Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. No. SCD198047, David M. Gill, Judge.
HALLER, J.
Robbye Anderson appeals from a judgment convicting him of furnishing, giving away or offering to sell cocaine base; possession of cocaine base for sale; and possession of paraphernalia used for narcotics. He contends the trial court erred in (1) admitting evidence of a prior offense, and (2) allowing the prosecution to reopen its case to admit booking photographs from the prior offense. We find no error and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On April 4, 2006, Officer Jose Chavez was working undercover in a buy/bust operation in downtown San Diego. At about 10:15 p.m., Officer Chavez approached Anderson and asked if he had a "twenty," a street term for $20 worth of a controlled substance. Anderson responded that he did have a twenty, but that he did not know Officer Chavez. Officer Chavez told Anderson that he received that response a lot in this area and no one wanted to deal with him because they did not know him. After this explanation, Anderson asked if Officer Chavez had a pipe. Officer Chavez responded that he did, and showed Anderson a narcotics pipe hidden in the zipper area of his pants. Anderson told Officer Chavez to follow him.
Officer Chavez followed Anderson to a parked Ford Explorer, where another man was sitting in the driver's seat. Anderson sat in the passenger seat and invited Officer Chavez to sit in the back seat to smoke. Officer Chavez refused, explaining that he was robbed the week before and was afraid this would occur again. Anderson insisted he would not rob Officer Chavez, and again invited him into the vehicle to smoke. Anderson then opened his hand to reveal a plastic baggy containing what Officer Chavez believed was approximately three grams of rock cocaine base. Anderson put three small pieces of the cocaine in Officer Chavez's hand. The amount given to Officer Chavez was not enough to constitute the requested "twenty." Officer Chavez attempted to give Anderson a prerecorded $20 bill, and asked if Anderson was going to give him more cocaine after he smoked these three pieces. Anderson told Officer Chavez he did not want the money and that he was giving the pieces to Officer Chavez to smoke.
Because Officer Chavez had no intention of actually smoking the drugs, he gave the bust signal to the other members of the buy/bust team. Before the other officers arrived on the scene to make the arrest, Officer Chavez walked into the alcove of a building to pretend to smoke the substance. Anderson got out of the vehicle to watch Officer Chavez and kept insisting that he smoke the cocaine. Officer Dan Wilson, in uniform and a marked patrol car, arrived on the scene and observed Officer Chavez and Anderson in the alcove. Officer Wilson arrested Anderson and searched him. Officer Wilson found two narcotics pipes, one of which had been used, and $116 on Anderson's person. The police also found narcotics pipes and .20 grams of cocaine base in a cigarette box in the Ford Explorer; this contraband was determined to belong to the man sitting in the driver's seat.
Officer Chavez opined that if he had smoked the substance Anderson gave him, Anderson would have believed he was not a police officer and would have sold him the twenty as requested. The three pieces of substance handed to Officer Chavez were later tested and found to be cocaine base weighing .07 grams, a usable amount. The plastic baggy that Officer Chavez had observed in Anderson's hand containing approximately three grams of cocaine base was never found. Officer Chavez opined that the three pieces of cocaine handed to him by Anderson, as well as the cocaine he observed in the baggy, were possessed for sale, not personal use.
Anderson's theory of defense was that he never possessed the cocaine base and that he was the victim of a set-up by a "dirty cop." The defense elicited admissions from the prosecution's witnesses that the plastic baggy containing approximately three grams of cocaine base was never recovered, and the other members of the buy/bust team did not witness Officer Chavez receive the three pieces of cocaine base from Anderson.
Prior Offense
Over defense objection, the prosecution presented evidence of a prior offense committed by Anderson, also involving a buy/bust operation in downtown San Diego. On January 21, 2000, Officer Darin Ries was working undercover in downtown San Diego. Officer Ries made contact with Anderson and asked him if he was "serving," a street term meaning selling narcotics. In response, Anderson asked Officer Ries if he was a police officer. Officer Ries told Anderson that he had just gotten off the trolley and was told he could come to this location to get what he wanted. A female on the scene told Anderson that Officer Ries was not a police officer. After this female vouched for Officer Ries, Anderson handed him a piece of rock cocaine from a piece of paper containing several pieces of the substance. In exchange for the rock cocaine, Officer Ries handed Anderson a prerecorded $20 bill.
