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Filed 4/28/14 P. v. Cornejo CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

FRANCISCO FLORES CORNEJO,

Defendant and Appellant.

E058617

(Super.Ct.No. BLF1200243)

OPINION

APPEAL from the Superior Court of Riverside County. James S. Hawkins, Judge. 

Affirmed with directions.

Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for 

Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Stacy 

Tyler, Deputy Attorneys General, for Plaintiff and Respondent.
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Defendant Francisco Flores Cornejo appeals from his conviction of knowingly 

possessing heroin while he was incarcerated in Ironwood State Prison, in violation of 

Penal Code section 4573.6, subdivision (a). He contends the trial court abused its 

discretion by permitting the People to introduce evidence of a prior uncharged incident in 

which a handmade syringe was found in his cell in another state prison. According to 

defendant, this evidence was inadmissible under Evidence Code1section 1101,

subdivision (b), because it was not directly relevant to proving the current possession 

charge. Even if the evidence was relevant, defendant contends the probative value of the 

evidence was substantially outweighed by its prejudicial impact, and the trial court 

abused its discretion by not excluding the evidence pursuant to section 352. 

We conclude the prior uncharged conduct was probative to proving defendant 

knew the controlled substance he possessed was heroin, and its probative value was not 

substantially outweighed by its prejudicial impact. We therefore affirm. 

I.

FACTS

Officer Hull testified he is a correctional officer at Ironwood State Prison

(Ironwood) and he worked with the prison’s Investigation Services Unit (ISU), which 

investigates crimes committed by prisoners such as use of and trafficking in narcotics. If 

a prisoner is suspected of possessing narcotics, the ISU’s protocol is to perform a search 

of the unclothed prisoner, the prisoner’s clothing, and the prisoner’s body cavities and 

 

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 All further undesignated statutory references are to the Evidence Code.
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genitals. On a daily basis, the ISU found prisoners who hid contraband in their anal 

cavity.

On August 7, 2011, Hull was informed by prison staff defendant might be under 

the influence of a controlled substance. When Hull made contact with defendant, he 

checked defendant’s body for anything indicative of being under the influence of a 

controlled substance and found what appeared to be two injection sites on defendant’s 

arm. Hull then performed an unclothed body search of defendant and saw what appeared 

to be a shiny lubricant around defendant’s anus, which Hull testified is indicative of 

secreting contraband from prison staff. Defendant related to Hull he told staff he had 

been drinking alcohol because he did not want them to know he took “a shot of heroin.”

Hull found no contraband on defendant, but placed defendant on contraband watch.

Former Officer Sumbler testified he previously worked as a correctional officer at 

Ironwood. Sumbler conducted a contraband watch of defendant on August 8, 2011. 

When defendant defecated, Sumbler searched defendant’s feces and found a white latex 

bindle. After washing off the bindle with soap and water, Sumbler handed the bindle 

over to Officer Griego, the ISU officer for the day.

Officer Griego testified she was assigned to the ISU at Ironwood during the time 

in question, and she was an evidence custodian and drug test officer, among other things. 

On August 8, 2011, Griego received a call from a sergeant directing her to collect the 

contraband Sumbler discovered in defendant’s feces. Griego recovered the bindle from 

Sumbler and conducted a presumptive field test on its contents, which showed the 
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substance inside the bindle was heroin. Griego then placed the contents of the bindle into 

an evidence envelope to be sent to the Department of Justice (DOJ) for further testing.

Mrs. Hughes, a DOJ criminalist, testified she received for testing the substance 

found in the bindle defendant defecated. After performing a chemical test on the 

substance, Hughes concluded it was heroin.

Officer Garcia testified he was assigned to the ISU at Calipatria State Prison

(Calipatria). On August 21, 2007, he and his partner conducted a surprise search of 

defendant’s cell. When the officers opened the food port to the cell door, Garcia saw 

defendant jump from the top bunk, grab something from the top of a desk with his right 

hand, and then squat down between the desk and a locker. Defendant placed his right 

hand between his boxer shorts and his buttocks. Garcia ordered defendant to lie down in 

a prone position, and then sprayed defendant with pepper spray to make him comply. 

