Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. VCR182593
Pollak, J.
Defendant Keith Javon Reeves appeals a judgment convicting him of selling cocaine and sentencing him to seven years in prison. He contends the court abused its discretion in admitting testimony by the undercover police officer to whom he sold the cocaine that he recognized defendant based on a prior undercover contact with him. Defendant also contends the trial court employed the wrong standard in denying his motion for a new trial. We disagree with both contentions and shall affirm the judgment.
Factual and Procedural Background
Defendant was charged by information with one count of selling cocaine base. (Health & Saf. Code, § 11352, subd. (a).) The information also alleged that defendant had suffered a prior conviction under Health and Safety Code section 11370.2, subdivision (a), and two prior convictions under Penal Code section 667.5, subdivision (b).
At trial, Officer Jason Potts testified that in January 2006, the Vallejo Police Department was conducting an undercover program to identify and later arrest drug dealers in areas where the police had received complaints from residents and merchants. On January 6, 2006, Potts was working in the undercover program dressed as a homeless person when defendant approached and offered to sell him drugs. Potts asked to buy $20 worth of crack cocaine. Defendant led him into an alley and asked, “Are you the police? You look like the police.” Potts said he was not a police officer and defendant asked him to remove his cap. Defendant looked at his hair and asked him who he knew in the area. Potts gave defendant a fake name and description. Defendant placed a white substance wrapped in plastic, later stipulated to be crack cocaine, on the ledge of the building and told Potts to put the money on the ground, so “you can’t say you gave it to me.” When Potts asked, “Why are you tripping?” defendant responded, “You know, you look like that trick-ass police that got me before.” Potts picked up the drugs and watched defendant walk away. He then radioed other officers that the seller was “Keith Javon Reeves.”
Potts testified that when defendant approached him he recognized him immediately. He explained that he had several prior “contacts” with defendant and could recognize him by sight. He had arrested and interviewed defendant after a traffic stop in October 2001. He had short conversations with defendant “in the area of Ohio and Calaveras” in 2002 and two or three more times in the same area in 2003. On each of these occasions Potts was in full police uniform. In 2004 he had another contact with defendant while undercover. At that time he was “posing as a[n] Hispanic” with a ponytail and a cowboy hat. His contact with defendant was videotaped and he later reviewed the video. Potts acknowledged that since becoming an officer he had contacts with many people, but testified that defendant stood out because his arrest in 2001 was “a significant . . . arrest . . . . [¶] It was one of . . . the first arrests in that area in north Vallejo in the crest, and it just stood out at that point, and then, 2002, I had contact with him, and then there was a period [in] 2003 where I had several contacts with him, and it just really stood out. He stood out.”
Defendant was arrested in March 2006. Potts testified that defendant was not arrested immediately after the January 6 transaction because he was “very, very certain of who [he] was dealing with.” At that time he also thought the sale had been videotaped, but later learned that it had not been. On cross-examination, Potts testified he could not remember, but did not believe that defendant had been wearing a hat at the time of the sale.
Officer William Badour testified that he was working with Potts on the buy-walk program. It was his decision not to make further contact with defendant after the January sale because Potts had already identified defendant by name and he did not want to interfere with the undercover program. He explained that Potts was wearing a hidden camera, but that the camera did not record the sale because the hard drive was full, which he did not discover until the following day.
The only witness called by defendant was Officer Terry Poyser, who was working with Potts at the time of the sale. He testified that the seller was wearing a “black knit cap” at the time of the sale.
In closing arguments, the attorneys focused on the sole disputed issue in the casethe identity of the seller. The prosecutor argued that the jury should credit Potts’s testimony that defendant was not arrested immediately after the sale because Potts “was 100 percent certain” that he knew who the seller was. Defendant’s attorney pointed to inconsistencies in Potts’s testimony, including his recollection that defendant was not wearing a hat, and emphasized the lack of corroborating evidence, such as a video of the sale or a post-sale contact by uniformed officers to confirm the seller’s identity. In rebuttal, the prosecutor argued that defendant’s request prior to the sale to see Potts’s hair corroborated Potts’s testimony. She argued that this was telling “[b]ecause when the defendant had contact with Detective Potts in 2004, Detective Potts had short hair, shorter hair that was pulled completely back. [¶] When he had contact with him in ’06, he had longer hair, and it was an obvious question for someone who was somewhat sure he recognized Detective Potts, but not quite sure, and that makes sense, because they had had a lot of contact.”
