Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC587468
RUSHING, P.J.
STATEMENT OF THE CASE
A jury convicted defendant Andre Lovon Duncan of selling cocaine base and resisting arrest. (Health & Saf. Code, § 11352, subd. (a) [transportation, sale, or distribution]; Pen. Code, §§ 1203.073, subd. (b)(7), 148, subd. (a)(1) [resisting, delaying, obstructing].) After the verdict, defendant admitted that he had a prior conviction for selling drugs and had served a prison term. (Health & Saf. Code, §§ 11352, 11370.2, subd. (a), 11370, subds. (a) & (c).) The court imposed a term of four years for selling cocaine base, a consecutive three-year term for the prior drug conviction, a consecutive one-year term for the prior prison term, and a concurrent six-month jail term for resisting arrest.
On appeal from the judgment, defendant claims the court erred in granting a mid-trial continuance, admitting evidence of an uncharged prior drug sale, failing to instruct jurors to view evidence of an admission by him with caution, and restricting cross-examination of a prosecution witness. He also claims defense counsel provided ineffective assistance in failing to object to the continuance and evidence of his prior drug conviction.
We affirm the judgment.
FACTS
On April 3, 2005, around 7:00 a.m., Officer Ted Urban of the San Jose Police Department was patrolling undercover near a bus stop close to Fountain Alley in San Jose, an area known for rock cocaine trafficking. His attention was drawn to defendant, who was engaging those waiting for and exiting buses. At one point, he observed defendant talking to Howard Posey. Officer Urban then saw Posey give defendant money; and in exchange, defendant gave Posey something, which Posey put into his pocket. Posey then walked away, examined the item, and put it back into his pocket.
Officer Urban suspected a drug transaction and confronted Posey. Posey admitted that he had just bought some rock cocaine that he put it in his pocket. Officer Urban searched him and found a piece of rock cocaine wrapped in clear plastic in Posey’s pocket.
Officer Urban arrested Posey and then called for assistance to look for defendant. When he found him and identified himself, defendant fled. Officer Urban broadcast defendant’s location, and Officer Leo Prescott of the San Jose Police Department spotted, pursued, and ordered him to stop. Defendant kept running. Officer Prescott pursued and finally caught him. However, defendant managed to escape and continued to flee. Officer Matthew Hayward joined the pursuit and together he and Officer Prescott caught defendant. Officer Urban met up with them, and the officers had to use force to overcome defendant’s resistance, subdue, and arrest him. At that time, defendant possessed $148 in cash but no drugs. Officer Urban retraced defendant’s path and found a jacket and an empty water bottle.
At trial, Posey testified that he saw three black men at the bus stop and asked if they had any rock cocaine. He bought two rocks from one of them and put one in each pocket. When he saw Officer Urban approaching, he could tell he was a police officer. He intended to throw both rocks away, but he was able to discard only one. He identified defendant as the seller.
Posey testified that for a few months before his arrest, he had been an informant for the police, identifying people who bought and sold drugs. However, he was not working as an informant when he was arrested. Posey admitted that he had prior convictions for possessing rock cocaine, robbery, and “[i]nsufficient funds.” He also admitted that before defendant’s preliminary hearing, he lied to the prosecutor, saying defendant was not the person who had sold him the rock cocaine. Posey explained that he lied because defendant had threatened him in the holding cell, and he was afraid. Specifically, defendant called him a “snitch” and said he would be “down in Delano or North Curran [sic] State Prison” when Posey got there.
Officer Urban testified that drug sellers commonly carry water or soda bottles to hold packages of drugs or, when necessary, wash down drugs they are holding in their mouths. He also testified that it was common for sellers to discard or swallow drugs when confronted by the police.
The Uncharged Drug Sale
On May 14, 2001, undercover Officer Robert Harris was at Fountain Alley and observed defendant and Maria Medina walk to a bench and sit down facing each other. Medina give defendant some money, and defendant spit two pieces of rock cocaine wrapped in plastic out of his mouth and onto the ground near Medina’s feet. When Medina picked them up, Officer Harris intervened, seized the drugs, and arrested her. At the same time, defendant fled.
Officer Harris broadcast defendant’s description, and a short time later, he spotted defendant and identified himself. Again defendant ran. Ultimately, Officer Harris and another officer caught and arrested defendant.
THE CONTINUANCE
Defendant contends the court abused its discretion in continuing the trial after the prosecutor made her opening statement.
Background
During proceedings on July 5, 2005, the court opined that the trial would be relatively short. The court noted that “there are vacation schedules both on the part of the attorneys as well as the Court” and expressed its understanding that “we’re going to begin the trial tomorrow and that there will be no objection to taking a two-week recess in the event . . . the trial is not finished by this Friday, which will be July 8th. So there would be a two-week recess and we would not resume until the morning of July 25th. Am I correct that there’s no objection to that?”
The prosecutor had no objection. Defense counsel responded, “I actually didn’t discuss that directly with Mr. Duncan. We talked about settlement of the case and I told him what was going to happen in terms of scheduling, that we were going to start the trial tomorrow, select a jury, and that we would presumably have some of the People’s witnesses on before the end of the week, and that we would come back here in two weeks. What I did not ask him, and I don’t want to put words in his mouth, if he had any objection or problem with that.”
The court invited counsel to discuss the matter with defendant right then. After doing so, counsel reported, “I have discussed it with Mr. Duncan, and my understanding is he has no objection to starting the trial, then continuing and coming back in two weeks to conclude it.”
