Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. SCS203339, Alvin E. Green, Jr., Judge.
IRION, J.
A jury convicted Emma Brown of one count of possession for sale of methamphetamine and one count of possession of narcotics paraphernalia. (Health & Saf. Code, §§ 11378, 11364.) The trial court sentenced Brown to seven years in prison.
Brown appeals, arguing that her convictions must be reversed on several grounds. Brown's primary contention is that the trial court erred by instructing the jury that the prosecution did not need to prove that Brown intended to personally sell the methamphetamine she possessed. Alternatively, Brown contends that if the trial court properly instructed the jury on this point, she was denied adequate notice of the charges against her and received ineffective assistance of counsel. Brown also argues that her convictions must be reversed because: (i) the trial court abused its discretion in admitting evidence under Evidence Code section 1101 that Brown committed drug offenses on prior occasions; (ii) the trial court abused its discretion by ruling that Brown could be impeached, should she testify, with certain prior convictions; and (iii) the trial court abused its discretion by failing to hold an evidentiary hearing regarding alleged juror misconduct in response to Brown's motion for a new trial. We conclude that Brown's contentions are without merit and affirm.
All further statutory references are to the Evidence Code unless otherwise indicated.
FACTS
At approximately 1:45 a.m. on July 3, 2006, Chula Vista Police Officer John Picone observed a man, later identified as Vincent Rebelez, acting erratically at a payphone outside of a convenience store. Avoiding eye contact with Picone, Rebelez walked away from the telephone toward the Highway Inn, a motel in Chula Vista. Picone radioed for assistance. Officer Craig Doyle arrived to assist Picone and observed Rebelez on the third floor of the motel. Rebelez was yelling and kicked the door to one of the hotel rooms. Rebelez then removed a screen and entered the room through the window.
Doyle ran up to the room and entered through the partially ajar door. Inside, he encountered Rebelez, Brown and Norma Martinez. After ordering Rebelez to lay down on the ground, Doyle observed a water bottle on the nightstand that had a blue discoloration; Doyle looked into the bottle and noticed a blue plastic bag in its base that was consistent with the concealment of illegal narcotics. Doyle asked who the bottle belonged to and Brown stated that it belonged to her son. In a hidden compartment at the base of the bottle, Doyle found 9.66 grams of methamphetamine in several blue baggies. A further search of the nightstand revealed approximately 100 small baggies inside an Elvis Presley bag, a can with a false bottom and a scale that was consistent with measuring narcotics.
Doyle asked Brown if she had any drugs on her person, and she acknowledged that she did. A search of her person revealed a baggie containing 5.09 grams of marijuana and two glass pipes consistent with smoking methamphetamine. The motel room was registered to Brown. A sample of Brown's blood tested positive for methamphetamine.
Brown told police that Rebelez was her son, but it was later determined that Rebelez was actually Martinez's son. Brown also told police that she knew Rebelez packaged and sold methamphetamine, and had observed him packaging the drug in the room. She stated that she had recently kicked Rebelez out of the room due to his erratic behavior.
DISCUSSION
Brown raises a number of challenges to her convictions. We address each challenge separately below.
I
The Trial Court Did Not Err in Instructing the Jury; Brown Received Adequate Notice of the Charge; There Is No Showing of Ineffective Assistance of Counsel
Brown contends that the trial court erred by instructing the jury that she did not need to intend to personally sell the methamphetamine to be convicted of possession of methamphetamine for sale under Health and Safety Code section 11378. Alternatively, Brown contends that if the trial court properly instructed the jury regarding the requisite intent, reversal is still required because the instruction deprived her of a fair opportunity to defend against the charge and, because her counsel appeared unaware of the pertinent law, rendering his performance constitutionally deficient. We analyze these contentions after setting forth the relevant procedural history.
A. Procedural History
During a colloquy with the trial court regarding jury instructions, the prosecutor requested that the trial court supplement the standard instruction listing the elements for the crime of possession of methamphetamine with intent to sell with the language italicized below:
"[T]he People must prove that:
"1. The defendant possessed a controlled substance;
"2. The defendant knew of its presence;
"3. The defendant knew of the substance's nature or character as a controlled substance;
"4. When the defendant possessed the controlled substance, she intended to sell it. However, there is no requirement that the defendant possessed the methamphetamine so that she could personally sell it. It is only required that she possessed the drugs with the specific intent that it [sic] be sold[;]
"5. The controlled substance was methamphetamine; AND
"6. The controlled substance was in a usable amount." (Italics added; see CALCRIM No. 2302.)
At the outset of the subsequent discussion regarding the proposed modification, the court summarized the law as follows: "[T]here is nothing specific in the code section" with which Brown was charged "that says the person who is charged with possession for sale . . . is the one that has to be selling the drugs. The intent is that the drugs be sold, but there's no requirement that that person actually be the seller of the drugs as long as there is an intent that the drugs be sold by someone." The court then solicited defense counsel's views on the proposed instruction.
