Filed 8/15/14 P. v. Lynch CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

ZACKARY JEROME LYNCH,

Defendant and Appellant.

 D065266

 (Super. Ct. No. FSB-1200275)

APPEAL from a judgment of the Superior Court of San Bernardino County, 

William Jefferson Powell IV, Judge. Affirmed.

Sharon M. Jones, under appointment by the Court of Appeal, for Defendant and 

Appellant. 

Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, 

Barry Carlton and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and 

Respondent. 
2

A jury convicted Zackary Jerome Lynch of the crime of possession for sale of 

phencyclidine (PCP) (Health & Saf. Code, § 11378.5) (count 1), and found that the 

offense was committed for the benefit of, at the direction of, or in association with a 

criminal street gang with the specific intent to promote, further, or assist the criminal 

conduct of gang members. (Pen. Code, § 186.22, subd. (b).)1 The jury also found Lynch 

guilty of active participation in a criminal street gang (count 2). (§186.22, subd. (a).)

The trial court determined that Lynch had been convicted of a prior serious or 

violent felony offense within the meaning of the "Three Strikes" law (§ 667, 

subds. (b)-(i)), and that he had five prior convictions subject to enhancement under

Health and Safety Code section 11370.2, subdivision (a) and five prior prison terms 

subject to enhancement under section 667.5, subdivision (b). The trial court sentenced 

Lynch to 10 years imprisonment on count 1, and two years, stayed, on count 2, and 

imposed sentencing enhancements of five consecutive terms of one year, and five 

consecutive terms of three years, for a total term of 30 years imprisonment. 

On appeal, Lynch contends his conviction for possession of PCP for sale must be 

reversed because the trial court erred by: (1) admitting evidence of his prior arrest for 

possession of PCP for sale; (2) instructing the jury that Lynch's knowledge of the 

presence of PCP could be inferred from his prior conviction for possession of PCP; and 

(3) permitting a gang expert to testify that Lynch willfully assisted and promoted a 

criminal street gang by committing the drug offense. Lynch asserts the evidence is

 

1 Unless otherwise indicated, further statutory references are to the Penal Code.
3

insufficient to support the jury's finding that he was guilty of the crime of active 

participation in a criminal street gang (the gang crime).2 He also contends the trial court

abused its discretion when it refused at sentencing to strike a prior conviction in the 

interests of justice. We find no error and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

At trial, San Bernardino police officers testified that on July 27, 2011, they

executed a search warrant at a business known as the "Sugar Shack," which was located 

in an area of San Bernardino known for gang and narcotics activity. Officers had 

observed prostitutes frequently entering and leaving the store, and other people briefly 

stopping at the business. They also had observed Zackary Jerome Lynch taking out the 

trash and standing in front of the Sugar Shack. Police officers knew that Lynch was a 

member of the Bacc Street Watts Crips (BSWC). 

When police officers entered the Sugar Shack, Lynch was standing by the 

television set. Three other persons, including Bruce Council, were at a pool table. 

Council was known to police as a member of the BSWC. Officers found a can of Diet 

Coke with a false lid in a refrigerator at the Sugar Shack. The Diet Coke can contained a

vial with approximately 25 milliliters (approximately two ounces) of PCP, enough for 

approximately 300 doses of PCP. 

 

2 See People v. Mesa (2012) 54 Cal.4th 191, 197 (Mesa) (referring to an offense 

under § 186.22, subd. (a) as "the gang crime").
4

Officers searched the four individuals who were at the Sugar Shack. Lynch had a 

cell phone, wallet and a key ring with two keys. One of Lynch's keys opened the front 

door of the Sugar Shack. The other was to his car. Officers did not find any contraband 

in Lynch's car or on his person. While at the Sugar Shack, Officer Elizabeth Contreras 

looked through the text messages on Lynch's cell phone.3 She found a text message on 

Lynch's cell phone stating "I like you wet." "Wet" is a slang term for PCP. Another text 

message asked, "Are you up?" — which is a slang phrase used to ask the recipient if he 

or she has narcotics for sale. 

Lynch told officers that he was a part owner of the Sugar Shack. He stocked the 

store with candy and snacks for sale. Lynch had opened the store for business that day. 

When officers arrived, he was turning on the television. Lynch said the other owner's 

name was "Black" but could not provide a full name or contact information. Lynch told 

officers he used to be a member of the BSWC but left the gang when he was in prison. 

None of the other individuals who were present when officers executed the search 

warrant had a key to the Sugar Shack. Police officers could not identify any other owner 

or owners of the Sugar Shack, which did not have a business license. 

 

3 Lynch did not object to the introduction of cell phone evidence at trial and raises 

no claim on appeal as to the legality of the search and seizure of his cell phone. The 

appellate record is silent as to whether the search warrant for the Sugar Shack permitted 

the officers to search Lynch's cell phone. (Riley v. California (2014) ___ U.S. ___ [189 

L.Ed.2d 430; 134 Sup.Ct. 2473] [absent a specific exception to the warrant requirement, a 

warrantless search of a person's cell phone violates the Fourth Amendment's guarantee 

against unreasonable search and seizure].)
5

Over defense objections, the trial court allowed the prosecution to present 

evidence of Lynch's prior arrest in January 2009 for possession of PCP for sale (2009 

offense). On January 8, 2009, police officers stopped a car in an area of San Bernardino 

in which the BSWC were active. Immediately prior to the stop, the officers observed that 

a small object was thrown from the car. The officers later recovered a small vial 

containing PCP. The vial looked much like the vial that was found in the Diet Coke can 

in the refrigerator at the Sugar Shack. Bruce Council, a BWSC gang member, was 

driving and Lynch, also a BWSC gang member, was one of two passengers in the car. At 

the time, Lynch was on parole for narcotics violations. He told an officer that "he was 

from the Bacc Street Crips and his moniker was Snoop." Lynch was holding a styrofoam 

cup containing a napkin soaked in PCP. He also had a bundle of toothpicks and several 

hundred dollars. Lynch was arrested and charged with possession of PCP for sale, and

with a gang enhancement. Lynch pled nolo contendre to a charge of possession of PCP 

for sale in September 2009. Lynch was sentenced to a four-year term, with eligibility for 

a 50 percent reduction in time for good conduct. The trial court took judicial notice of

Lynch's 2009 plea. 