On July 7, 2005, the jury was selected and sworn. Before opening statements, the court advised the jury that “[a]n opening statement is not evidence; neither is it argument. It is simply an outline by counsel of what he or she believes or expects the evidence will show in this trial. Its sole purpose is to assist you in understanding the case as it is present[ed] to you.” The prosecutor then gave a brief opening statement, and defense counsel reserved his opening statement.
On July 8, 2005, the court ruled on in limine motions. It granted the prosecutor’s motion to admit evidence of an uncharged drug sale to prove that defendant sold the rock cocaine to Posey and knew that it was rock cocaine. The parties and court then discussed some stipulations. After the court addressed other matters, Posey appeared under court order, and the court ordered him to reappear on July 25, 2005, when the trial would resume.
At that time, defense counsel informed that court that defendant wished to make a Marsden motion to substitute appointed counsel. The court then held an in camera hearing and denied the motion. The trial recessed for 16 days, which included 10 court days, and recommenced on July 25, 2005.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
Defendant asserts that the recess was “for two court weeks or 18 calendar days.” However, court recessed after proceedings on Friday, July 8, 2005, and resumed on Monday, July 25, 2005. The interval comprises 16 calendar days.
Forfeiture
The Attorney General argues that defendant forfeited his claim by failing to object to the continuance at trial.
It is settled that the failure to make a timely objection to a continuance after trial has commenced waives any appellate claim concerning the continuance. (People v. Ochoa (2001) 26 Cal.4th 398, 441 (Ochoa).)
Ochoa, supra, 26 Cal.4th 398 provides a pertinent example. In July, before the trial was scheduled to begin, the prosecutor requested there be no proceedings during the week of August 17-21, apparently because she had a planned vacation. She sought to have trial begin on August 24. However, because the court thought the delay would impede the retention of jurors, it preferred to begin trial on August 10 and then recess for a break. The defense did not object to this schedule. (Id. at p. 440.) However, on appeal, the defendant claimed that the break of five court days, and nine total days during trial violated numerous constitutional provisions. The court rejected his claim, finding that defendant had waived it by failing to object. (Ibid.) In reaching its conclusion, the court relied on People v. Johnson (1993) 19 Cal.App.4th 778 (Johnson). (See also People v. Harris (1977) 73 Cal.App.3d 76, 83 [failure to object waived claim concerning recess during jury deliberations].)
Johnson, supra, 19 Cal.App.4th 778, is similar to this case. There, the trial court noted that the trial would be lengthy and opined that it would be wrong to keep the jurors in session through the Christmas holidays since many would have travel and family plans and obligations. The court discussed scheduling with the parties, and, as here, all parties agreed to a recess. Thereafter, during the jury deliberations, the court adjourned the proceedings for the holidays for 17 calendar days, including nine court days, without objection from either party. (Id. at pp. 790-791.) On appeal, the defendant claimed the continuance was prejudicial error. The court disagreed, ruling that defendant had waived his claim. (Id. at p. 791.)
Under the circumstances, we agree with the Attorney General and find that defendant waived his claim of error.
Defendant claims that an objection was unnecessary because the continuance was so egregious that it rendered the trial unfair, specifically, the continuance allowed the jury to ponder the prosecutor’s unrebutted opening statement for over two weeks. In support of his claim, defendant cites People v. Santamaria (1991) 229 Cal.App.3d 269 (Santamaria) and People v. Engleman (1981) 116 Cal.App.3d Supp. 14 (Engleman).
In Santamaria, supra, 229 Cal.App.3d 269, the trial judge had planned to be away for part of the jury deliberations. The People asked that the case be transferred so that another judge could preside over the deliberations, as authorized by section Penal Code section 1053. However, the court denied the request and adjourned deliberations for 10 days. (Id. at pp. 275, 278.) On appeal, the appellate court found an abuse of discretion because the delay was unjustified and could have been avoided by transferring the case. (Id. at pp. 277-278.) The court further found the error to be inherently prejudicial. The court opined, “Had the adjournment occurred in midtrial, [counsel’s] recapitulation of the evidence during argument might have nullified or minimized the effect of the delay on the jurors’ recall.” (Id. at p. 282.) However, because the prolonged interruption came during a critical period—jury deliberations—there was considerable risk or prejudice “from the prolonged exposure of the jurors to outside influences, from the strong probability that their recollections of the evidence and the instructions would fade or become confused, and from the subversion of the pattern of orderly deliberation.” (Id. at pp. 278-279.) This was especially so because the trial had been lengthy and complicated; numerous witnesses had testified, some with interpreters; there were over 60 exhibits, including tape recordings and transcripts, and the defendant’s alibi required careful attention to inconsistencies in the testimony from prosecution witnesses. (Id. at pp. 280-282.) Accordingly, the error compelled reversal.
In a footnote, the court stated, “Two weeks after oral argument, the Attorney General sought permission to vacate submission of the cause, augment the record with declarations, and file a supplemental brief, to argue for the first time that appellant waived the jury adjournment issue by not objecting below. We have denied this belated request; the court’s abuse of discretion here was of such magnitude that whether or not appellant objected is irrelevant.” (Santamaria, supra, 229 Cal.App.3d at p. 279, fn. 7, italics added.)
Defendant relies on this dictum in claiming an objection here was not necessary. In support of its dictum, the Santamaria court cited Engleman, supra, 116 Cal.App.3d Supp. 14, on which defendant also relies.
In Engleman, the trial judge was on temporary assignment in a different jurisdiction. Instead of transferring the case, the judge adjourned the trial for three weeks immediately after the prosecution rested its case so that he could return to his home court. (Engleman, supra, 116 Cal.App.3d Supp. at p. 20.) On appeal, the appellate department of the superior court concluded that the error was inherently prejudicial and compelled reversal because the jury was left with a one-sided presentation for three weeks. The court explained that “this would cause the jurors to determine the case before hearing both sides. Given the length of the delay, we think it must have been practically impossible for the jurors to keep an open mind as to possible answers to the People’s case.” (Id. at p. 21.)
