Opinion
D072533
09-28-2018
THE PEOPLE, Plaintiff and Respondent, v. JOVAN JACKSON, Defendant and Appellant.
Sheila O'Connor, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Craig H. Russell, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. SCD261610, SCD270524) APPEAL from a judgment of the Superior Court of San Diego County, Esteban Hernandez, Judge. Affirmed. Sheila O'Connor, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Craig H. Russell, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Jovan Jackson was convicted of possession of marijuana for sale and attempted export of marijuana for sale, along with failure to appear while on bail. The trial court permitted the People to ask Jackson about his two prior offenses of possessing marijuana for sale to prove his intent, knowledge, motive and lack of mistake in the current case, pursuant to Evidence Code section 1101, subdivision (b). Jackson argues that the trial court abused its discretion in permitting this evidence, claiming that his prior acts were more prejudicial than probative. He also contends the trial court erred in finding his prior possessions of marijuana for sale were crimes of moral turpitude and thus admissible to impeach his credibility. He bases the argument on the ground that his prior acts no longer reflect moral turpitude, due to the citizens' changed perception of sale of marijuana, as reflected in Proposition 64, the Control, Regulate and Tax Adult Use of Marijuana Act, which legalized all personal use of marijuana in California and reduced the penalties for sales of marijuana. We find that the trial court did not abuse its discretion and affirm the judgment.
BACKGROUND
Statement of Case
Jackson was convicted of possession of marijuana for sale (Health & Saf. Code, § 11359, subd. (b)), attempt to export more than 28.5 grams of marijuana (Health & Saf. Code, § 11360, subd. (a)(3)(D)), and failure to appear while on bail (Pen. Code, § 1320.5) with the enhancement that he was arrested for a secondary offense while he was released from custody on a primary offense (Pen. Code, § 12022.1, subd. (b)). Possession of marijuana for sale is now a misdemeanor, unless the defendant has two prior convictions for sale of marijuana or transportation for sale. (Health & Saf. Code, § 11359, subd. (c)(2).) Jackson admitted having two such prior convictions. On July 25, 2017, the trial court sentenced Jackson to a total term of four years eight months in county jail, pursuant to Penal Code section 1170, subdivision (h)(1).
Statement of Facts
On March 19, 2015, Jackson went to a postal store in Lemon Grove and dropped off a package to be sent to Allen R. in Lawton, Oklahoma. A federal law enforcement agent who had been surveilling the store seized the package. The return address was written as Motion Concepts, Inc., with an address in San Diego. There was no business named Motion Concepts at the listed address. People at the business that was located at that address said they did not mail the package and did not know anything about Motion Concepts.
Meanwhile at DEA headquarters, a trained canine alerted to the package. Agents obtained a search warrant, opened the package, and found several sealed bags of marijuana weighing altogether 785 grams, more than 27 pounds.
Jackson was arrested and his apartment was searched. He had two cell phones on his person. Agents found 65 grams of marijuana in Jackson's apartment and packaging materials, similar to the packaging material inside the parcel sent to Oklahoma and to packing materials that have been used in other drug sales cases. One of his two cell phones had a contact with someone called "Broom" in Lawton, Oklahoma, and several texts to him. One of the text messages contained the tracking number of the package that Jackson had delivered to the postal store.
Jackson's bank records showed deposits totaling $117,000 from November 3, 2014, through April 23, 2015. In the same time period, Jackson withdrew nearly all of that money in California. The deposits were made in Lawton, Oklahoma by Gregory B. and Allen. Most of the deposits and withdrawals were for less than $10,000, which is the amount at which the bank has to file a currency transaction report. Deposits and withdrawals like these could be money laundering.
An agent opined that Jackson intended to sell the marijuana, based primarily on the large amount, sending it to Oklahoma, and receiving money back from Oklahoma.
Jackson was released from custody on a bail bond on April 9, 2015. He was charged with a felony (case No. SCD261610). He was in court on March 22, 2016 and was ordered to return on March 28, 2016 and on March 30, 2016. He failed to appear on either date. A bondsman returned Jackson from Victorville to the court in January 2017.
Jackson testified that he was a barber and owned a barber shop where he specialized in relieving razor bumps and other skin ailments, and also that he owned a business called Beard and Body that sold men's grooming products. He denied selling marijuana to Gregory, Allen, or anyone else in Oklahoma. Jackson claimed that the package he sent to Allen on March 19, 2015, contained nine telephones. He said he never met Allen. His transactions were with Gregory, who was acting on Allen's behalf. He admitted that he sent a text message to Gregory with the tracking number of the marijuana package. Jackson gave no explanation for having the tracking number of the marijuana package on his phone.