Officer Jason Heilman, a gang expert, testified that Lynch was a current, active 

member of the BSWC. Heilman based his opinion on a number of factors, including: 

Heilman's numerous field contacts with Lynch; Lynch's admission that he had been a 

gang member; Lynch's large number of gang tattoos; the number of gang contacts or 

gang-related contacts in Lynch's cell phone; Lynch's cell phone text messages identifying 

himself as "Mr. Snoop from Bacc Street Crips"; Lynch's association with Bruce Council; 
6

and his frequent presence at a "known hang-out area where Bacc Street gang members 

have been contacted, have been arrested for selling drugs." Lynch had "Mr. Snoop East 

Side Bacc" tattooed on his back. 

Heilman testified that the BSWC was an active criminal organization. Although it 

had originated in Los Angeles, the BSWC was very active in narcotics sales in San 

Bernardino, including the area in which the Sugar Shack was located. Heilman described 

three predicate crimes that were committed by BSWC members: Arlandus Jones was 

convicted in October 2011 for selling crack cocaine; Jerry Thompson was convicted in 

December 2007 for selling methamphetamine; and Domiya Draper was convicted in May 

2007 for transporting cocaine base. 

According to Heilman, Lynch was selling PCP for the benefit of, at the direction 

of, and in association with a criminal street gang for the specific purpose of promoting, 

furthering, and assisting the criminal conduct of the gang. Although not all crimes by 

BSWC members were committed to benefit the gang, Lynch's crime benefitted the 

BSWC because it provided revenue and expanded their narcotics territory, allowing it to 

make more money and recruit new gang members. 

Lynch testified at trial. He denied possessing PCP in July 2011, asserting he never 

opened the refrigerator at the Sugar Shack. When the officers entered, Lynch was 

running cable wire to the television. Lynch's friend Blackberry hired him to do odd jobs 

at the Sugar Shack. Lynch testified that he did not tell an officer that he was a part owner 

of the Sugar Shack. He said he was working there. He only had a key to lock up the 

Sugar Shack after he finished his tasks. Lynch stated that he was a member of the BSWC 
7

from approximately 1984 to 1986. His mother had nicknamed him "Snoop" when he was 

a young boy. Everyone called him that. Lynch acknowledged that he went to prison in 

1984 for robbery; in 2004 for possessing PCP, cocaine, and cocaine base for sale; and in 

2009 for possession of PCP for sale. Lynch testified that he did not commit any of those 

crimes, and he never sold PCP. With respect to all the drug offenses, including the 

current offense, Lynch said he was just "at the wrong place at the wrong time, keeping 

the wrong company."

Lynch's girlfriend testified that the Sugar Shack was a fun place for people to hang 

out to play pool and darts. She never saw anyone selling drugs there. Another friend, 

Donna Peoples, testified that she had known Lynch for 20 years. Peoples was a single 

parent. If she had learned that Lynch was a gang member, she would not have him 

around her family. Peoples went to the Sugar Shack once because she heard that it had a 

nice pool table. She did not see any indication of drug use while she was there. 

DISCUSSION

I

ADMISSION IN EVIDENCE OF PRIOR OFFENSE 

OF POSSESSION OF PCP FOR SALE

A. Additional Procedural Background and Contentions on Appeal

The People sought to introduce evidence of Lynch's 2009 arrest and conviction for 

possession of PCP for sale at trial. (Evid. Code, § 1101, subd. (b).) Lynch opposed the 

introduction of evidence regarding the 2009 offense on the ground that it was character 

evidence offered to show that he had a predisposition to commit the instant offense. 
8

The trial court admitted evidence of the 2009 offense, reasoning that Lynch's 

conduct was consistent in the 2009 offense and the current case, and in both cases Lynch 

kept PCP in a small vial in a quantity sufficient for sale. The trial court ruled the 

probative value of the evidence on the issue of intent to sell outweighed any potential 

prejudice to Lynch. Further, any direct evidence of Lynch's involvement in BWSC drug 

sales was relevant to the charge of criminal street gang activity, and its probative value 

outweighed any prejudice to Lynch. 

On appeal, Lynch contends the trial court abused its discretion by admitting the 

prior offense evidence. Specifically, Lynch argues that evidence of his 2009 arrest and 

conviction should have been excluded under Evidence Code section 1101, subdivision (a)

because it showed only that he had a predisposition to commit the crime of possession of 

PCP for sale, and the two offenses lacked sufficient similarity to be probative on the issue 

of intent. He further argues that the trial court erred when it did not exclude evidence of 

the 2009 offense because he was not contesting the finding that the PCP found in the vial 

in the refrigerator at the Sugar Shack was in an amount sufficient for sale, and therefore 

the admission of the evidence to show intent to sell was more prejudicial than probative. 

Lynch also asserts the 2009 offense was not relevant to prove the primary criminal 

activities of the BSWC because there was no proof the 2009 offense was committed for a 

gang-related motive. Finally, he contends the admission of propensity evidence deprived 

him of his fundamental rights to due process, and the error was not harmless.
9

B. Overview of Relevant Legal Principles and Standard of Review

" 'Unlawful possession of a controlled substance for sale requires proof the 

defendant possessed the contraband with the intent of selling it and with knowledge of 

both its presence and illegal character.' " (People v. Harris (2000) 83 Cal.App.4th 371, 

374 (Harris).) "The elements of the offense of possession of PCP or other restricted 

drugs for sale are physical or constructive possession with knowledge of the presence and 

narcotic character of the drugs . . . ." (People v. Johnson (1984) 158 Cal.App.3d 850, 853

(Johnson), citing People v. Williams (1971) 5 Cal.3d 211, 215, and People v. Jenkins

(1979) 91 Cal.App.3d 579, 583.) 

"Possession may be actual or constructive." (People v. Showers (1968) 68 Cal.2d 

639, 643.) "Constructive possession 'occurs when the accused maintains control or a 

right to control the contraband; possession may be imputed when the contraband is found 

in a place which is immediately and exclusively accessible to the accused and subject to 

his dominion and control, or to the joint dominion and control of the accused and 

another.' " (Johnson, supra, 158 Cal.App.3d at p. 854.) 

The elements of possession of a controlled substance with intent to sell "may be 

established by circumstantial evidence and any reasonable inferences drawn from such 

evidence." (People v. Groom (1964) 60 Cal.2d 694, 696-697; see Harris, supra, 83 

Cal.App.4th at p. 374 [intent to sell may be established by circumstantial evidence].) 

