Filed 8/7/14 P. v. Lewis CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent,

v. MELVIN CHARLES LEWIS, Defendant and Appellant. F066495 (Super. Ct. No . MCR035047A)



### OPINION

THE COURT * APPEAL from a judgment of the Superior Court of Madera County. Ernest J. LiCalsi, Judge. Barbara Michel, under appointment by th e Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorn ey General, Louis M. Vasquez and Leanne Le Mon, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Kane, Acting P.J., Detjen, J., and Franson, J.2 INTRODUCTION Appellant and defendant, Melvin Charle s Lewis, was charged in an amended information filed on September 3, 2010, with transporting cocaine base (Health & Saf. Code, § 11352, subd. (a), count 1) and possessing cocaine base for the purpose of sale (Health & Saf. Code, § 11351.5, count 2). The amended information further alleged that defendant had two prior convic tions within the meaning of Health and Safety Code section 11370.2, subdivision (a) and a prior prison term enhancement (Pen. Code, § 667.5, subd. (b)). Defendant’s first trial en ded on October 14, 2010, with a mistrial. Defendant’s retrial began on October 1, 2012. On October 3, 2012, the trial court denied defendant’s motion for a mistrial. On October 9, 2012, the jury convicted defendant of both counts. In a bifurcated proceeding, defe ndant waived his constitutional rights and admitted the enhancem ent allegations. On January 4, 2013, the trial court sentenced defendant to a total term of 11 ye ars in county jail. Defendant was awarded 289 days of presentenc e custody credits. Defendant contends on appeal that the tr ial court abused its discretion in denying his motion for mistrial based on the arrest ing officer’s referen ce to prior narcotics convictions. The trial court advised the jury with instructions to disregard the officer’s testimony in this regard. We affirm the judgment. FACTS Execution of Search Warrant on Defendant’s Residence Madera Police Officer Shan t Sheklanian has significa nt training and experience with narcotics trafficking, sa les, and possession. Sheklani an is cross-deputized as a federal marshal with the Fugitive Apprehen sion Team, has experien ce working with the Drug Enforcement Administration, and is a member of the Commu nity Response Unit (CRU). Sheklanian’s partner, Officer Jason Gu tknecht, is also well trained in drug3 trafficking. In April 2009, the CRU was fo cused on narcotics trafficking in Madera. Officers Kutz and Paul, and Sergeant Autr y were also members of the CRU. On April 24, 2009, th e CRU prepared to execute a search warrant at a residence occupied by defendant and his girlfriend, Brandi Williams, on Pescara Way in Madera. Defendant and Williams were suspected of co nducting drug sales. Sheklanian was the case agent in charge of the i nvestigation. The officers waited outside defendant’s home to execute the warrant because narcotics dealers often keep their drugs in a place where they can flush them down the to ilet if the police arrive. When defendant left his house, Kutz radioed Gutknecht and informed him defendant was approaching his position. Williams was sitting in the front passenger seat of defendant’s car. Kutz activated his red and blue emergency lights to stop defendant. Sheklanian pulled in behind Gutknecht with his own vehicl e. When police emergency lights are activated in a residential neig hborhood, the driver usually pulls over immediately. Defendant did not pull over imme diately, but drove about three-tenths of a mile, or about four city bl ocks, before pulling over to an apartment complex and stopping. Gutknecht detained defenda nt and Sheklanian detain ed Williams. Cell phones were confiscated from both defendant and W illiams. Sheklanian handed Gutknecht a cell phone that was ringing. When Gutknecht answered it, a calle r asked for defendant. The phone was constantly ringing, at least 20 or 30 times, while defenda nt and Williams were being detained. Defendant and Williams both had driver’s licenses with the address for the search warrant. Defendant had $153 in small denominations in his wallet. Williams had $411 in the wallet found in her purse. Williams testified that she a nd defendant were not employed at the time of their arrest. Williams and defendant were br ought back to their residence on Pescara Way so officers c ould execute the search warrant.4 Sheklanian searched the master bedroo m of the defendant-Williams residence. Sheklanian found a backpack with $450 in mostly small currency. Sheklanian found a Cricket phone bill addressed to Williams for that address. Drug dealers commonly have two or more cell phones. One phone is typica lly a “clean” phone for friends and family. Drug dealers will have another phone from Cr icket for drug transactions because unlike other carriers, Cricket does not require pe rsonal information fo r one to become a subscriber on its network. This makes it mo re difficult for law enforcement to wiretap the phone or subpoena phone records. Sergeant Autry answered one of the cell phones and conversed with someone who identified herself as Sheri. Sheri asked if she could have “3 for 25.” This meant that the caller wanted three rocks of co caine for $25. Gutknecht found a pipe underneath a couch cushion that was used for smoking methamphe tamine. There was burnt white residue on the bottom of the bulbous part of the pipe. 1 Williams testified that the pipe belonged to her. Williams claimed that she was the onl y one using drugs, defe ndant was not using drugs, and she did not use drug s in front of defendant. Female Officers Paul and Keiser took W illiams to the garage during the search. Williams did not appear to be under the influence of any drug. Although Williams was initially calm, she became upset and was crying. Williams sa id she had last used drugs one or two months earlier. Th e officers asked Williams if sh e had anything illegal on her person. Williams told the officers that defe ndant handed her drugs. Williams admitted she had drugs inside her unde rwear. Paul undid Williams’s pants and retrieved a bag of rock cocaine from her pants. 2