Defense counsel objected to the instruction, arguing that he had not received notice of the proposed instruction until "two hours ago," and that the instruction is "inappropriate," "biased" and "not the right language." Defense counsel also stated that he had been "sandbagg[ed]" because he had not had an opportunity to review the cases cited by the prosecutor in support of the proposed instruction.
After further discussion, the court agreed to give the modified instruction. The court stated the modification "is necessary in this case" because it "clarifies the issue" and is "in compliance with" the case law.
B. The Modified Instruction Is a Proper Statement of the Law
We begin our analysis with a determination of whether the modified instruction constitutes a correct statement of the law. Review of the propriety of jury instructions is de novo. (See People v. Guiuan (1998) 18 Cal.4th 558, 569.)
To determine whether the challenged instruction correctly defines the intent element of a Health and Safety Code section 11378 offense, we begin with the language of the statute. In construing the statute's text, as with other statutory language, we focus our attention on " 'the words themselves, giving them their usual and ordinary meaning.' " (People v. Wright (2006) 40 Cal.4th 81, 92.) " '[I]f there is no ambiguity, then we presume the lawmakers meant what they said, and the plain meaning of the language governs.' " (Allen v. Sully-Miller Contracting Co. (2002) 28 Cal.4th 222, 227.)
Health and Safety Code section 11378 states that "every person who possesses for sale any controlled substance . . . shall be punished by imprisonment in the state prison." (Ibid.) The usual and ordinary meaning of this statutory text is clear with respect to the question of intent to personally conduct a sale. The statute criminalizes the "possess[ion] for sale" of certain controlled substances, and contains no suggestion that the possessor of the drugs must intend to personally sell them to fall within its scope. (Ibid.) This same conclusion has been reached by three courts, including our Supreme Court, regarding identical language in a related statute. (See People v. Parra (1999) 70 Cal.App.4th 222, 226-227 (Parra) ["On its face, Health and Safety Code section 11351 does not state that the defendant has to have the specific intent to sell the controlled substance personally, only that it be ' "for sale" ' "]; People v. Perez (2005) 35 Cal.4th 1219, 1231 [Health & Saf. Code "section 11351 criminalizes 'possess[ion] for sale,' not 'possession with intent to sell.' This passive construction, unlike the construction used in [Health & Saf. Code, § 11383, subd. ](c)(2), does not imply the possessor must also be the seller"]; People v. Consuegra (1994) 26 Cal.App.4th 1726, 1732, fn. 4 (Consuegra) ["The requisite mental state is satisfied when the drugs are possessed with the specific intent that they be sold, regardless of whether the possessor intends to sell them personally"].) As the statutory text is unambiguous regarding the question of whether an intent to personally sell is required for a violation of Health and Safety Code section 11378, the trial court's instruction was not erroneous.
Health and Safety Code sections 11351 and 11378 contain identical language regarding "possess[ion] for sale" but criminalize the possession of different controlled substances.
This conclusion is consistent with the case that Brown cites for the contrary position, In re Christopher B. (1990) 219 Cal.App.3d 455 (Christopher B.). In that case, this court reviewed a juvenile court's true finding that Christopher B. violated Health and Safety Code section 11351. In making the finding, the juvenile court stated its belief that " 'participating in possession of drugs, knowing that they are going to be sold . . . is sufficient' " to establish the requisite elements of Health and Safety Code section 11351. (Christopher B., at p. 466.) The Christopher B. court reversed, holding that the "trial court made the erroneous legal conclusion that possession of cocaine for sale is not a specific intent crime," and "[a]bsent a finding Christopher had the specific intent to sell, a true finding of possession for sale cannot be made." (Ibid.)
We do not read Christopher B. to require the prosecution to prove an intent on the part of a defendant to personally sell drugs to satisfy the elements of Health and Safety Code section 11351 (or by analogy, Health & Saf. Code, § 11378) — indeed, the question was not specifically raised in that case. (Consuegra, supra, 26 Cal.App.4th at p. 1732, fn. 4 ["The court in Christopher B. was not called upon to determine whether the perpetrator must intend to sell the drugs personally"].) Rather, the case holds only that the offense requires proof of a specific intent that is not satisfied by mere knowledge that the drugs will be sold. (Christopher B., supra, 219 Cal.App.3d at p. 466 [holding that juvenile "court made the erroneous legal conclusion that possession of cocaine for sale is not a specific intent crime"].) As we have noted, the specific intent for purposes of Health and Safety Code section 11378 is an intent that the drugs possessed will be sold, regardless of the identity of the person who will carry out the sale. (Parra, supra, 70 Cal.App.4th at p. 227 ["to be convicted of a violation of the Health and Safety Code section 11351 the defendant needs to either (1) possess the specific intent to sell the controlled substance personally, or (2) possess the specific intent that someone else will sell the controlled substance"]; Consuegra, at p. 1732, fn. 4 ["The requisite mental state is satisfied when the drugs are possessed with the specific intent that they be sold, regardless of whether the possessor intends to sell them personally"].)
