Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County Super. Ct. No. RIF133650. Peter L. Spinetta, Judge. Retired judge of the Contra Costa Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.
Lise M. Breakey, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Jeffrey J. Koch and Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI, J.
A jury found defendant Lashawn Louis Green guilty of possession of cocaine (Health & Saf. Code, § 11350, subd. (a)) and possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)). In a bifurcated proceeding, the trial court thereafter found true that defendant had sustained three prior prison terms (Pen. Code, § 667.5, subd. (b)) and one prior strike conviction (Pen. Code, § 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1)). Defendant was sentenced to a total term of seven years in state prison. Defendant’s sole contention on appeal is that the trial court erred in admitting evidence of his prior conviction for possession of cocaine. We reject this contention and affirm the judgment.
I FACTUAL BACKGROUND
On the night of November 18, 2006, Riverside County Sheriff’s Deputy Mike Martinez was on patrol when he responded to a dispatch call to investigate a car in a residential area of Rubidoux. Deputy Martinez parked his marked vehicle facing the car; defendant was sitting in the driver’s seat, and there were three juvenile passengers in the car. When backup officers arrived, Deputy Martinez directed defendant and the three juvenile passengers to get out of the car and sent them each to separate marked police vehicles. A protective sweep of the car was conducted.
Defendant was directed to Deputy Michael Portillo’s vehicle and was placed under arrest. Deputy Portillo inquired whether defendant had any contraband on him. Deputy Portillo could not recall defendant’s exact words, but they were “something to the effect that he had drugs in his shoes.” The deputies searched defendant’s shoes and found two plastic bindles; one contained 1.39 grams of cocaine base and the other contained 0.49 grams of methamphetamine.
II DISCUSSION
Defendant contends the trial court prejudicially erred in admitting evidence of his prior conviction for possession of cocaine. He further claims admission of this evidence violated his rights to due process and a fair trial.
Prior to trial the prosecution indicated its intention to offer, pursuant to Evidence Code section 1101, subdivision (b), evidence of defendant’s past 1996 conviction for possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)). The prosecutor argued the evidence was probative on the issue of knowledge of the nature of the substances found in his shoe. Defense counsel objected, arguing that the prior conviction was not relevant to prove knowledge of the character of the substances, absent a showing that the circumstances of the prior were similar. The trial court ruled the evidence of defendant’s prior conviction for possession of a controlled substance was admissible to prove knowledge and that it was more probative than prejudicial. It noted that “commission of possession of cocaine itself suggests that he knew what cocaine was, that he knew that the substance he had now was cocaine.” It limited the evidence of the prior conviction to a certified copy of the 1996 abstract of judgment and related documents necessary to clarify it.
At trial, Deputy Portillo testified that defendant stated “something to the effect that he had drugs in his shoes,” without specifying what type of drugs.
After the People rested its case-in-chief, the trial court noted that the abstract of judgment concerning the 1996 conviction did not specify what kind of controlled substance defendant had been convicted of possessing. Because Health and Safety Code section 11350, subdivision (a) lists several controlled substances, the court noted that it was not a reasonable inference to find that “if you know one item to be a controlled substance, you know all items to be a controlled substance.” Defense counsel agreed to stipulate that defendant’s 1996 conviction was for possession of cocaine but reiterated his previous objections.
The jury was instructed concerning the limited use of the evidence. The court instructed the jury that it could consider defendant’s past conviction for possession of cocaine to show knowledge of the nature or character of “any of the controlled substances he is alleged to have unlawfully possessed” in this case. It specifically admonished the jury not to consider the evidence to determine that defendant “has a bad character or is disposed to commit crime.”
“Evidence that a defendant has committed crimes other then those currently charged is not admissible to prove that the defendant is a person of bad character or has a criminal disposition....” (People v. Kipp (1998) 18 Cal.4th 349, 369; see also Evid. Code, § 1101, subd. (a).) But “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.” (People v. Ewoldt (1994) 7 Cal.4th 380, 393, fn. omitted.) Evidence of prior crimes is admissible to prove, among other things, “the intent with which the perpetrator acted in the commission of the charged crimes” and the perpetrator’s state of knowledge relevant to the charged crimes. (Kipp, at p. 369; see also Evid. Code, § 1101, subd. (b).)
“Knowledge by the defendant of both the presence of the drug and its narcotic character is essential to establish unlawful transportation, sale, or possession of narcotics.” (Rideout v. Superior Court (1967) 67 Cal.2d 471, 474.) Where a defendant’s knowledge of the narcotic contents of the drug is at issue, evidence of the defendant’s prior narcotic offenses is “clearly admissible.” (People v. Pijal (1973) 33 Cal.App.3d 682, 691.)
