Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F10840
ROBIE, J.
Defendant William H. Burress was charged with sale of cocaine base, possession of cocaine base for sale, and three sentence enhancements based on prior convictions. At trial, the court admitted evidence of defendant’s prior misconduct under Evidence Code section 1101, subdivision (b) to prove his intent and knowledge. In a unitary trial, the jury found defendant guilty of possession of cocaine base for sale and found true the prior conviction allegations.
The court declared a mistrial on the sale charge based on jury deadlock.
On appeal, defendant contends the court’s admission of evidence of his prior misconduct was an abuse of discretion and a violation of his due process rights and the trial court erred by instructing the jury on joint possession and aiding and abetting during the prosecution’s case.
Finding no prejudicial error or abuse of discretion, we will affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On September 20, 2005, Gary Ferderer, who was driving near 14th and E Streets in Sacramento, saw a man he later identified as defendant reach inside a woman’s bra, retrieve a plastic baggie, and exchange something small from the baggie for money from a third person on a bicycle. Ferderer called police, and Sacramento Police Officers Kurt Wilhite and Chris Bernacchi responded to the call and found defendant and a woman who identified herself as Bobbie Jean Moten at the location. At the officers’ demand, Moten removed 16 rocks of cocaine base packaged in separate plastic baggies from her bra. Defendant had $235 in his front pants pocket. Neither defendant nor Moten possessed any device for using cocaine base.
Before trial, the prosecutor moved to admit evidence of two prior incidents (on September 11, 1998, and November 30, 1998), along with the resulting convictions, to prove “defendant’s intent to sell rock cocaine, as well as [his] knowledge of the presence and narcotic nature of rock cocaine.” Defendant opposed the motion, but the trial court ruled that evidence of the two incidents would be admissible. The court also ruled that evidence of the convictions resulting from those incidents (which were based on defendant’s pleas) would be admissible. The court also admitted evidence of an incident on September 18, 2005, when defendant was seen making an exchange that could have been a drug transaction.
At trial, the prosecutor did not present any evidence of the September 11, 1998 incident. Regarding the November 30, 1998 incident, however, the prosecutor called Sacramento Police Officer Paul Grant to testify about a probation search of defendant on that date. Officer Grant testified he helped search defendant’s home and person. While officers performed a strip search of defendant, a plastic bag wrapped in toilet paper and containing 21 individually bagged pieces of rock cocaine fell from defendant’s anus. Officers arrested defendant for possession of cocaine with the intent to distribute.
The jurors also heard testimony from Sacramento Police Officer Kenneth Leonard about an uncharged incident on September 18, 2005. That night, Officer Leonard observed defendant in what appeared to be a drug transaction in the vicinity of 13th and E Streets. Defendant was seated inside a car with a woman named Carla Hill. A man approached the car on a bicycle, and defendant met the man on the sidewalk, appeared to exchange something with him, and then the man on the bicycle rode away. While the interaction took place, Hill looked around nervously from her position in the car.
Sacramento Police Officers Ryan Cleveringa and Daniel Burke also testified at trial that defendant made statements to them on various occasions to the effect that the police would never catch him dealing drugs because he made sure to have someone else carry his drugs.
Detective Ernest Lockwood testified as an expert witness on the possession of cocaine base for sale. He described for the jury how rock cocaine is used, how much a user typically smokes at once, how rock cocaine is typically packaged for sale, and how a typical transaction would take place. Detective Lockwood stated that a hypothetical using the facts that Ferderer reported to the police would be “consistent with a hand-to-hand transaction [of drugs].” His description of a typical hand-to-hand transaction also mirrored the behavior described by Officer Leonard.
A deputy district attorney presented evidence that defendant had two prior convictions for selling cocaine.
Throughout the trial, the trial court allowed the jurors to submit questions. At the end of each witness’s testimony, the court paused for the jurors to write questions and hand them to the bailiff. At a bench conference, the court determined which questions were permissible and then would question the witness in open court. After Detective Lockwood testified, a juror asked “Can you be charged with possession if nothing is found? What is the legal definition of possession?” The court gave a brief explanation of constructive possession, told the jurors he would give them more detailed definitions at the end of the case, and answered the question in the affirmative.
Before adjourning that afternoon, the court informed the parties it was thinking of reading the jury instruction on constructive possession to the jury the next morning. The court asked counsel to prepare to argue on any objections. In the morning, the court clarified that it was inclined to read the jury instructions on aiding and abetting and a portion of the instruction on joint possession. Defense counsel argued the court had adequately responded the day before and to further instruct the jury would prejudice defendant by drawing “too much attention on those instructions pending this trial.” The court decided to read the instructions stating, “the jurors have not been informed of what I gather is the primary theory of the prosecution’s case, which is that the defendant jointly possessed the cocaine base with Miss Moten and aided and abetted the sale and possession [for] sale . . . . [¶] I am going to read these instructions because I think they are not argument. They simply state the legal principles that the jury will hear at the end of the case, together with the other instructions. [¶] I don’t feel that they in any way prejudice the defendant . . . .”