Evidence that a defendant committed a prior drug-related offense may be admissible to 

prove the defendant's knowledge and intent with respect to a charged drug-related 

offense. (See, e.g., People v. Thorton (2000) 85 Cal.App.4th 44, 49-50 [evidence of 
10

defendant's use of heroin admissible to show knowledge of its narcotic character]; People 

v. Pijal (1973) 33 Cal.App.3d 682, 691 (Pijal) [defendant's knowledge of the narcotic 

contents of the drug and his intent to sell were at issue, therefore evidence of his prior 

narcotics offense was clearly admissible to show his guilty knowledge, motive and 

intent].)

Lynch was also charged with violating section 186.22, subdivision (a), which 

applies to " '[a]ny person who actively participates in any criminal street gang with 

knowledge that its members engage in or have engaged in a pattern of criminal gang 

activity, and who willfully promotes, furthers, or assists in any felonious criminal 

conduct by members of that gang.' " (Mesa, supra, 54 Cal.4th at p. 197.) 

As a general rule, evidence that the defendant has committed crimes other than 

those for which he is on trial is inadmissible to prove bad character, predisposition to 

criminality, or the defendant's conduct on a specific occasion. (People v. Avila (2006) 38 

Cal.4th 491, 586; People v. Ewoldt (1994) 7 Cal.4th 380, 393 (Ewoldt).) Evidence Code 

section 1101, subdivision (a) prohibits admission of evidence of a person's character, 

including evidence of character in the form of specific instances of uncharged 

misconduct, to prove the conduct of that person on a specified occasion. (Ewoldt, at 

p. 393.)

However, Evidence Code section 1101, subdivision (b) permits the trial court to 

admit evidence showing that the defendant "committed a crime, civil wrong, or other 
11

act"4 when relevant to prove a material fact at issue, such as identity, motive, or 

knowledge. (Evid. Code, § 1101, subd. (b); People v. Roldan (2005) 35 Cal.4th 646, 705 

(Roldan), overruled on other grounds as stated in People v. Doolin (2009) 45 Cal.4th 390, 

421, & fn. 22; Ewoldt, supra, 7 Cal.4th at p. 400 [Evid. Code, § 1101 does not prohibit 

the admission of evidence of misconduct when it is offered as evidence of some other 

fact in issue, such as motive, common scheme or plan, preparation, intent, knowledge, 

identity, or absence of mistake or accident].)

"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." (Carter, supra, 36 

Cal.4th at p. 1147.) Admissibility depends on the materiality to the current offense of the 

fact sought to be proved, the tendency of the uncharged act to prove the material fact, and 

whether there is any other rule requiring exclusion of the uncharged act. (Walker, supra, 

139 Cal.App.4th at p. 796, citing Roldan, supra, 35 Cal.4th at p. 705.) 

"In addition to its relevance to an issue other than predisposition or propensity, to 

be admissible under [Evidence Code] section 1101, subdivision (b), the probative value 

of the evidence of uncharged crimes 'must be substantial and must not be largely 

 

4 Various terms have been used as shorthand for this phrase. (See, e.g. Ewoldt, 

supra, 7 Cal.4th at p. 393 (maj. opn. of George, C.J.) ["uncharged misconduct"]; id. at 

p. 404 (dis. opn. of Mosk, J.) ["other crimes evidence"]; People v. Carter (2005) 36 

Cal.4th 1114, 1147 (Carter) ["uncharged crimes"]; People v. Walker (2006) 139 

Cal.App.4th 782, 806 (Walker) ["uncharged acts"].) Here, we use the phrases "2009 

offense" or "uncharged crime" to refer to Lynch's arrest and conviction in 2009 for 

possession of PCP for sale. 
12

outweighed by the probability that its admission would create a serious danger of undue 

prejudice, of confusing the issues, or of misleading the jury.' " (Walker, supra, 139 

Cal.App.4th at p. 796, quoting People v. Kipp (1998) 18 Cal.4th 349, 371 (Kipp); Ewoldt, 

supra, 7 Cal.4th at pp. 404-405.)

A trial court's determination of the admissibility of evidence of uncharged crimes

is generally reviewed for an abuse of discretion. (Kipp, supra, 18 Cal.4th at p. 369.) 

C. Analysis

1. The trial court did not abuse its discretion when it allowed the People to 

introduce evidence of the 2009 offense under Evidence Code section 1101, 

subdivision (b).

The trial court found that the circumstances of Lynch's prior arrest and conviction 

for possession of PCP for sale were relevant to the current charges of possession of PCP 

for sale and active participation in criminal street gang activity, and that there was 

sufficient similarity between the 2009 offense and the current drug charge to support a 

rational inference that Lynch intended to possess PCP for sale. The trial court stated, "In 

both instances [Lynch] kept PCP in a small hand-held cylindrical object in a quantity 

sufficient to sell. Although not distinctive enough for an identity analysis, it is certainly 

sufficient for the jury to infer that in light of the defendant's prior event the defendant in 

this event had the same intent to sell as he had in the previous case." In addition, the trial 

court found that any direct evidence of Lynch's involvement in BWSC drug sales was 

relevant to the gang crime allegation. The trial court found that the probative value of the 

2009 offense intent far outweighed any potential prejudice to Lynch on the substantive 

drug charge or the gang crime allegation. 
13

We conclude that the trial court did not abuse its discretion in determining that the 

charged and uncharged crimes were sufficiently similar to be relevant on the issue of 

whether Lynch harbored the same intent — to possess PCP for the purpose of sale — as 

he had in 2009. (See Kipp, supra, 18 Cal.4th at p. 371.) To establish relevance on the 

issue of intent, the uncharged crime must be sufficiently similar to the charged offense to 

support a rational inference the defendant most likely harbored the same intent on each 

occasion. (Ewoldt, supra, 7 Cal.4th at p. 402; Carter, supra, 36 Cal.4th at p. 1147.)

