Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF131741. Gloria Trask, Judge. Affirmed as modified.
Cara DeVito, under appointment by the Court of Appeal, for Defendant and Appellant.
RICHLI J.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Rhonda Cartwright-Ladendorf, Supervising Deputy Attorney General, and Heather F. Crawford, Deputy Attorney General, for Plaintiff and Respondent.
A jury found defendant guilty of possessing methamphetamine for sale (Health & Saf. Code, § 11378) (count 1), transporting methamphetamine (Health & Saf. Code, § 11379) (count 2), being under the influence of methamphetamine (Health & Saf. Code, § 11550, subd. (a)) (count 3), and driving without a license (Veh. Code, § 12500, subd. (a)) (count 4). As to counts 1 and 2, the jury found true that defendant possessed more than one kilogram of methamphetamine (Health & Saf. Code, § 11370.4, subd. (b)(1)) after having been previously convicted of possessing narcotics for sale (Health & Saf. Code, § 11370.2, subd. (c)). Defendant was sentenced to a total term of six years in state prison.
On appeal, defendant contends (1) the trial court prejudicially erred in admitting evidence of his prior conviction for possessing methamphetamine for sale without sanitizing the nature of the prior conviction by removing the “sale” reference, and (2) the abstract of judgment should be amended to reflect the proper sentence on the weight enhancement attached to count 2. We agree with the parties that the abstract of judgment must be modified but reject defendant’s remaining contention.
I
FACTUAL AND PROCEDURAL BACKGROUND
Riverside police detectives Mario Dorado and Senon Saldana are experts in narcotics investigations. On August 2, 2006, at 10:07 p.m., they were in an unmarked police car, stopped at a traffic light, when they saw a small white car coming toward them; it made an unsafe left turn into a McDonald’s parking lot. Detectives Dorado and Saldana effected a traffic stop; the driver (defendant) was the only person in the car.
When Detective Dorado walked up to the vehicle, he noticed a black plastic bag under defendant’s legs. He asked defendant to step outside and for defendant’s driver’s license. Defendant said his license was expired, which was verified by a records check. Defendant was then arrested for driving a vehicle with an expired license.
The parties stipulated that defendant drove with an expired license.
After advising defendant that he was under arrest, Detective Dorado asked defendant if he could search his vehicle; defendant responded “sure.” A search of the plastic bag in the car revealed three plastic containers filled with an off-white crystal substance later identified as nearly three pounds of methamphetamine. Detective Dorado believed the methamphetamine had a “wholesale” value of about $8,000 to $10,000 per pound. Detective Saldana opined the methamphetamine was for sale.
Defendant was advised of his constitutional rights; he thereafter told Detective Dorado that an individual had provided him the car with the three pounds of methamphetamine and that he (defendant) was to deliver the narcotics to another person, collect the money, and keep the car as his compensation for the transaction. Defendant admitted that he knew he was delivering methamphetamine and knew the weight of all three containers, which was about a pound each. Defendant also admitted he had smoked methamphetamine earlier that day. The detectives noted that defendant displayed several symptoms of being under the influence of a central nervous system stimulant like methamphetamine. A subsequent blood test confirmed that defendant had recently used methamphetamine.
Defendant testified on his own behalf and said that around 6:00 or 7:00 p.m. on August 2, 2006, he began talking to a neighbor he knew only as “Polo” and learned that Polo had a car for sale. Defendant stated that Polo had agreed to let him test drive the car and claimed that he had no idea what was inside the bag lying on the floorboard of the driver’s side of the car. He also said that he had moved the bag to the center console area because it was bothering him as he drove.
Defendant further stated that he did not make an unsafe left turn into the McDonald’s parking lot and that he had no problem with oncoming traffic. He also testified that the detectives took the plastic garbage bag out but did not tell him what was in it. He denied telling the detectives that he was delivering drugs to someone in exchange for the car. He admitted to smoking methamphetamine about three or four hours before he was stopped and to driving with an expired license. He also admitted to pleading guilty in 1997 to possession of marijuana and methamphetamine for sale.
The parties stipulated that defendant had pled guilty on December 10, 1997, to possessing marijuana and methamphetamine for sale.
II
DISCUSSION
A. Admission of Prior Drug Offense
In December 1997, defendant pled guilty to possession of marijuana and methamphetamine for sale in violation of Health and Safety Code section 11378. Thus, as defendant points out, his prior conviction was identical to the current charge in count 1 of the information. The prior conviction also served as the basis for a Health and Safety Code section 11370.2, subdivision (c) three-year “prior conduct” enhancement.
Prior to trial, defendant moved to bifurcate trial of the prior drug offense enhancement from the main trial or to have the court “sanitize” the nature of that prior conviction, from a sales offense involving methamphetamine to simply a “drug-related” offense. The People opposed that motion, noting that evidence of defendant’s prior conviction was admissible under Evidence Code section 1101, subdivision (b) to prove his “knowledge” of the narcotic nature of methamphetamine as well as his “intent” to sell it. The People also argued that the prior conviction evidence was necessary to counter defendant’s anticipated defense that he was just a “mule,” merely transporting the drugs and not intending to sell them. Defendant’s motions were argued and denied.