The jury found defendant guilty as charged. In a bifurcated proceeding, the court found true the prior conviction allegations. Defendant was sentenced to seven years in prison. Defendant filed a timely notice of appeal.
Discussion
1. The trial court did not abuse its discretion in admitting evidence that Potts was undercover during the 2004 contact with defendant.
Defendant contends that the trial court abused it discretion in allowing Potts to testify, over objection, that he was operating undercover when he made contact with him in 2004. He does not challenge the admissibility of Potts’s testimony regarding the contact itself, but argues that the testimony that Potts was undercover was not relevant and thus inadmissible under Evidence Code sections 350 and 351. Alternatively, he argues that this testimony should have been excluded under section 352 because it “was substantially more prejudicial than it was probative.”
All statutory references are to the Evidence Code unless otherwise noted.
Only relevant evidence is admissible at trial. (§§ 350, 351.) “ ‘Relevant evidence’ means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (§ 210.) Contrary to defendant’s assertion, the fact that Potts was undercover during the 2004 contact is relevant because it tends to explain why Potts was able to recognize defendant immediately even though defendant had difficulty recognizing him. The more difficult question is whether the court abused its discretion in not excluding this evidence under section 352.
“When an objection to evidence is raised under Evidence Code section 352, the trial court is required to weigh the evidence’s probative value against the dangers of prejudice, confusion, and undue time consumption. Unless these dangers ‘substantially outweigh’ probative value, the objection must be overruled. [Citation.] On appeal, the ruling is reviewed for abuse of discretion.” (People v. Cudjo (1993) 6 Cal.4th 585, 609.)
Defendant argues that the admission of this evidence was prejudicial because “[b]y focusing on the fact that Officer Potts was undercover during the 2004 ‘encounter’ and underscoring that encounter’s similarity with the 2006 sale” the jury would logically infer that the prior contact involved a narcotics sale. While there is a possibility that the jury might draw such an inference, there are other possible explanations for such a contact. Moreover, even if the jury believed that the 2004 encounter may have involved a drug sale, it does not follow that the jury necessarily relied upon such an inference in finding that the defendant was the person who sold drugs to Potts in January 2006. The jury was pointedly instructed that it could use the evidence of the prior encounter only for a limited purpose: “The People presented evidence that the defendant and Officer Potts have had contact in the past. You may consider this evidence only if the People have proved by a preponderance of the evidence that these contacts occurred. . . . [¶] . . . [¶] If you decide that these prior contacts occurred, you may, but are not required to, consider that evidence for the limited purpose of deciding whether or not: [¶] The defendant was the person who committed the offense alleged in this case. [¶] Do not consider this evidence for any other purpose except for the limited purpose to establish identity.”
The court’s instruction is a modified version of CALCRIM No. 375.
People v. Felix (1993) 14 Cal.App.4th 997, cited by defendant, does not compel a contrary conclusion. In that robbery case, evidence that codefendants had previously committed a robbery together was admitted for the purpose of establishing identity and the jury was instructed that it could consider this evidence only “ ‘for the limited purpose of determining if it tends to show the identity of the person or persons who committed the crimes.’ ” (Id. at p. 1003.) The court reversed the conviction, holding that the evidence should not have been admitted. The court explained, “The danger the jury would reason, ‘if they did it once, they probably did it again’ was too great to justify admission of a prior conviction so weakly probative of identity or any other disputed issue.” (Id. at pp. 1006-1007.) The court held that the limiting instruction was not likely to cure the prejudice because “the instruction did not explain how the evidence might tend to show identity” and in that instance the “proper use of this evidence to show identity tends to elude reason.” (Id. at p. 1009.) In the present case, the court did not allow the prosecution to present evidence that the 2004 contact involved a narcotics sale; the testimony was only that Potts had a prior undercover contact with defendant. The relevance of this testimony was not elusive, and the trial court did not abuse its discretion in finding that its probative value outweighed the likelihood of prejudice.
Defendant’s suggestion that the instruction was insufficient to preclude the jury’s consideration of this evidence for an improper purpose is not persuasive. Defendant quotes People v. Gibson (1976) 56 Cal.App.3d 119, 129-130 (Gibson), in which the court observed that “[i]t is the essence of sophistry and lack of realism to think that an instruction or admonition to a jury to limit its consideration of highly prejudicial evidence to its limited relevant purpose can have any realistic effect.” However, in People v. Zack (1986) 184 Cal.App.3d 409, 416, the court held that Gibson is “inapposite” where “[t]here is no evidence that the jury ignored the court’s instructions and committed misconduct by using limited evidence for an improper purpose. ‘In the absence of evidence to the contrary, the presumption [that the jury adhered to the limiting instructions] will control.’ ” There is no suggestion in the present case that the jury disregarded the limiting instruction and we must presume it did not do so.
