Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, Super. Ct. No. 05CF1362, Robert R. Fitzgerald, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Reversed and remanded.
Jennifer A. Gambale, 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, Barry Carlton and Cheryl Sueing-Jones, Deputy Attorneys General, for Plaintiff and Respondent.
FYBEL, J.
I. Introduction
A jury convicted William Andrew Phillips of one count of possessing methamphetamine for sale (Health & Saf. Code, § 11378) and one count of transporting methamphetamine (id., § 11379, subd. (a)). We conclude the trial court erred by permitting the prosecution to introduce evidence under Evidence Code section 1101, subdivision (b) of Phillips’s later, uncharged possession of methamphetamine. Because we conclude the error was prejudicial, we reverse and remand for a new trial without addressing Phillips’s contention the trial court erred by imposing the upper term sentence based on factors not found beyond a reasonable doubt by the jury.
II. Facts
A. Prosecution Evidence
In the early evening of May 1, 2005, Elisa Perez drove Phillips to his sister’s house to collect rent money owed to his mother. After dropping him off, Perez drove home.
About 9:40 p.m. on May 1, Santa Ana Police Officer Mauricio Estrada saw Phillips standing next to a red car in a mini-mart parking lot. Phillips was drinking from a brown paper bag and talking to the driver of the red car. Thinking Phillips might be drinking an alcoholic beverage in public, Estrada drove into the parking lot and parked behind the red car. Phillips was speaking on a cell phone as Estrada walked toward him. After telling Phillips to hang up the phone, Estrada asked what he was doing there. Phillips replied that he was waiting to talk to his mother on his cell phone to find out if she wanted milk from the mini-mart, and in the meantime had been speaking with Perez, the driver of the red car. Phillips told Estrada he had walked to the mini-mart and was about to walk home.
Estrada searched Phillips and found a methamphetamine pipe in his pocket, a cell phone, and $826 in his wallet. When Estrada removed the pipe from Phillips’s pocket, Phillips said he had a “meth problem.” Later, during an interview at the police station, Philips said some of the money in his pocket was rent money from his sister.
Estrada asked Perez if there were any drugs or weapons in her car. She said no and authorized Estrada to search her car. Beneath the front passenger seat, Estrada found a black nylon “Gameboy Advance” bag. Inside the bag, Estrada found two baggies containing marijuana, methamphetamine (with a resale value later determined to be around $1,000), a number of empty plastic baggies, a small plastic spoon, a small silver spoon, a digital scale, 13 Q-tip swabs, a small wooden spoon, and a glass pipe with residue.
At trial, Estrada testified Perez told him she drove Phillips to the mini-mart to pick up some food and was going to drive him home. According to Estrada, Perez told him that when Phillips got inside her car, he put a small black bag underneath the front passenger seat. He did not tell her what was in the bag, and she did not ask.
Perez testified she did not tell Estrada that Phillips placed the black bag underneath her car seat. She testified she did not know how the black bag got under the front seat. Perez testified she smoked methamphetamine, but never with Phillips. She had seen Phillips use methamphetamine, but had never seen him sell it, and Phillips had never told Perez he sold methamphetamine.
During the two-hour period from the time Estrada first made contact with Phillips in the mini-mart parking lot to the time Phillips was booked at the police station, Phillips’s cell phone rang about 10 times. Estrada managed to answer the phone about five times. Each time, a male voice asked for “Billy.” Estrada told the caller Billy was busy, and the call ended.
About 11:15 p.m. on May 1, Santa Ana Police Detective Dominic Padilla searched Phillips’s room at his mother’s house. On the night stand, Padilla found a small, silk eyeglass case holding a methamphetamine pipe. Inside a dresser drawer, he found 10 Ziploc baggies.
B. Defense Evidence
Phillips’s mother, Dorine Phillips, testified she rented a house to her daughter, Billie Jean Terrones, for $200 per week. Dorine Phillips testified she was not feeling well on May 1, 2005 and asked Phillips to collect the rent money Terrones owed her. Phillips agreed and said a friend would drive him to Terrones’ house to pick up the money.
Later that night, Phillips called his mother and told her he had the money and was on his way home. Dorine Phillips asked him to buy some milk on the way. A little while later, Phillips called his mother again, told her he had the milk, and asked her if she needed anything else. She heard a man tell Phillips to “hang up the goddam phone.” The line then went dead.
Terrones testified Phillips came to her house on the night of May 1, 2005. She gave him $200 for rent and drove him to a service station, where she left him.
