Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. JV36919B
Duffy, J.
M. R., a minor who had previously been adjudged a ward of the court under Welfare and Institutions Code section 602, subdivision (a), appeals from the trial court’s jurisdictional and dispositional order under a subsequent section 602 petition. The order sustained a felony violation of Health and Safety Code section 11377, subdivision (a), possession of a controlled substance—MDMA or “ecstasy;” continued the wardship with the minor remaining in his parents’ custody; and set a maximum confinement time of three years, two months.
Further statutory references are to the Welfare and Institutions Code unless otherwise stated.
The minor challenges the admission into evidence under Evidence Code section 1101, subdivision (b), testimony concerning his familiarity with tobacco products or paraphernalia and his association with persons who were known to have used tobacco and marijuana. He further challenges the court’s setting of a maximum time of confinement under the circumstances of his remaining in his parents’ custody, a point respondent concedes. We affirm the order but strike the specified term of imprisonment from the dispositional order.
STATEMENT OF THE CASE
We take the facts of the crime largely from the testimony offered at the contested jurisdictional hearing.
In April 2010, a month or so preceding the factual events of this case, M. R. was adjudged a ward of the court under Welfare and Institutions Code section 602 after the trial court sustained a petition and M. R. admitted one count of battery in violation of Penal Code sections 242, 243, subdivision (a). He was ordered returned to the custody of his parents, on probation.
In May 2010, Jerry Soriano, who was the Assistant Principal of Discipline and Safety for San Jose High School, was driving his cart around the perimeter of the school campus. He noticed M. R., then a student at the school, near the back of the campus during the afternoon when most students are in class. M. R. appeared to be headed off campus but Soriano called him over to the cart to see whether M. R. was supposed to be in class. Students who are finished with class normally exit through the school’s front gates. Soriano had once caught M. R. with “tobacco paraphernalia” or “products” and he knew that M. R. associated with students who had been known to smoke cigarettes and marijuana.
When Soriano summoned M. R., he appeared to be “secretive to one of his pockets, ” and “hesitant, ” as if he were “guard[ing] something” in his hand inside his right front pocket. Soriano asked him what he was hiding. M. R. turned his body sideways and away in a backwards motion. To Soriano, M. R. was behaving suspiciously because of the way he pulled away and appeared to be guarding or secreting something in his pocket. Soriano got out of his cart. M. R. then transferred what he had been holding in his right hand to his left hand behind his back and extended his right hand and arm to shield himself. This action heightened Soriano’s suspicions that M. R. was hiding something as he was “hesitant” and “nervous.” Soriano grabbed M. R.’s clenched left wrist and talked to him about letting go of what he had in his hand, though M. R. did not want to. He eventually did so, releasing a small plastic baggie from his hand with one green pill inside it into Soriano’s hand. The pill was very small, round, and had an insignia printed or embossed on it. Soriano did not recognize the pill but he believed the baggie to be similar to those he had seen containing marijuana. When M. R. released the pill into Soriano’s hand, he blurted that it was not his, that he did not know what it was, and that he had found it in the bathroom.
Soriano had had a lot of experience identifying substances that might be narcotic but he did not know exactly what the green pill was. He did, however, believe it to be an illegal substance of some kind because of the way it was colored and packaged in the baggie and because M. R. was not in class, was behaving suspiciously and defensively, appeared to be trying to hide the pill when Soriano approached him, and spontaneously disclaimed ownership of it or knowledge of what it was upon turning it over.
Soriano provided the pill to police, who tested it. A presumptive color test revealed the pill to be MDMA, also known as ecstasy, which is a controlled substance.
II. Procedural Background
M. R. was charged by section 602 juvenile warship petition with one felony count of violating Health and Safety Code section 11377, subdivision (a), possession of a controlled substance.
