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

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b ). This opinio n has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE

,
Plaintiff and Respondent,

v.

ANDREW TE RR EL LEWIS

,

D e f end an t and Appellant. B 3 2 1 109

(Los Angeles County Super. Ct. No

. T A 15 2990 )

APPEAL from an order of the Superior Court of Los Angeles County. Michelle M. Ahnn , Judge. Affirmed

. Olivia Meme, under app oi n tment by t h e Cour t of Ap p e a l, 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 R yan M. Smith

, Deputy Attorneys General

, for Pl ainti f f an d R espo nd e nt.

* * * * * * * * * *2 A jury convicted d efendant and appellant Andrew Terrel
Le wis of one count of possession for sale of a controlled substance

. D efendant contends the court prejudicially erred by excluding
third party culpability e vidence and t h at the verdict is not support ed by substantial evidence.
We affirm.
F ACTUAL AND PRO CEDURAL SUMMARY Defendant was charged with one c ount of possession for
sale of me thamphetamine ( Hea lth & Saf . Code, § 11378). It was also alleged defenda n t had suffer e d a prior strike conviction in
201 0 (a violation of Pen. Code

, § 207 arising from a domestic violence incident). At the start of trial, d efendant made a request to present third party cu lpa bility evidence. We s ummarize the r elevant facts i n part 1

. a

. o f the Discussion

, post

. The testimony at trial established the following facts regarding the charged offense

. Arou nd midnight on September 16, 2020, Officer Carlos To var of the Los Angeles Police Department (LAPD) was on patr ol with his par t ner , Of ficer Alex Casillas . T hey were driving in the vicinity of 88th Street and Menlo in Los Angeles , an area known for nar cotics activity

. Officer To var saw a Mazda parked illegally in a red zone on
the north s ide of 88th Str e et. There was a lig ht on in th e int e rior
of the car. Officer Casillas stopped near the Mazda and Officer Tovar, who was wear ing a bod y camera, got out and approached
the driver ’ s side of the car. He asked defendant

, who was seated
in the driver ’ s seat of t he Mazda

, for his id entifica t ion

. Defendant was cooperative . He gave his license to Officer Tovar
and told him the car was a rental car so he d id not ha ve3

registration. There was a male passenger in the front sea t and a female i n the back seat.
Officer Casillas attempted to get i denti f ication from the male pa ssenger who was wearing a Michael Jo rdan jersey and was being uncooperative. He was unable or unwilling to produce

any form of i den tification

. He ev entually provided a name to the
officers . I t was later determined t he male pa sse n ger was Lou is Henry Watson and he had p rovided a false name at the scene.
Defendant and both of his pa sseng ers were t o ld to get out of the car. Defenda nt com plied and consented to a pat down search.
He did not have any weapons

. Officer T ovar tol d def

e ndant to stand off to the side near a
wall and then went to t he passenger si de 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 tase r on his hip. He was told t o stand near defendant next to the wall, as was the female pa ssenger. Officer Tovar then sea rched the car, starting with the front passenger seat area. On the floorboard, he found a glass pipe
with white residue “ resembling methamphetamin e ” and a lunc h pail containing a lighter and nume rous small c le a r plastic baggies , all of which were em pty

. A cell phone was found i n the passenger door panel

. The back s e at contained nothing of
interest.
The trunk was “ cluttered ” and contained clo thes

, shoes

, mi sc e llaneous papers

, a number of plastic shopping bags an d a
red back pack with a Michael Jordan logo . Officer Tovar found a scale inside the back pack.
From the driver ’ s seat area , Officer To var collecte d three empty plastic baggies

. He had s een them on t h e s eat when4

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 contain e d a “ crystal

- li ke
substance ” which was later analyzed and det er min e d t o be
8.97 grams of methamphetamine.
The two passenger s were not cited and were allowed to
le ave with their c ell phones

. Bef ore leaving, the male passenger asked to retrieve his belongings

, and he was allowed to take multiple plastic sho pping ba gs th a t had been in the trunk

. D efendant was taken to the station and booked. An
inve ntory sear c h of his perso nal items included his wallet which
contained money in the amount of $2