In sum, the trial court's instruction correctly stated the law regarding the mental state required for a conviction under Health and Safety Code section 11378. As the court stated, a conviction under Health and Safety Code section 11378 required a jury conclusion that Brown "possessed the drugs with the specific intent that" they "be sold." There was no instructional error.
C. The Instruction Did Not Deny Brown an Opportunity to Defend the Case
Brown next contends that even if the trial court's instruction constituted a correct statement of law, the trial court still erred because defense counsel relied on the unmodified version of CALCRIM No. 2302 "in formulating [Brown's] entire defense." Consequently, Brown argues, she was denied her constitutional right to adequate notice of the charges against her so that she could prepare her defense. (See, e.g., People v. Gallego (1990) 52 Cal.3d 115, 189 (Gallego) [" 'The Sixth Amendment guarantees a criminal defendant a fundamental right to be clearly informed of the nature and cause of the charges in order to permit adequate preparation of a defense' "], quoting Sheppard v. Rees (9th Cir. 1990) 909 F.2d 1234, 1236.) We disagree.
In the instant case, Brown was charged in an information alleging that she violated Health and Safety Code section 11378 by having methamphetamine in "her possession for purpose of sale." There is no indication in the record that the prosecutor or the court misled Brown at any time by suggesting that the prosecution would need to demonstrate that Brown personally intended to sell methamphetamine to obtain a conviction. Further, at the time of Brown's trial, both the case law and the statutory text established that no intent to personally sell methamphetamine was required to establish the requisite elements of Health and Safety Code section 11378. Thus, there was no basis for Brown's counsel to assume that the jury instructions at her trial would permit Brown to obtain an acquittal by establishing that she did not intend to personally sell the drugs.
Further, even if the trial court had not instructed with the supplemental language regarding intent to sell, Brown still could have been found liable absent an intent to personally sell under an aiding and abetting theory. As Brown notes, at the time of her trial "[t]he law was reasonably clear . . . that a person could be held criminally liable on an aiding an[d] abetting theory for the crime of possession for sale of a controlled substance." (See People v. Santana (2000) 80 Cal.App.4th 1194, 1200 [holding that there was sufficient evidence to convict defendant "as an aider and abettor in the possession for sale of the narcotics"]; People v. Lizarraga (1990) 219 Cal.App.3d 476, 480 [stating that in a prosecution for possession of heroin for purposes of sale, "[t]he court properly instructed the jury that a person who aids and abets in the commission of a crime is regarded as a principal and is as guilty as the perpetrator"].) The trial court instructed the jury on aiding and abetting principles. (See CALCRIM Nos. 400, 401.)
In sum, the law was clear at the time of Brown's trial that she could be convicted under Health and Safety Code section 11378 even if she did not intend to personally sell the drugs. This was not, therefore, a case of trial by " 'ambush' " that violated Brown's right to adequate notice of the charges or her right to prepare a defense. (Gallego, supra, 52 Cal.3d at p. 189.)
The instruction also did not "nullif[y] the entire theory of defense post hoc" as Brown contends. The primary defense theory — expressed both in opening and closing argument — was that the drugs belonged to Rebelez (not Brown), and that he had briefly left them in the apartment while going to make a phone call on the pay phone. Thus, the defense tried to establish that Brown did not knowingly possess the drugs, and certainly did not possess them with the specific intent that they be sold (by Rebelez or anyone else). This defense theory was perfectly viable as a legal matter and presented a complete defense to both direct liability under Health and Safety Code section 11378 and indirect liability under an aiding and abetting theory. Under either theory of liability, the prosecution was required to establish Brown's specific intent that the drugs be sold, not mere knowledge that Rebelez might sell them. Thus, the court's instruction that an intent to personally sell the drugs was not required left the defense theory entirely intact. The instruction eliminated only the possibility that the jurors would erroneously conclude that even if Brown possessed the drugs and intended they be sold by Rebelez, an acquittal was required if she did not intend to personally conduct the sales.
Brown's repeated contention that her trial counsel's ineffectiveness is demonstrated by his failure to object to the admission of statements Brown made to police officers at the scene of her arrest is unavailing. First, Brown fails to provide any grounds for an objection to the statements, which were plainly relevant and admissible over a hearsay objection as statements of a party. (§ 1220.) Second, the statements were not necessarily inconsistent with the defense theory. Brown told police officers that: (i) she had "seen [Rebelez] packaging methamphetamine in the room and that he would most often do it in the bathroom with the door closed"; (ii) that Rebelez "always ha[d] drugs on his person"; (iii) that Rebelez had previously given her methamphetamine; (iv) that Rebelez had come into the hotel room to "get his drugs and his paraphernalia"; and (v) that she knew Rebelez's packaging material and a digital scale were in the room. All of these statements could be taken by the jury as consistent with the defense contention that the drugs belonged to Rebelez and were not intended (by Brown) to be sold.