The Engleman court’s brief discussion of the issue does not reveal whether the defendant objected to the recess. Thus, Engleman does not necessarily support the view implicit in the Santamaria dictum that prejudice from an erroneous adjournment can be so egregious as to obviate the need for an objection.
Furthermore, we note that in Johnson, supra, 19 Cal.App.4th at page 792, the court criticized Santamaria for promulgating such a view because it was unnecessary. The Santamaria court properly had rejected the Attorney General’s belated contention that the defendant had waived any error concerning the recess. Thus, there was no need for Santamaria court to suggest in dictum that an objection is unnecessary where the prejudice from a recess is great.
The Johnson court further observed that “[t]he jury often breaks its deliberations, with the consent of counsel for the parties, for lunch or dinner, or to return home to sleep. Deliberations often do not continue on Sundays and holidays. The Santamaria court never intended to call such practices into question. Nor does the Santamaria court opine, even in dicta, that an appellant who has affirmatively agreed to even a long break in deliberations may bide his time and later complain about the matter on appeal, as appellants seek to do here. Certainly, neither the Santamaria court nor any other California court has so held, and no court has ever cited Santamaria for this proposition in a published opinion, before today. We will not so hold, either.” (Johnson, supra, 19 Cal.App.4th at pp. 792-793.)
We agree with the Johnson court’s critical analysis of Santamaria. In People v. Saunders (1993) 5 Cal.4th 580, 590, the court explained, “ ‘ “The purpose of the general doctrine of waiver is to encourage a defendant to bring errors to the attention of the trial court, so that they may be corrected or avoided and a fair trial had . . . .” ’ [Citation.] ‘ “No procedural principle is more familiar to this Court than that a constitutional right,” or a right of any other sort, “may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.” [Citation.]’ [Citation.] [¶] ‘The rationale for this rule was aptly explained in Sommer v. Martin (1921) 55 Cal.App. 603 at page 610 . . . : “ ‘In the hurry of the trial many things may be, and are, overlooked which would readily have been rectified had attention been called to them. The law casts upon the party the duty of looking after his legal rights and of calling the judge’s attention to any infringement of them. If any other rule were to obtain, the party would in most cases be careful to be silent as to his objections until it would be too late to obviate them, and the result would be that few judgments would stand the test of an appeal.’ ” ’ [Citation.]” (Fn. omitted; accord, People v. Simon (2001) 25 Cal.4th 1082, 1103.)
In our view, the waiver rule should apply whenever a party fails to object to a continuance unless the record shows that an objection would have been futile or error directly involved the deprivation of a fundamental constitutional right. (E.g., Ochoa, supra, 26 Cal.4th at p. 441 [applying rule]; see People v. Vera (1997) 15 Cal.4th 269, 276-277 [claims asserting deprivation of certain fundamental, constitutional rights not forfeited by failure to object]; People v. Abbaszadeh (2003) 106 Cal.App.4th 642, 648 [general exception to waiver rule where objection was futile].) We point out that even when the rule is applied, the defendant is not without a remedy. The defendant can raise the issue indirectly and claim claiming that defense counsel rendered ineffective assistance in failing to object. Accordingly, we join Johnson in questioning whether it is appropriate to elevate the Santamaria dictum and treat it as if it were a recognized exception to the waiver rule.
In any event, we do not find that the continuance here was so egregious or inherently prejudicial as to obviate the need for an objection. First, as in Johnson, defendant here agreed to the continuance after consulting with defense counsel. Second, the continuance did not occur during jury deliberations as in Santamaria or immediately after the prosecution had finished presenting its case as in Engleman. The continuance occurred after the prosecutor’s brief opening statement. In that statement, the prosecutor outlined the evidence he would present to show that defendant sold rock cocaine. The court then expressly warned the jurors that the prosecutor’s statement was not evidence but just a guide to the prosecution’s evidence.
Furthermore, even if we assume that the jurors remembered and pondered the prosecutor’s statement every day during the recess, we note that later, when trial recommenced, the prosecutor presented substantial evidence to support virtually every fact that she asserted during her opening statement. Under the circumstances, any conceivable prejudice from the delay was no greater than that posed by the continuances in Ochoa or Johnson. In our view, any possible prejudice was de minimus.
In her opening statement, the prosecutor asserted that defendant had “five to six rocks of crack cocaine in his mouth. That was where he kept it before he sold it. [¶] You’ll hear evidence that [the] other five to six rocks was [sic] never recovered. You’ll hear evidence that the defendant had a water bottle that morning that he actually dropped along the way. You’ll hear from Officer Urban, who’s worked that area for approximately 10 years, that it’s not uncommon for people in that area who are selling crack cocaine to keep it in their mouth [sic] and carry water bottles so that if they’re approached by the police—quick swig, there goes the evidence”
In sum therefore, we reject defendant’s claim that an objection to the continuance was unnecessary to preserve the issue for appeal.
