Opinion
F041666.
10-8-2003
THE PEOPLE, Plaintiff and Respondent, v. LAZARO BUSTOS ABARCA, Defendant and Appellant.
Law Offices of Russell S. Babcock and Russell S. Babcock, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, J. Robert Jibson and John A. OSullivan for Plaintiff and Respondent.
OPINION
THE COURT *
Lazaro Bustos Abarca appeals from his conviction of unlawful transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)), possession of methamphetamine for sale (Health & Saf. Code, § 11378), possession of methamphetamine while armed with a firearm (Health & Saf. Code, § 11370.1, subd. (a)), and possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)). In October of 2002 the trial court sentenced him to a total term of nine years. He timely appeals, contending the lower court erred in admitting evidence of a prior similar possession of methamphetamine incident under Evidence Code section 1101, subdivision (b). We affirm.
Further statutory references are to the Evidence Code.
FACTS
On June 15, 2002, Bakersfield CAL-METT officers conducted a parole search of appellants person and home. They also searched a white Nissan driven by appellants girlfriend and apparently owned by appellant. Underneath the hood of the car officers found a total of 83.01 grams of methamphetamine and a brown paper bag containing a digital scale. In the trunk of the car officers found .31 grams of methamphetamine melted into tinfoil. Officers searched appellant and found .45 grams of methamphetamine in the right coin pocket of his pants, and 19.72 grams of methamphetamine in his left front pants pocket. There was $200 in appellants wallet. Police also found in the residence pay owe sheets, two smoking pipes, black plastic baggies, and a shotgun with ammunition. Lying in plain view in the front yard was a plastic cylinder containing another 3.14 grams of methamphetamine. Appellant was arrested, charged and convicted of the offenses set forth above.
California Multijurisdictional Methamphetamine Enforcement Team.
DISCUSSION
Appellant contends he was deprived of due process and a fair trial by the admission of evidence regarding his 1998 arrest for the possession and sale of methamphetamine. (U.S. Const., 6th & 14th Amends.) We disagree.
Before trial, the People sought a ruling allowing admission of evidence of appellants prior arrest for possession and sale of methamphetamine to prove knowledge and intent under 1101, subdivision (b). The prosecutor argued the evidence was admissible for those purposes and not unduly prejudicial because the current offense was substantially similar to the facts leading to the 1998 arrest in that both involved appellants possession of a gun, large amounts of methamphetamine and a car that he apparently owned but not in his own name. Defense counsel maintained that the incident had weak probative value and was unduly prejudicial.
Section 1101, subdivision (b) provides in its entirety: "Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act."
The court ruled the evidence was admissible to show knowledge and intent. The court explained:
"THE COURT: Well, it appears to the Court that the 1998 incident which led to the 1999 conviction is a set of facts which would appropriately be considered for the use as evidence of other crimes, attempt to show material issue, and that is the issue of intent to sell or purpose for which the contraband is possessed. The issue of purpose of sell, intent to sell, of course, always is an issue in charge of 11378. Defense intends to, appears, contest that issue, and under those circumstances, it would appear that the prior incident is one that would show, number one, the purpose for which other methamphetamine possessed had been used or were to be used, and that is for purpose of sale. And that has relevance to the question of what the contraband in question might be used or for what purpose it might be used."
The court went on to state that the prejudice under section 352 was not so great as to outweigh the probative value, especially given the amount of contraband found in this case. The court further stated that the similarity of the car with a "questionable ownership or identity" as well as the firearm, made the incident similar and admissible for purposes of proving intent.
In People v. Ewoldt (1994) 7 Cal.4th 380, our Supreme Court explained that the admissibility of evidence pursuant to section 1101, subdivision (b) depends on the degree of similarity between the uncharged act and the charged offense. The standard for admissibility of evidence to prove intent is:
"The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent.... `[T]he recurrence of a similar result ... tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such an act .... ... In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant `"probably harbor[ed] the same intent in each instance." ..." (Id. at p. 402, citations omitted.)
Once the trial court determines that a prior bad act is admissible under section 1101, subdivision (b), it must conduct a balancing of the probative value against its prejudicial impact. (People v. Ewoldt, supra, 7 Cal.4th at p. 404.)
A court must therefore examine whether the probative value of prior bad act 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. (§ 352.) The trial courts determinations that prior acts are admissible under sections 1101, subdivision (b), and 352 will not be disturbed on appeal absent a clear showing of an abuse of discretion. (People v. Linkenauger (1995) 32 Cal.App.4th 1603, 1609-1610.)
Thus, how probative a prior act is depends in large part upon how similar it is to the current offense. The factors affecting the prejudicial effect of uncharged acts include whether the uncharged acts resulted in criminal convictions and whether the evidence of uncharged acts is stronger or more inflammatory than the evidence of the charged offenses. (People v. Ewoldt, supra, 7 Cal.4th at pp. 404-405; People v. Balcom (1994) 7 Cal.4th 414, 427; People v. Falsetta (1999) 21 Cal.4th 903, 917.)
With these principles in mind, we easily conclude the trial court did not abuse its discretion in admitting evidence of appellants 1998 arrest for possession for sale of methamphetamine. (People v. Waidla (2000) 22 Cal.4th 690, 717.) Intent was a critical issue for the prosecution. Evidence of prior activity involving possession for sale was highly probative on that issue. (See, e.g., People v. Pijal (1973) 33 Cal.App.3d 682, 691.) As noted by the trial court, there were sufficient similarities between the prior drug-related activity and the current charged crime. In each instance, appellant possessed large quantities of methamphetamine, apparently appeared to own a car he had registered or title for in someone elses name, and possessed a gun. Moreover, any prejudice flowing from the admission of such evidence was dissipated by the courts limiting instruction, which the jury is presumed to have understood and followed. (People v. McDermott (2002) 28 Cal.4th 946, 999.)
Appellant nevertheless maintains the trial courts analysis was faulty because there was evidence tending to show that it was "very common" for those dealing in methamphetamine to have cars registered in other peoples names and to carry a weapon. Thus, appellant claims the similarities between the two incidents were only generic in nature and therefore "only served to inform the jury that appellant had a history, or propensity, for committing the offense he was charged with in the instant case." As the People point out, however, while the incidents here are not "particularly distinctive," they need only be "`sufficiently similar [to the charged offenses] to support the inference that the defendant "probably harbored the same intent in each instance"" to be admissible under section 1101, subdivision (b). (People v. Lewis (2001) 25 Cal.4th 610, 636-637 [finding incidents that are "not particularly distinctive" sufficiently similar to warrant admission and outweigh any prejudice].) There is no question these incidents contained such similarities. Furthermore, because of the large amounts of methamphetamine found on appellant in the current offense, admission of evidence of the prior incident involving large amounts of methamphetamine was not unduly prejudicial. (§ 352.)
Finally, appellant maintains that under People v. Falsetta, supra, 21 Cal.4th 903, his due process rights were violated because the evidence was unconstitutionally prejudicial. As previously set forth, the evidence was not so prejudicial as to be inadmissible under section 352, and did not rise to the level of a due process violation. (People v. Falsetta, supra, 21 Cal.4th at p. 917.) There was no abuse of discretion.
DISPOSITION
The judgment is affirmed.