Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F05903375-4, Gregory T. Fain, Judge.
Grace L. Suarez, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and J. Robert Jibson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Levy, J., and Dawson, J.
A jury convicted appellant, Ernesto Yanez Elizondo, of possession for sale of methamphetamine (count 1/Health & Saf. Code, § 11378), transportation of methamphetamine (count 2/Health & Saf. Code, § 11379, subd. (a)), and possession of a smoking device (count 3/Health & Saf. Code, § 11364). In a separate proceeding, Elizondo admitted three prior prison term enhancements (Pen. Code, § 667.5, subd. (b)), allegations that he had a prior conviction for possession of drugs for sale (Health & Saf. Code, § 11370.2, subd. (a)), and allegations that he had a prior conviction within the meaning of the three strikes law (Pen. Code, § 667, subds. (b)-(i)).
On July 24, 2007, the court sentenced Elizondo to an aggregate 10-year term, the middle term of 3 years on count 2, doubled to 6 years because of his prior strike conviction, a 1-year prior conviction enhancement, three 1-year prior prison term enhancements, a stayed term on count 1, and credit for time served on count 3.
On appeal, Elizondo contends the court abused its discretion when it admitted evidence of an uncharged offense. We will affirm.
FACTS
The Admission of Evidence of an Uncharged Crime
On June 15, 2007, prior to the taking of testimony, the district attorney moved in limine for permission to introduce evidence of a prior incident that resulted in Elizondo’s conviction for possession of methamphetamine for sale. In seeking to admit this evidence, the prosecutor argued that it was relevant to show intent, knowledge of the character of the drugs found in Elizondo’s possession, the absence of mistake or accident, and a common plan or scheme.
After some discussion and the requisite weighing of prejudice against the probative value (Evid. Code § 352), the court ruled that evidence of the uncharged offense was admissible to show a common plan or scheme.
The Trial
California Highway Patrol Officer James Vincent Del Carlo, Jr., testified that on the afternoon of March 4, 2005, he was on patrol traveling south on Highway 43. As he approached the Mountain View Avenue intersection, he saw a car stopped at a stop sign in the eastbound lane of Mountain View, with a man he identified as Elizondo, seated in the driver’s seat. Elizondo was not wearing a seat belt. Del Carlo turned right, slowing down to less than 10 miles an hour, and passed Elizondo, approaching him within five feet. Del Carlo made a U-turn and got behind Elizondo’s car to make a traffic stop. Del Carlo turned on his emergency lights and Elizondo accelerated. Del Carlo followed Elizondo’s car as he drove recklessly at a high rate of speed causing one car, traveling in the opposite direction, to run off the road to avoid a head-on collision. Elizondo tried to make a right turn at Mitchell Avenue but his speed caused him to crash into a vineyard. Elizondo exited the car and took off running while Del Carlo began setting up a perimeter.
Officer Del Carlo did not see anyone else in the car. He described the driver to dispatch as wearing a tan shirt and tan pants. Several other officers including a canine unit soon arrived and helped Del Carlo set up the perimeter. Elizondo was found hiding under a woodpile inside the perimeter wearing a tan shirt. No one else was found in the perimeter.
California Highway Patrol Officer Charles Cipolla testified that he arrived on the scene and secured Elizondo’s car. On the driver’s seat he found a clear plastic bag containing a white crystal substance he recognized as methamphetamine. On the passenger’s seat he found a black leather overnight bag with another plastic bag inside containing methamphetamine, a glass pipe, and a digital scale. He found approximately 15 plastic sandwich bags in the console.
Evidence of the Uncharged Offense
Deputy Sheriff Eric Schmidt testified that on December 27, 2000, he and four other officers of a special street crimes team responded to a residence in Fresno County on a tip. Elizondo was sitting in a pickup parked in the driveway. The officers announced their presence and Elizondo drove off despite commands to stop. Elizondo drove in an erratic manner eventually traveling south on Highway 99 at 90 to 100 miles per hour with Schmidt and another officer in pursuit with their lights and sirens on. Elizondo kept driving erratically at a high rate of speed until he attempted to exit on an off ramp and crashed into an open field by a vineyard. Elizondo ran away from the pickup but was arrested. On the seat of the truck, Schmidt found four baggies containing methamphetamine inside a black nylon pouch.
The court gave the jury a limiting instruction prior to Schmidt testifying, right after Schmidt testified, and during its charge to the jury after closing arguments.
DISCUSSION
Elizondo contends that even if he had a plan to sell drugs it did not involve being stopped and chased by police. Thus, according to Elizondo, the court prejudicially erred when it allow the prosecutor to introduce evidence of the prior chase as evidence of a common plan or scheme. We will find that any error in admitting this evidence was harmless.