Ineffective Assistance
To obtain reversal due to ineffective assistance, defendant must first show “that defense counsel’s performance fell below an objective standard of reasonableness, i.e., that counsel’s performance did not meet the standard to be expected of a reasonably competent attorney[.]” (People v. Cunningham (2001) 25 Cal.4th 926, 1003; Strickland v. Washington (1984) 466 U.S. 668, 688.) Where the record on direct appeal “does not show the reason for counsel’s challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation.” (People v. Anderson (2001) 25 Cal.4th 543, 569.) Because the defendant bears this burden, “[a] reviewing court will indulge in a presumption that counsel’s performance fell within the wide range of professional competence and that counsel’s actions and inactions can be explained as a matter of sound trial strategy.” (People v. Carter (2003) 30 Cal.4th 1166, 1211.) Second, defendant’s must show that there is “a reasonable probability that defendant would have obtained a more favorable result absent counsel’s shortcomings.” (People v. Cunningham, supra, 25 Cal.4th at p. 1003.) “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Strickland v. Washington, supra, 466 U.S. at p. 694; People v. Staten (2000) 24 Cal.4th 434, 450-451.)
Here, we may assume that the reason counsel did not object to the continuance is that, after discussing the schedule with defendant, defendant agreed to it. Moreover, counsel reasonably could have declined to object because, as discussed above, there would be no appreciable prejudice from a continuance.
In claiming that counsel’s performance was deficient, defendant asserts that the reason counsel failed to object was that the court and counsel had travel plans. He argues that counsel should have objected because defendant “did not understand the nature of the continuance and did not agree with it when he did understand the timing of the intended delay in proceedings.” In that regard, defendant notes that at the Marsden hearing, he complained that because defense counsel did not make an opening statement, the jury had two weeks to ponder the prosecutor’s accusation that defendant sold drugs. “[I]t’s like I don’t have no voice. And it’s my trial. I should be heard. I should have a voice through him, and it’s not happening.” In response to defendant’s complaint, defense counsel explained that he had made a tactical decision to reserve his opening statement.
We observe that at the hearing, defendant was not complaining about the continuance; nor did he suggest that wanted to withdraw his agreement to a continuance and proceed without a break. Rather, defendant was upset because he wanted counsel to give an opening statement, and as a result, the jury had only the prosecutor’s unrebutted version of events to think about during the recess. However, decisions concerning whether to give an opening statement and the overall defense strategy are matters for counsel, not defendant, to decide. (People v. Carter (2005) 36 Cal.4th 1114, 1189 [decision not to give an opening statement]; see People v. Welch (1999) 20 Cal.4th 701, 728-729.) Accordingly, the trial court properly denied the Marsden motion, and defendant does not now claim that the court erred.
Under these circumstances, counsel reasonably cannot be faulted for not considering defendant ‘s complaint about him as an objection to the continuance. Accordingly, we do not find that counsel’s performance was deficient. However, even if we agreed that counsel should have objected, defendant cannot show prejudice.
Defendant reiterates his Marsden complaint that the jury was left to think about the prosecutor’s unchallenged version of events during the lengthy recess. In essence, he argues that as a result, the jury was unfairly predisposed to find him guilty before it heard any evidence. We are not persuaded.
During her opening statement, the prosecutor did not suggest that her statement was evidence. Rather, she told the jurors that the evidence she would later present would establish that he sold drugs. She concluded by saying, “So after you hear all the evidence in this case, I will be asking that you find [defendant] guilty, both for selling the rock of crack cocaine and for delaying, resisting and obstructing the officers.” As noted, the court advised the jury that the prosecutor’s statement was not evidence. This was not a complicated warning, and we may presume that the jurors understood and followed it. (See, e.g., United States v. Olano (1993) 507 U.S. 725, 740; People v. Smithey (1999) 20 Cal.4th 936, 961; People v. Perry (1972) 7 Cal.3d 756, 791, overruled on other grounds in People v. Green (1980) 27 Cal.3d 1, 28-34.)
Furthermore, the evidence the prosecutor later presented supported everything she asserted during her opening statement except for one brief, immaterial claim that defendant had five or six rocks of cocaine in his mouth. We assume the jurors rejected the prosecutor’s assertion since there was no evidence to support it. Thus, it could not have been prejudicial.
Finally, the evidence of guilt was overwhelming. Officer Urban’s eyewitness testimony was unrebutted, and he was not impeached. Posey’s corroboration made the evidence of guilt insurmountable. Defendant presented no evidence or defense. And although Posey mentioned three men, one of whom sold him the rock cocaine, he identified defendant, and defendant was the only person at the scene who fled from the police.
Under the circumstances, therefore, even assuming that counsel’s performance was deficient, we do not find a reasonable probability that the jury convicted defendant based on the prosecutor’s opening statement or that defendant would have obtained a more favorable result had counsel objected to the continuance.
UNCHARGED SALE
Defendant contends that the court erred in admitting Officer Harris’s testimony about defendant’s sale to Medina. He argues that the uncharged incident was not admissible to prove a material issue at trial; and even if it were, the court erred in failing to exclude it as more prejudicial than probative under Evidence Code section 352.
Background
Prior to trial, the prosecutor moved to introduce evidence of the uncharged sale to prove defendant’s identity and his knowledge that he sold Posey a controlled substance. Defendant objected, arguing that the “sole purpose” of the evidence was to prove defendant’s propensity to sell drugs, a purpose for which it was not admissible. (Evid. Code, §1101, subd. (a).) Defendant also argued that the evidence should be excluded under Evidence Code section 352.
The Attorney General argues that defendant forfeited his claim that the evidence was not admissible because he did not sufficiently raise a relevance objection below. We disagree. Defendant implicitly raised a relevance objection by invoking Evidence Code section 1101, subdivision (b) and arguing that the evidence only showed bad character—i.e., a propensity to sell drugs. (See People v. Carpenter (1999) 21 Cal.4th 1016, 1053 [argument that evidence merely showed bad character preserved claim that it was inadmissible under Evidence Code section 1101].) Accordingly, we need not address defendant’s alternative claim that counsel’s failure to make a relevance objection constituted ineffective assistance.