Defendant did not object to the contents of the instructions, which the court took from Judicial Council of California Criminal Jury Instructions and which were the same as those given at the end of the trial.
Also included in the jury instructions at the end of the trial was a limiting instruction on the use of uncharged misconduct. Only the November 30, 1998 incident was specifically mentioned in the instruction. The court gave defendant the opportunity to review the jury instructions and object to their content, but defendant offered no objection.
The jury found defendant guilty of possession of cocaine base with intent to sell and found true the prior conviction allegations, but was unable to reach a verdict on the charge of sale of cocaine base. The court sentenced defendant to an aggregate term of 11 years in prison.
DISCUSSION
I
Evidence Of Prior Misconduct And Convictions
Defendant argues that evidence of his prior crimes and conduct was not admissible to prove his intent to sell rock cocaine on September 20, 2005, and even if the evidence was relevant for that purpose, the trial court should have excluded the evidence as more prejudicial than probative. We find no error.
Defendant contends the incidents on November 30, 1998, and September 18, 2005, were “insufficiently similar to the charged incident to be material on the issue of intent.” The fatal flaw in this argument with respect to the 1998 incident is that the prosecution offered evidence of that incident not only to prove defendant’s intent, but also to prove his “knowledge of the presence and narcotic nature of rock cocaine.” Moreover, the trial court specifically instructed the jury that it could consider evidence of the prior incidents in “deciding whether or not . . . defendant knew of the presence of cocaine based and knew that it is a controlled substance when he acted in this case.” In his challenge to the admission of the evidence of the 1998 incident, defendant fails to address the issue of knowledge as a basis for its admission. Without addressing that issue, defendant simply cannot demonstrate error in the admission of that evidence.
This conclusion also applies to defendant’s argument that the evidence was more prejudicial than probative, because without addressing the tendency of the evidence of prior misconduct to prove his knowledge of the presence and narcotic nature of rock cocaine, defendant cannot persuade us that the probative value of the evidence on that issue was outweighed by the risk of undue prejudice.
This same reasoning applies to defendant’s challenge to admission of his conviction in September 1998 for possession of cocaine for sale. Since the prosecutor offered this evidence to prove both defendant’s intent to sell and his “knowledge of the presence and narcotic nature of rock cocaine,” defendant cannot show error in the admission of this evidence unless he addresses (and refutes) both possible bases for its admission. Because defendant has failed to address the issue of knowledge as a basis for admission of the evidence, he has failed to show error in its admission.
As for the September 18, 2005 incident, it does appear evidence of that incident was admitted only to prove defendant’s intent. Defendant, however, has failed to demonstrate that the trial court prejudicially erred in admitting the evidence for that purpose.
The prosecutor’s offer of proof on that incident made no mention of the substance involved, and the prosecutor’s written motion specifically asserted that evidence of the incident “has a logical and substantial tendency to prove the specific intent of defendant Burress to sell illegal narcotics.”
Evidence of prior misconduct is admissible to prove intent if the prior misconduct is sufficiently similar to the charged misconduct to support the inference that the defendant probably harbored the same intent in each instance. (People v. Ewoldt (1994) 7 Cal.4th 380, 402.) Under this principle, the evidence of the September 18 incident was admissible on the issue of intent if, based on Officer Leonard’s description of the September 18 incident combined with Detective Lockwood’s expert testimony about hand-to-hand drug transactions, the jury was able to find that defendant was engaged in the sale of elicit drugs on September 18, because the jury could have reasonably inferred from the prior sales incident that defendant probably had the intent to sell the rock cocaine found on Moten two days later.
Defendant contends, however, that the “apparent hand exchange of unknown items between [him] and another man” on September 18, 2005 “was not probative of [his] intent with regard to the cocaine discovered on Moten’s person two days later.” But even if we accept this argument, defendant has failed to demonstrate any prejudicial error. This is so because if we assume the evidence was not sufficient for the jury to find that defendant was engaged in the sale of elicit drugs on September 18, then all that was put before the jury was evidence of an otherwise unexplained hand-to-hand transaction. Defendant fails to explain how the evidence, viewed in this light, could possibly have prejudiced him.
In summary, defendant has failed to show any prejudicial error in the admission of evidence of his prior misconduct and convictions.
II
Midtrial Jury Instructions
Defendant contends the trial court “abandoned its impartial position and became an advocate for the prosecution” when the court instructed the jury on aiding and abetting and joint possession in response to a juror’s question midtrial. As the People point out, however, trial courts have discretion to instruct the jury when necessary. Specifically, “At the beginning of trial or from time to time during the trial, and without any request from either party, the trial judge may give the jury such instructions on the law applicable to the case as the judge may deem necessary for their guidance on hearing the case.” (Pen. Code, § 1093, subd. (f), italics added.)
Defendant has shown no abuse of discretion by the trial court in this case. Indeed, defendant fails to explain just how instructing the jury on aiding and abetting and joint possession in response to a juror’s question could have made the court “an advocate for the prosecution.” Contrary to his assertions, defendant was not “denied . . . a fair trial before an impartial judge.”
DISPOSITION
The judgment is affirmed.
We concur: DAVIS , Acting P.J., MORRISON , J.