D. Brown Fails to Demonstrate Ineffective Assistance of Counsel
Brown also contends that if the trial court's instruction was a proper statement of the law, the record demonstrates that she received constitutionally inadequate counsel. According to Brown, her counsel's statements to the trial court suggest that counsel did not understand the law and, consequently, presented a "nonexistent defense" that "was no defense at all." We disagree.
To obtain relief on the grounds of ineffective assistance of counsel, a defendant must establish both counsel's deficiency and resulting prejudice. Specifically, a defendant must show: (i) that " 'counsel's representation fell below an objective standard of reasonableness . . . under prevailing professional norms' " (In re Fields (1990) 51 Cal.3d 1063, 1069, quoting Strickland v. Washington (1984) 466 U.S. 668, 693); and (ii) " 'there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different' " (In re Fields, at p. 1070, quoting Strickland, at p. 694). (See People v. Williams (1988) 44 Cal.3d 883, 937 [recognizing that it is the defendant's burden to establish both deficiency and prejudice].) In demonstrating prejudice, the defendant "must carry his burden of proving prejudice as a 'demonstrable reality,' not simply speculation as to the effect of the errors or omissions of counsel." (Ibid.)
In the instant case, Brown fails to carry her burden of demonstrating either deficiency or prejudice. The record does not support the contention that Brown's counsel believed Brown could be acquitted if the prosecution failed to demonstrate that she intended to personally sell the drugs. Rather, the record shows a consistent effort by the defense — initiated in opening statement — to establish that the methamphetamine found in the motel room belonged to Rebelez, and that Brown had nothing to do with possessing or selling those drugs. Consequently, under the legally viable defense theory, Brown was not an aider and abetter of Rebelez's possession of the drugs, and did not possess those drugs with the intent that they be sold by her or anyone else.
Brown highlights portions of the instructional colloquies to suggest that her counsel failed to adequately research the applicable law. These colloquies, which consist primarily of counsel making unsuccessful arguments against the instructions given, show only that counsel complained of receiving insufficient notice of the cases that the prosecutor cited in requesting the supplemental instruction. Such statements are insufficient to demonstrate that counsel's conduct was constitutionally deficient.
In addition, counsel's professed unfamiliarity with the cases referenced by the prosecutor in the colloquy with the trial court — even if accepted at face value — would be insufficient to establish ineffective assistance of counsel due to the absence of prejudice. As we have already discussed, the trial court's instructions were accurate statements of the law. Consequently, the ultimate outcome in terms of the jury instructions would not have been any different had trial counsel been able to recite the language from the cited cases verbatim. Thus, even if there was a deficiency with respect to counsel's familiarity with the pertinent cases, there was no prejudice.
Brown's contention that her case is analogous to People v. Diggs (1986) 177 Cal.App.3d 958 is unavailing. In Diggs, the Third District reversed a conviction where trial counsel's "largely incoherent" closing argument "appear[ed] to argue that a 'permissive' society in general — and television and rock music in particular — produce a nihilistic attitude in young people so that society should be held responsible for defendants' conduct." (Id. at p. 967.) The Third District, in reversing the conviction, emphasized that counsel's argument was not a legally cognizable defense. In fact, the court emphasized that by essentially admitting disputed factual contentions made by his client, trial counsel's "closing argument effectively withdrew a crucial defense and admitted his client's guilt without his client's consent." (Id. at p. 970.) Given these "unusual circumstances," the court concluded, "ineffective assistance of counsel is apparent on the face of the record; there is simply no plausible tactical explanation for [counsel's] bizarre argument." (Ibid.) Nothing resembling the unusual situation in Diggs appears in the record of the instant case. Brown cites three other cases which she characterizes as "similar decisions"; none of these decisions has any similarity to the instant appeal. (I.e., People v. Plager (1987) 196 Cal.App.3d 1537, 1543 [without any tactical basis, trial counsel stipulated to the fact that prior convictions were residential burglaries where prosecution would not have been able to prove that fact absent stipulation]; People v. Borba (1980) 110 Cal.App.3d 989, 996 [trial counsel was ineffective where he failed to object to the admission of defendant's confession despite legal grounds mandating exclusion]; People v. Rosales (1984) 153 Cal.App.3d 353, 361 [trial counsel was ineffective where he failed to object to admission of defendant's palm print despite legal grounds mandating its exclusion].)
We also note that Brown has submitted a petition for habeas corpus that we have considered with this appeal. The petition, which is intended to support the claim of ineffective assistance of counsel, does just the opposite. In the petition, Brown offers a declaration of her trial counsel. Counsel states, "[m]y theory of the defense at trial was that Ms. Brown lacked knowledge about Rebelez's intent to sell the drugs, i.e., she did not have the intent that the drugs be sold by Rebelez. The modification of the instruction [to include the supplemental language regarding intent] had no impact on my trial strategy that I can recall." Brown argues in her petition that the record belies her counsel's sworn statements, but as noted above, this is simply not the case. Further, Brown's arguments attempting to discredit an affidavit submitted in support of her petition are an inadequate substitute for the showing required to make out a claim of ineffective assistance of counsel.