The court held a contested jurisdictional hearing, which began with the People’s in limine motion to admit into evidence M. R.’s alleged “prior drug and alcohol history” under Evidence Code section 1101, subdivision (b), which concerns the admission of otherwise inadmissible character evidence for a non-character purpose. This evidence, the People argued, was relevant to prove that M. R. knew the pill he possessed was a controlled substance, an element of a Health and Safety Code section 11377 violation. The specific evidence sought to be admitted was testimony from Jerry Soriano that M. R. had previously been caught at school with “tobacco products” or “paraphernalia” and that he “interacted with and associates with other individuals who are known to have used marijuana and tobacco.” This evidence was urged by the People to be relevant to the knowledge element of the charge “because [it demonstrates] a familiarity with substances that the minor’s not supposed to have, ... as well as [his] familiarity with illegal substances.”
The elements of unlawful possession of a controlled substance are dominion and control of the substance, in a quantity usable for consumption or sale, with knowledge of its presence and of its restricted, dangerous drug character. (People v. Martin (2001) 25 Cal.4th 1180, 1184-1185 [possession illegal without regard to specific intent to possess the substance]; People v. Camp (1980) 104 Cal.App.3d 244, 247-248.)
M. R. objected to the admission of the evidence under Evidence Code section 1101, subdivision (a), arguing that tobacco and marijuana are not similar to ecstasy and the disputed evidence was impermissible character evidence that was not probative of the knowledge element of the charge. The minor also contended that under Evidence Code section 352, the prejudicial effect of the evidence outweighed its probative value. The court allowed the evidence to be admitted, concluding that the substance of M. R.’s objections to the evidence would “go to the weight.” Soriano then testified about his encounter with M. R. during which he had obtained the green pill and how he had previously discovered M. R. in possession of “tobacco paraphernalia” and knew him to associate with others who smoked cigarettes and marijuana.
In closing, the People argued that M. R. knew that the pill was a controlled substance because of his demeanor and behavior during his encounter with Soriano, his statements when he released the pill from his hand that it was not his and that he had found it in the bathroom, and the pill’s look and packaging. But they further argued that M. R. knew the pill was an illegal substance because he “associates with known drug users” and had previously been “caught with tobacco, ” these latter matters showing his general familiarity with illicit substances.
While tobacco is not an illegal substance per se, as the People argued, it is illegal for a minor to possess it or tobacco paraphernalia. (Pen. Code, § 308, subd. (b).)
At the conclusion of the hearing, the court sustained the petition and continued M. R. as a ward of the court in the custody of his parents, placing him on probation and ordering him to serve 45 days on the electronic monitoring program. The court set a maximum time of confinement of three years, two months, with seven days credit for time served.
M. R. timely appealed.
DISCUSSION
I. The Court’s Abuse of Discretion in Admitting the Challenged Evidence in Violation of Evidence Code Section 1101, subdivision (a), Was Harmless Error
M. R. challenges the court’s order admitting Soriano’s testimony that he had previously caught M. R. with tobacco products or paraphernalia and that M. R. associated with persons known to have used tobacco and marijuana. We review the trial court’s ruling on admissibility under Evidence Code section 1101 for abuse of discretion. (People v. Abilez (2007) 41 Cal.4th 472, 500.)
Evidence Code section 1101, subdivision (a) precludes the admission of evidence of a person’s character or a character trait, “whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct, ” to prove his or her conduct on a specified occasion. (Evid. Code, § 1101, subd. (a).) In other words, prior misconduct evidence is inadmissible if its only relevance is to establish that the defendant possessed a disposition or propensity to commit the charged offense. (People v. Gibson (1976) 56 Cal.App.3d 119, 127.) But under Evidence Code section 1101, subdivision (b), this rule does not apply to prior misconduct or offenses that are “relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, ...)” (Evid. Code, § 1101, subd. (b); People v. Ewoldt (1994) 7 Cal.4th 380, 404 (Ewoldt), superseded by statute on other grounds as stated in People v. Britt (2002) 104 Cal.App.4th 500, 505-506.)
When considering the admissibility of uncharged offenses or prior misconduct, the trial court must take into account (1) the materiality of the fact the evidence will prove or disprove, (2) the probative value or relevance of the evidence, and (3) whether any rule or policy requires the evidence to be excluded despite its relevance, including those policies reflected in Evidence Code section 352. (People v. Bigelow (1984) 37 Cal.3d 731, 747; People v. Butler (2005) 127 Cal.App.4th 49, 60; People v. Thompson (1988) 45 Cal.3d 86, 109.)