We reject as overly simplistic Lynch's argument that the two offenses are not 

sufficiently similar because PCP found on a napkin in a Styrofoam cup (the 2009 offense) 

is not the same as PCP hidden in a glass vial in a stash can of Diet Coke (the 2011 

offense). Lynch ignores the fact that on both occasions, police officers recovered similar 

glass vials containing PCP: that one glass vial was hidden in a stash can and the other 

was thrown from the automobile in which Lynch was riding immediately before his arrest 

is not determinative. Further, in addition to the look-alike glass vials containing PCP, 

other similarities between the two offenses would allow the jury to draw a reasonable 

inference Lynch possessed PCP for the purpose of sale and that he actively participated in 

a criminal street gang with knowledge that the gang's members engage in or have 

engaged in a pattern of criminal activity. (§ 186.22, subd. (a).) In both cases, Lynch was 

in actual or constructive possession of a saleable quantity of PCP; Lynch was in the 

company of Bruce Council, a fellow member of the BSWC; and Lynch possessed PCP in 

the specific area of San Bernardino in which the BSWC was most active. Thus, there is 
14

sufficient similarity between the two incidents to establish relevance on the issue of 

intent. (Kipp, supra, 18 Cal.4th at p. 371.) 

Lynch also argues the trial court erred when it admitted the 2009 offense into

evidence because he did not contest the narcotic character of the drug or that it was of 

sufficient quantity for sale. His argument is unavailing. The prosecution's burden to 

prove all the elements of a criminal offense beyond a reasonable doubt "is not relieved by 

a defendant's tactical decision not to contest an essential element of the offense." (Estelle 

v. McGuire (1991) 502 U.S. 62, 69-70; see People v. Thornton (2000) 85 Cal.App.4th 44, 

49 [generally, in a criminal case, the prosecution cannot be compelled to stipulate to an 

essential element of the offense].) When a defendant pleads not guilty, he or she places 

all issues in dispute, and thus the perpetrator's identity, intent and motive are all material 

facts. (Roldan, supra, 35 Cal.4th at pp. 705-706.) 

Even if the defense had stipulated to the narcotic quality and saleable quantity of 

the PCP that was in the refrigerator at the Sugar Shack, which it did not, the 2009 offense 

would still be relevant to whether Lynch had the intent to possess PCP for sale. Lynch's 

defense was he never sold PCP, and that with respect to all the drug offenses, including 

the current offense, he was just "at the wrong place at the wrong time, keeping the wrong 

company." Because of the similarities between the uncharged and charged crimes, a jury 

could draw a reasonable inference that Lynch had the intent to possess PCP for sale in 

2011 because he had possessed the same illegal substance in 2009 in the same type of 

easily-concealable vial, and he was in the company of the same gang member in the same 

area of San Bernardino in which the BCWC were known to traffic in narcotics. Thus, the 
15

trial court did not err when it admitted the 2009 offense into evidence notwithstanding 

Lynch's assertion he was not contesting the nature or saleable quantity of the PCP.

We conclude that the 2009 offense, as detailed in the statement of facts, was

relevant to establishing Lynch's intent to sell PCP, and to his knowledge of, and 

participation in, the activities of a criminal street gang. It is therefore admissible under 

Evidence Code section 1101, subdivision (b). 

2. The trial court correctly determined that the probative value of the prior 

act outweighed any undue prejudice to the defendant under Evidence Code 

Section 352.

Evidence Code section 352 states in pertinent part the court may exclude evidence 

if its probative value is substantially outweighed by the probability its admission will 

create substantial danger of undue prejudice. Prejudice is inherent whenever other crimes 

evidence is admitted. (Carter, supra, 36 Cal.4th at p. 1150, citing Ewoldt, supra, 7 

Cal.4th at p. 404.) However, undue prejudice exists when the evidence " 'uniquely tends 

to evoke an emotional bias against a party as an individual, while having only slight 

probative value with regard to the issues.' " (People v. Robinson (2005) 37 Cal.4th 592, 

632 (Robinson), quoting People v. Crittenden (1994) 9 Cal.4th 83, 134.) 

"The weighing process under [Evidence Code] section 352 depends upon the trial 

court's consideration of the unique facts and issues of each case, rather than upon the 

mechanical application of automatic rules." (People v. Jennings (2000) 81 Cal.App.4th 

1301, 1314 (Jennings).) On appeal, a trial court's resolution of these issues is reviewed 

for abuse of discretion. (Carter, supra, 36 Cal.4th at p. 1149.) It will not be disturbed on 

appeal unless " 'the prejudicial effect of the evidence clearly outweighed its probative 
16

value.' " (Jennings, at pp. 1314-1315, citing People v. Brown (1993) 17 Cal.App.4th 

1389, 1396.) 

Lynch argues that because he was not convicted of any gang-related charges in 

connection with the 2009 offense, the admission of that offense to show knowledge of the 

gang's criminal activities was highly prejudicial to him and had minimal, if any, probative 

value. Citing People v. Tran (2011) 51 Cal.4th 1040 (Tran), Lynch contends that 

because the prior offense was never proved to be gang related, it is not admissible to 

prove a predicate act for purposes of establishing the BSWC's primary criminal activities 

or Lynch's knowledge of the gang's criminal activities. 

Lynch misreads Tran. In that case, the defendant was convicted of first degree 

murder, premeditated murder and active participation in a criminal street gang. (Tran, 

supra, 51 Cal.4th at p. 1046.) At trial, Tran objected to the admission of prior acts to 

show a pattern of criminal gang activity. A witness testified about a series of extortions 

Tran and several other gang members had made three to four years before the current 

offense. The prosecution provided the jury with certified copies of the court record 

establishing that Tran was convicted, on a plea of guilty, for extortion. (Tran, supra, at

pp. 1045-1046.) Like Lynch, Tran was not convicted of an offense under section 186.22, 

subdivisions (a) or (b) in the prior offense. The California Supreme Court stated, "We 

find the admission of evidence of defendant's conviction of extortion and related 

activities in 1993 and 1994 to have been a proper exercise of the trial court's discretion 

under Evidence Code section 352. The evidence was highly probative on several issues 

relevant to the charge of active participation in a criminal street gang, providing direct 
17

evidence of a predicate offense, that defendant actively participated in [a gang], and that 

defendant knew [the gang] engaged in a pattern of criminal gang activity." (Tran, at

p. 1050.)

