Opinion
NOT TO BE PUBLISHED
Super. Ct. No. SF094804A
ROBIE , J.
A jury found defendant Ernie Juarez guilty of possession of heroin for sale and possession of cocaine base for sale. In bifurcated proceedings, the court found two prior drug convictions and one prior prison term allegation to be true.
The court sentenced defendant to state prison for an aggregate term of 11 years. The court stayed the prior prison term enhancement.
Defendant appeals. He contends: (1) the trial court committed prejudicial error in admitting evidence of defendant’s prior drug dealing under Evidence Code sections 1101, subdivision (b) and 352; (2) the trial court failed to instruct sua sponte on accomplice testimony; and (3) the prosecutor committed prejudicial misconduct in closing argument. We reject defendant’s contentions and will affirm the judgment.
FACTS
On January 27, 2005, officers served a search warrant at a Stockton apartment. Officers found defendant and Sandra Martinez naked on a mattress on the floor in the bedroom and Kimberly McGlothlin, fully clothed, in the bedroom with them. Officers also found Sharon Zarate in the living room and Heidi Henderson in the kitchen.
In the bedroom, officers found defendant’s birth certificate and tax records, $121 in cash, a phone, a scale with white and brown residue in a drawer, glass pipes for smoking rock cocaine, and buy/owe records in a notebook near the bed. An officer found a white rock-like substance on the floor. Near the bed, an officer found a pair of Polo brand jeans size 36/32 appearing to be defendant’s size, with $240 in cash in small bills in the right pocket and $74 in cash in small bills in the left pocket, a small knife and a baggie with 8.44 grams of heroin in the left pocket.
In cabinets and drawers in the kitchen, officers found a baggie containing marijuana, a coffee grinder with a brown tar-like substance suggesting it may have been used to blend heroin with cut, some tar heroin in a piece of cellophane, a coffee pot with white residue suggesting it may have been used to convert powder cocaine to cocaine base, a baggie with white powder, a lactose bottle with a brown tar-like substance, a CD case with white crystal residue and a cell phone case filled with plastic baggies.
In the bathroom, officers found a spiral notepad with buy/owe records.
In a van registered to defendant and parked outside the apartment, officers found a plastic baggie containing .18 grams of cocaine base and plastic baggies.
When defendant was handcuffed, officers found a plastic baggie underneath his buttocks. The baggie contained .008 grams of a white residue which was not tested.
While searching the residence, a phone rang in the bedroom. An officer answered. The caller asked for “Ernie.” When the caller was told twice that Ernie was busy, the caller said, “‘Well, I owe Ernie 10 and I want to swing by and pick up 20.’” The officer responded that it would be ready. The caller planned to be there in five minutes. The caller identified herself as “Crystal.” About five minutes later, Crystal Taniguchi arrived at defendant’s apartment. She admitted to an officer that she had ordered a “20” which referred to a $20 worth of tar heroin. She also admitted that she had previously purchased narcotics, mostly heroin but sometimes rock cocaine, from defendant at the searched apartment on 25 to 30 occasions in the previous three months. When asked what she meant on the phone about owing Ernie 10, she said that she owed him for the last buy.
At trial, Taniguchi claimed she was joking when she told the officer over the phone that she needed a 20 and explained that she went to defendant’s apartment that day to give him jumper cables and clothes. She denied purchasing narcotics from defendant but had made purchases of narcotics from a couple who stayed at the apartment. She claimed she owed defendant $10 for gas.
McGlothlin went to defendant’s apartment to buy heroin. Douglas Burke drove McGlothlin to defendant’s apartment and waited outside for McGlothlin. McGlothlin planned to buy heroin from defendant and Martinez but the police arrived before she made her purchase. McGlothlin had previously purchased heroin from defendant on two or three occasions. She had also purchased cocaine base from defendant on several other occasions. She had also purchased narcotics from Martinez on several occasions.
Based on the quantity of heroin and cocaine base, the scale, grinder, baggies, buy/owe records, the lactose container which contained cut, and the cash in small bills, an expert testified that the heroin and cocaine base were possessed for sale.
The prosecutor introduced evidence of defendant’s prior possession of heroin for sale. In April 2002, a search of defendant’s then residence which he shared with his girlfriend, Michelle Leslie, revealed 32.75 grams of tar heroin (some in little balls in baggies), scales, defendant’s paperwork, syringes, $952 in cash, small baggies and a lactose bottle with brown chunks. Defendant had a cell phone and a key to the residence in his possession. A search of the van belonging to defendant, the same van searched in the current case, led to a storage facility. A search of a storage locker revealed 15 grams of heroin and defendant’s driver’s license and tax records. An expert’s opinion was that the heroin was possessed for sale.