C. Subsequent Uncharged Offense
Costa Mesa Police Officer Jeffrey Horn testified that on April 28, 2006, he conducted a traffic stop of Phillips’s car. When Horn asked Phillips to step out of his car, he saw Phillips shove something underneath the seat. Horn later looked under the seat and found a small, zippered black case holding 13 grams of methamphetamine, a digital scale, a small measuring spoon, and numerous plastic baggies. Next to the black bag, Horn found a blue zippered bag containing drug paraphernalia, including a marijuana pipe. Horn searched Phillips and found two cell phones and $270. This offense was not charged in the felony complaint in this case.
III. Discussion
Phillips argues the trial court erred by permitting the prosecutor to elicit testimony from Officer Horn regarding Phillips’s subsequent uncharged offense of possessing methamphetamine. The Attorney General argues the evidence was admissible under Evidence Code section 1101, subdivision (b) to establish Phillips knew the substance found in the black bag underneath the front passenger seat of Perez’s car was methamphetamine.
A. Background
Several days before trial started, the prosecution filed a motion in limine asking the court to permit the prosecution to present evidence under Evidence Code section 1101, subd. (b) that methamphetamine was found underneath the driver’s seat of Phillips’s car in April 2006. The prosecution argued the evidence of this uncharged offense was relevant to show lack of accident or mistake and Phillips knew of the narcotic nature of the substance in the black nylon bag found underneath the front passenger seat of Perez’s car in May 2005.
At the hearing on the motion, defense counsel objected to the introduction of uncharged offense evidence, arguing knowledge and lack of accident or mistake were not contested issues. At the close of hearing, the trial court granted the prosecution’s motion and ruled the prosecution could call Costa Mesa police officers to testify about Phillips’s subsequent offense.
Defense counsel reasserted the objection just before Horn testified, stating: “My client is a self-admitted drug addict. Everyone who has testified virtually has said so. And the issue of whether or not he knows what meth is at this point is nothing – it is well-established, and any additional evidence in that regard by way of 1101(b) evidence is cumulative, it is not remotely probative, and it is outstandingly and astonishingly prejudicial at this point. . . . [¶] . . . [T]here is no evidence of accident or mistake, no one has put on any such evidence, I do not intend to present that argument, there is no way that that is anyone’s argument in this case, and there is no evidence to warrant rebutting that.” Defense counsel argued the evidence of the subsequent uncharged offense was irrelevant to the issue of intent because “[s]uch evidence is admissible in cases where the proof of defendant’s intent is ambiguous, and when [the defendant] admits the acts and denies the necessary intent because of mistake or accident. [¶] My client has not admitted the acts in this case.” The trial court overruled the objection, and Horn testified.
At the conclusion of the evidence, defense counsel moved the court to strike the uncharged offense evidence and to instruct the jury not to consider it. The trial court denied the motion and instructed the jury with CALCRIM No. 375, concerning evidence of uncharged offenses.
B. Evidence of Phillips’s Subsequent Uncharged Offense Was Not Admissible Under Evidence Code Section 1101, Subdivision (b).
Evidence of uncharged offenses is admissible when relevant to prove motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or some fact other than the defendant’s character or disposition to commit the crime. (Evid. Code, § 1101, subd. (b); see People v. Ewoldt (1994) 7 Cal.4th 380, 393.) However, “‘[s]ince “substantial prejudicial effect [is] inherent in [such] evidence,” uncharged offenses are admissible only if they have substantial probative value.’” (People v. Ewoldt, supra, 7 Cal.4th at p. 404.) Any doubts about the admissibility of evidence of uncharged offenses must be resolved in favor of the defendant. (People v. Holt (1984) 37 Cal.3d 436, 451.)
Here, evidence of Phillips’s uncharged possession of methamphetamine was not relevant for any permissible reason. As defense counsel argued to the trial court, Phillips did not contend he possessed the methamphetamine through accident or mistake, or that the black bag with the methamphetamine mistakenly ended up beneath Perez’s car seat. Rather, Phillips denied the black bag was his.
The Attorney General argues the uncharged offense evidence was relevant to prove knowledge; that is, Phillips knew the methamphetamine found under Perez’s car seat was a narcotic. Knowledge that a substance falls within the prohibition of Health and Safety Code section 11378 is an element of the crime of possession for sale of a controlled substance. (People v. Winston (1956) 46 Cal.2d 151, 158; People v. Romero (1997) 55 Cal.App.4th 147, 152-153.) But knowledge was not an issue in this case: Phillips never denied he knew what methamphetamine looked like or that it was a controlled substance. He never denied the substance found in the black bag underneath Perez’s car seat was methamphetamine. He openly admitted using methamphetamine “for a long time” and acknowledged having a problem with the drug. Methamphetamine paraphernalia was found in his pocket and in his bedroom.