The officers then removed defendant from the cell, searched defendant, and found 

nothing on him.

Inside the cell, Garcia found a handmade syringe on the desk within arm’s reach 

from where he saw defendant squat. In a bucket between the desk and the locker, close 

to where defendant squatted down, Garcia found two bindles containing a black tar-like 

substance. Garcia testified prisoners are not permitted to have syringes, and typically 

handmade syringes are used for intravenously injecting narcotics such as 

methamphetamine and heroin. On cross-examination, Garcia testified the bindles and 

handmade syringe were accessible to both defendant and his cellmate.
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Officer Dominguez, an investigator at Calipatria, testified he spoke to defendant 

about the August 21, 2007, search of his cell. Defendant told Dominguez when Garcia 

and his partner arrived at the door to his cell, he jumped from the top bunk, retrieved a 

handmade syringe, then squatted down and placed the syringe between his buttocks. 

Defendant also told Dominguez after Garcia sprayed him with pepper spray, defendant 

removed the syringe from his buttocks and placed it on the top shelf of a locker as he was 

getting down to a prone position on the floor.

The judge instructed the jury if it concluded the People proved the uncharged 2007 

offense by a preponderance of the evidence, it could only consider the evidence for the 

limited purpose of deciding whether defendant knew the nature of the controlled 

substance he was alleged to have possessed in the current offense. The court also 

instructed the jury in evaluating the evidence of the uncharged 2007 offense, it was to 

consider the similarity or dissimilarity between the uncharged offense and the charged 

offense of possession.

The jury found defendant guilty on the sole count of knowingly possessing heroin 

while in state prison, in violation of Penal Code section 4573.6, subdivision (a). 

Defendant then admitted he suffered four strike priors (Pen. Code, §§ 667, subds. (c), 

(e)(1), 1170.12, subd. (c)(1)), and admitted he suffered three prison priors (Pen. Code, 

§ 667.5, subd. (b)). The trial court sentenced defendant to the middle term of three years 

in state prison for the drug possession conviction, which was doubled pursuant to the two 

strikes law, and imposed three one-year terms for each of the admitted prison priors, for a 
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total of nine years in prison to run consecutively2to the term defendant was already 

serving.

Defendant timely appealed.

II.

DISCUSSION

Defendant contends the trial court erred prejudicially by permitting the People to 

introduce evidence of the 2007 uncharged incident in which a handmade syringe was 

discovered in his cell at Calipatria. According to defendant, the prior uncharged incident 

was not probative to proving he knew the nature of the contents of the bindle he 

defecated because the People introduced no evidence the syringe contained heroin. We 

disagree.

“‘Subdivision (a) of [Evidence Code] section 1101 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. Subdivision (b) of section 1101 clarifies, however, that this rule does not 

prohibit admission of evidence of uncharged misconduct when such evidence is relevant 

to establish some fact other than the person’s character or disposition,’ such as identity, 

 

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 Neither the oral sentence nor the minute order and abstract of judgment reflect 

defendant’s sentence in this case must be served fully consecutively to the prison 

sentence he was serving at the time of his in-prison offense. (Pen. Code, §§ 667, 

subd. (c)(8), 1170.1, subd. (c); see People v. White (1988) 202 Cal.App.3d 862, 869-870.) 

We will direct the superior court clerk to correct the minutes of sentencing and prepare an 

amended abstract of judgment.
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common plan, or intent. [Citation.] Evidence of uncharged crimes is admissible to prove 

identity, common plan, and intent ‘only if the charged and uncharged crimes are 

sufficiently similar to support a rational inference’ on these issues. [Citation.]” (People 

v. Edwards (2013) 57 Cal.4th 658, 711.)

“‘The admissibility of other crimes evidence depends on (1) the materiality of the 

facts sought to be proved, (2) the tendency of the uncharged crimes to prove those facts, 

and (3) the existence of any rule or policy requiring exclusion of the evidence.’ 

[Citation.]” (People v. Lindberg (2008) 45 Cal.4th 1, 22.) “‘Because this type of 

evidence can be so damaging, “[i]f the connection between the uncharged offense and the 

ultimate fact in dispute is not clear, the evidence should be excluded.” [Citation.]’ 

