Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County No. FMB7756. Kenneth G. Ziebarth, Judge. (Retired judge of the San Bdno. Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.).
Brett Harding Duxbury, 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, Jeffrey J. Koch and William M. Wood, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Gaut, J.
Defendant Duke Steven Haltom appeals from judgment entered following jury convictions for possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1); count 1); possession, transportation, and possession for sale of methamphetamine (Health & Saf. Code, §§ 11377, subd. (a), 11379, subd. (a), 11378; counts 2, 4, 6); possession, transportation, and possession for sale of heroin (Health & Saf. Code, §§ 11350, subd. (a), 11352, subd. (a), 11351; counts 3, 5, 7); under the influence of a controlled substance (Health & Saf. Code, §§ 11550, subd. (a); count 8); and driving under the influence (Veh. Code, § 23152, subd. (a); count 9). The jury also found true two prior strike convictions (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)) and one prior prison term conviction (§ 667.5, subd. (b)).
Unless otherwise noted, all statutory references are to the Penal Code.
The trial court sentenced defendant to two consecutive terms of 25 years to life.
Defendant contends the trial court abused its discretion in admitting evidence of a prior uncharged drug offense. Defendant argues the evidence was not sufficiently probative on the issue of intent, was unduly prejudicial, and admission of the evidence violated defendant’s due process rights because it resulted in a fundamentally unfair trial. Defendant also asserts that the trial court miscalculated his days of presentence conduct credit.
We conclude there was no abuse of discretion in admitting evidence of defendant’s uncharged drug offense but, as conceded by the People, there was error in calculating defendant’s days of conduct credit. The judgment is thus affirmed, as amended to reflect 406 days of conduct credit, and total credit of 1,218 days.
1. Facts
On August 27, 2005, Sheriff’s Deputy Niles noticed defendant’s vehicle swerve within its lane. Niles also noticed the vehicle’s driver’s side mirror was missing. This is a Vehicle Code violation. Niles stopped the vehicle and asked defendant, the driver, about the missing side mirror. Defendant pointed to the mirror on the dash and said it had recently broken off. Defendant did not have a California driver’s license or any photo identification. Niles noticed that defendant appeared lethargic, with droopy eyelids, slow speech, and a dry mouth, indicated by defendant’s licking his lips. These are signs of heroin use.
Defendant complied with Niles’s request to step out of his car. Niles’s partner, who was in a separate patrol car, stopped to assist Niles.
When Niles asked defendant if he had recently taken any illegal drugs, defendant said he had injected a quarter gram of heroin the day before. Niles instructed defendant to perform the Romberg time estimation test and took defendant’s pulse. Defendant’s pulse was low, his Romberg time estimation was higher than normal, and his pupils were constricted.
Niles concluded defendant was under the influence of heroin and arrested him. Upon searching defendant’s car, defendant became nervous and insisted a search warrant was required. Niles found $440 inside defendant’s car and a black briefcase in the trunk.
The briefcase contained a loaded .9-millimeter semiautomatic pistol, scale with a white powdery residue, spoon with burn marks and residue, lighter, razor blades, X-Acto knife, syringes, and two containers. The containers had baggies containing approximately 16.2 and 1.6 grams of methamphetamine and 9.7 grams of heroin. There were no pay-owe sheets commonly used by drug dealers.
Defendant told Niles his girlfriend, Jolene Finch, had purchased the firearm and defendant had forgotten it was in his briefcase. Defendant said the briefcase was his and admitted he was a felon. Defendant offered to provide information on a local drug dealer in exchange for a deal on his case. During booking, defendant said he was unemployed and could not provide a residence address.
Defendant’s passenger, Brian Devlin, told Niles that defendant had mentioned when they were pulled over that there might be a gun in the car. At trial Devlin denied telling Niles this. Devlin testified that he never told the prosecution’s investigator, Steven Rivera, that he was scared of defendant. Devlin felt intimidated by Rivera.
Niles and narcotics expert witness Paul Wynn testified that in their opinions the large baggie of methamphetamine and the heroin were possessed for sale. Wynn also testified that the heroin could also have been possessed for personal use and stated he believed the smaller baggie of methamphetamine was possessed for personal use.
Toxicologist Maureen Black testified that defendant’s urine sample indicated defendant was under the influence of heroin when he was arrested and had used heroin with 12 hours before the urine sample was taken. There were also smaller amounts of amphetamine and anxiety medication in his system.
2. Admissibility of Prior Uncharged Offense
Over defense counsel’s objection, the trial court admitted evidence of a prior narcotics offense under Evidence Code section 1101, subdivision (b).