Jackson admitted that he had been convicted of possession of marijuana for sale twice in 2009. He claimed that he owned a medical marijuana dispensary and was selling through the dispensary, but he was convicted nonetheless for unlawful possession of marijuana for sale. Jackson said he never sold marijuana again after that conviction.
Jackson also acknowledged that on March 22, 2016, a superior court judge ordered him to return to court on March 28, 2016, and on March 30, 2016. He claimed that he did not understand what the court said. He acknowledged that he did not appear in court on those dates, or in the following two months. Instead, he moved out of San Diego County.
DISCUSSION
I.
THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN ADMITTING
EVIDENCE OF JACKSON'S PRIOR SALES OF MARIJUANA UNDER EVIDENCE
CODE SECTIONS 352 AND 1101, SUBDIVISION (B)
A. Trial Court Proceedings
The trial court admitted evidence of Jackson's prior acts of selling marijuana to show knowledge, intent, motive and lack of mistake, under section 1101, subdivision (b). The court balanced the probative value and prejudicial effects and found that the evidence was more probative than prejudicial. The court did not abuse its discretion.
Jackson had previously been convicted of Health & Safety Code sections 11359 [possession of marijuana for sale] and 11360 [transportation of marijuana], and those convictions had been reduced to misdemeanors. The People moved in limine to admit evidence of Jackson's prior convictions for marijuana sale to prove knowledge and intent, under Evidence Code sections 1101, subdivision (b), 352, and 788. Admission was requested in the event that Jackson testified and denied knowledge of marijuana in his possession or intent to sell marijuana. The trial court tentatively held that if Jackson testified, the prosecutor could impeach him with a sanitized version of his prior offenses, i.e. that Jackson had been convicted of crimes of moral turpitude. But Jackson's counsel objected to him being asked if he were convicted of crimes of moral turpitude. Defense counsel argued that Jackson's intent in the previous sales was different because he claimed to be operating a medical marijuana dispensary at those times. The trial court pointed out that in both cases the jury rejected that defense and convicted Jackson of felony possession of marijuana with intent to sell. The trial court considered the probative value and prejudicial effects and found that Jackson was not entitled to a false aura of veracity. It concluded the information was more probative than prejudicial and would not consume an undue amount of time.
Further statutory references are to the Evidence Code unless otherwise specified.
Jackson denied mailing the package of marijuana on March 19, 2015 and denied both possession and intent to sell marijuana. On cross-examination, he admitted that he was twice convicted of unlawful possession of marijuana for sale, on July 16, 2009, and on September 9, 2009. He stated that he was selling it for medical use.
The trial court instructed the jury that it could consider the uncharged 2009 marijuana-sale convictions only if the People had proved by a preponderance of evidence that Jackson had committed those offenses. If the People met that burden, the jury could consider the prior offenses only for deciding (1) if Jackson acted with the intent to unlawfully sell marijuana, (2) if he had a motive to sell marijuana, (3) if he knew the character of the marijuana as a controlled substance, and (4) if his actions were not the result of accident or mistake. The jury could also consider the effects of these acts on Jackson's credibility, but for no other reason. Specifically, the jury was not permitted to conclude from this evidence that Jackson was disposed to commit the charged offense. Nor was the jury allowed to conclude that commission of the prior offenses was sufficient, by itself, to prove the current charges.
B. Analysis
We review a trial court's admission of evidence under sections 1101 and 352 for an abuse of discretion. (People v. Valdez (2012) 55 Cal.4th 82, 133 (Valdez); People v. Ghebretensae (2013) 222 Cal.App.4th 741, 754 (Ghebretensae).) Under section 1101, subdivision (a), " '[c]haracter evidence, sometimes described as evidence of propensity or disposition to engage in a specific conduct, is generally inadmissible to prove a person's conduct on a specified occasion.' " (People v. Leon (2015) 61 Cal.4th 569, 597; see People v. Lindberg (2008) 45 Cal.4th 1, 22-23 (Lindberg).) Under section 110, subdivision (b), " '[e]vidence that a person committed a crime, civil wrong, or other act may be admitted, however, not to prove a person's predisposition to commit such an act, but rather to prove some other material fact,' " such as motive, intent, knowledge, identity, or the existence of a common design or plan. (Leon, at p. 597; see Lindberg, at p. 22; Ghebretensae, at p. 753.) "To be admissible, the evidence must be relevant to some material fact which is in issue, must have a tendency to prove that fact, and must not contravene other policies limiting admission, such as . . . section 352." (Ghebretensae, at pp. 753-754; accord Lindberg, at p. 22.)