We dispose of the habeas corpus petition in a separate order issued simultaneously with this opinion.
II
The Trial Court Did Not Abuse Its Discretion in Admitting Evidence of Brown's Prior Acts to Establish Intent
Brown contends that the trial court abused its discretion in permitting the prosecution to introduce evidence of a prior drug possession offense to support an inference that she intended to sell the methamphetamine in the instant case.
A. Procedural History
Prior to trial, the prosecution sought to admit stipulated statements as to two instances in which Brown had been previously arrested for drug offenses, one in 2001 and the other in 2003. The trial court ultimately admitted the stipulations on the issue of Brown's intent:
Stipulation I
"[O]n September 9, 2003, the defendant, Emma Brown, was a passenger in a vehicle being driven by Norma Martinez. The police stopped the vehicle and searched it. In the trunk of the vehicle an officer found a can of car sealer. The can had a false bottom. Contained within the can were 10 baggies of methamphetamine, nine empty baggies and a pipe that was used for smoking methamphetamine. The weight of the methamphetamine totaled 63.39 grams. A third person was also present, a passenger in the car. . . .
"On September 19, 2003, the defendant admitted she possessed the methamphetamine for sale and pled guilty to that charge."
Stipulation II
"[O]n February 1st of 2001, the police stopped a vehicle containing three people. The driver of the vehicle was Norma Martinez, the front passenger was the defendant Emma Brown, and the rear passenger was an adult male with the first name of Gary.
"The vehicle was searched. In the back seat area where Gary had been sitting, two baggies of methamphetamine were found which contain [sic] 6.66 grams and 1.82 grams respectively. In the trunk of the vehicle, a teddy bear was found. In the zippered portion of the bear, a baggie containing 38.60 grams of methamphetamine was found.
"A search was then conducted at a motel room the defendant Brown and Gary had been staying at. In a backpack in the closet floor of the room were found 50 small Ziploc baggies with green dollar signs on the outside of each baggie as well as a plastic scale which had white, powdery residue on it. The baggies of methamphetamine found in the back seat of the car had the same markings on them. In the defendant's purse were two glass pipes commonly used to smoke controlled substances."
The facts recounted in the second stipulation resulted in a guilty plea to a possession charge. To support an inference that the 2001 incident demonstrated Brown's previous intent to sell, the prosecutor introduced opinion testimony from a drug expert that, given the circumstances described in the stipulation, the drugs possessed in 2001 were possessed for sale.
Defense counsel conceded that the information contained in the first stipulation was admissible. Counsel objected to the admissibility of the information contained in the second stipulation, arguing that it was tangential with respect to the issue of intent, and needlessly cumulative in light of the 2003 stipulation. The trial court admitted both stipulations, ruling that the evidence was admissible under section 1101, and not unduly prejudicial under section 352.
Defense counsel agreed to the language of the stipulations.
B. Analysis
Brown contends on appeal that the trial court abused its discretion in admitting the second stipulation under both sections 1101 and 352.
Under section 1101, subdivision (a), "evidence of a person's character or a trait of his or her character," including "evidence of specific instances of his or her conduct," is "inadmissible when offered to prove his or her conduct on a specified occasion." Section 1101, subdivision (b) states, however, that: "Nothing in this section prohibits the admission of evidence that a person committed a crime . . . or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, . . .) other than his or her disposition to commit such an act." (§ 1101, subd. (b).) The admission of evidence under section 1101 is reviewed on appeal for an abuse of discretion. (People v. Memro (1995) 11 Cal.4th 786, 864; People v. Linkenauger (1995) 32 Cal.App.4th 1603, 1609 ["Admission of . . . section 1101, subdivision (b) evidence is addressed to the sound discretion of the trial court"].)
The exclusion of potentially relevant evidence called for by section 1101 is not invalidated by article 1, section 28 of the California Constitution (enacted in 1982 as part of Proposition 8), which provides that except for a statute passed with a two-thirds vote in the Legislature, "relevant evidence shall not be excluded in any criminal proceeding." Our Supreme Court has held that even if article 1, section 28 was intended to abrogate the limitations in section 1101, that statute has, since the passage of Proposition 8, been reenacted with a two-thirds vote. (People v. Ewoldt (1994) 7 Cal.4th 380, 390 (Ewoldt).)
