P. v. Ludwick

Filed 11/20/06 P. v. Ludwick CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
EARL RICHARD LUDWICK,
Defendant and Appellant.
G035624
(Super. Ct. No. 04HF0395)
O P I N I O N
Appeal from a judgment of the Superior Court of Orange County, Robert
W. Fitzgerald, Retired Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed as
modified.
Mark S. Devore, under appointment by the Court of Appeal, for Defendant
and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant
Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-

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Ladendorf and Heather F. Crawford, Deputy Attorneys General, for Plaintiff and
Respondent.
* * *
Earl Richard Ludwick appeals from the judgment sending him to prison for
a total of six years, four months, after a jury convicted him of possession of
methamphetamine for sale, simple possession of cocaine and transportation of
methamphetamine. (See Health & Saf. Code, §§ 11350, subd. (a), 11378, 11379, subd.
(a).) 1 In a bifurcated proceeding, the court found he had a prior prison term as provided
in Penal Code section 667.5, subdivision (b). On appeal, Ludwick argues the trial court
abused its discretion in permitting the prosecution a rebuttal witness but not allowing the
defense to present another expert witness on surrebuttal. He then attacks the sentencing
scheme, contending the court should have stayed the term for transporting
methamphetamine under Penal Code section 654, and not ordered a concurrent term.
With this one issue, we agree. On the other hand, Ludwick contends the trial court
improperly used the same fact both to impose the enhancement of the prior prison term
and to order the terms to be served consecutively, which is an erroneous dual use of the
same fact. He also characterizes the California sentencing laws, permitting an
aggravated or consecutive term, as violating the dictates of Blakely v. Washington (2004)
542 U.S. 296. However, we are bound by the contrary holding of People v. Black (2005)
35 Cal.4th 1238 under the mandate of Auto Equity Sales, Inc. v. Superior Court (1962) 57
Cal.2d 450, 455. Therefore, we order the judgment modified and, as modified, we
affirm.
1 He also faced, and was found guilty of a misdemeanor count of possessing narcotics
paraphernalia. (See Health & Saf. Code, § 11364.)
All further section references are to the Health and Safety Code, unless otherwise stated.

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FACTS
Ryan Reilly, a Newport Beach Police Officer, stopped Ludwick one
evening because he was driving a truck with a blocked rear license plate. Ludwick acted
suspiciously, and Ryan asked him to step out of the truck. A subsequent conversation
alerted the officer to a black bag which Ludwick said might contain contraband, as it had
been left in the truck by another person. He also admitted that he had ingested
methamphetamine earlier in the day.
A trained police dog was brought to the scene and “alerted” on the black
bag. Inside of that bag, the officer found 2.9 grams of cocaine in one plastic baggie, .1
grams of methamphetamine in a smaller baggie, .3 grams of methamphetamine in a
twisted baggie inside some clothes, and .7 grams of methamphetamine in a final baggie.
There was also a clear glass pipe for smoking methamphetamine, three glass vials,
miscellaneous empty baggies, a scale, a scalpel, razor blades, and syringes. In his wallet,
Ludwick had $3550 in cash.
The prosecution called a detective from the Newport Beach Police
Department to testify as an expert in the field of illegal narcotics sales and distribution,
even though his experience in the field was rather minimal. He testified that, in his
opinion, the various amounts of methamphetamine were possessed for the purposes of
sales.
The defense presented its case without the testimony of Ludwick. It relied
on the expert testimony of Steven Strong, a private investigator who had retired from the
Los Angeles Police Department after 20 years of service. Strong, who had testified in
narcotics cases more than 400 times and had been involved in over 1000 drug sales cases,
concluded that the methamphetamine was possessed by Ludwick for his own personal
use.
Over the defense objection, the prosecution called Sergeant Daron Wyatt of
the Placentia Police Department on rebuttal. He testified that his extensive experience in

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narcotics investigation revealed that chronic users of methamphetamine would consume
no more than one-half to three-quarters gram of methamphetamine a day. He rejected the
idea that it was even possible for someone to use two grams of the drug daily. He said
that very rarely did individuals carry scales with them when they carried
methamphetamine solely for their own personal ingestion and not for sales. Finally, he
testified he had arrested people for selling in the odd-lot quantities possessed by
Ludwick.
DISCUSSION
Permitting Rebuttal Yet Barring Surrebuttal Evidence
Ludwick contends the trial court abused its discretion in permitting the
prosecution to call an expert witness on rebuttal. He characterizes the witness’s
testimony to be merely duplicative of that given by Eric Peterson in the prosecution’s
case-in-chief. Thus, the rebuttal witness was unnecessary. Moreover, once the court
permitted the prosecution to present the rebuttal expert, he argues it was improper for the
court to bar the defense from doing the same thing on surrebuttal.
The trial court has the inherent power to control the parties’ general
presentation of their case. Specifically, the court has the discretion to limit rebuttal and
surrebuttal evidence. When a trial court exercises that discretion, the decision must be
upheld on appeal in the absence of a clear showing of abuse. (See Pen. Code, § 1093,
subd. (d); People v. DeSantis (1992) 2 Cal.4th 1198, 1232-1233.)
Proper rebuttal evidence is that which is made necessary by the defense
case. It should be noticed to the opposing party in a timely fashion and should be in
response to factual points raised in the defense case. However, latitude should be
accorded to both parties in their presentation of evidence, and even cumulative evidence
is properly admitted on rebuttal where it rehabilitates the prosecution’s case-in-chief after
pointed attack by the defense. (See generally 3 Witkin, Cal. Evidence (4th ed. 2000)
Presentation, §§ 71-72, pp. 102-105; People v. Young (2005) 34 Cal.4th 1149, 1199.)