Arguably, the uncharged offense evidence was relevant to the issue of plan or preparation by showing Phillips stored methamphetamine in a black bag which he placed underneath the seat of any car in which he was traveling. The Attorney General does not assert this theory of relevance. The evidence probably does not have substantial probative value under that theory of relevance because it is common practice to hide illegal items underneath a car seat.
In People v. Perez (1974) 42 Cal.App.3d 760, the court concluded evidence of uncharged conduct is inadmissible to prove knowledge when such evidence is cumulative of prosecution evidence. In Perez, an undercover agent purchased balloons containing heroin from the defendant. (Id. at p. 763.) The defendant was later arrested and charged with sale of heroin to the undercover agent. Over the defendant’s objection, the trial court permitted the prosecution to introduce evidence that six days after the sale to the undercover agent, the defendant’s home was searched pursuant to a search warrant and a substantial amount of heroin and drug paraphernalia was found. (Ibid.)
After reviewing the cases on admission of evidence of uncharged offenses, the Perez court acknowledged prosecutors do not have “carte blanche in every narcotic prosecution to present evidence of prior or subsequent narcotic activity to show knowledge of the narcotic nature of the substance involved in the primary prosecution.” (People v. Perez, supra, 42 Cal.App.3d at pp. 765-766.) For evidence of uncharged offenses to be admissible, the court concluded: “[T]he court must determine that the probative value of that evidence outweighs its inherent prejudicial effect and find that the evidence is not merely cumulative with respect to other evidence which the People have used to prove the same issue. Thus, if the evidence of the prosecution establishes the fact of knowledge in such a way that there is clearly no real issue presented the prejudicial effect of the evidence would outweigh its probative value and, in addition, would be cumulative.” (Id. at p. 766.) The Perez court affirmed the conviction because the prosecution had not established defendant’s knowledge of the narcotic nature of the substance in the balloons given to the undercover agent, and the defendant did not stipulate to his knowledge. (Id. at p. 767.)
In this case, defense counsel stipulated Phillips knew what methamphetamine is and has an addiction to it. Officer Estrada testified the baggies found inside the black bag underneath Perez’s front passenger seat contained sellable quantities of marijuana and methamphetamine. Defense counsel did not challenge that testimony either through cross-examination or by offering conflicting evidence. A methamphetamine pipe was found in Phillips’s right front pocket, and Estrada testified Phillips told him he had been using methamphetamine for “a long time.” The prosecution’s evidence therefore “establishe[d] the fact of knowledge in such a way that there [was] clearly no real issue presented.” (People v. Perez, supra, 42 Cal.App.3d at p. 766.)
In People v. Spencer (1956) 140 Cal.App.2d 97, the court held that evidence of the defendant’s prior heroin-related conviction was inadmissible to establish the defendant knew the nature of the heroin he had been charged with selling. Although knowledge of the narcotic nature of the substance was an essential element of the crime charged, the defendant testified and admitted his knowledge of heroin. (Id. at p. 103.) The court stated: “Here the record was clear, before the question of appellant’s prior conviction of the misdemeanor conviction of possession of heroin was first asked by the prosecutor, from appellant’s own testimony . . . that appellant knew what heroin was. His defense, already developed, was not that he did not know what heroin was but that he was not guilty of the possession and sale of the particular heroin as charged in the information. Since it was already clear that knowledge of the narcotic character of heroin was not in issue there was no reason, and no justification, for the admission of this evidence.” (Id at p. 105.)
Here, as in People v. Spencer, Phillips’s defense was not that he did not know what methamphetamine was, but that he was not guilty of the possession of the particular methamphetamine charged in the complaint. The issue on which guilt or innocence hinged was whether the black bag containing methamphetamine found underneath the front passenger seat of Perez’s car belonged to Phillips or to someone else. Resolution of that issue depended to a large degree on the jury’s assessment of the credibility of Perez, who testified she did not know whose bag it was, and the credibility of Estrada, who testified Perez told him the bag belonged to Phillips. It was reasonably probable the evidence of Phillips’s later, uncharged possession led the jury to believe Phillips had a disposition to possess methamphetamine for sale and for that reason to conclude the black bag with the methamphetamine belonged to him. We therefore conclude the trial court erred by permitting the prosecution to present evidence of the subsequent uncharged offense, and the error was prejudicial.
IV. Disposition
The judgment is reversed and the matter remanded for a new trial.
WE CONCUR: SILLS, P. J., MOORE, J.