The trial court found that the prior and current incidents were “very similar, strikingly similar” and therefore the former incident was relevant and admissible to prove that defendant was the person who sold the drugs to Posey. The court also found the prior incident relevant to prove knowledge. In addition, the court found that the probative value of the evidence was not substantially outweighed by its possible prejudicial effect.
Defendant offered to stipulate to his knowledge if the evidence was excluded. However, he withdrew that offer when the court ruled the evidence admissible to show identity.
Later, when the evidence was admitted, the court advised the jurors that they could consider it “for the limited purpose of determining if it tends to show a characteristic method, plan or scheme in the commission of criminal acts similar to the method, plan or scheme used in the commission of the offense in this case, which would further tend to show the identity of the person who committed the crime, if any, of which the defendant is accused and/or that the defendant had the knowledge necessary for the commission of the crime charged.”
Discussion
Evidence that a defendant has committed crimes other than those currently charged is not admissible to prove that the defendant is a person of bad character or has a criminal disposition. (Evid. Code, § 1101, subd. (a).) However, evidence of an uncharged crime is admissible to prove disputed, material fact—such as motive, opportunity, intent, preparation, common plan or scheme, knowledge, identity, absence of mistake or accident—other than a disposition to commit such a crime. (Evid. Code, §1101, subd. (b); People v. Ewoldt (1994) 7 Cal.4th 380, 402-403 (Ewoldt).) To be admissible, however, uncharged misconduct must be sufficiently similar to the charged offense to support a rational inference concerning a material fact other than criminal disposition. (Ewoldt, supra, 7 Cal.4th at p. 402 .) “The strength of the inference in any case depends upon two factors: (1) the degree of distinctiveness of individual shared marks, and (2) the number of minimally distinctive shared marks.” (People v. Thornton (1974) 11 Cal.3d 738, 756, italics in Thornton, disapproved on other grounds in People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12.)
Evidence Code section 1101 provides in pertinent: “(a) Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion. [¶] (b) 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 degree of similarity that is necessary to establish relevance varies depending upon the type of fact it is being offered to prove. “The greatest degree of similarity is required for evidence of uncharged misconduct to be relevant to prove identity.” (Ewoldt, supra, 7 Cal.4th at p. 403.) The uncharged crimes must be “highly similar” to the charged offenses (People v. Lenart (2004) 32 Cal.4th 1107, 1123, that is, the two incidents must display a “ ‘pattern and characteristics . . . so unusual and distinctive as to be like a signature.’ ” (Ewoldt, supra, 7 Cal.4th at p. 403.) “To be relevant to prove identity, the uncharged crime must be highly similar to the charged offenses, while a lesser degree of similarity is required to establish relevance to prove common design or plan, and the least similarity is required to establish relevance to prove intent.” (People v. Lenart, supra, 32 Cal.4th at p. 1123; Ewoldt, supra, 7 Cal.4th at p. 402.)
On appeal, the trial court’s determination of admissibility under Evidence Code section 1101, subdivision (b), being essentially a determination of relevance, is reviewed for abuse of discretion. (People v. Gray (2005) 37 Cal.4th 168, 202; People v. Kipp (1998) 18 Cal.4th 349, 369.)
Here, the Attorney General asserts that the uncharged sale was “strikingly” similar to the charged sale, noting that in each instance (1) defendant made contact with a buyer near a bus stop at Fountain Alley; (2) the buyer handed defendant money; (3) defendant provided rock cocaine that was wrapped in clear plastic; (4) defendant ran when an undercover officer identified himself; and (5) defendant “took extensive measures to hide from the police long enough to dispose of any additional evidence in an effort to avoid being arrested.” Thus, he claims the court properly admitted the evidence to show identity. We disagree.
In People v. Rivera (1985) 41 Cal.3d 388 (Rivera), the defendant was charged with the murder and burglary, and the trial court admitted evidence of a prior robbery to prove identity based on the following similarities: (1) both crimes occurred on a Friday night; (2) both occurred at approximately 11:30 p.m.; (3) both involved convenience markets; (4) both markets were in the same neighborhood; (5) both markets were located on street corners; (6) both crimes involved three perpetrators; (7) both involved getaway vehicles; (8) prior to both crimes, two or three people were observed standing outside the store; and (9) the defendant used similar alibis. (Id. at p. 390-393.)
However, the Supreme Court concluded that the evidence was inadmissible. “Taken alone or together . . . these characteristics are not sufficiently unique or distinctive so as to demonstrate a ‘signature’ or other indication that defendant perpetrated both crimes. Convenience stores are often on street corners and are prime targets for crimes; undoubtedly many of these offenses occur late on Friday evenings and involve a getaway car and more than one perpetrator; finally, alibi is a common defense. Moreover, the dissimilarities between the two crimes are significant: (1) the prior offense was armed robbery, a crime against the person, whereas the charged offense was planned as a burglary, a crime against property; (2) the prior involved the taking of money, while the charged crime involved the taking of beer; (3) the coperpetrators in each case were different.” (Rivera, supra, 41 Cal.3d at p. 393; see also People v. Nottingham (1985) 172 Cal.App.3d 484 [general similarities in sex crimes not sufficient to show identity]; People v. Harvey (1984) 163 Cal.App.3d 90 [similarities not so individually distinctive or collectively unique to imply they had the same perpetrator].)