Similarly, here, the trial court did not abuse its discretion when it ruled that 

evidence of Lynch's conviction of possession of PCP for sale in 2009 was relevant to 

proof of a predicate offense, that he actively participated in a gang, and that he knew the 

gang engaged in a pattern of criminal activity. The 2009 incident occurred in an area of 

San Bernardino in which the BSWC were operating. The BSWC was involved in 

narcotics trafficking. During the 2009 incident, Lynch admitted that he was a member of 

the BSWC. He was accompanied by another gang member. Thus the record belies 

Lynch's assertion that there was no showing that the 2009 offense was gang related. In 

addition, there was nothing inflammatory about the testimony describing the 2009 

offense. It did not involve a crime of violence and was less egregious than the current 

offense, which involved selling PCP from the type of establishment that would attract 

young people to its doors. 

We conclude that the trial court acted within its discretion in ruling that the 

probative value of the 2009 offense to the issue of possession with intent to sell and the 

gang crime was not substantially outweighed by danger of undue prejudice.5 When the 

 

5 In addition, the trial court gave a limiting instruction, telling the jury that evidence 

of the 2009 offense could not be considered to prove Lynch had a bad character or was 

disposed to commit crimes. (Tran, supra, 51 Cal.4th at p. 1050 [use of limiting 

instruction is a factor in determining whether evidence of an uncharged act should have 

been excluded under Evid. Code, § 352].)
18

evidence has probative value, and the potential for prejudice resulting from its admission 

is within tolerable limits, it is not unduly prejudicial and its admission is not an abuse of 

discretion. (Tran, supra, 51 Cal.4th at p. 1049; Robinson, supra, 37 Cal.4th at p. 632

[evidence is not unduly prejudicial merely because it strongly implicates a defendant and 

casts him in a bad light].) 

3. The admission of the 2009 offense did not violate Lynch's due process 

rights.

We are not persuaded by Lynch's argument the admission in evidence of the 2009 

offense violated his federal constitutional right to a fair trial. " ' "The admission of 

relevant evidence will not offend due process unless the evidence is so prejudicial as to 

render the defendant's trial fundamentally unfair." ' " (People v. Holford (2012) 203 

Cal.App.4th 155, 180; accord, People v. Falsetta (1999) 21 Cal.4th 903, 913; People v. 

Paniagua (2012) 209 Cal.App.4th 499, 517.) 

As we discussed, the court did not err when it determined that the prior offense 

was relevant to the issue of intent to sell PCP and provided direct evidence of Lynch's 

knowledge of the activities of the BSWC, a criminal street gang. (See Jennings, supra,

81 Cal.App.4th at p. 1314 [the trial court's careful weighing of prejudice against 

probative value protect a defendant's due process right to a fundamentally fair trial].) 

Further, any error in admitting the 2009 offense in evidence is harmless.6 Lynch testified 

 

6 "Under article VI, section 13 of the California Constitution, error in the admission 

or exclusion of evidence warrants reversal of a judgment only if an examination of 'the 

entire cause, including the evidence,' discloses the error produced a 'miscarriage of 

justice.' " (People v. Mullens (2004) 119 Cal.App.4th 648, 658-659 (Mullens), quoting
19

that he did not participate in any drug-related offense at any time, asserting that he merely 

was "at the wrong place at the wrong time, keeping the wrong company" on both 

occasions. Thus, the 2009 offense could have been admitted in evidence on rebuttal to 

show lack of mistake or inadvertence (see Ewoldt, supra, 7 Cal.4th at p. 400), and the 

jury could have reasonably determined that Lynch was not, in fact, an innocent bystander 

at the Sugar Shack, as he claimed. Thus, it is not reasonably probable the uncharged 

crime evidence would have been excluded and the jury would have reached a result more 

favorable to Lynch. (Mullens, supra, 119 Cal.App.4th at p. 659, citing People v. Watson

(1956) 46 Cal.2 818, 836 (Watson).) 

II

CLAIM OF INSTRUCTIONAL ERROR

Lynch contends the trial court improperly instructed the jury that it could draw a 

reasonable inference that Lynch knew of the presence of the PCP at the Sugar Shack in 

2011 because he had possessed PCP for sale in 2009. Although couched as instructional 

error, Lynch does not claim the instruction, as given, constituted legal error.7 Rather, his 

 

People v. Breverman (1998) 19 Cal.4th 142, 173.) " '[A] "miscarriage of justice" should 

be declared only when the court, "after an examination of the entire cause, including the 

evidence," is of the "opinion" that it is reasonably probable that a result more favorable to 

the appealing party would have been reached in the absence of the error.' " (Mullens, at 

p. 659, citing Watson, supra, 46 Cal.2d at p. 836.) 

7 The record does not support Lynch's premise that the trial court instructed the jury 

that it reasonably could infer that Lynch knew of the presence of PCP in the refrigerator 

because he had previously possessed PCP for sale. Before witnesses testified about the 

2009 offense, the trial court gave a limiting instruction to the jury that the uncharged 

crime evidence was being admitted for the jury to consider whether the uncharged crime 
20

claim focuses on whether the jury may reasonably infer from the 2009 offense that Lynch

knew of the presence of the PCP in the refrigerator at the Sugar Shack. Lynch tacitly 

acknowledges that, if there is sufficient similarity between the uncharged and charged 

crimes, it is reasonable to infer that a person knew of the presence of an illegal substance 

because he had knowingly possessed the same illegal substance on an earlier occasion.8 

The crux of Lynch's argument is there is insufficient similarity between the 

uncharged and charged crimes because, in 2009, he was riding in a car and was holding a 

styrofoam cup containing a napkin soaked in PCP,9 whereas, in 2011, he was in 

 

showed the element of intent to sell PCP, as alleged in the charged crime. The trial court 

further informed the jury that it may use, consider or discard the uncharged crime 

evidence. At the close of trial, in addition to giving the jury the standard instruction that 

it may consider the uncharged crime for the limited purpose of deciding whether Lynch 

knew of the presence of the illegal substance, the trial court instructed the jury, "Do not 

consider this evidence for any other purpose except for the limited purpose of intent." 

(The standard jury instruction refers to "intent" and "knowledge." (CALCRIM No. 375).) 

"Jurors are presumed able to understand and correlate instructions and are further 

presumed to have followed the court's instructions." (People v. Sanchez (2001) 26 

Cal.4th 834, 852.) We therefore presume the jury considered the uncharged crime only 

for the limited purpose of determining whether Lynch had the intent to sell PCP. 