Defendant contends the trial court abused its discretion in admitting evidence of his prior conviction for possessing methamphetamine for sale without sanitizing the nature of the prior conviction, essentially arguing the jury may have viewed the prior conviction as establishing defendant’s propensity for committing the charged offense. We disagree.
As acknowledged by both parties, subject to Evidence Code section 352, past misconduct involving moral turpitude is admissible to impeach a witness in a criminal trial. (People v. Wheeler (1992) 4 Cal.4th 284, 295-297.) In exercising discretion, the trial court should consider the relationship between a prior conviction and credibility, its nearness or remoteness in time, its similarity to the present offense, and the potential effect on the defendant’s failure to testify. (People v. Castro (1985) 38 Cal.3d 301, 307, 312.) Other relevant circumstances may also be considered. (People v. Collins (1986) 42 Cal.3d 378, 392.)
While identical or similar prior convictions should be admitted sparingly, there is no per se rule requiring the exclusion of such prior convictions. (People v. Tamborrino (1989) 215 Cal.App.3d 575, 590; People v. Foreman (1985) 174 Cal.App.3d 175, 182.) Indeed, in People v. Green (1995) 34 Cal.App.4th 165, 182-183, the Court of Appeal affirmed the admission of evidence of six prior convictions, including “four identical prior convictions relating to auto theft” (id. at p. 182, fn. 9),an offense substantially similar to the crime charged. In People v. Muldrow (1988) 202 Cal.App.3d 636, 646, three of six properly admitted priors were the same as the charged offense.
Possessing methamphetamine and marijuana for sale is a crime of moral turpitude. (See People v. Castro, supra, 38 Cal.3d at p. 317; People v. Vera (1999) 69 Cal.App.4th 1100, 1103, and cases cited therein.) Because this offense reflects the perpetrator’s dishonesty, it is highly relevant to credibility. Excluding the drug conviction entirely would have given defendant’s testimony a “‘false aura of veracity.’” (People v. Massey (1987) 192 Cal.App.3d 819, 825.) In light of the broad latitude given the trial courts in admitting or excluding evidence of prior offenses, we find no abuse of discretion in this case. (People v. Lewis (2001) 26 Cal.4th 334, 374; People v. Clair (1992) 2 Cal.4th 629, 655; People v. Green, supra, 34 Cal.App.4th at pp. 182-183.)
Even if the trial court erred in failing to sanitize the nature of the prior drug offense, it is not reasonably probable that a result more favorable to defendant would have been reached in the absence of the error. (People v. Watson (1956) 46 Cal.2d 818, 836; People v. Castro, supra, 38 Cal.3d at p. 319.) The evidence, as recited above, was overwhelming, and defendant’s defense was incredible. That evidence shows defendant had nearly three pounds of methamphetamine worth at least $24,000 at his feet in the car he was driving when he was detained by the detectives. Defendant admitted to the detectives that he planned to sell the drugs for someone else and even provided the detectives with an accurate indication of the amount of methamphetamine contained in each container. The amount of the drugs and defendant’s admissions to the detectives highlights the absurdity of defendant’s claim that a neighbor he barely knew had loaned him a car to test drive that happened to contain a large quantity of drugs of which defendant had no knowledge. Defendant’s knowledge of the narcotic nature of the drugs was also shown by the fact that he had smoked methamphetamine earlier that day. Defendant’s intent to sell was further demonstrated by the detective’s expert opinions. Upon a thorough examination of the record on appeal, we are satisfied that there is no reasonable probability the result would have been different if the nature of the prior drug offense had been sanitized. (People v. Alcala (1992) 4 Cal.4th 742, 790-791; People v. Watson, supra, 46 Cal.2d at p. 836.)
B. Correction of Abstract of Judgment
Defendant next contends, and the People correctly concede, that the abstract of judgment misstates his sentence as to count 2. At sentencing, the court made count 2 (transportation of methamphetamine) the principal count and imposed the three-year midterm for that offense. To that the court added an additional consecutive three years for defendant’s prior drug-related conviction, for a total term of six years. The court then struck the weight enhancement attached to count 2 in the interest of justice. The abstract of judgment and the court’s minute order of the sentencing hearing, however, incorrectly reflect that the weight enhancement was stayed rather than stricken.
“ . . . ‘Rendition of judgment is an oral pronouncement.’” (People v. Mesa (1975) 14 Cal.3d 466, 471.) Entering the judgment in the minutes is a clerical function, as is the preparation of the abstract of judgment. Therefore, when the oral pronouncement of judgment is in conflict with the minutes and/or the abstract of judgment, the oral pronouncement controls. (Ibid.) An appellate court has the authority to order correction of clerical errors on request of either party or on its own motion. (People v. Mitchell (2001) 26 Cal.4th 181, 185-188.) We will therefore order the clerk of the superior court to correct the minute order and the abstract of judgment to reflect correctly the court’s imposition of sentence on the weight enhancement attached to count 2. (Id. at p. 188.)
III
DISPOSITION
The clerk of the superior court is directed to correct the minute order and abstract of judgment to reflect that the sentence on the weight enhancement (Health & Saf. Code, § 11370.4, subd. (b)(1)) attached to count 2 was stricken. The clerk of the superior court is further directed to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation and to the parties. In all other respects, the judgment is affirmed.
We concur: McKINSTER Acting P.J., KING J.