1 Methamphetamine was not found in the residence.
2 The officers record ed their questioning of Williams and Williams’s replies. The recording was played to the jury.5 The bag was turned over to Sheklanian. It containe d 25 smaller wrapped bindles of rock cocaine. A single bindle weighed .1 5 grams and all of the bindles were a similar size. Drug users could not use 25 bindles of rock cocaine in a day and maintain a normal home. Williams’s residence was very clean and well kept. Th e typical rock cocaine user carries one or two rocks with them. Pre- packaging bindles of drugs in set quantities makes sales of the drugs easy and quick by way of hand-to- hand transactions that draw little attention. Sheklanian opined that de fendant and Williams possesse d the cocaine base for sale. Sheklanian based his opinion on several facts. Williams had 25 separate bindles, individually packaged that we re also the same size and weight. Defendant and Williams had cell phones and received 25 calls on one phone and 26 calls on th e other. Defendant and Williams had cash in small bills and separa te locations in the amounts of $450, $411, and $153. Sheklanian explained that drug dealers are aware police offi cers are going to search a male more thorough ly than a female and commonl y use female companions who carry narcotics for them. Women hide contraba nd in their bras and panties because they know a police officer is not going to touch t hose places during a regular patdown search. Because defendant took a long time to pull over, he had plenty of time to give the rock cocaine to Williams. Testimony of Defendant’s Prior Convictio ns and Court’s Admonition to Jury During trial, Sheklanian said that defendan t had been arrested, convicted, and sent to prison twice. Defense counsel immediatel y objected that the statement assumed facts not in evidence and the court excused the jury . The court told the prosecutor he could introduce evidence that defendant had been ar rested for possession of narcotics, but not that he had prior convictions. The prosecu tor explained that he did not admonish Sheklanian not to mention the convictions, but did not expect him to talk about them.6 The court indicated it would admonish the jury that there was no evidence before it that defendant had a prior conviction or had been to prison. Defense counsel moved for a mistrial, ar guing that the bell had been rung and it could not be unrung. The court denied de fendant’s motion for a mistrial and found generally that evidence of defendant’s prior dr ug transactions was prejudicial, but highly probative to show th e identity of the posse ssor as well as to sh ow the knowledge and intent of the possessor. The court told the jury that it had st ricken Sheklanian’s testimony to the prosecutor’s last question and th e jury would not hear any ev idence concerni ng defendant going to prison or being convict ed, such information was irre levant, and the jury was not to consider it in any way. The court furt her instructed the jury that defendant’s punishment was totally irrelevant on the i ssue of guilt and the ev idence the jury was hearing was only relevant to show the identity of the perpetrator, or the knowledge and intent of the perpetrator. Evidence of Defendant’s Prior Arrests Officer Jeremy Harlow testified that on Au gust 16, 2006, he wa s on routine patrol when he saw defendant driving. Harlow was aware defendant di d not have a valid driver’s license. Defendant pulled over w ithout being stopped by Harlow. Harlow’s search of defendant’s car yielded a baggie with 13 individually wrapped doses of rock cocaine in the car collectivel y weighing 4.2 grams. There were no devices to ingest cocaine in the car. Defendant had two cell ph ones and $1,800 in cash. Harlow believed defendant possessed cocaine base for sale. Sergeant Giachino Chiaramonte participated in the execution of a search warrant on August 28, 2006, on a home defendant shared with his mother. Defendant was detained after he left his residence. He was carrying a Cricket cell phone. Inside defendant’s bedroom, investigat ors found one-by-one inch plas tic resealable baggies used7 as packaging material and $490 in cash in male clothing in th e closet. On the floor in the bedroom near the foot of the bed, investigator s also found a pair of pants with two plastic bags in a pocket. One of those plastic bags contained cocaine base residue. Defendant pulled a bag from his buttocks with 82 indi vidually wrapped pieces of cocaine base weighing 19.2 grams. Chiara monte opined that defendant possessed the drugs for sale. Defense Evidence Williams described defendant as a good friend a nd dated him off and on over the past six years. Williams admitted that as a resu lt of the events that tr anspired in this case, she pled guilty to possession of drugs for sale. Williams said she lied to police when she told them defendant handed the drugs to her. Williams said defendant was not selling drugs, he did not know she had drugs in he r underwear, and the two were not working together. Williams thought she was high on drugs when she talked to the police officers. Williams said she was usi ng both methamphetamine a nd cocaine base. Williams explained that she did not re member answering the officers ’ questions. Williams denied that she or defendant were dr ug dealers and stated that she bought the 25 packets from a drug dealer whose name she did not remembe r. Williams said she probably could smoke 25 rocks of cocaine in one day. Just prior to her arrest, Williams rece ived a tax refund of a little over $5,800. Williams gave some mone y to defendant and ha d money in her purse to pay bills. OTHER CRIMES EVIDENCE Defendant contends that th e other crimes evidence adm itted by the trial court, as well as Officer Sheklanian’s testimony con cerning his convictions and imprisonment, was unduly prejudicial and require the revers al of his convictions. Defendant calls the “highly inflammatory” ev idence concerning other crimes “the skunk in the jury box.”8 Generally, evidence that a defendant has committed crimes other than those for which he or she is on trial is inadmissible to prove bad character, predisposition to criminality, or the defendant’s conduct on a specific occasion. Evidence Code section 1101, subdivision (b), however, permits evidence of a defenda nt’s past criminal acts when identity, motive, or knowledge are relevant to prov e a material fact at issue. Evidence of prior drug use and convictions is generally admissible under Evidence Code section 1101, subdivision (b) to establish that drugs were po ssessed for sale rather than for personal use and to prove knowledge of the narcotic nature of the drugs. 3 ( People v