 

8 Lynch correctly points out that the cases concerning the "knowledge" element 

under Evidence Code section 1101, subdivision (b) speak in terms of using an uncharged 

crime to show a defendant's knowledge of the narcotics character of the substance. (See, 

e.g., People v. Williams (2009) 170 Cal.App.4th 587, 607; People v. Ellers (1980) 108 

Cal.App.3d 943, 894; Pijal, supra, 33 Cal.App.3d at p.691.) However, Lynch does not 

cite, and we have not located, any case that prohibits the trial court from instructing the 

jury that it may consider an uncharged crime to infer that the defendant knew of the 

presence of the illegal substance in the charged crime.

9 In his argument, Lynch ignores the fact that police officers observed an object 

being thrown from the car in which Lynch was riding and discovered that the object was 

a small vial containing a saleable amount of PCP. 
21

constructive possession of a vial of PCP that was hidden in a Diet Coke can in a 

refrigerator at a business establishment. However, in view of the evidence of the many 

similarities between the two offenses, this is a distinction without a difference. 

Lynch was in possession, actual or constructive, of PCP on both occasions. 

Although Lynch was holding a styrofoam cup containing a napkin soaked in PCP in 

2009, a small glass vial containing a saleable amount of PCP was recovered by police 

officers on both occasions. Lynch was an active member of the BSWC on both 

occasions. Each offense occurred in the same area of San Bernardino where the BSWC 

was actively involved in narcotics sales. Lynch was in the company of the same gang 

member on both occasions. Thus Lynch's prior conviction for possession of PCP for sale

in 2009 permits the reasonable inference that Lynch possessed PCP with the intent to sell 

in 2011 and therefore knew that there was PCP in the refrigerator at the Sugar Shack. 

We therefore conclude that the trial court did not err when it instructed the jury 

that it may, but was not required to, consider the 2009 offense for the limited purpose of 

deciding whether Lynch knew of the presence of PCP at the Sugar Shack. 

III

GANG EXPERT TESTIMONY

A. Contentions on Appeal and Additional Background

Relying on People v. Killebrew (2002) 103 Cal.App.4th 644, 658 (Killebrew), 

Lynch contends the trial court committed prejudicial error when it permitted gang expert

Heilman to testify over defense objections that Lynch committed the underlying offense 
22

of possession of PCP for sale and that in doing so, Lynch willfully assisted and promoted 

the BSWC in violation of section 186.22, subdivision (b). 

Lynch complains the following testimony violated Killebrew: 

"[The Prosecution]: Officer Heilman, based on your background, 

your training, your experience as a police officer for the last eightand-a-half years, do you have an opinion as to whether this crime, 

being the crime of possession for PCP for sale by the defendant on 

. . . July 27th of 2011 was committed for the benefit of, at the 

direction of, or in association with a criminal street gang for the 

specific purpose of promoting, furthering, or assisting in the criminal 

conduct as a member of this gang?

"[The Defense]: Objection, improper expert testimony.

[10]

"[The Court]: Overruled. He can testify.

"The Witness: Yes, I do. 

"[The Prosecution]: What is that opinion?

"[The Defense]" Objection. 

"[The Court]: What is that? 

"[The Defense]: Renew my objection.

"[The Court]: It will be renewed. It will be deemed a standing 

objection. [¶] . . . [¶] You can answer.

"The Witness: That it was done to benefit and further the Bacc

Street Watts Crips gang."

 

10 To the extent Lynch complains that the question was improper because it was not 

in the form of a hypothetical question, he has forfeited this issue on appeal. The record 

shows that Lynch did not object to the form of question. "A party may not assert theories 

on appeal which were not raised in the trial court." (In re Dakota H. (2005) 132 

Cal.App.4th 212, 222.)
23

"The Witness: In '96 members of its gang were arrested in Las 

Vegas as part of a big federal task force for narcotics trafficking. 

This gang has been out here in San Bernardino since the '90's and 

heavily active in the 2000's and beyond in selling drugs within the 

city, particularly that central Phoenix area. And the reason they do 

this is because they have a small turf in Watts. So only so many 

people can you sell drugs to and make money off of, only so many 

customers. So you branch out, come out to San Bernardino, and you 

take over an area and start selling drugs there. In this case Mr. 

Lynch is furthering that by continuing that same behavior of selling 

dope, making money for the gang, and expanding the gang's drug 

trade outside of their little turf of Watts. They also get the benefit 

too of coming out to the City of San Bernardino, being able to fly 

under the radar a little bit because they are an L.A.-based gang. 

They may be a little less known out here. So they come out here,

they sell the drugs, they get the new clientele, make more money, 

helps the gang. And that's where the benefit comes from and this 

gang's history of doing that. Mr. Lynch is just continuing that type 

of behavior."

B. Statement of Law and Standard of Review

" 'A witness may not express an opinion on a defendant's guilt.' " (People v. Vang

(2011) 52 Cal.4th 1038, 1048 (Vang).) Nevertheless, "[t]estimony in the form of an 

opinion that is otherwise admissible is not objectionable because it embraces the ultimate 

issue to be decided by the trier of fact." (Evid. Code, § 805.) " 'There is no hard and fast 

rule that the expert cannot be asked a question that coincides with the ultimate issue in 

the case.' " (People v. Valdez (1997) 58 Cal.App.4th 494, 507 (Valdez), quoting People 

v. Wilson (1944) 25 Cal.2d 341, 349.) 

"It is well settled that expert testimony about gang culture and habits is the type of 

evidence a jury may rely on to reach a verdict on a gang-related offense or a finding on a 

gang allegation." (People v. Ferraez (2003) 112 Cal.App.4th 925-930 (Ferraez).) "[I]n
24

some circumstances, expert testimony regarding the specific defendants might be 

proper." (Vang, supra, 52 Cal.4th at p. 1048, fn. 4; see Valdez, supra, 58 Cal.App.4th at 

p. 507 [gang expert testified the defendant was a member of a particular gang and that his 

activities were undertaken on behalf of the gang], cited with approval in People v. Prince

(2007) 40 Cal.4th 1179, 1227.)

We review the trial court's admission of expert testimony for abuse of discretion. 

(People v. Williams (1997) 16 Cal.4th 153, 196-197.) The trial court's exercise of 

discretion will not be reversed on appeal except on a showing it was made in an arbitrary, 

capricious or patently absurd manner, and resulted in a manifest miscarriage of justice. 