Evidence Code section 352 provides that the court, in its discretion, “may exclude 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 materiality prong is satisfied “if the fact is either an ultimate fact or an intermediate fact from which an ultimate fact can be inferred, and the ultimate fact is actually in dispute.” (People v. Gillard (1997) 57 Cal.App.4th 136, 160.) The tendency to prove or disprove a material fact, the second prong, requires that the court scrutinize the proffered evidence to determine its probative value or relevance on the issue for which it is offered. Other-act evidence has a tendency to prove or disprove a material fact when it “serves ‘logically, naturally, and by reasonable inference’ to establish [or disprove] that fact. [Citations.]” (People v. Thompson (1980) 27 Cal.3d 303, 316, fn. omitted, disapproved on other grounds in People v. Williams (1988) 44 Cal.3d 883, 907, fn. 7.) Under the third prong, even if the prior-act evidence is relevant and otherwise admissible, the evaluation requires consideration of the policies limiting admission of evidence under Evidence Code section 352 because evidence of prior misconduct or offenses “ ‘is so prejudicial that its admission requires extremely careful analysis. [Citations.]’ ” (Ewoldt, supra, 7 Cal.4th at p. 404.) “[F]or uncharged crime evidence to be admissible, it must have substantial probative value that is not greatly outweighed by the potential that undue prejudice will result from admitting the evidence.” (People v. Lenart (2004) 32 Cal.4th 1107, 1123.)
In evaluating the relevance or probative value of other-act evidence to determine its admissibility under Evidence Code section 1101, subdivision (b), it is important to identify the purpose for which the evidence is offered. (Ewoldt, supra, 7 Cal.4th at p. 406.) When determining whether a prior offense or past misconduct is sufficiently similar to the current offense and is therefore relevant so as to permit its admission, different degrees of similarity are required, depending on the reason the prior offense or past misconduct 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.” (Ewoldt, supra, 7 Cal.4th at pp. 402-403.)
The parties have not cited to us any case, and our independent research has not disclosed one, specifically addressing where on this continuum the element of knowledge falls. We conclude that 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 misconduct is required.
As noted, proof of a charge of possession of a controlled substance under Health and Safety Code section 11377 requires evidence that the defendant had knowledge of the substance’s controlled character, an element M. R. disputed here. Thus, the fact sought to be established was material, satisfying the first prong of the admissibility analysis required under Evidence Code section 1101, subdivision (b).
This leads to the second prong—ascertaining whether M. R.’s prior possession of tobacco products or paraphernalia and his association with others known to use tobacco and marijuana are relevant as having a tendency to prove that he knew the ecstasy pill in his possession was a controlled substance. As noted, in performing this analysis, the court must first determine whether or not the other-act evidence serves “ ‘logically, naturally, and by reasonable inference’ ” to establish the disputed fact. (People v. Williams, supra, 44 Cal.3d at p. 905.) When making this determination, the court “ ‘ “must look behind the label describing the kind of similarity or relation between the [uncharged] offense and the charged offense; it must examine the precise elements of similarity between the offenses with respect to the issue for which the evidence is proffered and satisfy itself that each link of the chain of inference between the former and the latter is reasonably strong.” [Citation.] If the connection between the uncharged offense and the ultimate fact is not clear, the evidence should be excluded. [Citations.]’ ” (Ibid.) Said another way, 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.)
We have little difficulty here concluding that neither Soriano’s testimony concerning his past discovery of M. R. in possession of tobacco products or paraphernalia, nor his awareness of M. R.’s association with others who used tobacco or marijuana, was probative of or relevant to M. R.’s knowledge of the pill’s controlled character. This evidence had no tendency to prove by logic or inference the ultimate fact of M. R.’s knowledge that the ecstasy in his possession was an illicit or controlled substance. Even though the least degree of similarity between past conduct and the current offense is required to establish intent or knowledge under Evidence Code section 1101, subdivision (b), prior possession of tobacco products or paraphernalia and association with others who use tobacco and marijuana are not at all similar to the possession of a controlled substance—ecstasy—so as to “ ‘ “support the inference that the defendant ‘ “probably harbored the same [knowledge] in each instance.” [Citations.]’ ” ’ [Citations.]” (People v. Lewis (2001) 25 Cal.4th 610, 637.)