The trial court did not abuse its discretion in admitting the second stipulation under section 1101. Section 1101 prohibits only evidence of past wrongdoing where the evidence is admitted to establish a " 'criminal propensity' " — i.e., that the defendant probably committed the instant crime because he or she previously acted unlawfully. (People v. Whisenhunt (2008) 44 Cal.4th 174, 203 (Whisenhunt) [" 'Section 1101 prohibits the admission of other-crimes evidence for the purpose of showing the defendant's bad character or criminal propensity' "]; People v. Demetrulias (2006) 39 Cal.4th 1, 14 (Demetrulias) ["Evidence of other crimes is admissible only if relevant to prove a material fact at issue, separate from criminal propensity"].) Section 1101 specifically permits evidence of past wrongdoing where it is used to support a different inference, such as an inference that the defendant possessed a certain "intent" in committing the prior act, and thus is likely to have possessed that same intent in committing a similar charged act. (§ 1101, subd. (b).)
To support an inference of intent under section 1101, "charged and uncharged crimes need only be 'sufficiently similar to support the inference that the defendant " 'probably harbor[ed] the same intent in each instance.' " ' " (Demetrulias, supra, 39 Cal.4th at p. 15.) As compared to the use of past acts evidence for other purposes, "[t]he least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent." (Ewoldt, supra, 7 Cal.4th at p. 402.) " '[T]he recurrence of a similar result . . . tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such an act . . . .' " (Ibid.)
Under section 1101, the trial court's exercise of discretion to admit past acts ultimately "depends on the materiality of the fact sought to be proved, the tendency of the prior crime to prove the material fact, and the existence or absence of some other rule requiring exclusion." (Whisenhunt, supra, 44 Cal.4th at p. 203 [holding that trial court did not abuse its discretion in admitting prior acts of child abuse "to show intent and absence of accident" in prosecution for murder of minor child].)
In the instant case, the materiality of the fact sought to be proved was strong. As Brown herself acknowledges on appeal, her intent was a key issue in the trial. Brown (through counsel) argued that she was unaware of the drugs in her motel room, had no intent that they be sold, and did not intend to be an accomplice in any drug sales. The prior acts evidence had a strong "tendency" to disprove these contentions. (Whisenhunt, supra, 44 Cal.4th at p. 203.)
The evidence in the second stipulation showed that, on a previous occasion, Brown been arrested (along with Martinez) in the presence of saleable quantities of methamphetamine, and a subsequent search of her hotel room revealed paraphernalia for measuring and packaging that methamphetamine. This evidence, along with expert testimony introduced by the prosecution, supported an inference that in 2001 Brown possessed an intent to participate in the sale of methamphetamine. As the circumstances of the 2001 occasion — including the presence of Martinez, the use of a hotel room and the method of storing the drugs — were similar to those of the instant case, Brown's conduct in 2001 " 'support[ed] the inference' " that Brown " ' " 'probably harbor[ed] the same intent in each instance' " '" — an intent to sell methamphetamine. (Demetrulias, supra, 39 Cal.4th at p. 15.) Consequently, the trial court acted within its discretion in admitting the evidence under section 1101. (See, e.g., People v. Pijal (1973) 33 Cal.App.3d 682, 691 [holding that where defendant's "knowledge of the narcotic contents of the drug and his intent to sell were at issue, evidence of his prior narcotic offenses was clearly admissible to show his guilty knowledge, motive and intent"]; People v. Ellers (1980) 108 Cal.App.3d 943, 953 [holding that defendant's prior relationship dealing drugs to informant was admissible under section 1101 because it was "probative of his intent to sell" heroin].)
Brown contends that even if the evidence was admissible under section 1101, the trial court should have excluded it under section 352. Section 352 permits a court "in its discretion" to exclude relevant 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." As this discretionary power is expressly granted to the trial judge by statute, the "exercise of that wide discretion must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice." (People v. Jordon (1986) 42 Cal.3d 308, 316.)
Brown's contention under section 352 appears to be that the evidence regarding the 2001 incident "had great potential [for] prejudice" because it suggested she was guilty of the instant crime. Section 352, however, is concerned only with the potential for "substantial danger of undue prejudice." (Ibid., italics added; People v. Carpenter (1997) 15 Cal.4th 312, 380 (Carpenter) ["Evidence of uncharged crimes is inherently prejudicial but may still be admitted if it has substantial probative effect"].) Prejudice suffered by Brown because the evidence supported an inference as to her intent with respect to the methamphetamine found in her hotel room was perfectly proper under the Evidence Code, not "undue," and therefore, not cognizable under section 352. (People v. Branch (2001) 91 Cal.App.4th 274, 286 [" 'The prejudice that section 352 " 'is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence' " ' "].) Undue prejudice comes from evidence "that uniquely tends to evoke an emotional bias against a party as an individual, while having only slight probative value with regard to the issues." (People v. Crittenden (1994) 9 Cal.4th 83, 134.) Brown fails to establish that there was sufficient undue prejudice of this nature in the instant case to warrant reversal.