The appellant has the burden of establishing that the trial court abused its discretion, 

prejudicing the defendant. (People v. Hill (2011) 191 Cal.App.4th 1104, 1122.)

C. Analysis

We reject Lynch's assertion the prosecutor asked Heilman to testify that Lynch 

committed the underlying offense of possession of PCP for sale. The record shows the 

prosecutor asked Heilman whether the crime of possession for PCP for sale by the 

defendant on July 27, 2011, was committed for the benefit of, at the direction of, or in 

association with a criminal street gang for the specific purpose of promoting, furthering, 

or assisting in the criminal conduct as a member of this gang. This question assumes that 

Lynch did, in fact, commit the drug-related crime, but the prosecutor did not ask Heilman 

to opine whether Lynch was guilty of possession of PCP for sale. Thus, the question 

posed to Heilman was not whether Lynch was guilty of the drug-related offense but 

whether, assuming Lynch had engaged in the charged crime, whether that crime was 
25

committed for a gang purpose as defined in section 186.22, subdivision (b). The court 

did not abuse its discretion when it determined the testimony of the gang expert would be 

of assistance to the jury in understanding the criminal activities of the BWSC, its 

motivation for establishing an area in San Bernardino for drug sales, and the similarity of 

Lynch's alleged conduct to the gang's historical practices. (See Valdez, supra, 58 

Cal.App.4th at pp. 507-509.) 

This case is not similar to Killebrew. In that case, the gang expert's opinion was 

the only evidence the prosecution offered to establish the elements of the crime. As such, 

it was "the type of opinion that did nothing more than inform the jury how [the expert] 

believed the case should be decided." (Killebrew, supra, 103 Cal.App.4th at p. 658.) 

Here, by contrast, gang expert Heilman testified about the history and activities of the 

BSWC, particularly in the area in which the Sugar Shack was located. He explained how 

the BSWC's reputation was enhanced through drug sales and how it used the proceeds to 

expand its territory, recruit new members and sell more drugs. Heilman did not testify 

that the gang enhancement was true. Instead, he said the BWSC would benefit 

financially by Lynch's sale of PCP. 

In view of Heilman's expertise in evaluating the history, customs, and behavior of 

the BWSC, we cannot say the trial court abused its discretion in finding that an expert 

opinion about whether Lynch acted for the benefit of the BSWC would be of assistance 

to the jury in evaluating the evidence and determining whether the prosecution had 

proved the enhancement allegation. Such an opinion was not tantamount to an opinion of 

guilt or, in this case, that the enhancement allegation was true, for there were other 
26

elements to the allegation that had to be proved. (Valdez, supra, 58 Cal.App.4th at

p. 509.) Thus, we are not persuaded the testimony of the gang expert exceeded 

permissible legal limits.

IV

ACTIVE PARTICIPATION IN A CRIMINAL STREET GANG

Lynch argues the evidence is insufficient to support his conviction for the crime of 

active criminal street gang participation under section 186.22, subdivision (a). 

Specifically, Lynch argues there is no evidence to support a finding he was actively 

participating in a criminal street gang and engaged in drug sales for purpose of promoting 

the BSWC. Lynch contends that under Ferraez, supra, 112 Cal.App.4th 925, the opinion 

of the prosecution's gang expert, without more, is not sufficient to sustain a finding that 

the charged drug offense was gang related. (Id. at p. 931.) Lynch argues that the gang 

expert's testimony was not coupled with other evidence from which the jury could 

reasonably infer that Lynch willfully promoted, furthered, or assisted in felonious 

criminal conduct by members of the BWSC in July 2011.

To prove a charge under section 186.22, subdivision (a), the prosecution must 

prove that the defendant: (1) actively participated in a criminal street gang; (2) knew that 

the gang's members engage in or have engaged in a pattern of criminal gang activity; and

(3) willfully promoted, furthered, or assisted in any felonious criminal conduct by 

members of that gang. (People v. Lamas (2007) 42 Cal.4th 516, 523 (Lamas).) The 

"gravamen of the substantive offense" under section 186.22, subdivision (a) is "active 

participation in a criminal street gang." (People v. Albillar (2010) 51 Cal.4th 47, 55.) 
27

"[A]ctive participation in a criminal street gang" means that the defendant's involvement 

with the criminal street gang "is more than nominal or passive." (People v. Castenada

(2000) 23 Cal.4th 743, 746, 747.) 

We review the appellate record for substantial evidence to support the verdict. 

(People v. Zamudio (2008) 43 Cal.4th 327, 357.) The evidence must be reasonable, 

credible, and of solid value such that a reasonable trier of fact could find the defendant 

guilty beyond a reasonable doubt. (Ibid.) "[W]e review the evidence in the light most 

favorable to the prosecution and presume in support of the judgment the existence of 

every fact the jury could reasonably have deduced from the evidence." (Ibid.) We do not 

resolve issues of credibility or evidentiary conflicts. (Ibid.)

Ferraez, on which Lynch relies, does not assist him. In that case, our colleagues 

in Division Three stated:

"Undoubtedly, the expert's testimony alone would not have been sufficient 

to find the drug offense was gang related. But here it was coupled with 

other evidence from which the jury could reasonably infer the crime was 

gang related. Defendant planned to sell the drugs in Las Compadres gang 

territory. His statements to the arresting officer that he received permission 

from that gang to sell the drugs at the swap mall and his earlier admissions 

to other officers that he was a member of Walnut Street, a gang on friendly 

terms with Las Compadres, also constitute circumstantial evidence of his 

intent." (Ferraez, supra, 112 Cal.App.4th at p. 931.)

Here, the jury could reasonably infer the crime of possession of drugs for sale was 

gang related. The Sugar Shack was located in an area of San Bernardino that was known 

for narcotics activity. Police officers were aware that BSWC gang members sold 

narcotics in the location of the Sugar Shack. Officer Heilman testified that narcotics 

sales constituted a primary activity of the BSWC. Lynch possessed PCP for sale in the 
28

Sugar Shack, a candy store, as a cover for drug sales. He was the only person with a key 

to the Sugar Shack and no other owner was ever identified. Officer Contreras testified 

that Lynch had text messages on his cell phone asking him in slang language whether he 

had any PCP for sale. 

