California Court of Appeal Apr 28, 2014 No. E058617Unpublished
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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E058617
v. (Super.Ct.No. BLF1200243)
FRANCISCO FLORES CORNEJO, OPINION
Defendant and Appellant.
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 Code1 section 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
1 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 consecutively2 to 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,
2 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
(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.
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AI Brief
AI-generated · verify before citing
Holding. The trial court did not abuse its discretion by admitting evidence of a prior uncharged drug-related incident to prove the defendant's knowledge of the narcotic nature of the heroin he was charged with possessing.
Issues
Whether evidence of a prior uncharged incident involving a handmade syringe was admissible under Evidence Code section 1101, subdivision (b) to prove knowledge.
Whether the probative value of the uncharged misconduct was substantially outweighed by its prejudicial impact under Evidence Code section 352.
Disposition. Affirmed with directions.
Quotations verified verbatim against the opinion
“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.”
“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.”