. Williams (2009) 170 Cal.App.4th 587, 607 ( Williams ).) A trial court should grant a motion for mi strial only when a defendant’s chance of receiving a fair trial has been irreparably dama ged. The prejudice mu st be incurable by admonition or instruction. Whether a partic ular incident is incurably prejudicial is speculative by its nature. The trial court is ve sted with considerable discretion in ruling on motions for mistrial. We review the tria l court’s ruling on a motion for mistrial for abuse of discretion. ( People v

. Avila (2006) 38 Cal.4th 491, 573 ( Avila ); see also People

v

. Lightsey (2012) 54 Cal.4th 668, 718.) In Avila , reference to a defendant being recently in prison was cured by the trial court’s ad monition to the jury to not consider the statement for any purpose. ( Avila , at p. 574.) The jury is presumed to have followed the court’s instructions. ( Ibid .; People v

. Boyette (2002) 29 Cal.4th 381, 436.) Defendant’s right to a fair trial was not undermined by the trial court when, following Evidence Code sectio n 1101, subdivision (b), it pe rmitted Officers Sheklanian, Harlow, and Chiaramonte to testify concerni ng defendant’s prior arrests in 2006 for

3 The Williams case further found that evidence of prior arrests that did not result in convictions was inadmissible as proof of guilt or for impeachment. ( Williams, supra, 170 Cal.App.4th at p. 610.) Becau se defendant was convicted of the drug offenses referred to by Officers Harlow and Chiaramonte, they co uld be used to show identity, knowledge, and intent pursuant to Evidence C ode section 1101, subdivision (b).9 narcotics sales. These incidents were releva nt to show that defendant had knowledge of the nature of illegal narcotics and to show his intent to sell rather than to merely possess rock cocaine for his personal use. Officer Sheklanian also referred to defe ndant’s prior convicti ons for drug sales and his time in prison for those offenses. The court admonish ed the jury that it was to disregard these statements because they were stricken from the record . The court further advised the jury that any reference to defe ndant’s other crimes was admitted solely for the purpose of establishing identity, or the defendant’s knowledge and intent. On appellate review, we presume that the jury fo llowed the trial court’s instructions and did so in the instant action. We find Avila and Williams controlling on the contentions raised by defendant and find no error in the trial court’s denial of the new trial motion. DISPOSITION The judgment is affirmed.