P. v. Lopez CA1/5

Filed 6/28/13 P. v. Lopez CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIRST APPELLATE DISTRICT DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent, A132444

v. (Humboldt County Super. Ct. No. CR1100590) JOSE HERNANDEZ LOPEZ,

Defendant and Appellant. _________________________________/

A jury convicted appellant Jose Hernandez Lopez of, among other things, transportation to sell a controlled substance (Health & Saf. Code, § 11352, subd. (a)) and the trial court sentenced him to state prison. On appeal, appellant contends the court erred by admitting evidence of his 2007 drug possession conviction. We affirm. FACTUAL AND PROCEDURAL BACKGROUND In 2007, appellant pleaded guilty to possessing heroin for sale (Health & Saf. Code, § 11351) and was placed on probation. In February 2011, the People charged appellant with possession of a controlled substance for sale (Health & Saf. Code, § 11351), transportation to sell a controlled substance (Health & Saf. Code, § 11352, subd. (a)), use of a false compartment (Health & Saf. Code, § 11366.8, subd. (a)), and giving false information to a police officer (Pen. Code, § 148.9, subd. (a)). 1

Before trial, appellant moved to exclude evidence of the 2007 conviction. The prosecution opposed the motion, contending the evidence was admissible under Evidence Code section 1101, subdivision (b)1 because the offense was “relevant to material facts in issue which are identity, motive, opportunity, scheme and knowledge.” In 2007, Los Angeles law enforcement officers “observed the defendant and another male make contact. The two men were then approached by the law enforcement officers. The defendant gave permission for his vehicle to be searched . . . . The defendant pled guilty to the charge of possession for sale[ ] of heroin . . . .” The People argued the crimes were sufficiently similar to permit introduction of the 2007 conviction and were relevant to prove appellant was “the person responsible for the drugs concealed and that he knew of the substance‟s nature as a controlled substance.” In arguing against the motion, the prosecutor explained law enforcement observed a man approach appellant in a “high drug area[.]” The officers talked to appellant. “He consented to a search of the car and in the left air duct of the vehicle they found a quantity of heroin . . . five point three grams. . . .” The prosecutor argued the 2007 and 2011 incidents were sufficiently similar because, in “both cases [appellant had] custody and control of a quantity of heroin. Both cases it‟s in a concealed compartment in the vehicle. Both cases he consents presum[ably] because he doesn‟t believe that law enforcement is actually going to find where he‟s concealed the heroin.” After hearing the parties‟ argument, the court denied the motion and admitted evidence of appellant‟s 2007 conviction. The court concluded the evidence was relevant under section 1101, subdivision (b) to support an inference of “common design and plan” and that “the prejudicial effect is such that it outweighs the probative value.” Prosecution Evidence Los Angeles Police Officer Enrique Hernandez testified about appellant‟s 2007 conviction. On August 3, 2007, Officer Hernandez was working in an area of Los Angeles known for the “use and sales of narcotics.” Hernandez saw a known drug dealer