“Subdivision (a) of [Evidence Code] section 1101 prohibits admission of evidence of a person's character, including evidence of character in the form of specific instances of uncharged misconduct, to prove the conduct of that person on a specified occasion. Subdivision (b) of [Evidence Code] section 1101 clarifies, however, that this rule does not prohibit admission of evidence of uncharged misconduct when such evidence is relevant to establish some fact other than the person's character or disposition.” (People v. Ewoldt (1994) 7 Cal.4th 380, 393.)
“In determining whether evidence of uncharged misconduct is relevant to demonstrate a common design or plan, it is useful to distinguish the nature and degree of similarity (between uncharged misconduct and the charged offense) required in order to establish a common design or plan, from the degree of similarity necessary to prove intent or identity.
“The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent. [Citation.] ‘[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....’ [Citations.] In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant ‘ “probably harbor[ed] the same intent in each instance.” [Citations.]’ [Citation.]
“A greater degree of similarity is required in order to prove the existence of a common design or plan. As noted above, in establishing a common design or plan, evidence of uncharged misconduct must demonstrate ‘not merely a similarity in the results, but such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations.’ [Citations.] ‘[T]he difference between requiring similarity, for acts negativing innocent intent, and requiring common features indicating common design, for acts showing design, is a difference of degree rather than of kind; for to be similar involves having common features, and to have common features is merely to have a high degree of similarity.’ [Citations.]
“To establish the existence of a common design or plan, the common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual. For example, evidence that a search of the residence of a person suspected of rape produced a written plan to invite the victim to his residence and, once alone, to force her to engage in sexual intercourse would be highly relevant even if the plan lacked originality. In the same manner, evidence that the defendant has committed uncharged criminal acts that are similar to the charged offense may be relevant if these acts demonstrate circumstantially that the defendant committed the charged offense pursuant to the same design or plan he or she used in committing the uncharged acts. Unlike evidence of uncharged acts used to prove identity, the plan need not be unusual or distinctive; it need only exist to support the inference that the defendant employed that plan in committing the charged offense. [Citation.]” (People v. Ewoldt, supra, 7 Cal.4th at pp. 402-403, fn omitted.)
Uncharged conduct may also be relevant to establish motive, knowledge, intent, and identity. (People v. Ewoldt, supra, 7 Cal.4th at p. 402, fn. 6.)
“[T]he erroneous admission of prior misconduct evidence does not compel reversal unless a result more favorable to the defendant would have been reasonably probable if such evidence were excluded. [Citations].” (People v. Scheer (1998) 68 Cal.App.4th 1009, 1018-1019.)
Here, it does not appear that the prior incident, when Elizondo fled from police in a truck, was part of a common plan or scheme to sell drugs because that incident and his flight in the instant case appear to simply be spontaneous acts precipitated by peace officers attempting to detain him. (Cf. People v. Scheer, supra, 68 Cal.App.4th at p 1021.) However, Elizondo’s defense counsel argued during closing arguments that the evidence was insufficient to show that he possessed the methamphetamine found in his car for sale. Thus, the prior incident was relevant to show his intent in possessing the methamphetamine.
Nevertheless, even assuming the court erred in admitting the evidence of the prior incident, the court’s error was harmless. Officer Del Carlo saw Elizondo’s face as he approached the intersection of Highway 43 and Mountain View Avenue and passed by him at a distance of only five feet as he turned right onto Mountain View Avenue. After Elizondo crashed his car, Del Carlo immediately began setting up a perimeter around the area where he saw the driver of the car flee. The officers found Elizondo hiding under a woodpile wearing a tan shirt like the driver of the abandoned car and he was the only person found in the perimeter. Elizondo did not rebut any of this evidence or provide an explanation for his presence within the perimeter or for hiding under the woodpile. Moreover, the court read a limiting instruction to the jury before Officer Schmidt testified regarding the uncharged offense, after his testimony, and during its charge to the jury after the parties rested. Thus, we conclude that any error in admitting evidence of Elizondo’s uncharged offense was harmless because it was not reasonably probable he would have received a more favorable result even if the court had excluded this evidence. (Cf. People v. Scheer, supra, 68 Cal.App.4th at pp.1021-1023 [erroneous admission of misconduct evidence not prejudicial where the evidence against defendant was overwhelming and the court gave limiting instruction].)
Although defense counsel attempted to suggest that Elizondo hid under the woodpile because he was undocumented and had previously been deported, this argument was speculative because there was no evidentiary support for this argument because Elizondo did not testify.
DISPOSITION
The judgment is affirmed.