Defendant also contends that the admission of this evidence lightened the prosecution’s burden of proof in violation of his state and federal constitutional rights and resulted in a miscarriage of justice. These arguments are premised on the assumption that the admission of the evidence was erroneous. Having rejected that assumption, we similarly reject these additional contentions.
2. The trial court did not err in denying defendant’s motion for a new trial.
At the sentencing hearing, defendant moved for a new trial pursuant to Penal Code section 1181, subdivision (6), which authorizes a new trial “[w]hen the verdict or finding is contrary to law or evidence.” Defendant argued that the verdict was contrary to the evidence because there was a lack of corroborating evidence and there were contradictions in the testimony of the two eye witnesses, Officers Potts and Poyser. Counsel argued that the court had the power “as the 13th juror, to weigh the credibility of [the] evidence, and determine whether you feel it meets the legal standard.” The court stated that it “disagreed with [defense counsel] in that respect.” The court explained, “I think that the trier of fact in this case was a jury, and . . . they apparently chose to believe Detective Potts and not believe Detective Poyser. [¶] . . . [W]hether the court independently had this by way of court trial, might have found differently, I think, is a separate issue as to whether this court . . . can replace its opinion with that of the jury as to what they found, and I don’t think the court has that authority to do that if there is some evidence to support a . . . finding by the jury, and I believe there is evidence, some evidence, to support their findings.” Defendant argues that this explanation by the trial court indicates that it applied an incorrect standard in denying the new trial motion.
We agree that the trial court did not choose its words as carefully as it might have, but nonetheless are confident that it did not apply an incorrect standard. “In considering a motion for a new trial made on the ground of insufficiency of the evidence to support the verdict, the trial court independently weighs the evidence, in effect acting as a ‘13th juror.’ ” (People v. Lagunas (1994) 8 Cal.4th 1030, 1038, fn. 6.) Nonetheless, “The statement . . . that ‘the Court sits as a thirteenth juror’ has an unfortunate connotation; the phrase is misleading, and it does not properly describe the function of the trial judge in passing upon a motion for a new trial. As we have seen, it is the province of the trial judge to see that the jury intelligently and justly performs its duty and, in the exercise of a proper legal discretion, to determine whether there is sufficient credible evidence to sustain the verdict.” (People v. Robarge (1953) 41 Cal.2d 628, 634.) “The judge acting on the motion has been called ‘the thirteenth juror,’ but neither procedurally nor in function does the judge occupy any such status: The judge does not deliberate with the jury in reaching the verdict, but makes an independent determination.” (6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Judgment, § 102, pp. 134-135, citing People v. Robarge, supra, 41 Cal.2d at p. 634.)
“In reviewing a motion for a new trial, the trial court must weigh the evidence independently. [Citation.] It is, however, guided by a presumption in favor of the correctness of the verdict and proceedings supporting it. [Citation.] The trial court ‘should [not] disregard the verdict . . . but instead . . . should consider the proper weight to be accorded to the evidence and then decide whether or not, in its opinion, there is sufficient credible evidence to support the verdict.’ [Citation.] [¶] A trial court has broad discretion in ruling on a motion for a new trial, and there is a strong presumption that it properly exercised that discretion. ‘ “The determination of a motion for a new trial rests so completely within the court’s discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears.” ’ ” (People v. Davis (1995) 10 Cal.4th 463, 523-524.)
The statement that in ruling on a new trial motion the court must weigh the evidence independently does not mean that the trial judge should set aside the jury’s verdict if convinced that he or she would have decided the case differently. It does mean that the judge must “consider[] the proper weight to be afforded to the evidence and then decid[e] whether there is sufficient credible evidence to support the verdict.” (People v. Lewis (2001) 26 Cal.4th 334, 364.) The trial judge’s independent assessment is not to determine what finding the judge would have made but to determine whether the record contains evidence of sufficient credibility to support the jury’s finding. Although in explaining his decision in this case the judge did not use the word “credible,” in context it is clear that based on his own review of the trial record the judge concluded there was evidence of sufficient credibility to support the verdict. The judge confirmed his appropriate deference to the jury’s finding and was satisfied that the evidence was sufficient to sustain that finding. We are unable to say that the court abused its discretion in making that determination.
Disposition
The judgment is affirmed.
We concur: McGuiness, P. J., Siggins, J.