Filed 6/12/23 P. v. Lewis CA2/8

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

ANDREW TERREL LEWIS,

Defendant and Appellant.

 B321109

 (Los Angeles County 

 Super. Ct. No. TA152990)

APPEAL from an order of the Superior Court of Los 

Angeles County. Michelle M. Ahnn, Judge. Affirmed.

Olivia Meme, under appointment by the Court of Appeal,

for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Steven D. Matthews and Ryan M. Smith,

Deputy Attorneys General, for Plaintiff and Respondent.

* * * * * * * * * *
2

A jury convicted defendant and appellant Andrew Terrel 

Lewis of one count of possession for sale of a controlled substance. 

Defendant contends the court prejudicially erred by excluding

third party culpability evidence and that the verdict is not 

supported by substantial evidence. 

We affirm. 

FACTUAL AND PROCEDURAL SUMMARY

Defendant was charged with one count of possession for 

sale of methamphetamine (Health & Saf. Code, § 11378). It was 

also alleged defendant had suffered a prior strike conviction in 

2010 (a violation of Pen. Code, § 207 arising from a domestic 

violence incident). 

At the start of trial, defendant made a request to present 

third party culpability evidence. We summarize the relevant 

facts in part 1.a. of the Discussion, post. 

The testimony at trial established the following facts

regarding the charged offense. Around midnight on 

September 16, 2020, Officer Carlos Tovar of the Los Angeles 

Police Department (LAPD) was on patrol with his partner, 

Officer Alex Casillas. They were driving in the vicinity of 88th

Street and Menlo in Los Angeles, an area known for narcotics 

activity. 

Officer Tovar saw a Mazda parked illegally in a red zone on 

the north side of 88th Street. There was a light on in the interior 

of the car. Officer Casillas stopped near the Mazda and Officer 

Tovar, who was wearing a body camera, got out and approached 

the driver’s side of the car. He asked defendant, who was seated

in the driver’s seat of the Mazda, for his identification.

Defendant was cooperative. He gave his license to Officer Tovar 

and told him the car was a rental car so he did not have 
3

registration. There was a male passenger in the front seat and a 

female in the back seat. 

Officer Casillas attempted to get identification from the 

male passenger who was wearing a Michael Jordan jersey and 

was being uncooperative. He was unable or unwilling to produce 

any form of identification. He eventually provided a name to the 

officers. It was later determined the male passenger was Louis 

Henry Watson and he had provided a false name at the scene. 

Defendant and both of his passengers were told to get out of 

the car. Defendant complied and consented to a patdown search. 

He did not have any weapons. 

Officer Tovar told defendant to stand off to the side near a 

wall and then went to the passenger side of the car to assist 

Officer Casillas. Once they were able to get the male passenger 

to step out of the car, it was discovered he was wearing a taser on 

his hip. He was told to stand near defendant next to the wall, as 

was the female passenger. 

Officer Tovar then searched the car, starting with the front 

passenger seat area. On the floorboard, he found a glass pipe 

with white residue “resembling methamphetamine” and a lunch

pail containing a lighter and numerous small clear plastic 

baggies, all of which were empty. A cell phone was found in the 

passenger door panel. The back seat contained nothing of 

interest.

The trunk was “cluttered” and contained clothes, shoes,

miscellaneous papers, a number of plastic shopping bags and a 

red backpack with a Michael Jordan logo. Officer Tovar found a 

scale inside the backpack. 

From the driver’s seat area, Officer Tovar collected three 

empty plastic baggies. He had seen them on the seat when
4

defendant initially got out of the car. Officer Tovar also found a 

slightly larger plastic bag “[w]edged in between the center 

console” and the driver’s seat. The bag contained a “crystal-like 

substance” which was later analyzed and determined to be 

8.97 grams of methamphetamine.

The two passengers were not cited and were allowed to 

leave with their cell phones. Before leaving, the male passenger 

asked to retrieve his belongings, and he was allowed to take 

multiple plastic shopping bags that had been in the trunk. 

Defendant was taken to the station and booked. An 

inventory search of his personal items included his wallet which 

contained money in the amount of $2,734.31, including 

45 twenty-dollar bills. 

Redacted portions of the footage from Officer Tovar’s body 

camera were played for the jury. 

Officer Richard Larson testified to his training and years of 

experience as a member of the LAPD’s narcotics enforcement 

detail, including working on numerous multi-agency task forces

investigating drug trafficking and various drug-related crimes. 

In response to a hypothetical question posed to him based on the 

facts of the case, Officer Larson said the baggies, the scale, and 

the quantity of methamphetamine found in the car indicated the 

drugs were possessed for purposes of sale. The fact that a large 

amount of money, including numerous $20 bills, was recovered 

with those items further supported an intent to sell. Officer 

Larson said that in the area where the detention occurred, 

methamphetamine was normally packaged in 1 gram quantities 

and sold for approximately $20, referred to in street vernacular 

as a “dub.” In his opinion, it would be unusual for someone to be 

in possession of 9 grams of methamphetamine solely for personal
5

use, as even a “hard core” meth user would ordinarily consume 

around 1 gram or 1.5 grams per day. A hard-core user would

have the recognizable characteristics of someone who regularly 

abused methamphetamine, including sunken eyes, missing teeth 

and open sores. 