To be relevant, the evidence must tend to prove either an ultimate fact or an intermediate fact from which the ultimate fact may be presumed or inferred. (People v. Thompson (1980) 27 Cal.3d 303, 315.) If relevant, the probative value of the prior bad act must be weighed against the dangers “of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352.) Admissibility of such evidence is committed to the sound discretion of the trial judge, whose discretionary decision will not be reversed on appeal absent clear abuse of discretion. (People v. Kipp, supra, 18 Cal.4th at p. 369.)
Here, defendant was charged with possession of cocaine and possession of methamphetamine. For possession, the prosecution had to prove (1) defendant possessed a controlled substance; (2) he had knowledge of its presence; (3) he had knowledge of its nature as a controlled substance; (4) the substance was a controlled substance; and (5) it was in an amount sufficient to be used for consumption as a controlled substance. (See Jud. Council of Cal. Crim. Jury Instns. No. 2304; Health & Saf. Code, §§ 11350, 11377.) Thus, to convict defendant of either or both of the charged offenses, the prosecution had to prove that defendant had knowledge of the nature of the cocaine and methamphetamine as a controlled substance. It is well established that this knowledge can be proved by a prior conviction for possession of the drug. (See, e.g., People v. Castellanos (1958) 157 Cal.App.2d 36, 39; People v. Horn (1960) 187 Cal.App.2d 68, 75-76; People v. Pijal, supra, 33 Cal.App.3d at p. 691.) The rationale is that a criminal conviction for possession of a substance must educate the possessor that possessing that substance is illegal. Any later possession of a similar substance is presumably with knowledge of its illegal nature. Accordingly, defendant’s prior conviction had substantial probative value. This is especially so considering defendant disputed the knowledge elements.
Defendant argues that evidence of his prior conviction should have been excluded because the offenses were not sufficiently similar. Our Supreme Court has held that the probative value of evidence of a prior offense is increased by the relative similarity between the charged and prior offenses, and the prejudicial impact of the evidence is reduced if the prior offense resulted in a conviction. (People v. Balcom (1994) 7 Cal.4th 414, 427.) This ensures that the jury would not be tempted to convict the defendant simply to punish him for the other offense and that the jury’s attention would not be diverted by having to make a separate determination whether defendant committed the other offense. (Ibid.)
When determining whether a prior offense is sufficiently similar to the current offense so as to permit its admission, different degrees of similarity are required, depending on the reason the prior offense is being offered. “The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent. [Citation.]... [¶] A greater degree of similarity is required in order to prove the existence of a common design or plan.... [¶]... [¶] The greatest degree of similarity is required for evidence of uncharged misconduct to be relevant to prove identity.” (People v. Ewoldt, supra, 7 Cal.4th at pp. 402-403.) The parties have not cited to any case, and our independent research has not uncovered one, specifically addressing where on this continuum the element of knowledge falls. We conclude knowledge is far more like intent than any other disputed issue listed in Evidence Code section 1101, subdivision (b), meaning that the least amount of similarity between the charged offense and the prior offenses is required.
Despite the limited information we have regarding defendant’s prior crime, we conclude there was sufficient similarity between it and the current offense. Defendant’s contention at trial was that he had no idea the cocaine and methamphetamine were in his shoes, nor did he know of the narcotic character of the substances. The prior crime was for possession of cocaine and thus was sufficiently similar to the offense in the present case on the issue of knowledge. (People v. Thornton (2000) 85 Cal.App.4th 44, 46, 49-50 [the defendant’s voluntary statement “‘I have only tried [or used] heroin several times’” was admissible to prove the defendant’s knowledge of the nature of heroin on the current drug offense]; People v. Pijal, supra, 33 Cal.App.3d 682, 687, 691 [evidence that the defendant “had been convicted on a number of occasions for narcotic violations” was admissible as to knowledge on the current offense of unlawfully furnishing and selling a restricted dangerous drug].)
In closing argument, defense counsel argued that someone else in the car could have placed the drugs in defendant’s shoe.
We cannot say that the trial court abused its discretion in admitting the evidence of defendant’s prior conviction for possession of cocaine. The trial court reasonably could have found that the prejudicial impact of the evidence was outweighed by its substantial probative value. In addition, when admitting the evidence and later during its general charge to the jury, the trial court instructed the jury on the limited purpose for which the evidence was being admitted.
Defendant relies on People v. Valentine (1988) 207 Cal.App.3d 697, in which the defendant was charged with marijuana cultivation and possession of marijuana for sale. (Id. at p. 700.) On cross-examination, the prosecution was allowed to question the defendant about hypodermic needles found in his house and whether he used them to inject himself with narcotics. (Id. at p. 701.) The appellate court found the introduction of this testimony to be error, stating “[e]vidence of a collateral independent crime is not admissible unless it tends directly to establish the crime charged by proving a material fact or intent, premeditation, guilty knowledge, malice or a common plan or scheme.” (Id. at p. 702.)