As in Rivera, the similarities here are not individually or collectively distinctive enough to show a pattern that reasonably could be considered a signature and support a an inference that the perpetrator was the same person. The similarities are generic and common to street level drug sales, and the two incidents occurred in an area known for drug trafficking, where Officer Urban had regularly arrested people for possession and sale. Moreover, there were distinctive differences: the two sales took place at very different times of the day: 7:00 a.m. and 7:00 p.m.; and in the uncharged sale, defendant sat down with the buyer on a bench and spit the rock cocaine to the ground; in the charged sale, defendant walked with Posey and handed the rock cocaine to him. Finally, there is no evidence that in the uncharged sale, defendant disposed of or discarded anything during his flight from the police. In the charged sale, defendant discarded his jacket and water bottle.
Under the circumstances, we conclude that the court erred in finding the prior incident relevant to prove identity.
As noted, however, the court admitted the evidence and instructed the jury that it could be considered also to prove a common plan or scheme and knowledge that the substance defendant gave Posey was illegal.
To be relevant to prove a common design or plan, the common features need not reveal a signature method of committing a crime. (People v. Kraft (2000) 23 Cal.4th 978, 1031.) Nevertheless, “the common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual.” (Ewoldt, supra, 7 Cal.4th at p. 403.) More specifically, “the evidence must demonstrate not merely a similarity in the results, but ‘ “such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations.” [Citation.]’ ” (People v. Balcom (1994) 7 Cal.4th 414, 423-424.)
Notwithstanding the generic nature of similarities here, the trial court reasonably could conclude that the uncharged and charged conduct were sufficiently similar to support an inference that defendant had acted according to a plan. Defendant went to Fountain Alley, a place known for drug trafficking; he brought rock cocaine wrapped in clear plastic for sale; he solicited a buyer and surreptitiously exchanged money for rock cocaine; and when detected, he fled.
Finally, concerning admissibility of uncharged misconduct to prove knowledge, we note that “[t]he least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent.” (Ewoldt, supra, 7 Cal.4th at p. 402.) “ ‘[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 . . . .’ [Citation.]” (Ibid.) The same analysis is relevant and applicable to the mental state of knowledge of a controlled substance. A similar result—i.e., providing someone with a controlled substance in exchange for money—has a tendency with each instance to negate any claim by the provider that he did not know the substance was illegal. Accordingly, we conclude that no greater degree of similarity is required to prove knowledge than to prove intent.
Here, the similarities that show a common plan also reasonably support an inference that defendant knew the substance he gave Posey was rock cocaine. (See, e.g., People v. Ellers (1980) 108 Cal.App.3d 943, 953 [prior drug dealing admissible to show knowledge of narcotic nature of heroin]; People v. Perez (1974) 42 Cal.App.3d 760, 767 [prior possession and use of drugs admissible to show knowledge]; People v. Pijal (1973) 33 Cal.App.3d 682, 691 [prior narcotic offenses admissible to show guilty knowledge].)
In sum, we conclude that although the trial court erred in finding the prior incident relevant to prove identity, it correctly found the evidence relevant to prove a common plan and knowledge.
Defendant argues that if the court had properly excluded the evidence to show identity, then it would have accepted his offer to stipulate concerning knowledge, and the evidence would not have been admitted. However, because the evidence was also relevant to show common scheme or plan, it would have been admissible despite the stipulation.
Defendant claims that even if the evidence was relevant for some purposes, admitting it was nevertheless an abuse of discretion because the uncharged incident was substantially more prejudicial than probative. He argues that the incident unfairly focused the jury on his propensity to commit drug-related offenses and thereby bolstered the credibility of Officer Urban and Posey, who identified defendant as the seller.
Under Evidence Code section 352, the court may exclude relevant evidence “if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
“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, highly probative evidence. ‘[A]ll 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 Evidence Code section 352, “prejudicial” is not synonymous with “damaging.” ’ [Citation.]” (People v. Karis (1988) 46 Cal.3d 612, 638; accord, People v. Padilla (1995) 11 Cal.4th 891, 925, overruled on another point in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.)
In People v. Falsetta (1999) 21 Cal.4th 903, the court explained that in weighing probative value against prejudicial effect, the court “must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant’s other . . . offenses, or excluding irrelevant though inflammatory details surrounding the offense.” (Id. at p. 917.)
We also review a trial court’s ruling under Evidence Code section 352 for abuse of discretion. (People v. Harrison (2005) 35 Cal.4th 208, 230.)
Here, the evidence of the prior incident was sufficiently similar to the current offense to be relevant to prove knowledge. Defendant concedes that the four-year old incident was not too remote to be admissible. (See, e.g., People v. Ewoldt, supra, 7 Cal.4th at p. 405 [upholding admission of 12-year-old prior misconduct].) The circumstances of the prior incident were not likely to trigger an emotional bias against defendant because the prior incident was no more inflammatory than the circumstances surrounding the charged offense. (See People v. Poplar (1999) 70 Cal.App.4th 1129, 1139 [prior offense not more inflammatory than charged offense].) Moreover, Officer Urban personally witnessed the incident and immediately intervened to preserve the evidence; his testimony was simple and brief; and it posed no likelihood of confusing, misleading, or distracting jurors from their primary task of determining guilt or innocence on the current charges.
Finally, as to defendant’s primary concern that jurors would invariably and impermissibly consider the uncharged incident as evidence of his criminal disposition, we note that before admitting the evidence, the court announced that it would instruct the jurors on the purpose for which the evidence could be considered and warn them not to consider it to prove that defendant has a bad character or disposition to commit crimes. Thereafter, the court twice instructed the jurors concerning the limited purpose for which it could consider the evidence and admonished them not to consider it evidence of bad character or a propensity to commit the charged offense.