Heilman further testified that establishing a successful drug business at the Sugar 

Shack would benefit and promote the BWSC by increasing their drug revenue and 

permitting it to expand its criminal enterprise. Detective Contreras testified that the 

amount of PCP was sufficient for approximately 300 doses and would generate well over 

$1,000 in profit for the BSWC. When arrested in 2009, Lynch was in the company of 

Bruce Council, who was known to be a member of the BSWC; Council was also present 

when Lynch was arrested at the Sugar Shack for possession of PCP for sale in 2011. 

Lynch admitted to police officers that he had been a member of the BSWC, and there 

were a number of factors that indicated Lynch was still an active BSWC member, 

including his continued use of his gang moniker; his continued association with active 

BSWC members; the number of Lynch's tattoos, some of which were relatively recent,

stating his gang affiliation; and the number of gang contacts in his cell phone directory. 

There is substantial evidence to show that Lynch actively participated in a criminal 

street gang by possessing PCP for sale, and that he knew that the gang's members engage 

in or have engaged in a pattern of criminal gang activity, and willfully promoted, 

furthered, or assisted in any felonious criminal conduct by members of that gang. 

(Lamas, supra, 42 Cal.4th at p. 523.) The evidence supports the jury's finding that Lynch 
29

was actively participating in a criminal street gang within the meaning of section 186.22, 

subdivision (a). 

V

THE COURT DID NOT ABUSE ITS DISCRETION 

WHEN IT DENIED LYNCH'S REQUEST TO DISMISS HIS PRIOR FELONY

CONVICTION ALLEGATIONS UNDER THE THREE STRIKES LAW

Lynch contends the trial court abused its discretion under section 1385 by denying 

his request to dismiss a prior felony conviction allegation. He argues that other than his 

conviction for robbery in 1984, when he was 18 years old, all his prior offenses are "nonviolent, non-serious, drug-related offenses." Lynch further argues that at the time of his 

arrest for possession of PCP for sale, he was unarmed, had no contraband on his person, 

and willingly answered police officers' questions. Lynch did not have any prior 

convictions for gang-related offenses. Lynch argues the sentencing enhancements, 

without regard to the strike prior, subjected him to an additional 20 years' imprisonment, 

which adequately addressed the trial court's concern that he had displayed a consistent 

pattern of criminal conduct. Lynch contends the error was prejudicial because it added 

five years to his sentence and made him ineligible for enhanced conduct credits, which 

may have allowed him to reduce his total term of imprisonment by approximately 30 

percent. (See § 2933, subd. (b).) 

Section 1385, subdivision (a) provides in relevant part: "The judge or magistrate 

may, either of his or her own motion or upon the application of the prosecuting attorney, 

and in furtherance of justice, order an action to be dismissed." Under section 1385, 

subdivision (a), a trial court has the discretion to dismiss prior felony conviction 
30

allegations under the Three Strikes law. (People v. Superior Court (Romero) (1996) 13 

Cal.4th 497, 529-530.) 

In deciding whether to dismiss a prior felony conviction allegation, a trial court 

must consider the constitutional rights of the defendant and the interests of society. 

(People v. Superior Court (Romero), supra, 13 Cal.4th at pp. 530-531.) "[I]n ruling 

whether to strike or vacate a prior serious and/or violent felony conviction allegation or 

finding under the Three Strikes law, on its own motion, 'in furtherance of justice'

pursuant to . . . section 1385[, subdivision ](a), or in reviewing such a ruling, the court in 

question must consider whether, in light of the nature and circumstances of his present 

felonies and prior serious and/or violent felony convictions, and the particulars of his 

background, character, and prospects, the defendant may be deemed outside the scheme's 

spirit, in whole or in part, and hence should be treated as though he had not previously 

been convicted of one or more serious and/or violent felonies." (People v. Williams 

(1998) 17 Cal.4th 148, 161.) 

The reasons for dismissal of a prior felony conviction allegation must be set forth

in the trial court's order entered in the minutes. (§ 1385, subd. (a); People v. Williams, 

supra, 17 Cal.4th at p. 161.) However, section 1385, subdivision (a) does not require a

trial court to state its reasons for declining to dismiss a prior felony conviction allegation.

(People v. Zichwic (2001) 94 Cal.App.4th 944, 960.)

The trial court's decision whether to dismiss a prior felony conviction allegation is

reviewed for abuse of discretion. (People v. Romero (2002) 99 Cal.App.4th 1418, 1434.) 

"Where the record demonstrates that the trial court balanced the relevant facts and 
31

reached an impartial decision in conformity with the spirit of the law, we shall affirm the 

trial court's ruling, even if we might have ruled differently in the first instance. (People v. 

Wade (1959) 53 Cal.2d 322, 338.)" (People v. Myers (1999) 69 Cal.App.4th 305, 310.) 

The trial court said Lynch's record showed a consistent pattern of crime. Lynch

continued to commit the same types of crimes whenever he was released from prison on 

parole. The longest period Lynch was out of custody since he was 18 years old was 

between February 1992 and August 1995. Lynch did not appear to the trial court to be 

interested in or amenable to rehabilitation. The trial court said it was aware of its 

discretion to strike any or all of the priors. Its decision was informed by the nature and 

circumstances of Lynch's crime, including the large quantity of PCP; the sophistication 

and planning underlying the crime; Lynch's serious history of criminal convictions; his 

unsatisfactory performance on probation and parole; and the strong likelihood he would 

reoffend if not in prison for a significant period. 

The record shows that the trial court considered the nature and circumstances of 

Lynch's present felonies and prior serious and/or violent felony convictions, and the 

particulars of his background, character, and prospects. The trial court did not abuse its 

discretion when it denied Lynch's request to dismiss one or more of his previous serious

and/or violent felonies. (People v. Williams, supra, 17 Cal.4th at p. 161.) In addition, we 

reject Lynch's argument that his convictions for possession of PCP for sale were not 

serious crimes. The circumstances of his current offense were particularly serious. The 

record shows that Lynch had a large quantity of PCP for sale in what was described as a 

"candy shop," with a pool table and television. The record permits the reasonable 
32

inference this location would attract a steady clientele, including young adults and 

teenagers, who would then have easy access to the drug. We conclude the trial court did 

not abuse its discretion under section 1385 when it did not dismiss Lynch's prior felony 

conviction allegation, and sentenced him accordingly. 

DISPOSITION

The judgment is affirmed.

IRION, J.

WE CONCUR:

MCCONNELL, P. J.

AARON, J.