During a hearing on the prosecution’s motion to admit evidence of defendant’s prior similar acts pursuant to Evidence Code section 1101, subdivision (b), the prosecution argued that evidence of an uncharged offense committed in April 2005, was admissible to show defendant’s knowledge and intent. The prosecutor asserted that evidence of defendant’s knowledge and intent was relevant to establish he committed the offenses of possession for sale of methamphetamine and heroin.
Defendant argued the charged and uncharged offense was not sufficiently similar to support admission of evidence of the uncharged offense and the evidence was unduly prejudicial under Evidence Code section 352.
The trial court took the matter under submission and, later, during the trial, ruled evidence of the April 2005 offense was admissible. The trial court gave a limiting instruction prior to admission of the evidence of the April 2005 offense. The court instructed the jury that it was to consider the evidence only for the limited purpose of deciding whether defendant acted with intent to sell a controlled substance. Officer Judd, the arresting officer, thereafter testified concerning the uncharged drug offense. At the end of the trial, the limiting instruction was given again.
A. Facts Relating to the Prior Uncharged Offense
During the trial, Officer Judd testified concerning the uncharged offense as follows. On April 19, 2005, at 3:30 a.m., Police Officer Judd arrested defendant and his girlfriend, Jolene Finch, in the Angel View donation center parking lot for possessing concealed weapons. Finch had a concealed dagger and defendant wore a dagger sheath on his ankle. Defendant said he carried a knife for protection and had pulled it when two Hispanics, who were also detained, had approached him.
Defendant and Finch were standing near defendant’s Jeep. Defendant said the Jeep was his. He had been driving it and Finch was a passenger. Defendant said he had taken a table from the donation center. Defendant acknowledged that a knife found in the jeep was his.
Judd noticed a pouch on the ground six feet from where defendant and Finch were standing. The pouch contained four baggies each marked with a written weight and containing white powder, later determined to be methamphetamine. The total weight of the methamphetamine was about seven grams. More empty baggies were found in the Jeep center console, along with a pipe and scale that had methamphetamine residue on it. Finch said a bag found under the Jeep passenger seat was hers. The bag contained two methamphetamine smoking pipes, two baggies of methamphetamine, and two empty baggies with residue. Judd testified that, in her opinion, the baggies of methamphetamine in the pouch were possessed for sale.
B. Discussion
Defendant claims admission of evidence of the April 2005 offense was an abuse of discretion because it was not sufficiently similar to the charged offenses and was unduly prejudicial cumulative evidence. We disagree.
Evidence Code section 1101 governs our analysis. “Subdivision (a) of section 1101 prohibits admission of evidence of a person’s character, including evidence of character in the form of specific instances of uncharged misconduct, to prove the conduct of that person on a specified occasion. Subdivision (b) of section 1101 clarifies, however, that this rule does not prohibit admission of evidence of uncharged misconduct when such evidence is relevant to establish some fact other than the person’ character or disposition.” (People v. Ewoldt (1994) 7 Cal.4th 380, 393 (Ewoldt.) Prior act evidence is admissible when relevant to prove “motive, opportunity, intent, preparation, plan, knowledge, identity, [or] absence of mistake or accident . . . .” (Evid. Code, § 1101, subd. (b).)
“The admissibility of other-crimes evidence depends on three principal factors: (1) the materiality of the fact sought to be proved or disproved; (2) the tendency of the uncharged crime to prove or disprove the material fact; and (3) the existence of any rule or policy requiring the exclusion of relevant evidence, e.g., Evidence Code section 352. [Citations.]” (People v. Sully (1991) 53 Cal.3d 1195, 1224.)
The evidence of defendant’s prior act falls within the purview of Evidence Code section 1101, subdivision (b), as it tended to prove defendant’s knowledge of the narcotic nature of the methamphetamine and heroin he possessed August 27, 2005, which is an essential element of the crime of selling a narcotic and probative of his intent to sell it. (People v. Ellers (1980) 108 Cal.App.3d 943, 953 (Ellers) [in prosecution for sale of heroin, evidence of prior heroin sales was admissible to show knowledge of narcotic nature of heroin]; see also People v. Pijal (1973) 33 Cal.App.3d 682, 691 [in prosecution for selling methamphetamine, evidence of prior drug offenses was admissible to show knowledge of the nature of the drug and intent to sell].)
Under section 352, the trial court has the discretion to admit evidence that is relevant to prove a material fact as long as its probative value is not outweighed by its prejudicial effect. (People v. Daniels (1991) 52 Cal.3d 815, 856.) Although “[e]vidence of uncharged offenses ‘is so prejudicial that its admission requires extremely careful analysis’” (Ewoldt, supra, 7 Cal.4th at p. 404), a trial court’s decision to admit evidence under section 352 will not be overturned absent a clear abuse of discretion (People v. Brown (1993) 17 Cal.App.4th 1389, 1396). The decision to admit such evidence rests within the sound discretion of the trial court, and the trial court’s exercise of its discretion will not be reversed unless there is a clear abuse of discretion. (People v. Clark (1992) 3 Cal.4th 41, 127.) Based on the record in this case, we cannot say the trial court abused its discretion in admitting relevant evidence tending to prove a material fact.