Brown also argues that the evidence of the 2001 conduct was "cumulative on the issue of intent" because the 2003 conduct supported the same inference as to Brown's intent. While we agree that the two incidents supported a similar inference, the fact that Brown arguably had the same intent on two separate occasions was more probative than evidence of either event in isolation. (See Ewoldt, supra, 7 Cal.4th at p. 402 [noting that the strength of the inferences as to intent increases " 'with each instance' " in which a similar intent is shown].) In addition, because the evidence was introduced by way of stipulation there was little argument that the evidence "necessitate[d] undue consumption of time." (§ 352.) Consequently, we cannot conclude that the trial court abused its discretion in permitting the evidence on the ground that it was unnecessarily cumulative.
C. The Admission of the Uncharged Offenses Did Not Alter the Prosecution's Burden of Proof
Brown also contends that the admission of the uncharged acts altered the prosecution's burden of proof.
A jury may draw an inference from the defendant's commission of an uncharged act admitted under section 1101 if it believes the defendant's commission of the prior act has been established by a preponderance of the evidence. (See Carpenter, supra, 15 Cal.4th at p. 382 ["If the jury finds by a preponderance of the evidence that defendant committed the other crimes, the evidence is clearly relevant and may therefore be considered"]; CALCRIM No. 375.) Brown contends that this standard of proof, combined with the fact that Brown pled guilty to only possession of cocaine in 2001, "unacceptably diluted the prosecutor's burden of proof" as to her intent to sell in the instant case. We disagree.
Brown's contention fails to acknowledge the trial court's instructions which addressed the very concern Brown raises here. While the jury was instructed that it could consider the evidence admitted under section 1101 so long as Brown's prior acts were established by a preponderance of the evidence, this did not reduce the prosecution's ultimate burden of proof on the question of intent. The court instructed the jury that to prove Brown's guilt of the present charges, including the intent element, the prosecution had to establish her guilt beyond a reasonable doubt. (See In re Winship (1970) 397 U.S. 358, 364 ["the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged"].) The court's instructions also included the following statement on precisely the point raised by Brown: "If you conclude that the defendant committed the uncharged offenses or acts, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of the charged offenses. The People must still prove each element of every charge beyond a reasonable doubt." (See CALCRIM No. 375.) Given these instructions, there is no basis to conclude that the admission of, or instructions regarding, the prior acts evidence improperly diluted the prosecution's burden of proof. (See People v. Holt (1997) 15 Cal.4th 619, 662 ["Jurors are presumed to understand and follow the court's instructions"].)
The jury was instructed that the prosecution was required to prove Brown's guilt of the instant charge "beyond a reasonable doubt" and that "[u]nless the evidence proves the defendant guilty beyond a reasonable doubt, she is entitled to an acquittal and you must find her not guilty." The court stated, "Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt unless I specifically tell you otherwise." "The People must prove not only that the defendant did the acts charged, but also that she acted with a particular intent . . ." — the specific intent that the drugs be sold.
Brown contends that "[s]ome support" for her argument can be found in People v. Walker (2006) 139 Cal.App.4th 782, 799-803. Walker, however, provides no support for Brown's contention. The portion of Walker cited by Brown concerns the admission of uncharged crimes under section 1108, not section 1101. Section 1108 creates an exception to the prohibition of criminal propensity evidence in section 1101 where the defendant is charged with a "sexual offense." (§ 1108.) Our colleagues in the Second District concluded in Walker that because the defendant was charged with murder without any enhancement allegations that would require the jury to determine that he had committed a "sexual offense," section 1108 did not apply. (Walker, at pp. 799-803.) This analysis has no application in the instant case.
III
The Trial Court's In Limine Ruling Allowing Impeachment with Brown's Prior Convictions Is Not Reviewable
Brown contends that the trial court abused its discretion in ruling on a pretrial in limine motion that the prosecution could introduce evidence of her 1993 conviction for petty theft with a prior and a 1996 conviction of possession of marijuana for sale as impeachment were she to take the witness stand. As Brown notes, however, after the trial court ruled that the prior convictions would be admissible as impeachment, Brown "did not testify." The 1993 and 1996 convictions were, thus, never introduced into evidence.
Under well-established precedent, because Brown did not testify at her trial, she is precluded from challenging the trial court's in limine ruling regarding the admissibility of the prior convictions on appeal. (See Luce v. United States (1984) 469 U.S. 38, 43 (Luce) ["to raise and preserve for review the claim of improper impeachment with a prior conviction, a defendant must testify"]; People v. Collins (1986) 42 Cal.3d 378, 385 (Collins) ["we . . . adopt the Luce rule as a judicially declared rule of criminal procedure in California"]; People v. Rodrigues (1994) 8 Cal.4th 1060, 1174 ["In Collins . . . we held that California courts are to follow the federal rule stated in Luce . . ., which held that the denial of a motion in limine to exclude a prior conviction offered for impeachment . . . is not reviewable on appeal if the defendant refuses to testify," citation & fn. omitted]; cf. People v. Gonzalez (2006) 38 Cal.4th 932, 958 [recognizing the rule "established in both federal and California courts, that the denial of a motion in limine to exclude a prior conviction offered to impeach a defendant . . . is not reviewable on appeal unless the defendant actually testifies"].)