[Citation.]” (People v. Fuiava (2012) 53 Cal.4th 622, 667 (Fuiava).)

“‘If evidence of prior conduct is sufficiently similar to the charged crimes to be 

relevant to prove the defendant’s intent, common plan, or identity, the trial court then 

must consider whether the probative value of the evidence “is ‘substantially outweighed 

by the probability that its admission [would] . . . create substantial danger of undue 

prejudice, of confusing the issues, or of misleading the jury.’ (Evid. Code, § 352.)” 

[Citation.]’” (People v. Rogers (2013) 57 Cal.4th 296, 326 (Rogers).) Although 

evidence of uncharged offenses is inherently “damaging” to the defendant’s case (Fuiava, 

supra, 53 Cal.4th at p. 667), exclusion under section 352 is only merited when the 

prejudicial impact of the evidence substantially outweighs its probative value. “The 

prejudice which exclusion of evidence under Evidence Code section 352 is designed to 

avoid is not the prejudice or damage to a defense that naturally flows from relevant, 
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highly probative evidence. ‘[All] evidence which tends to prove guilt is prejudicial or 

damaging to the defendant’s case. The stronger the evidence, the more it is “prejudicial.” 

The “prejudice” referred to in Evidence Code section 352 applies to evidence which 

uniquely tends to evoke an emotional bias against the defendant as an individual and 

which has very little effect on the issues. In applying section 352, “prejudicial” is not 

synonymous with “damaging.”’ [Citation.]” (People v. Karis (1988) 46 Cal.3d 612, 

638.)

“‘“Rulings made under [Evidence Code sections 1101 and 352 . . .] are reviewed 

for an abuse of discretion. [Citation.]” [Citation.] “Under the abuse of discretion 

standard, ‘a trial court’s ruling will not be disturbed, and reversal . . . is not required, 

unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd 

manner that resulted in a manifest miscarriage of justice.’ [Citation.]” [Citation.]’ 

[Citation.]” (Rogers, supra, 57 Cal.4th at p. 326.)

“‘It is well settled, of course, that in a prosecution for unlawful possession of 

narcotics, it is incumbent upon the prosecution to present evidence from which the trier 

of the facts reasonably may infer and find that the accused had dominion and control over 

the contraband with knowledge of its presence and narcotic character. . . .’ [Citation.] 

It is also well settled, however, that each of these essential elements may be proved by 

circumstantial evidence and any reasonable inferences drawn from such evidence. 

[Citations.]” (People v. Tripp (2007) 151 Cal.App.4th 951, 956 (Tripp).)

As defendant states in his opening brief, his knowledge of the nature of the 

substance found inside the bindle he defecated was at issue. He did not stipulate to such 
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knowledge and, at trial, evidence was introduced that prisoners hide other forms of 

contraband in their anuses, such as tobacco. Therefore, the People could seek to 

introduce evidence of uncharged drug offenses under section 1101, subdivision (b), to 

prove such knowledge. (People v. Ewoldt (1994) 7 Cal.4th 380, 400, fn. 4 (Ewoldt).) “In 

prosecutions for drug offenses, evidence of prior drug use and prior drug convictions is 

generally admissible under Evidence Code section 1101, subdivision (b), . . . to prove 

knowledge of the narcotic nature of the drugs. [Citation.]” (People v. Williams (2009) 

170 Cal.App.4th 587, 607 [Fourth Dist., Div. Two]; see also People v. Perez (1974) 42 

Cal.App.3d 760, 767-768 [Fourth Dist., Div. Two].)

The evidence of defendant’s prior drug offense was sufficiently similar to the 

current charge and was probative to proving his knowledge of the nature of the substance 

he hid in his anus. In the 2007 incident, defendant grabbed a handmade syringe from a 

desk and tried to hide it between his buttocks during a search of his cell. Along with the 

syringe, officers found two bindles containing a black tar-like substance in a bucket near 

where defendant squatted down. Officer Garcia testified prisoners use handmade 

syringes to intravenously inject narcotics such as methamphetamine and heroin. In the 

current offense, Officer Hull saw what appeared to be two injection sites on defendant’s 

arm, where he may have injected himself with narcotics, and defendant told Hull he lied 

to prison staff about drinking alcohol to cover up the fact he took “a shot of heroin.” 