Defendant challenges the trial court’s finding, contending that the April 2005 offense was not sufficiently similar to prove his knowledge of the presence of the controlled substances and his intent to sell. Under Ewoldt, supra, 7 Cal.4th at page 402, the least degree of similarity is required in order to prove intent. The similarities between defendant’s prior misconduct in April 2005 and the charged offenses committed four months later in August 2005, include (1) methamphetamine was found on the ground near defendant under circumstances in which it appeared to have been in defendant’s possession, (2) there were large amounts of methamphetamine and heroin, which experts concluded was for sale, (3) defendant was in possession of a concealed weapon, and (4) defendant was in possession of items commonly used in the sale and use of narcotics.
In the instant case, defendant was in possession of a scale, spoon with burn marks, lighter, razor blades, and baggies. In the April 2005 offense, defendant had empty baggies, a pipe, and scale. The charged offenses and the April 2005 offense were sufficiently similar for purposes of establishing defendant’s knowledge and intent to sell methamphetamine and heroin.
Citing People v. Balcom (1994) 7 Cal.4th 414 (Balcom), defendant also argues the uncharged offense evidence should have been excluded as cumulative on the issue of intent. In People v. Malone (1988) 47 Cal.3d 1, 17-18, the Supreme Court held that, because of inherent danger of prejudice to the defendant when the prosecution presents evidence of uncharged crimes, such evidence must be excluded when it is merely cumulative and may only be admitted when its probative value outweighs its prejudicial effect under section 352. In Balcom, supra, 7 Cal.4th 414, there was compelling evidence of the defendant’s criminal intent to rape the victim independent of evidence of a prior uncharged offense, and thus there was no need to admit the evidence of the prior uncharged offense.
In Balcom, supra, 7 Cal.4th at page 422, the court concluded that, “if the jury found that defendant committed the act alleged, there could be no reasonable dispute that he harbored the requisite criminal intent.” Such is not the case as to defendant’s possession of substances later determined to be heroin and methamphetamine. Here, defendant challenged Niles’s and Wynn’s opinion testimony that defendant intended to sell methamphetamine and heroin found in defendant’s briefcase in the trunk of his car. In addition, Wynn acknowledged that the heroin might have been possessed for personal use rather than for sale.
The similarities between the April 2005 offense and the charged offenses were probative in proving defendant’s knowledge and intent to sell methamphetamine and heroin. The trial court thus did not abuse its discretion in finding that the probative value of the evidence of the prior offense outweighed any prejudicial effect. (See People v. Goodall (1982) 131 Cal.App.3d 129, 142; Ellers, supra, 108 Cal.App.3d at p. 953.)
Moreover, any prejudice was minimized by the trial court’s admonition given before Judd testified and at the end of the trial regarding the jury’s reliance on evidence of the prior offense. The court expressly forbade the jury from considering the evidence to prove that defendant was a person of bad character or had a criminal disposition. “It is presumed that the jury followed the court’s instruction. [Citation.]” (People v. Sanchez (1995) 12 Cal.4th 1, 82.)
Thus, the trial court did not abuse its discretion in admitting the evidence for the limited purpose of determining whether defendant had the requisite knowledge of the nature of the controlled substances found in a briefcase in defendant’s car and whether defendant intended to possess the controlled substances for sale.
3. Conduct Credit
Defendant contends the trial court erred in calculating his presentence conduct credit. At sentencing, the trial court awarded him 1,216 days of presentence credit, consisting of 812 days for custody and 404 days for conduct. Defendant claims he was entitled to 406 days of conduct credit.
As conceded by the People, defendant is correct that the trial court miscalculated his conduct credits. Defendant is entitled to 406 days of conduct credit, rather than 404 days. (§ 4019; In re Marquez (2003) 30 Cal.4th 14, 25-26.) The judgment must thus be amended to state defendant is entitled to 406 days conduct credit, with his total presentence credit amounting to 1,218 days.
4. Disposition
The trial court is directed to amend the abstract of judgment by awarding defendant 406 days of presentence conduct credit, for a total of 1,218 credit for time served, and striking the erroneously awarded conduct credit of 404 days and total credit of 1,216 days. As amended, the judgment is affirmed. The trial court is directed to send a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
We concur: McKinster, Acting P. J., King, J.