, 734 .3 1 , including
45 twenty

- dollar bills. Redacted portions of the foota ge from Officer Tovar ’ s bod y

camera were played for the jury.
Officer Richard Larson testifie d to his tr aining and years of

exper ience as a member of t he L APD ’ s narcotics enforcement detail, including working on numerous multi

- agency task fo rces investig ati ng d r ug trafficking and various d ru g

- related crimes

. In response to a hypothet ical quest ion posed to him bas ed on the
facts of the c ase, Officer Larson said the baggies, the scale, a n d the quantity of methamphetamine found in th e car indic ated the drug s w ere p osse ss ed for purposes of sale. The fact that a large amount of money, including n umero us $20 bills, w as recovered
with those items further support ed an intent to sell

. Officer
Larson said that in the area where the detention occurred

,
me thampheta mine was normally packaged in 1 gram qua nt ities
and s ol d for approximately $2 0, referred to in street vernacular

as a “ dub

. ” I n his opinion, i t would be unusual f or someone to be in possession of 9 grams of methamphetamine solely for pe rsonal5

use , as e v en a “ hard core ” meth user would ordina rily consume

ar ound 1 gram or 1.5 gram s per day. A hard

- c ore user would
have the reco gnizable char acteri stics of someone who reg ularly
ab used met hamphetamine, including sunken eye s, missing teet h
and open sores. Def e ndant did not t estify and d id not present any
witnesses. During deliberations, the jur y made several reques ts. The y asked to rewatch the body camer a footage and asked for a clarification o f the phrase “ intent to s ell

. ” The f ootag e was

re p l ayed for the jury and the y w ere told to re fer back to the jury
instructions on the issue of inten t. A fter further deliberati ons, the jury asked how they should proceed since they were divided

, with six votes for guilt on count 1 and six vot es f or the le s s er offense o f simple possession . When asked by the court if there was anything it could do to assist the m in further deliberations, the jury ask ed for additional a rgument on “ intent to sell ” and
how the back pack and scale were conne cted to defe ndant. T h e parties pro vided addition al argument limited to those two issues

. The jury continued their deliberatio n s and then returned a

ver dict finding defendant guilty as charged. The court sentenc e d defendant to a 1 6

- month low term to be served in c ounty jail

. Defendant was credited with 17 days of presentence custody credits ( nine actual, eight conduct) and f ines and fees were
waived. This appeal follow ed.6 D ISCUSSIO N
1. Th i rd Part y Culpa bi lit y Evidence
Defendant contends the cour t committe d rever sible
evid entiary error by excluding his third party cu lpability
evidence . We disagree.

a. B ac kground
On the third day of trial, defen se counsel informed the

court in th e mornin g that her inve stigato r had e

- mai l ed her a

r eport a bout an interview he had conducted two days e arl ier of a woman named Barbara Carter. Counsel provided copie s of the

rep ort to the court and pr osecutor and advised the court she
wished to present Ms. Carte r as a witn ess

. She sa id Ms. Carter
would pro vide testimon y regarding an in cident wit h Louis H enry Watson , the same person who had been in the f ront passenger seat of the car on the day defenda nt was arrested and had been
allowed to leave . M s. Carter tol d the inves tiga tor she had been with Mr. Watson i n his car sometime before t he inciden t involving d efendant. Mr. Watson had been driving and was

p ulled over by a police officer

. Before the off icer wa lked up t o the car, Mr. Watso n unexpectedly tossed a ha ndgun into M s. Car ter ’ s la p. She was scared and did not kn ow what to do , so she hid t he gun in her sweatpants

. T h e gun was not discovered

, and
Ms. Carter was not arrested.
The court asked th e date w hen the incident allegedly

occurre d and whethe r i t in vo lve d any of the same officers involved in the arrest of de fendant . D efense counsel s aid she had

n o further details about the incident and would have to ask her investigator. Defense counse l argued Ms. Carter ’ s te stimony was
adm issi ble t hird party culpability evidence because it showed7

Mr. Watson was willing to cast blame on ot hers for h is
contraband when confr onted by police

. Defense counsel said that during the incident here, M r. Watson g av e a fal se name to the pol ice and w as generally uncooperative

. A glass pi pe , plastic baggies , a cell phone and a flashlig ht were f ound on the floor
where Mr. Wat son was seated