Brown's suggestion that we remand under Collins for the trial court to hold an "in camera hearing to determine prejudice" is misplaced. The procedure suggested in Collins was intended to mitigate procedural unfairness to defendants tried prior to Collins, because Collins "establishe[d] a new rule of law when there was a previous rule in this state to the contrary." (Collins, supra, 42 Cal.3d at p. 388.) As the instant case was tried well after Collins (which was published in 1986), there is no procedural unfairness in applying the Luce/Collins rule and remand is unwarranted.
IV
The Trial Court Did Not Abuse Its Discretion by Declining to Hold an Evidentiary Hearing Regarding a Juror's Alleged Acquaintance with Brown's Mother
Brown contends that the trial court erred in declining to conduct an evidentiary hearing with respect to allegations that one of the jurors was acquainted with Brown's mother-in-law. We address this claim after setting forth the relevant procedural history.
A. Procedural History
Approximately one month after the verdict, Brown filed a motion seeking release of the names, addresses and telephone numbers of two jurors. Brown argued in the motion that she had learned that two of the jurors worked in the same school district as her mother-in-law, Evangelina Brown. According to the motion, Evangelina Brown worked as head secretary in the school for 20 years. The trial court granted the motion.
Brown later filed a motion for a new trial based on the fact that one of the jurors stated that "although she personally did not know Ms. Brown [Evangelina], she believed that [the other juror] and Ms. Brown [Evangelina] worked together." The motion added that an interview with the second juror revealed that he knew a woman named "Ena Brown," and characterized the second juror as "evasive."
The court held a hearing at which it denied the motion for a new trial. In the course of the hearing, the trial court denied a defense request to require the second juror to be examined under oath regarding his knowledge of Ena Brown. The court stated that the defense had presented nothing "that would present any arguable basis for saying there was some kind of jury misconduct," and consequently there was no basis for an evidentiary hearing, which would amount to little more than a "fishing expedition." The court also noted that even if the court did place the juror under oath, the juror had an "absolute[] right not to answer any questions" and an affidavit from a private investigator, which formed the basis of the defense motion, as opposed to from the jurors themselves, was inadequate to impeach the presumption of propriety of a jury's verdict.
B. Analysis
Brown contends that the trial court abused its discretion in declining to conduct an evidentiary hearing regarding the second juror's knowledge of Ena Brown. We disagree.
"[W]hen a new trial motion in a criminal case is based on allegations of juror misconduct, the trial court may conduct an evidentiary hearing to determine the truth of the allegations." (People v. Hedgecock (1990) 51 Cal.3d 395, 415 (Hedgecock); see also Pen. Code, § 1181 [permitting trial court to grant new trial motion on the ground that the jury has "been guilty of any misconduct by which a fair and due consideration of the case has been prevented"].) The defendant, however, "is not entitled to such a hearing as a matter of right. Rather, such a hearing should be held only when the trial court, in its discretion, concludes that an evidentiary hearing is necessary to resolve material, disputed issues of fact." (Hedgecock, at p. 415.)
Our Supreme Court has cautioned that such a "hearing should not be used as a 'fishing expedition' to search for possible misconduct, but should be held only when the defense has come forward with evidence demonstrating a strong possibility that prejudicial misconduct has occurred. Even upon such a showing, an evidentiary hearing will generally be unnecessary unless the parties' evidence presents a material conflict that can only be resolved at such a hearing." (Hedgecock, supra, 51 Cal.3d at p. 419.)
In the instant case, the trial court acted within its discretion in determining that the defense request for a hearing was precisely the type of fishing expedition that our Supreme Court has cautioned against. The sole allegations of juror misconduct were that one of the jurors had worked in the same school as the defendant's mother in law. There was no showing that the juror misled the court during voir dire examination and no suggestion that the juror introduced some sort of untoward bias against Brown into the jury deliberations. The trial court acted within its discretion in concluding that the defense had not provided any "evidence demonstrating a strong possibility that prejudicial misconduct has occurred," and thus no hearing was required. (Hedgecock, supra, 51 Cal.3d at p. 419.)
Brown contends that the trial court based its conclusion on two faulty assumptions: (i) that a defense investigator's declaration was insufficient to support a new trial motion; and (ii) that the juror might exercise his right not to talk to the defense counsel at the evidentiary hearing. We see no reason to evaluate the propriety of these assumptions, as the trial court's ruling is squarely supported by the fact that there was no evidence, admissible or not, suggesting that prejudicial misconduct had occurred. Consequently, the possibility that the trial court may have also considered alternate grounds in rendering its ruling, and the potential validity of those alternate grounds, is irrelevant. (See People v. Geier (2007) 41 Cal.4th 555, 582 ["we review the ruling, not the court's reasoning and, if the ruling was correct on any ground, we affirm"].)
DISPOSITION
Affirmed.
WE CONCUR: BENKE, Acting P. J., NARES, J.