Finally, Hull saw defendant had a shiny lubricant around his anus, which indicated 

defendant was hiding something in his anal cavity, and the bindle defendant subsequently 

defecated contained heroin. Although the handmade syringe was not tested for the 
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presence of narcotics, both incidents relate to possession and use of narcotics that may be 

injected intravenously. Defendant’s prior possession of a syringe, which most assuredly 

was not for the purpose of consuming contraband tobacco, was relevant to establishing 

defendant knew the bindle he hid in his anus contained heroin and not something else.

Nor was the probative value of the prior incident substantially outweighed by the 

prejudicial impact the evidence would have on defendant’s jury. In determining whether 

evidence of the uncharged offense prejudiced defendant, one factor we weigh is whether 

“[t]he testimony describing defendant’s uncharged acts . . . was no stronger and no more 

inflammatory than the testimony concerning the charged offenses.” (Ewoldt, supra, 

7 Cal.4th at p. 405.) The evidence of defendant’s current offense, which involved fairly 

graphic testimony about shiny lubricant around defendant’s anus and a white bindle 

found in defendant’s feces, was by itself sufficiently damaging to defendant. The 

additional evidence that four years earlier defendant was found possessing a handmade 

syringe was not likely to inflame the jury so much that it could not fairly consider the 

evidence. Moreover, the judge took great pains to properly instruct the jury it was only to 

consider the evidence of the syringe incident for the purpose of determining whether the 

People proved defendant knew the nature of the contents of the bindle. We must presume 

the jury understood and followed that instruction. (People v. Homick (2012) 55 Cal.4th 

816, 853.) Therefore, we conclude the trial court did not abuse its discretion by 

permitting the People to introduce evidence of the uncharged syringe incident under 

section 1101, subdivision (b).
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Finally, even if we were to find the trial court abused its discretion by permitting 

the People to introduce evidence of the syringe incident, we may only reverse the 

judgment if we conclude the error resulted in a miscarriage of justice. (Cal. Const., art. 

VI, § 13; People v. Richardson (2008) 43 Cal.4th 959, 1001; see also § 353, subd. (b).) 

Evidentiary error is harmless unless it is reasonably probable defendant would have 

received a more favorable result absent the error. (People v. Watson (1956) 46 Cal.2d 

818, 836; see People v. Fudge (1994) 7 Cal.4th 1075, 1103.)

Officer Hull testified defendant had two possible injection sites on his arm, and 

defendant admitted he took a shot of heroin. That defendant was familiar with narcotics 

that are injected intravenously, in particular with heroin, was evidence from which a jury 

could reasonably conclude defendant knew the substance he possessed was in fact heroin. 

(See Tripp, supra, 151 Cal.App.4th at p. 956 [“knowledge of a substance’s narcotic 

nature may be shown by evidence . . . showing a familiarity with the substance, such as 

needle marks or other physical manifestations of drug use or instances of prior drug 

use”].) Moreover, defendant hid the bindle containing heroin inside his anal cavity. The 

lengths to which defendant went to hide the bindle from prison staff is also circumstantial 

evidence from which a jury could reasonably have concluded defendant knew the nature 

of what was contained inside it. (Ibid. [“suspicious conduct indicating a consciousness of 

guilt” is circumstantial evidence the defendant knew the nature of the narcotics he 

possessed].) Because it is not reasonably probable a jury would have acquitted defendant 

if the trial court had excluded the prior offense evidence, we must conclude any error was 

harmless.
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III.

DISPOSITION

The clerk of the superior court is directed to amend the minutes of sentencing and 

prepare an amended abstract of judgment to reflect defendant’s sentence in this case shall 

be served fully consecutively to the prison term he was serving when he committed his 

in-prison offense of possessing narcotics. (Pen. Code, §§ 667, subd. (c)(8), 1170.1, subd. 

(c).) The clerk shall then forward the amended minute order and abstract of judgment to 

the Department of Corrections and Rehabilitation. In all other respects, the judgment is 

affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER

J.

We concur:

RAMIREZ

P. J.

KING

J.