In Valentine, the reviewing court found error in admitting the evidence of drug use because the People made no attempt to explain why the proffered evidence would be relevant or admissible under Evidence Code section 1101, subdivision (b). Instead of offering the evidence to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, “the People offered the hypodermic needles and syringes on the theory that someone involved in one type of narcotics activity would also be involved in smoking marijuana. ‘They kind of run in the same crowds[,]’ said the prosecutor. This same argument was made by the prosecutor to the jury.” (People v. Valentine, supra, 207 Cal.App.3d at p. 704.) In addition, an expert told the jurors that “where hypodermic needles are found, so is marijuana.” (Ibid.)
We find Valentine unhelpful to defendant. Unlike in Valentine, where the prior offense involved two completely different drugs, the evidence of defendant’s prior possession of cocaine was specific to his current crime for possession of cocaine base, the type of drug found on him at the time of his arrest. Rather than establishing “an inference of [the defendant’s] propensity or disposition to commit crimes in general” (People v. Valentine, supra, 207 Cal.App.3d at p. 704), the evidence here tended to establish defendant’s knowledge of the narcotic character of the drug.
Likewise, though the evidence of defendant’s prior involved cocaine, this evidence was also relevant to establish defendant’s knowledge of the narcotic character of the methamphetamine. In Valentine, the defendant was charged with cultivating and possessing marijuana for sale, but the trial court admitted evidence the defendant had used intravenous drugs; Valentine’s prior drug use was unrelated and irrelevant to the charged crimes and proved little other than bad character. Here, there was a direct connection between the prior drug possession charge and the current charged offense for possession of methamphetamine. Cocaine and methamphetamine can both be either injected or smoked with a pipe; therefore, a reasonable inference can be made that a person who injects/smokes cocaine also injects/smokes methamphetamine; unlike the inference that a person who injects narcotics also grows marijuana plants as occurred in Valentine.
Nor is there any merit to defendant’s claim of federal error. He asserts that his federal due process rights were violated because the evidence of uncharged misconduct did not support a reasonable or permissible inference on an issue related to his guilt of the charged offenses. (See, e.g., Michelson v. United States (1948) 335 U.S. 469 [69 S.Ct. 213, 93 L.Ed. 168]; McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378, 1384.) In People v. Catlin (2001) 26 Cal.4th 81, the court rejected this argument, noting that the federal due process rights are not implicated when the disputed evidence is relevant and admissible on issues such as identity, common scheme, or plan, or other basis specified in Evidence Code section 1101, subdivision (b). (Catlin, at p. 123.)
In any event, even if the trial court erred by admitting the evidence, we find the error harmless. “[T]he erroneous admission of prior misconduct evidence does not compel reversal unless a result more favorable to the defendant would have been reasonably probable if such evidence were excluded. [Citations.]” (People v. Scheer (1998) 68 Cal.App.4th 1009, 1018-1019; see also People v. Felix (1993) 14 Cal.App.4th 997, 1007-1008.) Here, the evidence against defendant was compelling; he admitted to the deputy that he had “drugs in his shoes” before he was searched and the drugs were found. Hence, even absent admission of the prior conviction, the jury would have concluded that defendant had knowledge of the narcotic character of the substances. The defense presented no evidence contradicting the People’s evidence. Furthermore, defendant’s knowledge can be inferred based upon where the drugs were found. Defendant had the drugs in his shoe, which demonstrated an intent to conceal the items. From that evidence, a reasonable juror could have concluded that defendant knew the illegal nature of the drugs and that he did not want them to be found. The People here did not present extensive evidence of defendant’s prior 1996 conviction; rather, that evidence was limited. Unlike in Valentine, where the People presented expert testimony that, “where hypodermic needles are found, so is marijuana” (People v. Valentine, supra, 207 Cal.App.3d at p. 704), here the prosecutor’s argument was limited to the theory that his prior conviction for possession of cocaine demonstrated knowledge of both drugs.
Defendant asserts that the evidence was prejudicial because the “jury apparently suffered some doubt as to the strength” of the People’s case, based on their requesting readbacks of the testimonies of Deputies Martinez and Portillo. Our review of the record, however, does not convince us that the juror’s request for readbacks significantly detracted from the compelling force of the evidence. We find no reasonable probability defendant would have received a more favorable verdict if the evidence of his prior conviction for possession of cocaine had been omitted.
III DISPOSITION
The judgment is affirmed.
We concur: RAMIREZ P.J., McKINSTER J.