, and it was reasonable to infer the methamphetamine found in th e car was his

. H e claimed ownership of mul tiple plastic shopping bag s f rom the t r unk
where the b ackpack with the scale was located , but t he polic e allowed him to le ave the scene with th ose bags and his cell phone and without anyon e attempting t o verify his identi ty

. The court asked counsel wh ether she a ntic ipated a ny testimony connecting Mr. Watson specifically to the drugs found in the car, suc h as evidence he ma de move ments toward the
driver ’ s seat to hid e the drugs as Officer Tovar app ro ached

. Defen se counsel said she had b een unable to lo cate Mr. Wa tson to

su bp oena him for trial and di d not anticipate calling the female

passen ger who had bee n in the back seat.
The court ex cluded the proffered evidence , reasoning tha t the incident described by Ms. Carter had low relevanc e t o the
facts of th e c ase against defendant because it involved a handgun
and not narcoti cs , and because it w o uld cause an undue consumption of time , requ iring a mini trial on the ot her incident. b. Applica ble l aw In People v. Dworak (202 1) 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

‘ c ourts s hould simply treat thir d

- party culpability evidence lik e any other evidence: if relevant it is ad missible ([E vid . Code, ]8

§ 35 0) unless its probative value is substantially outwei ghed by the risk of undue delay, prejudice, or confu sion ([ id

., ] § 352)

. ’ ”
Ev ide nce tending to show a third party commit ted the
crime is relevant. (

P eop le v. Brady (20 10) 50 C al.4th 547, 558 ( Brady ) .) The evidence must be capable of raising a reasonable doubt as to the defendant ’ s gu ilt, but need not amount t o

“ ‘ “ subs tantial pro of of a probability ” ’ ” the third party actually
committed the crime. ( Dw ora k

, supra , 11 Cal. 5th at p. 895.) Evidence of mere motive or oppo rtunity is not sufficient to raise a

reason able doubt. ( Ibi d .) “ ‘ [T] here must be dir ect or circumst antial eviden ce link ing the third person to the actual perpetration of the crime

. ’ ” ( Ibid

. ; acco rd, People v . Brac amontes (2022) 12 Cal.5th 977, 1001 [ “ ‘ We have repeatedly upheld the
exclusi on of third party culp ability evidence when the third party ’ s l ink to a crim e is ten uous or speculative. ’ ” ].)
Third party cu lpability evidence “ t ha t is relevan t s till may
be exc luded if it creates a substantial danger of prejudicing, confusing, or misleading the jury, or woul d consume an undue

amount of time. ” (

Bra dy

, supra , 50 Cal.4th at p. 558 ; see also Evid. Code, § 352.)
We review the trial co urt ’ s ruling ex cluding t he evi dence under the deferential abuse of discretion standard. ( Dworak

, supra , 11 Cal. 5th at p. 895 ; ac cord, Brady

, supra , 50 Cal .4th at

p

. 558

. )

c. Analys is
In Dworak

, supra , 11 Cal.5th at p age 895
, the Supreme Court upheld the exclus i on of th ird pa rty cul pabil ity evidence by
the trial court which had, like the court here, found t he probative
valu e of the proffered evidenc e of two different t h ird parties t o be9

substantially outweighed b y the risk of undue delay, prejudice or confusi on

. The female mu rder vi ctim in Dworak wa s foun d on a deserted stretch of beach. ( Dworak

, supra , 11 Cal. 5th at p. 88 7.)
She had last been see n alive at a party at the home of Robyn Jones, the mother of a friend of hers . ( Id . at p. 894.) The
defendant sou ght to introduc e evide nce r egarding two individuals associated with that home, Jay Campbell and Danny Carroll. ( I b id .) The evidence include d a pair of Campbell ’ s jeans found i n a bucket of sandy water at the home

. Campbell said his jeans had gotten sand y d uring a date at the beach with his girlfriend

, and h e had changed clothes at Jones ’ s ho me afterward. ( Ibid .)
A s to Carroll, a local drug dealer, the defendan t sought to
i ntroduce testimony from Jones that Car roll had writte n a letter

