evidence of the 2007 incident had been excluded. In essence, defendant argues that 

Officer Toris could have been mistaken in what he saw from his vantage point, defendant 

and McElyeen were out of his sight for a time, and McElyeen gave no statement or 

testimony. We construe defendant’s reasoning as an argument that because much of the 

evidence was circumstantial, the jury would probably have rejected it. That is unlikely 

however, considering that the circumstantial evidence of the current offenses was 
11 

overwhelming. McElyeen handed money to defendant, who quickly placed it in his 

pocket, and then looked around before he retrieved something from the shopping cart and 

placed it into McElyeen’s hand. Within 10 minutes, Officer Toris recovered cocaine base 

from McElyeen and from the shopping cart, and found in defendant’s pocket, crumpled 

currency in denominations consistent with narcotic transactions. Further, the trial court 

read CALCRIM Nos. 223, 224, and 225, defining direct and circumstantial evidence, 

explaining the proper use of circumstantial evidence, and instructing that neither type of 

evidence was more reliable than the other. We presume that the jurors understood and 

followed those instructions. (People v. Sanchez (2001) 26 Cal.4th 834, 852.) 

In sum, as defendant failed to demonstrate that the prior crimes evidence had little 

relevance to guilt or that it was extraordinarily prejudicial, he has not met his burden to 

demonstrate either an abuse of discretion under section 352 or reversible error under the 

standard of Watson, supra, 46 Cal.2d at page 836. (See People v. Peyton, supra, 229 

Cal.App.4th at p. 1079.)

II. Pitchess motion 

Defendant seeks review of the sealed transcript of the trial court’s in camera 

review of Officer Toris’s personnel files and other confidential records. The trial court 

granted defendant’s Pitchess motion, but limited any discovery to relevant evidence 

relating to any false reports. The court found several documents relevant to this issue and 

ordered the custodian to turn them over to the defense. Defendant requests a review of 

the trial court’s determination that there were no other discoverable items in the records 

produced. 

We review the trial court’s determination for an abuse of discretion. (People v. 

Jackson (1996) 13 Cal.4th 1164, 1220-1221.) The records produced in the trial court 

were not retained, but the sealed transcript of the in camera hearing demonstrates that the 

trial judge examined and described each one. We thus find the transcript sufficiently 

detailed to review the trial court’s discretion. (See People v. Mooc (2001) 26 Cal.4th 

1216, 1228-1229.) Upon review of the sealed record of the in camera proceedings, we 

conclude the trial court properly exercised its discretion in determining that the 
12 

documents produced complied with the scope of the Pitchess motion, and in determining 

that the documents which were not ordered disclosed to the defense did not fall within the 

scope of the motion as granted. 

DISPOSITION

 The judgment is affirmed. 

 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS. 

 ____________________________, J. 

 CHAVEZ 

We concur: 

__________________________, P. J. 

BOREN 

__________________________, J. 

HOFFSTADT