Defendant did not testify and did not present any 

witnesses. 

During deliberations, the jury made several requests. They 

asked to rewatch the body camera footage and asked for a

clarification of the phrase “intent to sell.” The footage was 

replayed for the jury and they were told to refer back to the jury 

instructions on the issue of intent. After further deliberations,

the jury asked how they should proceed since they were divided, 

with six votes for guilt on count 1 and six votes for the lesser 

offense of simple possession. When asked by the court if there 

was anything it could do to assist them in further deliberations, 

the jury asked for additional argument on “intent to sell” and 

how the backpack and scale were connected to defendant. The

parties provided additional argument limited to those two issues. 

The jury continued their deliberations and then returned a 

verdict finding defendant guilty as charged. The court sentenced 

defendant to a 16-month low term to be served in county jail. 

Defendant was credited with 17 days of presentence custody 

credits (nine actual, eight conduct) and fines and fees were 

waived. 

This appeal followed. 
6

DISCUSSION

1. Third Party Culpability Evidence 

Defendant contends the court committed reversible 

evidentiary error by excluding his third party culpability 

evidence. We disagree. 

a. Background

On the third day of trial, defense counsel informed the 

court in the morning that her investigator had e-mailed her a

report about an interview he had conducted two days earlier of a 

woman named Barbara Carter. Counsel provided copies of the 

report to the court and prosecutor and advised the court she 

wished to present Ms. Carter as a witness. She said Ms. Carter 

would provide testimony regarding an incident with Louis Henry

Watson, the same person who had been in the front passenger 

seat of the car on the day defendant was arrested and had been 

allowed to leave. Ms. Carter told the investigator she had been 

with Mr. Watson in his car sometime before the incident 

involving defendant. Mr. Watson had been driving and was 

pulled over by a police officer. Before the officer walked up to the 

car, Mr. Watson unexpectedly tossed a handgun into Ms. Carter’s

lap. She was scared and did not know what to do, so she hid the 

gun in her sweatpants. The gun was not discovered, and 

Ms. Carter was not arrested. 

The court asked the date when the incident allegedly 

occurred and whether it involved any of the same officers

involved in the arrest of defendant. Defense counsel said she had 

no further details about the incident and would have to ask her 

investigator.

Defense counsel argued Ms. Carter’s testimony was 

admissible third party culpability evidence because it showed 
7

Mr. Watson was willing to cast blame on others for his 

contraband when confronted by police. Defense counsel said that 

during the incident here, Mr. Watson gave a false name to the 

police and was generally uncooperative. A glass pipe, plastic 

baggies, a cell phone and a flashlight were found on the floor 

where Mr. Watson was seated, and it was reasonable to infer the 

methamphetamine found in the car was his. He claimed 

ownership of multiple plastic shopping bags from the trunk

where the backpack with the scale was located, but the police

allowed him to leave the scene with those bags and his cell phone

and without anyone attempting to verify his identity. 

The court asked counsel whether she anticipated any 

testimony connecting Mr. Watson specifically to the drugs found 

in the car, such as evidence he made movements toward the 

driver’s seat to hide the drugs as Officer Tovar approached. 

Defense counsel said she had been unable to locate Mr. Watson to 

subpoena him for trial and did not anticipate calling the female 

passenger who had been in the back seat.

The court excluded the proffered evidence, reasoning that 

the incident described by Ms. Carter had low relevance to the 

facts of the case against defendant because it involved a handgun 

and not narcotics, and because it would cause an undue 

consumption of time, requiring a minitrial on the other incident. 

b. Applicable law 

In People v. Dworak (2021) 11 Cal.5th 881, 895 (Dworak), 

the Supreme Court said, “[w]e have rejected any special rule 

governing evidence of third party culpability, explaining that 

‘courts should simply treat third-party culpability evidence like 

any other evidence: if relevant it is admissible ([Evid. Code,]
8

§ 350) unless its probative value is substantially outweighed by 

the risk of undue delay, prejudice, or confusion ([id.,] § 352).’ ”

Evidence tending to show a third party committed the 

crime is relevant. (People v. Brady (2010) 50 Cal.4th 547, 558

(Brady).) The evidence must be capable of raising a reasonable 

doubt as to the defendant’s guilt, but need not amount to 

“ ‘ “substantial proof of a probability” ’ ” the third party actually 

committed the crime. (Dworak, supra, 11 Cal.5th at p. 895.) 

Evidence of mere motive or opportunity is not sufficient to raise a 

reasonable doubt. (Ibid.) “ ‘[T]here must be direct or 

circumstantial evidence linking the third person to the actual 

perpetration of the crime.’ ” (Ibid.; accord, People v. Bracamontes

(2022) 12 Cal.5th 977, 1001 [“ ‘We have repeatedly upheld the 

exclusion of third party culpability evidence when the third 

party’s link to a crime is tenuous or speculative.’ ”].) 