“ musing ” about wh at might have h appened to th e victim, as well as testimony from Jones ’ s son that Car roll had stolen his
mother ’ s ca r on the night the victim wen t missing

, and whe n it

was reco vered, the car was full of sand. ( Ibid .)
Dwor ak concluded the trial court had not abused its
discret ion in excluding the evidence related to both Campbell and Carroll, explaining “ th ere was no evidence placing Carroll i n proximity to [the v ictim] at the time of her death, a nd any link between the jea ns found in Jones ’ s garage and [t he victim ’ s]
d e ath res ted on speculation. Although the jeans could b e seen as circumstantial evidence that Campb el l was involved in [the
vic tim ’ s] death, such an in ference re quires speculation that the

sa nd and water on th e jeans were from the beach on wh ich [the
victi m ’ s] bod y was found, combined with additional speculation
that this was the result of Campbell ’ s pres ence a t [the victim ’ s ]

mur der and not, as Campb ell stated, a separate visit to the beac h10

that same weekend. The trial court reasonably concl uded that the p robativ e value of this evidence related to Carroll and Campbell, wh ich produced only speculative inf erences, wa s substantially outweighed by the ri sk that it w o uld cause undue delay, preju dice, or co nfusion. ” ( Dworak

, supra , 11 Cal.5th at

p

. 895.)
Simila r ly her e, the e vidence that Mr. Watson, the male passenger in the car with defendant at the time of th e charged
incident

, may have

, at some unspeci fied previous time

, tossed a handgun in to th e lap of Ms. Carter wh en he was pulled over in a n unrelated traff

i c stop was not sufficiently probative to warrant consuming trial time and confusing the jury. De fe ndant has not
established the trial court abuse d its discret ion in excluding the
testimon y of Ms. Carter.
d

. Subst antial e vidence
Defend ant contends hi s co nv i ction is not supported by
substantial evidence. He sa ys there is insufficient evid ence as to both possession and inten t to sell. We review the record u nder the familiar standard

. (See People v. Lee (2011) 51 Cal.4th 620, 632.) We find there is a mple e v idence to sup port the verdict.

“ ‘ Unlawful possession of a controlled substance for sale

req uires proof the defendant possessed the contrab and with the intent of selling it and with know ledge of both its presen ce and illegal characte r. ’ ” (

People v. Harr is (2000) 83 C al.App.4th 371,
374 ( Harris ) .) As the jury here was correctly instructed, the elements of the offense of po ssession wi th the intent to sel l may be proved by circumstantial e vidence and the reasonab le inferences drawn th erefrom . (CALC RIM Nos . 224, 225.) Moreover, possession of the controlled substance may be constructive or joint w ith another person. ( Peop le v. Willi ams11

(1971) 5 Cal.3d 211 , 215 [const ructive possession inclu de s areas accessible to and under “ the joint dominion and co ntrol o f the
accused a nd another ” ] ; see also C ALCRIM No. 2302 [ “ Two or

more p eople may possess somet hing at the same time. ” ].)
The evidence here established t hat defendant was in an
area known for narcotics activity, late at night, in a ca r he was
drivin g, with almost 9 gr am s of methamphetamine in a bag wedged b etween his seat and the center console, n umerous plastic baggies, a scale and over $2

, 7 0 0 in cash in his wallet

, including 45 twenty

- doll ar bills

. On such evidence, the jury could

r easonably con c l ude def e ndant possesse d the meth for sale,
notwithstandin g the fact there were two other individuals in the
car with him at th e time

. This eviden ce wa s bolste red by the expert testimony of Offic er Larson , an experienced nar cotic s officer

. He testified t hat
in h is opinion, ba sed on the evidence found in the car

, that defendant possessed the meth for pu rposes of sale. The jury was justified in rely ing on that o pinion in finding defendant guilty. ( Harris
, supra , 83 Cal.App.4th at pp. 374

- 37 5 [ “ ‘ experienced offi cer s may give the ir opinion that the narcotics are held for purposes of sale based upon such matters as the quanti ty,

p ackaging and normal u se of an indi vidual ’ ” ].)
D ISPOSITION
Th e j udgm ent of conviction is affirmed.

G RIMES , J

. W E CONC UR :

STRATTON, P. J. W ILEY, J.