Taking M. R.’s past possession of tobacco products or paraphernalia first, there is virtually no similarity between possessing tobacco and possessing ecstasy, a narcotic, other than that they are both substances that M. R., as a minor, should not have. Unlike ecstasy and other controlled substances, tobacco, as well as tobacco products and paraphernalia, is a publicly and readily available product and it is not per se or inherently illegal. It is legally and commercially packaged. Familiarity with tobacco products or paraphernalia simply does not logically suggest, infer, or correlate to familiarity with the illicit character of ecstasy in specific or with the illicit character of other controlled substances in general. Familiarity with tobacco therefore does not infer knowledge of the controlled character of other, illicit substances, including ecstasy. And whatever M. R.’s prior exposure to tobacco products or paraphernalia, there was no evidence that he was ever arrested, prosecuted, or even disciplined for it—consequences that might arguably lead, however tenuously, to a general awareness of the controlled character of illicit substances.
That M. R. associated with others who were known to use tobacco and marijuana has even less tendency to demonstrate his knowledge of the controlled character of ecstasy. This association, in and of itself, does not show that M. R. himself used or possessed tobacco or marijuana, an illicit substance, or even that he was present when others used either substance. This association is not a crime and it is therefore in no way “similar” to the offense of possession of a controlled substance. One cannot logically infer from the association a familiarity with controlled substances, particularly a substance other than tobacco or marijuana, or knowledge of the controlled character of any substance—the ultimate fact to be proven.
Respondent contends that the question whether the other-act evidence has a tendency to prove or disprove the ultimate fact by satisfying the chain of inference establishing the similarity between that evidence and the current offense does not bear on admissibility but instead “goes to the weight, ” echoing the trial court here. But as explained in People v. Williams, supra, 44 Cal.3d at page 905, the admissibility of prior-misconduct evidence depends on three principal factors, the second of which is the tendency of the evidence to prove or disprove a material fact—relevance. The similarity of the prior misconduct and the current offense, as established by strong links in the chain of inference between them, bears directly on this question. (Ibid.) Here, this similarity is lacking.
Respondent seeks support for the admissibility of the challenged evidence in People v. Pijal (1973) 33 Cal.App.3d 682; People v. Horn (1960) 187 Cal.App.2d 68 (Horn); and People v. Soto (1966) 245 Cal.App.2d 401 (Soto). Pijal generally held, without much analysis, that evidence of a defendant’s prior narcotic convictions was admissible under Evidence Code section 1101, subdivision (b), where the defendant’s intent and knowledge of the narcotic contents of the drug and his intent to sell were at issue. It suffices to say that the degree of similarity between prior narcotic convictions and a charge of “unlawfully furnishing and selling a restricted dangerous drug”—a narcotic—in Pijal is a far cry from the lack of similarity between the prior-act evidence sought to be admitted here and the charge of possession of a controlled substance. Nothing about the prior-act evidence here establishes M. R.’s familiarity with narcotics and Pijal does nothing to fill that void. Neither does Horn, in which the court of appeal held that evidence surrounding the facts of the defendant’s prior narcotic conviction was admissible to establish his knowledge of the narcotic character of the heroin possessed in the later charge. (Horn, supra, 187 Cal.App.2d at pp. 74-76.)
Similarly, in Soto, the court of appeal held that defendant’s reference in a later drug transaction in which he offered to sell “merchandise”—cocaine and heroin—to the narcotic character of the “merchandise”—heroin—he had sold in a prior transaction permitted an inference that he knew of the narcotic character of the “merchandise” in the earlier transaction that was the subject of the charge. (Soto, supra, 245 Cal.App.4th at pp. 406-407.) This is entirely distinguishable from the instant case in which the other-act evidence did not concern M. R.’s personal involvement with narcotics and revealed nothing about his knowledge of the narcotic character or controlled nature of the drug at issue in the charge.