Third party culpability evidence “that is relevant still may 

be excluded if it creates a substantial danger of prejudicing, 

confusing, or misleading the jury, or would consume an undue 

amount of time.” (Brady, supra, 50 Cal.4th at p. 558; see also

Evid. Code, § 352.) 

We review the trial court’s ruling excluding the evidence

under the deferential abuse of discretion standard. (Dworak, 

supra, 11 Cal.5th at p. 895; accord, Brady, supra, 50 Cal.4th at 

p. 558.) 

c. Analysis 

In Dworak, supra, 11 Cal.5th at page 895, the Supreme 

Court upheld the exclusion of third party culpability evidence by 

the trial court which had, like the court here, found the probative 

value of the proffered evidence of two different third parties to be 
9

substantially outweighed by the risk of undue delay, prejudice or 

confusion.

The female murder victim in Dworak was found on a 

deserted stretch of beach. (Dworak, supra, 11 Cal.5th at p. 887.) 

She had last been seen alive at a party at the home of Robyn 

Jones, the mother of a friend of hers. (Id. at p. 894.) The 

defendant sought to introduce evidence regarding two individuals 

associated with that home, Jay Campbell and Danny Carroll. 

(Ibid.) The evidence included a pair of Campbell’s jeans found in 

a bucket of sandy water at the home. Campbell said his jeans

had gotten sandy during a date at the beach with his girlfriend,

and he had changed clothes at Jones’s home afterward. (Ibid.) 

As to Carroll, a local drug dealer, the defendant sought to 

introduce testimony from Jones that Carroll had written a letter 

“musing” about what might have happened to the victim, as well 

as testimony from Jones’s son that Carroll had stolen his 

mother’s car on the night the victim went missing, and when it 

was recovered, the car was full of sand. (Ibid.) 

Dworak concluded the trial court had not abused its

discretion in excluding the evidence related to both Campbell and 

Carroll, explaining “there was no evidence placing Carroll in 

proximity to [the victim] at the time of her death, and any link 

between the jeans found in Jones’s garage and [the victim’s] 

death rested on speculation. Although the jeans could be seen as 

circumstantial evidence that Campbell was involved in [the 

victim’s] death, such an inference requires speculation that the

sand and water on the jeans were from the beach on which [the 

victim’s] body was found, combined with additional speculation 

that this was the result of Campbell’s presence at [the victim’s] 

murder and not, as Campbell stated, a separate visit to the beach 
10

that same weekend. The trial court reasonably concluded that 

the probative value of this evidence related to Carroll and 

Campbell, which produced only speculative inferences, was 

substantially outweighed by the risk that it would cause undue 

delay, prejudice, or confusion.” (Dworak, supra, 11 Cal.5th at 

p. 895.)

Similarly here, the evidence that Mr. Watson, the male 

passenger in the car with defendant at the time of the charged 

incident, may have, at some unspecified previous time, tossed a 

handgun into the lap of Ms. Carter when he was pulled over in an 

unrelated traffic stop was not sufficiently probative to warrant 

consuming trial time and confusing the jury. Defendant has not 

established the trial court abused its discretion in excluding the 

testimony of Ms. Carter. 

d. Substantial evidence 

Defendant contends his conviction is not supported by 

substantial evidence. He says there is insufficient evidence as to

both possession and intent to sell. We review the record under 

the familiar standard. (See People v. Lee (2011) 51 Cal.4th 620, 

632.) We find there is ample evidence to support the verdict.

“ ‘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).) As the jury here was correctly instructed, the 

elements of the offense of possession with the intent to sell may 

be proved by circumstantial evidence and the reasonable 

inferences drawn therefrom. (CALCRIM Nos. 224, 225.) 

Moreover, possession of the controlled substance may be 

constructive or joint with another person. (People v. Williams
11

(1971) 5 Cal.3d 211, 215 [constructive possession includes areas 

accessible to and under “the joint dominion and control of the 

accused and another”]; see also CALCRIM No. 2302 [“Two or 

more people may possess something at the same time.”].) 

The evidence here established that defendant was in an 

area known for narcotics activity, late at night, in a car he was 

driving, with almost 9 grams of methamphetamine in a bag 

wedged between his seat and the center console, numerous 

plastic baggies, a scale and over $2,700 in cash in his wallet, 

including 45 twenty-dollar bills. On such evidence, the jury could 

reasonably conclude defendant possessed the meth for sale,

notwithstanding the fact there were two other individuals in the 

car with him at the time. 

This evidence was bolstered by the expert testimony of 

Officer Larson, an experienced narcotics officer. He testified that 

in his opinion, based on the evidence found in the car, that 

defendant possessed the meth for purposes of sale. The jury was 

justified in relying on that opinion in finding defendant guilty. 

(Harris, supra, 83 Cal.App.4th at pp. 374-375 [“ ‘experienced

officers may give their opinion that the narcotics are held for

purposes of sale based upon such matters as the quantity, 

packaging and normal use of an individual’ ”].) 

DISPOSITION

The judgment of conviction is affirmed. 

GRIMES, J.

WE CONCUR:

STRATTON, P. J. WILEY, J.