Opinion
G052306
02-06-2017
THE PEOPLE, Plaintiff and Respondent, v. EVELYN EVANSARTI, Defendant and Appellant.
Alex Kreit, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., Randall D. Einhorn and Lise S. Jacobson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 13CF3653) OPINION Appeal from a judgment of the Superior Court of Orange County, James L. Crandall, Judge. Affirmed. Alex Kreit, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., Randall D. Einhorn and Lise S. Jacobson, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Defendant Evelyn Evansarti was convicted of possession of a controlled substance, based on methamphetamine found in the pocket of a jacket she was wearing. Defendant contends the trial court prejudicially erred by admitting in evidence a prior conviction for possession of a controlled substance, and defendant's statement that she had previously used methamphetamine. Without deciding whether the trial court erred in admitting the evidence, we conclude that any error was not prejudicial. Therefore, we affirm.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
Defendant was arrested after a lawful vehicle stop. She was alone in her vehicle when stopped, and was wearing a fitted jacket at the time. During an inventory search at the police station, several items were found in the pockets of the jacket. In the lower right pocket, the police found a watch, a lighter, and a baggie containing 2.10 grams of methamphetamine. In the upper left pocket, the police found cash, defendant's driver's license, and a credit card with defendant's name on it.
After being read her rights under Miranda v. Arizona (1966) 384 U.S. 436, defendant initially denied having used methamphetamine, but later admitted to having done so two years earlier. Defendant stated that the jacket and the methamphetamine found in it belonged to her friend Alicia, who had left the jacket at defendant's house two months earlier. Defendant admitted that the cash, credit card, and driver's license were hers.
Defendant was convicted by a jury of one charge of misdemeanor possession of a controlled substance. (Health & Saf. Code, § 11377, subd. (a).) The trial court sentenced defendant to a drug diversion program and three years of informal probation.
The jury deliberated for less than one hour before rendering its verdict.
DISCUSSION
Over defendant's objection, the trial court admitted (1) evidence that defendant had been convicted of possession of a controlled substance, and (2) defendant's post-Miranda v. Arizona statement that she had previously used methamphetamine.
Evidence of prior drug use and prior drug convictions is generally admissible to prove the defendant's knowledge that a substance in his or her possession is a controlled substance. "In prosecutions for drug offenses, evidence of prior drug use and prior drug convictions is generally admissible under Evidence Code section 1101, subdivision (b), to establish that the drugs were possessed for sale rather than for personal use and to prove knowledge of the narcotic nature of the drugs. [Citation.]" (People v. Williams (2009) 170 Cal.App.4th 587, 607.)
"Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, 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." (Evid. Code, § 1101, subd. (b).) --------
Defendant concedes that there was substantial circumstantial evidence that she knew of the presence of methamphetamine in the pocket of the jacket she was wearing. She contends, however, that the evidence was not so overwhelming that it can withstand harmless error review. We review an error in admitting evidence to determine "whether it is reasonably probable the verdict would have been more favorable to the defendant absent the error." (People v. Partida (2005) 37 Cal.4th 428, 439; see People v. Watson (1956) 46 Cal.2d 818, 836.)
The evidence of defendant's guilt was significant. The methamphetamine was found in the pocket of a jacket defendant was wearing, along with a lighter and a watch. Because the jacket was not baggy, but rather was somewhat form-fitting, it would be difficult not to have noticed the items in that pocket. Defendant's identification, credit card, and cash were found in another pocket of the same jacket. Even if the jacket belonged to a friend, as defendant claimed, defendant had had sole control over the jacket for two months. Defendant was the only person in the car when she was stopped by the police. The prosecutor suggested that the jury consider defendant's statement of her prior drug use prior conviction only to establish her knowledge that the substance was methamphetamine—an element of the crime that defendant's trial counsel actually conceded during her closing argument. Defendant's prior conviction was never even mentioned during closing arguments.
Defendant relies on Hudson v. State (Miss. 2010) 30 So.3d 1199, 1206, in which the police found cocaine in the defendant's pockets that "could be seen with the naked eye," but was "'not a weighable amount.'" The prosecutor argued that the mere presence of a "'trace'" amount of a controlled substance in the defendant's clothing was sufficient to prove the defendant knew the substance was there, and that he intentionally possessed it. (Ibid.) The state Supreme Court held that the evidence was not sufficient to convict the defendant because it was "entirely possible that the cocaine found in [the defendant]'s pockets was visible, but [the defendant] never saw it or knew it was there. That possibility is tantamount to reasonable doubt." (Id. at p. 1207.) Hudson v. State is factually inapposite; the amount of methamphetamine found in the jacket defendant was wearing was usable. Moreover, a watch and a lighter were found in the same pocket as the methamphetamine; while the trace amount of cocaine in the defendant's pocket in Hudson v. State might not have been noticeable, the same is not true of the bulky items in defendant's jacket pocket in this case.
Defendant also argues the lack of a limiting jury instruction compounded the prejudicial effect of the evidence in question. The trial court, however, does not have a sua sponte duty to give a limiting instruction when it admits evidence of a defendant's past acts, pursuant to Evidence Code section 1101, subdivision (b). (People v. Collie (1981) 30 Cal.3d 43, 63-64.) In this case, the prosecutor did not ask the jury to consider the uncharged acts as disposition evidence, or to consider the prior conviction as propensity evidence.
Defendant has failed to establish the verdict would have been more favorable to her in the absence of the challenged evidence. Therefore, in the absence of prejudicial error, we affirm.
DISPOSITION
The judgment is affirmed.
FYBEL, J. WE CONCUR: MOORE, ACTING P. J. IKOLA, J.