In defense of the current charges, defendant presented Zarate’s statements given when she was interviewed. She claimed the heroin in a “round ball” belonged to her which she had hidden “here” and “there” in the bedroom at the apartment. She claimed she used three or four grams of heroin a day.
The prosecutor established that when Zarate was interviewed, she was under the influence of heroin and kept “nodding off” during the interview. When the officer told Zarate the heroin which had been found in the pair of jeans was in powder form, Zarate claimed heroin did not come in powder but could be made into powder by putting it into a blender. She could not recall the exact location where she hid the heroin in the bedroom. She admitted making a living as a prostitute.
Defendant testified. He recounted his drug addiction history and attempts to stop using narcotics. In 2002, he started using heroin with Michelle Leslie and took a “deal” when heroin was found in his residence and storage locker. He went to prison and remained in custody until May 2004. In October 2004, he met Martinez and started using rock cocaine. He became addicted. He claimed Martinez lived in the searched apartment and that he lived with his parents. He was in the process of moving in with Martinez but had told her she needed to kick out all the “riff-raff,” meaning the drug dealers and prostitutes. He kept his items in a box in the bedroom as well as in a closet. Defendant claimed the jeans found belonged to Martinez’s brother, Carlos. Defendant claimed Martinez and her brother sold mainly rock cocaine from the apartment and used the notebooks. Although the searched van belonged to him, defendant claimed everyone had access to it because he did not lock it. He denied knowing anything about the rock cocaine found in the van. He claimed Carlos and his girlfriend spent a lot of time in the van smoking rock cocaine. The rock cocaine found on the bedroom floor by the officers belonged to Sandra Martinez. He explained that the rock cocaine found under his buttocks belonged to him. He had taken it over to Martinez’s apartment to smoke it with her. Defendant denied ever selling drugs to Taniguchi or McGlothlin. He denied having sold drugs since the 1980’s. He denied selling drugs in 2002. Defendant admitted telling an officer that he had provided drugs to Martinez and Carlos and that he had saved a lot of money in 2002 from drug dealing but claimed he was being sarcastic when he made the statements.
The officer testified in rebuttal that when interviewed on January 27, 2005, defendant stated that he had been previously employed as a roofer but quit because he made more money dealing drugs. He claimed he saved a lot of money, some from drug dealing. He admitted wearing size 36/32 pants but denied the pants found in the bedroom belonged to him.
DISCUSSION
I
Admission Of Prior Drug Activity
Defendant first contends that the trial court prejudicially erred in admitting evidence of his prior drug activity in 2002. We find no error.
Prior to trial, the prosecutor moved in limine to introduce the 2002 evidence to show intent, common scheme or plan, knowledge, motive and/or preparation under Evidence Code section 1101, subdivision (b). Besides the evidence of drugs, cash, and drug paraphernalia, the prosecutor sought to introduce evidence of short-stay traffic, guns, and child neglect in connection with the 2002 conduct. Defense counsel moved in limine to exclude the same, arguing such evidence was not similar enough to show intent. Defense consel also argued the evidence was more prejudicial than probative and presenting such evidence would involve an undue consumption of time.
The trial court excluded the evidence of short-stay traffic, guns, and child neglect and ruled the remaining evidence was admissible and more probative than prejudicial. The trial court later instructed the jury that the evidence was limited to showing defendant’s common plan or scheme which would further tend to show identity and the “existence of the intent” necessary for the crimes charged. At trial, four witnesses testified about the 2002 conduct, two of whom also testified about the current offenses. The court overruled defendant’s renewed objection during the first witness’s testimony concerning the 2002 conduct.
Evidence Code section 1101, subdivision (b), permits the introduction of other crimes evidence to prove some fact, other than a defendant’s disposition to commit a crime, such as common plan and intent. “Evidence Code section 1101, subdivision (b), permits the admission of other-crimes evidence against a defendant ‘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.’ Section 1101 prohibits the admission of other-crimes evidence for the purpose of showing the defendant’s bad character or criminal propensity. It recognizes, however, that there are facts other than criminal propensity to which other-crimes evidence may be relevant. [Citation.]” (People v. Catlin (2001) 26 Cal.4th 81, 145-146.)