" 'The admissibility of other crimes evidence depends on (1) the materiality of the facts sought to be proved, (2) the tendency of the uncharged crimes to prove those facts, and (3) the existence of any rule or policy requiring exclusion of the evidence. [Citation.]" (Lindberg, supra, 15 Cal.4th at p. 22.) The primary rule that excludes otherwise relevant evidence is section 352, which requires exclusion of evidence if its probative value 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." (People v. Harrison (2005) 35 Cal.4th 208, 229.) The prejudice that section 352 guards against is that which " 'tends to evoke an emotional bias against the defendant with very little effect on issues, not evidence that is probative of a defendant's guilt.' [Citation.]" (Valdez, supra, 55 Cal.4th at p. 133.)
Evidence of prior drug sale is relevant to show that the defendant knew the contraband nature of the substance he was selling and his intent in possessing the drug. (Ghebretensae, supra, 222 Cal.App.4th at p. 754; People v. Williams (2009) 170 Cal.App.4th 587, 607 ["In prosecutions for drug offenses, evidence of prior drug use and prior drug convictions is generally admissible under Evidence Code section 1101, subdivision (b), to establish that the drugs were possessed for sale rather than for personal use and to prove knowledge of the narcotic nature of the drugs."]; People v. Pijal (1973) 33 Cal.App.3d 682, 691 [it is "well settled" that evidence of the defendant's prior narcotic offenses was "clearly admissible to show his guilty knowledge, motive and intent" in a prosecution for sales of narcotics].) The appellate court in Ghebretensae found evidence of a prior drug sale was relevant to the defendant's knowledge and intent but found its admission to be error because the defendant offered to admit that element of the offense. (Ghebretensae, at pp. 754-755.) The defendant had offered that, if the jury found he possessed the substance, he would stipulate that he knew the character of the substance as a controlled substance and had the intent to sell it. (Id. at pp. 752, 755.) Admission of other crimes evidence is not admissible when the defendant has offered to admit the existence of the pertinent element of the crime. (Id. at p. 755.) The error was harmless in Ghebretensae, however. (Ibid.) There was no such proffered stipulation here.
Jackson's primary contention is that the evidence was too relevant. He argues that the evidence of his prior marijuana sales was overly prejudicial, largely because a jury hung on the charges of possession of marijuana for sale and attempted export of marijuana in an earlier trial when Jackson's prior convictions were not admitted. Jackson argues that the jury here used the evidence of prior sales to find him guilty based on a disposition to commit crimes. This argument underlines his desire to exclude evidence relevant to his guilt, not evidence that evokes an emotional bias without shedding light on his guilt for the crimes charged. (Valdez, supra, 55 Cal.4th at p. 133.)
In the first trial, the court permitted a sanitized version of the prior offenses [crime of moral turpitude] for impeachment. But the prosecutor did not ask Jackson about these prior convictions.
The trial court recognized that evidence of prior crimes may not be admitted to prove a defendant's disposition to commit a crime, quoting from Ghebrentensae, supra, 222 Cal.App.4th at page 754. After balancing this and other prejudicial factors against the probative value of the evidence on intent and knowledge, the trial court found that the probative value of the evidence outweighed its possible prejudicial effect.
The court specifically instructed the jury not to conclude from Jackson's prior convictions that he was disposed to commit crimes, and that the People had to prove each element of the current offenses beyond a reasonable doubt even if the jury concluded that Jackson had committed the prior offenses. We presume the jury understood and followed the trial court's instructions. (People v. Romero and Self (2015) 62 Cal.4th 1, 28.)
In conclusion, no error occurred. Even if it did, there is no reasonable probability that Jackson would have received a more favorable result had the admission of prior crimes not occurred. (Ghebrentensae, supra, 222 Cal.App.4th at pp 750-751 [state standard of error applies, citing People v. Watson (1956) 46 Cal.3d 818, 836.) We find the evidence of guilt overwhelming even without evidence of Jackson's prior convictions.
II.
THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN ADMITTING
EVIDENCE OF PRIOR SALES TO IMPEACH JACKSON'S CREDIBILITY
The trial court tentatively permitted the prosecutor to impeach Jackson—if he testified—with a sanitized version of his prior offenses, i.e. that Jackson had been convicted of crimes of moral turpitude. Jackson contended at trial and contends here on appeal that his prior acts of selling marijuana did not reflect moral turpitude because his convictions have been reduced to misdemeanors pursuant to Proposition 64. But misdemeanor acts that demonstrate moral turpitude—a general readiness to do evil or to corrupt others—are admissible to impeach the credibility of a witness. (People v. Clark (2011) 52 Cal.4th 856, 931 (Clark); People v. Wheeler (1992) 4 Cal.4th 284, 295 (Wheeler).) Unlawful possession of controlled substances for sale, including marijuana, is a crime of moral turpitude because the act reflects the intent to corrupt others and readiness to do evil. (People v. Castro (1985) 38 Cal.3d 301, 317 (Castro).)