In determining whether the evidence would be more prejudicial than probative, the trial court could reasonably presume that, because the evidence was not inflammatory or more convincing than the evidence of the charged offense, the jury could and would readily follow its limiting instruction and not consider the evidence to show bad character or propensity. (See People v. Osband (1996) 13 Cal.4th 622, 714 [presume jurors follow admonitory instructions].) Furthermore, defense counsel reiterated that instruction during closing argument, emphasizing that the jury should not reason that because defendant previously committed the same offense, he must have committed it again. Indeed, during closing argument, defense counsel argued that the prosecutor had introduced the prior incident because the evidence of guilt was weak, and she wanted the jurors to do exactly what the instruction prohibited them from doing.
In short, we find no abuse of discretion in admitting the evidence.
CALJIC No. 2.71
Noting Posey’s testimony that defendant called him a snitch and threatened him, defendant contends that the court erred in failing to give CALJIC No. 2.71, which would have warned jurors to view evidence of an admission by defendant with caution.
CALJIC No. 2.71 provides, “An admission is a statement made by [a][the] defendant which does not by itself acknowledge [his][her] guilt of the crime[s] for which the defendant is on trial, but which statement tends to prove [his][her] guilt when considered with the rest of the evidence. [¶] You are the exclusive judges as to whether the defendant made an admission, and if so, whether that statement is true in whole or in part. [¶] [Evidence of an oral admission of [a][the] defendant not made in court should be viewed with caution.].”
The Attorney General concedes that defendant’s alleged statements warranted an instruction. We agree. Certainly, evidence that defendant called Posey a snitch and threatened him has some tendency to show guilt when considered with the remainder of the evidence. Therefore, the court should have given the instruction sua sponte. (See People v. Marks (1988) 45 Cal.3d 1335, 1346.).)
The failure to give CALJIC No. 2.71 compels reversal only if, upon reweighing the evidence, it appears reasonably probable the defendant would have obtained a more favorable result had the instruction been given. (People v. Beagle (1972) 6 Cal.3d 441, 455, superseded by constitutional amendment on other grounds as stated in People v. Castro (1985) 38 Cal.3d 301, 307-313; accord, People v. Bunyard (1988) 45 Cal.3d 1189, 1224; see People v. Watson (1956) 46 Cal.2d 818, 836.)
In People v. Bunyard, supra, 45 Cal.3d 1189, the Supreme Court explained that the purpose behind the instruction is to warn the jury about possible flaws in the accuracy and meaning of the witness’s testimony, not the truthfulness of the witness. Accordingly, where the issue is not the precise words of the defendant’s admission but the credibility of the person who claims the defendant made it, the failure to give the instruction may be harmless. There, witnesses testified that the defendant offered them money to kill his wife. The court noted there as no conflicting evidence concerning the words that the defendant allegedly used, their meaning, or their context; nor was there conflicting evidence concerning whether the witnesses accurately remembered and repeated the defendant’s statements. Rather, the defendant simply denied soliciting the two men. Thus, the court opined, the issue was simply whether the two witnesses were credible or had fabricated their testimony. In that regard, the court pointed out that the jury was properly instructed to view one witness’s testimony, as an accomplice, with distrust (CALJIC No. 2.18), that the other witness’s prior felony conviction could be considered in weighing his credibility (CALJIC No. 2.23), and that prior inconsistent statements, inconsistent testimony, feigned loss of memory, and willfully false testimony would all bear on credibility (CALJIC Nos. 2.13 & 2.21.). Under the circumstances, the court concluded that a more favorable result was not reasonably probable absent the error. (People v. Bunyard, supra, 45 Cal.3d at pp. 1224-1225.)
Likewise in this case, the defense offered no evidence challenging Posey’s testimony concerning what defendant said, the meaning of what he said, the context in which he said it, or the accuracy of Posey’s memory or reiteration of defendant’s statements. Thus, the issue was Posey’s credibility. Moreover, the court instructed the jury that prior inconsistent statements could be considered in determining the credibility of a witness (CALJIC No. 2.13). The court explained the various factors that could be considered in determining the believability of a witness (CALJIC No. 2.20). The court instructed on how to treat discrepancies in testimony (CALJIC No. 2.21.1). And the court told jurors that it could consider a prior felony conviction in determining whether a witness was believable (CALJIC No. 2.23). These instructions adequately informed the jury of its duty to determine the credibility of the witnesses and of each part of their testimony and the weight to which the testimony was entitled. Moreover, defense counsel stressed these instructions during closing argument.
Next we note that defendant’s post-arrest statements were not direct evidence of any element of the offense. Rather, they helped explain why Posey declined to identify defendant after his arrest and before trial. Moreover, insofar as defendant’s implied threat was an attempt to suppress Posey’s testimony, the threat reflected a consciousness of guilt. However, the court instructed the jury that any such attempt was not sufficient itself to prove guilt. (See CALJIC No. 2.06.) In this regard, we note that there was far more compelling evidence of defendant’s consciousness of guilt in the undisputed fact that he fled from the police. (See CALJIC No. 2.52.) Furthermore, there was overwhelming evidence of defendant’s guilt apart from Posey’s identification and defendant’s admissions. Officer Urban, an expert concerning drug trafficking, had been watching defendant in an area known for drug dealing and found his behavior suspicious. Defendant, who had been trying to talk to people at the bus stop, finally engaged Posey. Posey then handed defendant money, and defendant gave Posey something. Officer Urban immediately intercepted Posey and recovered some rock cocaine. Defendant ran. At all times, defendant appeared to be executing a common plan to sell drugs at Fountain Alley. Moreover, Officer Urban’s testimony was uncontradicted, his credibility was not impeached, and he bolstered Posey’s identification.