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The expert testimony of Wyatt on rebuttal was appropriate to respond to the
focused attack on both the expertise of the inexperienced detective and his conclusions
admitted in the prosecution’s case-in-chief. The defense was apprised of the rebuttal
witness early: The prosecution informed the defense and the court of its plan to call Sgt.
Wyatt while the defense was still putting on its case, and thus, no sudden surprise
occurred. (See People v. Graham (1978) 83 Cal.App.3d 736, 741.) Moreover, Wyatt’s
testimony was focused on the points raised by Strong and which were absent from
Peterson’s original expert testimony. Ludwick has failed to show the trial court exhibited
any abuse of its discretion in its decision.
Ludwick responds that it was then unfairly barred from bringing further
expert testimony to bolster its expert’s opinion on surrebuttal. However, the court did not
bar surrebuttal. The court inquired who it was the defense intended to call as it was the
time for any surrebuttal to be presented. The defense replied, “I don’t know yet, . . .”
The court then denied the request. At that point the defense requested it be allowed to
recall its expert, Strong, for surrebuttal, and the court denied that request, too, noting that
Strong had already testified as to the specific issue the defense wanted to rebut. Thus, the
denial was fully within the court’s discretion to govern the examination of a witness
already excused. (See 3 Witkin, Cal. Evidence (4th ed. 2000), Reexamination and Recall
§ 78, p. 112 [“once the witness has left the stand, after either direct or cross-examination,
to recall him or her for further examination is a different matter, particularly after each
party has presented its entire case in chief. Hence, after a witness has been excused from
giving further testimony in the action, the witness cannot be recalled without leave of the
court. Leave may be granted or withheld in the court’s discretion.”].)
Sentencing Reasons for Consecutive Service
Ludwick argues that the court improperly used the same fact to both
aggravate the term for transporting methamphetamine and to order the terms to be served
consecutive to each other. Although no objection was entered at the hearing to the

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sentencing choices and reasons, and the probation report clearly informed the defense in
advance that a prison term was mandated for the defendant, we address the issue rather
than rely solely on Ludwick’s waiver of it (cf. People v. Scott (1994) 9 Cal.4th 331, 353)
simply because the record fails to support his allegation.
The court stated at the sentencing hearing that the “base term is going to
be aggravated under the authority of Rule of Court [rule] 4.421(B)(3), [that] defendant’s
prior convictions as an adult are fairly numerous beginning in 1981.” The court then
decided “to consecutively sentence [Ludwick] as follows and state the reasons for that:
Under rule 4.421(B) . . . defendant has served [a] prior prison term under [4.]421(B)(3).
Also 4.421(B)(4), defendant was on parole when the crime was committed in this
case. . . .” A few moments later, the trial court added “additional reasons under
4.421(B)(5), defendant’s prior performance on parole was unsatisfactory as evidenced by
parole violations previously.”
Thus, the reason for the aggravated term was that Ludwick’s criminal
history included numerous convictions reaching back more than 20 years. The reason for
the consecutive sentencing was because his prior performance on parole was
unsatisfactory and that he was on parole when he committed the crime. Although the
court also said it was due to his prior prison term—which was erroneously cited because
the court imposed a one-year term for that prior prison service—there remained a proper
reason to support the consecutive service. (See People v. Davis (1995) 10 Cal.4th 463,
552.) Thus, Ludwick’s complaint must be rejected.
DISPOSITION
As the Attorney General concedes, the court misspoke when it ordered the
execution of sentence for the possession for sale of the methamphetamine after selecting
the count of transporting methamphetamine as the base term. As both counts were
committed for the single intent and objective of selling the methamphetamine, the term of
eight months for that count cannot be ordered without violating the provisions of Penal

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Code section 654. Thus, we modify the judgment by ordering the eight-month term
imposed for count I to be stayed pending completion of service on the other counts. (See
Pen. Code, § 1260.) Upon successful completion, the stay is to become permanent. Once
modified, we affirm the judgment.
SILLS, P. J.
WE CONCUR:
ARONSON, J.
FYBEL, J.

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