Jury's verdict
The jury found Anderson guilty of count 1: furnishing, giving away or offering to sell cocaine base (Health & Saf. Code, § 11352, subd. (a)); count 2: possession of cocaine base for sale (Health & Saf. Code, § 11351.5); and count 3: possession of paraphernalia used for narcotics (Health & Saf. Code, § 11364).
DISCUSSION
Admission of Prior Offense Evidence
Background
During pretrial motions, Anderson objected to admission of evidence regarding his prior criminal conduct. The prosecutor asserted that the evidence was relevant to prove Anderson's intent to sell the cocaine in the current offense. Anderson argued that the current offense did not involve a dispute as to whether he possessed the cocaine for sale, because he contended that he never possessed the cocaine at all. To avoid admission of the prior offense evidence, Anderson offered to stipulate that if the jury found he possessed the drugs, the possession was for sale. Anderson argued the prior offense evidence was unduly prejudicial because the issue of intent to sell lacked relevancy to the disputed issues and the evidence might cause the jury to find he currently possessed the cocaine based solely on the past offense evidence. The prosecution declined to accept the stipulation on the intent issue as a means of excluding the evidence.
The court stated that it would not require the prosecutor to accept the stipulation on intent, and rejected Anderson's request to exclude the evidence. The court found the prior offense evidence had substantial probative value to prove that even though the sale was not consummated during the current offense, when Anderson transferred the three pieces to the officer he intended to sell the officer a "twenty" rather than give him a "free smoke." The court noted the evidence could also be relevant to show a common plan or scheme in both offenses; i.e., to sell cocaine after determining that the person was not a police officer. The court found the prior offense evidence was not inflammatory, and the fact that it supported guilt of the current crime did not make it unduly prejudicial.
Analysis
Evidence of other crimes is inadmissible if its only relevance is to show the defendant has a propensity to commit crimes. (People v. Catlin (2001) 26 Cal.4th 81, 145; Evid. Code, § 1101, subd. (a).) However, this rule of exclusion does not apply to other crimes evidence "which is relevant to prove more than mere criminal predisposition. The test of relevance is whether the evidence '[tends] . . . to establish any [facts] material for the people [such as identity, intent, plan, motive, preparation, or opportunity] or to overcome any material matter sought to be proved by the defense.' " (People v. Alcala (1984) 36 Cal.3d 604, 631 (brackets in original); People v. Catlin, supra, 26 Cal.4th at p. 145; Evid. Code, § 1101, subd. (b).) Other crimes evidence is admissible to prove intent or common plan if the current and prior conduct is sufficiently similar to support a rational inference that the defendant probably employed the same plan or harbored the same intent in each instance. (People v. Ewoldt (1994) 7 Cal.4th 380, 402-403; People v. Kipp (1998) 18 Cal.4th 349, 369.)
Once the other crimes offense evidence is found relevant to prove a fact other than criminal propensity, the court must then exercise its discretion under Evidence Code section 352 to decide if its probative value is "substantial and . . . not . . . largely outweighed by the probability that its admission would create a serious danger of undue prejudice, of confusing the issues, or of misleading the jury." (People v. Kipp, supra, 18 Cal.4th at p. 371.) Evidence is unduly prejudicial if it is likely to "provoke emotional bias against a party or to cause the jury to prejudge the issues upon the basis of extraneous factors." (People v. Jenkins (2000) 22 Cal.4th 900, 1008.) Further, the potential for prejudice may outweigh the probative value of the evidence when the other crimes evidence is merely cumulative on an issue not reasonably subject to dispute. (People v. Ewoldt, supra, 7 Cal.4th at p. 406; People v. Balcom (1994) 7 Cal.4th 414, 423.) We review the trial court's resolution of these issues for abuse of discretion. (People v. Kipp, supra, 18 Cal.4th at p. 371.)