We accordingly reject respondent’s contention that the prior-act evidence established M. R.’s familiarity with illegal substances, which, in turn, established that he knew the ecstasy he possessed was an illegal substance. The prior-act evidence here is too dissimilar from the charge to permit any logical inference that M. R. knew of the controlled nature of the substance he was charged with possessing. It thus had no tendency to prove the knowledge element of the charge. We therefore conclude that the trial court abused its discretion by admitting the evidence that M. R. had previously been caught with tobacco products or paraphernalia and that he associated with others known to use tobacco and marijuana.
Having so concluded, we need not move on to address whether the prejudicial effect of the evidence outweighed its probative value under Evidence Code section 352.
Although we have so concluded, reversal is not warranted unless the error was prejudicial. The erroneous admission of uncharged-conduct evidence does not compel reversal unless a result more favorable to the defendant would have been reasonably probable if such evidence had been excluded—the standard of prejudice provided in People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Malone (1988) 47 Cal.3d 1, 22; People v. Scheer (1998) 68 Cal.App.4th 1009, 1017-1019.) We conclude that a more favorable result to the minor would not have been reasonably probable, absent the erroneously admitted evidence.
On the question of M. R.’s knowledge of the controlled or illicit character of the pill, other relevant evidence was Soriano’s testimony concerning his encounter with M. R. and the minor’s demeanor, behavior, and statements in the course of that encounter. Soriano said that M. R. was behaving suspiciously and evasively as though he were trying to hide what he had in his hand, turning his body away and secreting something in his hand in his guarded pocket before switching the item between his hands behind his back and extending one arm to shield Soriano’s reach. Then, when he finally released the baggie into Soriano’s hand, M. R. immediately and spontaneously blurted that he didn’t know what the pill was, that it was not his, and that he had merely found it in the bathroom. This behavior and these statements clearly evidenced consciousness of guilt and knowledge that the possessed item was something illicit that he did not want to be discovered with. Moreover, the pill’s look and packaging suggested its illicit character. Although all of this evidence is circumstantial and requires inference, it is enough such that the trier of fact having heard it would likely have concluded that M. R. knew of the controlled and illicit nature of the substance, even if he didn’t know exactly what the substance was, without the erroneously admitted evidence entering into the equation.
In sum, in light of the other evidence in the record of M. R.’s knowledge of the illicit or controlled character of the pill, we think there is no reasonable probability that the court would have reached a different decision if it had not considered the offending evidence on the question.
II. The Court’s Setting of a Maximum Term of Confinement Was Error Where the Minor Remained in His Parents’ Custody
M. R. contends that because he remained in the physical custody of his parents, the court erred by setting the maximum term of confinement of three years, two months. Respondent concedes the issue, and we accept the concession.
In In re Matthew A. (2008) 165 Cal.App.4th 537, the court of appeal correctly observed that section 726, subdivision (c) provides that when a minor is “removed from the physical custody of his parent or custodian as a result of criminal violations sustained under... section 602, the court must specify the maximum term of imprisonment that could be imposed upon an adult convicted of the same offense or offenses.” (Id. at p. 541.) But the necessary predicate for specifying a term of imprisonment does not exist under section 726, subdivision (c) if the minor remains in parental custody, and sentencing authority is ordinarily prescribed by statute. (In re Matthew A., supra, at p. 541.) Because section 726, subdivision (c) does not authorize specification of the maximum term of confinement under the circumstances in which the minor remains in his parents’ physical custody, the remedy on review is for the appellate court to strike the specified term of imprisonment. (In re Matthew A., supra, at p. 541.) Our disposition will accordingly reflect that the specification of the maximum term of confinement of three years, two months is stricken from the trial court’s dispositional order.
Section 726, subdivision (c) specifically provides that if “the minor is removed from the physical custody of his or her parent or guardian as the result of an order of wardship made pursuant to Section 602, the order shall specify that the minor may not be held in physical confinement for a period in excess of the maximum term of imprisonment which could be imposed upon an adult convicted of the offense or offenses which brought or continued the minor under the jurisdiction of the juvenile court.”
DISPOSITION
The specified term of imprisonment is stricken from the order, which we otherwise affirm.
WE CONCUR: Rushing, P.J., Premo, J.