Under the circumstances, we do not find it reasonably probable defendant would have obtained a more favorable result had CALJIC No. 2.71 been given. Accordingly, the failure to give the instruction was harmless.
RESTRICTION ON CROSS-EXAMINATION
Defendant contends the trial court erred by preventing him from asking Posey whether he had ever lied to the police when he was acting as their informant.
Background
During cross-examination, defense counsel asked Posey whether the police had made any promises to him regarding his testimony or had put pressure on him at the police station to identify defendant. Posey said no. He did, however, tell Officer Urban that he was afraid of going back to prison. Officer Urban told him that the best way to avoid prison was to cooperate. However, Posey denied that Officer Urban pressured him to identify defendant.
On redirect examination, Posey admitted that after he was arrested and identified defendant, he recanted because defendant had threatened him. At trial, he testified that he was still afraid because he was going back to prison. Nevertheless, he testified that he was angry about lying, tired, and did not want to lie to himself and the court. He said he had no reason to lie that defendant sold him drugs. He reiterated that Officer Urban told him his best chance to avoid prison was to cooperate, but no one told him to lie about defendant. He then said, “I had been an informant for a while. And up to that point I hadn’t even gotten arrested. That was Santa Clara. It was only that morning that I got arrested, and I had the officer, department, call the two officers that I was working for.”
On recross-examination, he admitted that he had been an informant for three months and supplied information about people buying, selling, and using drugs. Concerning his statement about being tired of the lies, he explained that there is a “code of what you say in jail and what you say on the streets. You don’t say certain things. And if you’re put in the corner, you lie about them.” He continued, “[I]f you buy dope, you pretend you found it. And you lie about it. And you see someone get hurt, you don’t say who did it. Because you could wind up going to jail and you might need some help in jail or—there’s a whole slew of things that you just, you lie about. I’m tired of pretending. I’m tired of lying. I’m tired of covering things up. I did what I did and I have to pay for it.” He denied that the police asked him to lie as an informant.
Posey testified that as an informant, he was concerned about his safety, and now he was concerned not only about defendant but also about others who might learn that he had cooperated with the police. Defense counsel then asked, “Did you ever lie to the police when you were working as an informant?” The court sustained a relevance objection.
DISCUSSION
Defendant claims the court erred because the question sought to elicit evidence concerning prior incidents of dishonesty, and the answer would have been relevant to Posey’s credibility.
We apply the abuse of discretion standard to a trial court’s rulings on the admissibility of evidence, including those turning on the relevance or probative value of the evidence in question. (People v. Harris (2005) 37 Cal.4th 310, 337; People v. Waidla (2000) 22 Cal.4th 690, 724.) “ ‘Relevant evidence’ means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, §210; People v. Heard (2003) 31 Cal.4th 946, 973.)
Here, Posey was not acting as an informant when the sale to defendant took place. He was buying rock cocaine for personal reasons and was caught committing the crime. Thus, whether Posey had ever lied to the police when he was acting as an informant was a collateral matter having little or no tendency to prove a disputed concerning the instant offense, such as whether he was falsely identifying defendant.
Although not directly germane, a “matter collateral to an issue in the action may nevertheless be relevant to the credibility of a witness who presents evidence on an issue . . . .” (People v. Rodriguez (1999) 20 Cal.4th 1, 9.) However, the admissibility of such collateral matter also lies within the trial court’s discretion, and its ruling “will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.” (Id. at pp. 9-10.)
In certain situations, questions about prior deceit can be relevant to credibility issues. (See, e.g., People v. Coddington (2000) 23 Cal.4th 529, 613, overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13 [allowing questions of psychiatric experts about whether defendant previously had ever lied to them because their opinions about his sanity were based in part on his statements to them].)
Concerning the relevance of the question to Posey’s credibility, the trial court reasonably could have concluded that although marginally relevant, the question was cumulative in that Posey admitted he lied about defendant to the prosecutor after his arrest. Moreover, Posey indicated that during his criminal career, it was standard procedure to lie to the police as a matter of convenience and survival. Finally, Posey’s credibility was impeached with his prior convictions.
Under the circumstances, we do not find that the court abused its discretion in excluding Posey’s answer to the question. This is especially so because whether Posey answered yes or no, it is likely that defense counsel would have wanted to pursue further inquiry, either asking questions about specific instances where he had lied as an informant or trying to impeach Posey with such instances. All such further inquiry, however, would have been even more collateral, cumulative, and unnecessary to the material issues in the case.
In any event, because (1) the single question was cumulative, (2) there is no evidence that Posey lied to Officer Urban, (3) Officer Urban corroborated Posey’s identification of defendant, and (4) there was overwhelming evidence of guilt, we would find any error harmless because under the circumstances, it is not reasonably probable defendant would have obtained a more favorable result had Posey been allowed to answer the question. (People v. Watson, supra, 46 Cal.2d at p. 836.
Given the other evidence available to impeach Posey’s credibility, we reject defendant’s claim that the inability to ask a single question violated his constitutional right to confront and cross-examine Posey. (See People v. Greenberger (1997) 58 Cal.App.4th 298, 350 [exclusion of evidence having slight probative value on credibility does not violation right to confrontation].)
Disposition
The judgment is affirmed.
WE CONCUR: PREMO, J., ELIA, J.
Although there was circumstantial evidence at trial that defendant kept rocks in his mouth and may have had additional rocks, the prosecutor presented no evidence that defendant had five or six rocks in his mouth.