Here, both the past and current offenses involved buy/bust operations in downtown San Diego during which Anderson took steps to assure himself that the person requesting drugs was not an officer, and then sold or started to sell cocaine to the officer. Anderson recognizes the high degree of similarity between the prior and current offenses. However, he asserts that intent to sell was of minimal relevance because his defense for the current offense was that he never possessed the cocaine and because he offered to stipulate that any possession was possession for sale. He argues that because the evidence was of minimal relevance to any disputed issues, the high degree of similarity between the offenses rendered the prior offense evidence more prejudicial than probative. We are not persuaded.
Even though Anderson's defense was that he never possessed the cocaine, this did not remove the issue of intent to sell from the case. If the jury found he possessed the cocaine, the prosecutor had to prove that he intended to sell it to prevail on the count 2 charge of possession for sale. (See People v. Waidla (2000) 22 Cal.4th 690, 723 [defendant's not guilty plea puts all elements of the crime in dispute].) Because the sale was not actually consummated in the current incident and Anderson at one point declined the money offered by the officer, the jury could have found he was merely intending to give the cocaine away. Thus, notwithstanding the defense focus on the possession issue, intent to sell was subject to dispute and the prior offense evidence was relevant to prove this intent.
Further, even though Anderson offered to stipulate to the intent to sell element in an effort to avoid admission of the evidence, the prior offense evidence was also relevant to show that he engaged in a common plan or scheme during both the current and prior offenses. The general rule is that the prosecution cannot be compelled to accept a stipulation for purposes of rendering evidence irrelevant if the effect would be to deprive the prosecution's case of its persuasiveness and forcefulness, unless the evidence is more prejudicial than probative. (See People v. Waidla, supra, 22 Cal.4th at p. 723, fn. 5; People v. Thornton (2000) 85 Cal.App.4th 44, 49.) Here, we need not decide if removal of the intent issue would have deprived the prosecution's case of its forcefulness because—given the existence of the common plan issue—the intent stipulation did not render the prior offense evidence irrelevant. Anderson's theory regarding the current incident was that he never possessed the cocaine but he was framed by a rogue police officer. Evidence showing that on a previous occasion he had engaged in a similar plan to possess and sell cocaine to a person in downtown San Diego supported an inference that he was not framed by the officer but had the same plan as charged in the current case, thus supporting the charges that he furnished or offered to sell the cocaine (count 1) and that he possessed the cocaine for sale (count 2). In short, removal of the intent issue via a stipulation would not have removed the common plan issue supportive of the prosecution's case. Accordingly, the prior offense evidence remained relevant regardless of the intent stipulation.
To support his argument that the trial court abused its discretion, Anderson cites Old Chief v. U.S. (1997) 519 U.S. 172. He suggests that based on the reasoning of this case, the prosecution must accept a stipulation that makes prior offense evidence irrelevant in a case where there is a danger that the jury will be improperly influenced because there is such a high degree of similarity between the prior and current offenses. Old Chief does not stand for such a broad proposition. The court in Old Chief cited the general rule that the prosecution is not required to accept a stipulation when the stipulation would deprive the prosecution of the full evidentiary force of its case. (Id. at pp. 186, 189.) The Old Chief court found the rule inapplicable in a case where the defendant offered to stipulate to the fact of his prior felony conviction for purposes of establishing the ex-felon element of a firearm possession charge, reasoning that the name and nature of his prior conviction were not necessary to prove, and did not add evidentiary force to, the current charges. (Id. at pp. 186, 190-191.) Although the court in Old Chief recognized that evidence regarding the nature of a prior conviction could carry a particular potential for prejudice when the prior conviction was highly similar to the current charges, the court's ultimate holding that the prior conviction evidence was more prejudicial than probative was premised on the lack of relevancy of the evidence regarding the nature of the prior conviction. (Id. at pp. 185-186, 190-191.) The court explicitly noted that if the prior conviction evidence had been relevant to prove such issues as intent or plan, the prosecution could seek its admission. (Id. at p. 190.) Here, the facts of the prior offense were probative on the issues of intent and common plan. Moreover, unlike the situation in Old Chief, the intent stipulation did not render the prior offense evidence irrelevant, because the evidence remained probative on the issue of common plan.
The prior offense evidence—showing a common plan to possess and sell cocaine—had significant probative value to undermine Anderson's claim that he never possessed the cocaine. Further, there was nothing inflammatory about the prior offense evidence that would cause the jury to judge the case based on extraneous matters. Given the substantial probative value and nonprejudicial nature of the evidence on the common plan issue, the trial court did not abuse its discretion in declining to require the prosecution to accept the stipulation on intent and in admitting the evidence.
