Opinion
NOT TO BE PUBLISHED
Superior Court County of San Luis Obispo Super. Ct. No. F388119, Michael L. Duffy, Judge
Law Office of Lee A. McCoy, Lee A. McCoy for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels, Supervising Deputy Attorney General, Zee Rodriguez, Deputy Attorney General, for Plaintiff and Respondent.
COFFEE, J.
Appellant Denise Leila Arreguin was tried before a jury and convicted of possession for sale and transportation of methamphetamine. (Health & Saf. Code, §§ 11377, subd. (a), 11378, 11379, subd. (a).) The court suspended sentencing and placed her on three years' formal probation. She contends that the judgment must be reversed because the trial court erred in admitting prior crimes evidence. (Evid. Code, §§ 1101, 352.) We affirm.
BACKGROUND
On May 21, 2006, at approximately 12:00 a.m., appellant was riding in the front passenger seat of a green Chevrolet Blazer driven by her boyfriend, Daniel Morin. Antonio Maya rode in the back seat. San Luis Obispo County Sheriff Department Deputies Noah Martin and Christopher Pirotte stopped the Blazer for a traffic violation. Morin initially identified himself to the deputies as Sammy Morin. After smelling marijuana, Pirotte asked Maya if he had smoked marijuana. Maya admitted that they had been smoking a "bowl" of marijuana and gave Pirotte a plastic baggie containing marijuana.
Martin found a methamphetamine pipe, in a wet washcloth, and a purple scale with fine white methamphetamine powder between the driver's seat and the front console of the Blazer. When Pirotte asked about the marijuana pipe, appellant manipulated items in her purse, which rested partly on the front passenger seat and partly on the center console. Pirotte asked to look in the purse and appellant held it, hesitated, and continued to manipulate its contents. After he made a second request, appellant gave her purse to Pirotte. He found a multicolored marijuana pipe and a small square plastic purple lid or tray with traces of methamphetamine in her purse. The plastic tray was part of the purple scale. A side pouch of appellant's purse held $138 in cash (six $20 bills, a $10 bill, a $5 bill, and three $1 bills). A cell phone in the driver's side door pocket rang constantly during the time that the deputies searched the Blazer (approximately one hour).
Pirotte also found a pink makeup bag between the Blazer's passenger seat and center console. Appellant admitted that the makeup bag belonged to her. Pirotte found a plastic bag that contained three smaller plastic bags in the makeup bag. The smaller bags held 6.71 grams, 1.35 grams and 0.51 grams, respectively, of methamphetamine. Martin asked appellant if the methamphetamine was hers. She quietly denied it, but did not seem surprised or excited that it was in her makeup bag. Martin found a plastic bag with purple Q-tip cotton swabs in the sun visor area of the Blazer, between the driver's seat and the front passenger seat. Intravenous methamphetamine users often use Q-tips to prepare to inject drugs.
Appellant's watery eyes, slow, slurred speech, unsteady gait, and fast heart rate indicated that she was under the influence. The deputies arrested appellant and Morin for possession for sale and transportation of methamphetamine. Appellant initially declined to enter the patrol car, said that the drugs were not hers, and then said that Morin put them in her bag just before the deputies stopped the Blazer.
On June 19, 2006, Morin met with his probation officer, Laura Vorie. When she questioned him about his case, Morin admitted that he and his girlfriend were selling small quantities of methamphetamine.
A narcotics expert testified that cell phones are commonly used to sell illegal substances. Someone purchasing methamphetamine for personal use would have no need to place it in multiple bags. A typical single use of methamphetamine is approximately 0.25 grams for an average user. Users ordinarily purchase methamphetamine in "$20 increments." The expert concluded that the methamphetamine recovered from appellant's makeup bag was possessed for sale because it was packaged in multiple bags, recovered with cash, and with a scale and tray that bore methamphetamine residue.
At trial, Morin claimed that on May 20, he had purchased the methamphetamine found in the makeup bag for $200, for his own use, and placed it in three bags hours before the deputies stopped the Blazer. He weighed and smoked the methamphetamine that evening, while he was alone in the Blazer. He then left the pipe and a damp washcloth in the Blazer. Still later that evening, Morin smoked one or two bowls of marijuana at a party. He left the party with Maya and appellant shortly after midnight.
When the deputies stopped the Blazer, Morin put his marijuana pipe and the drugs in appellant's purse or makeup bag. Morin claimed that appellant had given him Q-tips earlier in the evening so he could clean his ears.
Morin denied having conceded to his probation officer that he and appellant were selling small quantities of drugs. He admitted that he had lied to Martin about his name on May 21, 2006. He further admitted that he had used the scale found in the Blazer "in the past" while selling methamphetamine.
Appellant also testified at trial. She received the money in her purse ($138) from her mother as payment for working in her family's restaurant. Appellant's makeup bag was empty when she put it in her purse before leaving her home on May 20. She went to a party with Morin that night. She smoked marijuana at the party. She denied that she had ever used or sold methamphetamine. She neither saw Morin put anything in her purse nor knew how the makeup bag left her purse. She did not know about, and had never seen, the scale, tray, pipe or methamphetamine before the deputies recovered them on May 21, 2006.
On February 8, 2006, a counselor at Lopez High School found a pipe, a small bag containing marijuana, two lighters, and eye drops in appellant's locker. Those items were then in a small print bag that resembled a makeup bag. Appellant acknowledged ownership of the bag and its contents. The bag recovered from appellant's locker in February 2006 was approximately the same size as her makeup bag that held methamphetamine on May 21, 2006.