Proposition 64, passed by the electorate in 2016, generally permits and regulates the use of marijuana by adults for recreational purposes. It did not make lawful the sale of marijuana, but generally reduced the penalties for sale. (People v. Lin (2018) 26 Cal.App.Supp. 10 [236 Cal.Rpt.3d 818, 822].) "[O]ne of the purposes of the act is to 'prevent illegal production or distribution of marijuana.' " (Id. at p. 823, quoting Prop. 64, § 3(u).) "As [the] text [of Proposition 64] confirms, after Proposition 64, possession of marijuana with intent to sell or unauthorized growing of marijuana remain subject to criminal 'condemnation.' " (Id. at p. 825.) Marijuana remains a controlled substance under Health & Safety Code section 11054, subdivision (d)(13), and under federal law.
"Anything that is related to trafficking is more serious than possess[ion]." (People v. Navarez (1985) 169 Cal.App.3d 936, 949 [possession of heroin for sale].) The crime of possessing drugs for sale, including marijuana, involves moral turpitude because it reflects "the intent to corrupt others," and thus may be used to impeach a witness at trial. (Castro, supra, 38 Cal.3d at p. 317 [possession of heroin for sale]; People v. Gabriel (2012) 206 Cal.App.4th 450, 459 (Gabriel) [cultivation of marijuana]; People v. Kwolek (1995) 40 Cal.App.4th 1521, 1532 [possession of marijuana for sale]; People v. Standard (1986) 181 Cal.App.3d 431, 435 [possession of marijuana for sale]; Navarez, at p. 949.) In Gabriel, the court held that cultivation of marijuana was a crime of moral turpitude because " 'cultivation of marijuana is often associated with trafficking . . . and normally carries a higher degree of culpability than simple possession.' " (Gabriel, at p. 459.)
Like possession of marijuana for sale, cultivation of more than six marijuana plants remains a felony if the defendant has two prior drug convictions or in other specified situations. (Health & Saf. Code, § 11318, subd. (d).)
Section 788 permits impeachment of a witness by a felony conviction only. Misdemeanor acts and convictions therefore could not be used for impeachment before 1982. (Wheeler, supra, 4 Cal.4th at p. 290.) In 1982, the voters adopted Proposition 8, including the "Truth-in-Evidence" provision, that removed restrictions on all relevant evidence in a criminal proceeding, except as limited by certain exclusionary rules such as privilege and hearsay. (Id. at pp. 291, 293.) Prior criminal conduct amounting to a misdemeanor is admissible if it impeaches the witness's testimony by reflecting moral turpitude. (Wheeler, at p. 295; Clark, supra, 52 Cal.4th at p. 931.)
"For the purpose of attacking the credibility of a witness, it may be shown by the examination of the witness or by the record of the judgment that he has been convicted of a felony . . . ." (§ 788.)
Article 1, section 28, subdivision (f)(4) of the California Constitution permits use of any prior felony conviction for impeachment.
Wheeler held that the fact of a misdemeanor conviction could not be used to prove the underlying conduct because it is hearsay. (Wheeler, at p. 288.) Section 452.5, subdivision (b)(1) was enacted in 1996 and provides an exception to the hearsay rule to permit official records of conviction admissible to prove the commission of the prior conviction. Jackson did not object on this ground in the trial court, however, and has forfeited any possible objection on this ground. Had Jackson objected to oral evidence of the misdemeanor conviction instead of a certified copy of the record of conviction, that could have been easily provided. Jackson, in any event, admitted his convictions though claiming he thought he legally possessed and sold the marijuana on those two occasions in 2009. It was for the jury to determine by a preponderance of the evidence whether the People had proved the underlying conduct, and if so, whether it was relevant.
The trial court has great discretion in determining whether to admit the evidence under section 352. (Clark, 52 Cal.4th at p. 931; Valdez, supra, 55 Cal.4th at p. 133.) The court did not abuse its discretion here. In addition, the evidence was admissible under section 1101, subdivision (b), and would have come in even if the trial court chose to exclude it for impeachment of credibility. No error occurred.
DISPOSITION
We affirm the judgment.
BENKE, Acting P. J. WE CONCUR: HUFFMAN, J. AARON, J.