Admission of Prior Offense Booking Photographs
Anderson also contends that the trial court erred by allowing the prosecution to reopen its case to admit booking photographs of the defendant from the prior offense. He contends that admitting the photographs in the reopened case improperly emphasized the prior offense evidence.
At trial, Officer Ries testified that he did not have an independent recollection of the 2000 buy/bust incident involving Anderson. His testimony describing the incident was based on his report prepared at the time of the incident. The report included photocopies of Polaroid pictures of the person who sold the drugs and identified the person as Robbye R. Anderson and listed his date of birth. After Officer Ries testified, the prosecution presented the testimony of another officer involved in the buy/bust operation for the current offense, and then rested its case. The proceedings were adjourned for the day.
The following morning, outside the presence of the jury, the defense indicated that it would not be presenting any witnesses, and made an unsuccessful motion for acquittal. The prosecution then moved to reopen its case to admit a photocopy of a sheet containing the booking photographs of the defendant in the prior offense. Anderson objected, arguing that Officer Ries had already testified about the prior incident; the photographs were "mug shot[s]" that looked incriminating; and reopening the prosecution's case would place undue attention on the prior offense evidence. In response, the prosecutor asserted that the booking photographs were needed to identify Anderson as the person involved in the prior incident because the Polaroid pictures of the defendant contained in Officer Ries's report were of poor quality and for this reason were not admitted into evidence. Further, given Officer Ries's lack of independent recall, he did not directly identify Anderson in court.
The trial court ruled that the prosecution could reopen its case to admit the booking photographs. The court reasoned that the photographs were relevant to establish Anderson's identity in the prior offense. Further, the court recognized that the jury likely surmised that the person involved in the 2000 buy/bust incident was arrested, and thus the booking photographs would not be a "bombshell" for the jury. The court also noted that the reopening of the case would occur the morning after Officer Ries testified about the prior incident, and concluded the jury would not give undue emphasis to the photographs.
The jury was then brought into court for the morning proceedings. The prosecution moved to reopen; the motion was granted; the sheet of booking photographs was admitted into evidence; and the prosecution rested. The defense then stated that it chose to rely on the state of the evidence and also rested.
The sheet of booking photographs was redacted to eliminate references to the charged offenses, and to merely state "San Diego County Sheriff's Department" in the heading, the defendant's name and date of birth, the date and time of the photographs, and the certification from the custodian of records.
The record supports the trial court's decision to allow admission of the booking photographs. The prosecution had the burden to prove Anderson committed the prior offense by a preponderance of the evidence. (People v. Carpenter (1997) 15 Cal.4th 312, 382.) Given Officer Ries's inability to directly identify Anderson as the person who committed the prior offense, the booking photographs were relevant, noncumulative evidence to prove his identity. While a booking photograph indicates that a person has been arrested, the jury already knew that a person with Anderson's same name had sold drugs to the police in a buy/bust operation. As found by the trial court, the booking photographs were not providing the jury with an alarming piece of evidence but rather with something that they would logically expect to exist.
Likewise, the record does not show that the trial court abused its discretion by allowing the prosecution to present the evidence by reopening its case. A trial court has broad discretion to allow a case to be reopened for admission of additional evidence. (People v. Cuccia (2002) 97 Cal.App.4th 785, 792.) Relevant factors to consider include the stage of the proceedings, the moving party's diligence, the prospect of the jury placing undue emphasis on the new evidence, and the significance of the evidence. (Id. at p. 793.) The motion to reopen was brought the morning after Officer Ries was unable to provide identification testimony, and did not involve interruption of the defense case. The actual reopening and admission of the evidence before the jury was brief, and merely involved admitting the sheet of booking photographs into evidence with no accompanying testimony or reference to the facts of the prior incident. The trial court reasonably concluded the admission of the evidence via a reopened case would not cause the jury to give undue attention to the prior offense evidence. There was no abuse of discretion.
DISPOSITION
The judgment is affirmed.
WE CONCUR: NARES, Acting P. J., McDONALD, J.