DISCUSSION
Prior Uncharged Conduct
Appellant contends that the court committed prejudicial error by admitting evidence of her prior uncharged conduct. Specifically, she complains that it improperly admitted evidence that on February 8, 2006, she possessed a bag resembling a makeup bag, which contained a pipe, a plastic bag with marijuana, and other items belonging to her. We disagree.
Evidence Code section 1101, subdivision (a) prohibits evidence of a person's character or trait to prove his conduct on a specified occasion. But subdivision (b) allows evidence of prior uncharged criminal conduct when relevant to prove some fact other than the defendant's disposition to commit the crime. Among the facts that may be proved by such evidence are motive, intent, knowledge or identity. (People v. Ewoldt (1994) 7 Cal.4th 380, 402, fn. 6; see also People v. Hayes (1990) 52 Cal.3d 577, 616-617.) "A trial court's ruling admitting evidence of other crimes is reviewable for abuse of discretion. (Hayes, at p. 617.) A court abuses its discretion when its ruling "falls outside the bounds of reason." (People v. DeSantis (1992) 2 Cal.4th 1198, 1226.)
Here, the court admitted evidence of appellant's February 8, 2006 possession of a small bag holding a pipe, a plastic bag of marijuana, and other items. That bag resembled a makeup bag and was approximately the same size as her makeup bag that held methamphetamine on May 21, 2006. The court concluded that the prior incident was sufficiently similar to the charged offenses to show a common scheme or design, i.e., appellant's practice of possessing controlled substances and concealing them in her makeup bag while possessing them. (See People v. Kraft (2000) 23 Cal.4th 978, 1031 [scheme or plan need not be unusual or distinctive].) It also concluded that the evidence was more probative than prejudicial under Evidence Code section 352. The court did not abuse its discretion in admitting the challenged evidence. (See Kraft, at p. 1035.)
Even if the prior possession of marijuana incident was not sufficiently similar to show a common plan or scheme, it must be upheld because it was admissible to show knowledge. (See People v. Brown (2004) 33 Cal.4th 892, 901 [a correct ruling or decision will not be disturbed on appeal simply because it was given for an alternate reason, or even the wrong reason].) Appellant's knowledge of the presence of the methamphetamine and its nature as a restricted dangerous substance were necessary elements of the prosecution's case. (See People v. Martin (2001) 25 Cal.4th 1180, 1184-1185.)
In this case, appellant pleaded not guilty of possession for sale and transportation of methamphetamine and denied any knowledge of the methamphetamine in her makeup bag. At the time of its recovery, the small bag recovered on February 8, 2006, like that recovered on May 21, 2006, contained a controlled substance. In addition, each bag was then in a location accessible to appellant. Such evidence was probative to show appellant's knowledge that the makeup bag she carried on May 21 contained a controlled substance. (See People v. Pijal (1973) 33 Cal.App.3d 682, 691; see also People v. Romero (1997) 55 Cal.App.4th 147, 153-154 [what is required is knowledge of the controlled substance character of the item rather than its chemical name or its precise chemical nature].) The trial court did not abuse its discretion in admitting evidence of appellant's prior marijuana possession.
Furthermore, any error in admitting her prior marijuana possession incident was harmless. The erroneous admission of uncharged conduct is not cause for reversal unless it is reasonably probable that an outcome more favorable to the defendant would have occurred absent the error. (People v. Ortiz (2003) 109 Cal.App.4th 104, 118-119; People v. Watson (1956) 46 Cal.2d 818, 836.) The court instructed the jury that it could not consider the prior marijuana possession incident for any purpose except to determine whether there was a common plan and that it could not conclude from such evidence that appellant had a bad character or was disposed to commit crimes. The prosecution presented overwhelming evidence of her guilt, independent of her prior marijuana possession. Her makeup bag held more than 8 grams of methamphetamine, packaged in three separate bags. There was no reason to package the methamphetamine in separate bags, except to sell it. Appellant's purse held the scale's plastic tray or lid, with methamphetamine traces. Both appellant's purse and makeup bag were within her reach at the time the deputies stopped the Blazer. Morin told his probation officer that he and appellant were selling small quantities of drugs.
Fees and assessments
The Attorney General contends that the judgment must be modified to clarify that appellant is subject to the following fines: a $200 restitution fine (Pen. Code, § 1202.4), with a $100 state construction penalty (Gov. Code, § 70372, subd. (a)); a $200 parole revocation restitution fine (Pen. Code, § 1202.45), with a $100 state construction penalty (Gov. Code, § 70372, subd. (a)); a $30 DNA identification fund fine (id., § 76104.6, subd. (a)); a $50 laboratory fee (Health & Saf. Code, § 11372.5, subd. (a)), with a $10 (20 percent) surcharge (Pen. Code, § 1465.7), and a $25 state construction penalty (Gov. Code, § 70372, subd. (a)); two $20 court security assessment fees (Pen. Code, § 1465.8); a $50 state penalty assessment (Pen. Code, § 1464); and a $35 county penalty assessment (Gov. Code, § 76000). The court assessed some but not all of these fines and penalties. The Attorney General argues that the court's failure to impose any applicable penalty assessment is jurisdictional error which an appellate court must correct, citing People v. Talibdeen (2002) 27 Cal.4th 1151, 1154-1157, and other authority. Appellant does not contest the matter. The judgment should be modified accordingly.
The judgment is modified to impose the following fines and penalties: a $200 restitution fine; a $200 parole revocation restitution fine; two $100 state construction penalties; a $30 DNA identification fund fine; a $50 laboratory fee, with a $10 surcharge; a $25 state construction penalty; two $20 court security assessment fees; a $50 state penalty assessment; and a $35 county penalty assessment. In all other respects, the judgment is affirmed.
We concur: GILBERT, P.J., PERREN, J.