“The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent. [Citation.] . . . 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. . . . [¶] 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. . . . [E]vidence 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.” (People v. Ewoldt (1994) 7 Cal.4th 380, 402-403.)
Evidence Code section 352 provides: “The court in its discretion may exclude 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.” Prejudicial evidence means “‘evidence which uniquely tends to evoke an emotional bias against defendant as an individual and which has very little effect on the issues.’” (People v. Bolin (1998) 18 Cal.4th 297, 320.) “‘In applying section 352, “prejudicial” is not synonymous with “damaging.”’ [Citation.]” (People v. Karis (1988) 46 Cal.3d 612, 638.)
A trial court’s ruling under Evidence Code section 352 is reviewed for abuse of discretion. (People v. Kipp (2001) 26 Cal.4th 1100, 1125-1126.) A trial court’s ruling will not be disturbed on appeal absent “‘a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]’ [Citation.]” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)
The facts underlying the current offense and the 2002 conduct were sufficiently similar to prove defendant’s common plan and intent. In both cases, defendant and his then-girlfriend shared a residence in which drugs and drug paraphernalia were found. In both cases, items found included a large amount of heroin and cash, a scale, packaging material and most significantly, a bottle of lactose. The prior conduct, possession of heroin for sale, was admissible under Evidence Code section 1101, subdivision (b).
The probative value of the prior conduct outweighed the prejudice. The conduct was very similar and recent. The prior conduct was no more inflammatory than the current offenses. Defendant testified that he went to prison so the jury was informed that defendant had been punished for the prior conduct which “substantially mitigates the kind of prejudice usually associated with the introduction of prior bad act evidence.” (People v. Jennings (2000) 81 Cal.App.4th 1301, 1315.) The court instructed the jury on the limited purpose of the evidence. The trial court did not abuse its discretion in admitting the evidence.
II
Failure To Instruct On Accomplices
Defendant next contends that the trial court failed to instruct sua sponte on accomplices. He argues Taniguchi and McGlothlin were accomplices. We reject his claim.
“[Penal Code] [s]ection 1111 defines an accomplice as ‘one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.’ In order to be chargeable with the identical offense, the witness must be considered a principal under section 31. That statute defines principals to include ‘[a]ll persons concerned in the commission of a crime . . . whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission . . . .’ [Citations.]” (People v. Horton (1995) 11 Cal.4th 1068, 1113-1114.)
An aider and abettor must act with knowledge of the perpetrator’s criminal purpose and with intent to commit, encourage or facilitate the commission of the offense. (People v. Stankewitz (1990) 51 Cal.3d 72, 90-91.)
“Accomplice status is a question of fact for the jury unless the evidence permits only a single inference. [Citations.] Defendant must establish the accomplice status of a prosecution witness by a preponderance of the evidence. [Citation.]” (People v. Sully (1991) 53 Cal.3d 1195, 1227-1228.) “‘[W]hen there is sufficient evidence that a witness is an accomplice, the trial court is required on its own motion to instruct the jury on the principles governing the law of accomplices,’ including the need for corroboration.” (People v. Tobias (2001) 25 Cal.4th 327, 331.) “The reason most often cited in support of these instructions is that an accomplice is inherently untrustworthy because he or she ‘usually testif[ies] in the hope of favor or the expectation of immunity.’ [Citation.] In addition, an accomplice may try to shift blame to the defendant in an effort to minimize his or her own culpability. [Citation.]” (Ibid.) “[I]f the evidence is insufficient as a matter of law to support a finding that a witness is an accomplice, the trial court may make that determination and, in that situation, need not instruct the jury on accomplice testimony.” (People v. Horton, supra, 11 Cal.4th at p. 1114.)
“[O]ne who merely purchases drugs is not guilty of furnishing as an aider and abettor of the seller.” (People v. Edwards (1985) 39 Cal.3d 107, 114, fn. 5; People v. Label (1974) 43 Cal.App.3d 766, 770-771.) A buyer is not the accomplice of the dealer. (Label, at p. 770.)
Defendant presented no evidence that Taniguchi and McGlothlin were accomplices in the possession of the drugs for sale, either as a coconspirator or as an aider and abettor. The evidence adduced at trial demonstrated that Taniguchi and McGlothlin were users who bought drugs from defendant for their own personal use and were not dealers themselves. There was no evidence that either Taniguchi or McGlothlin took “a more active role” in the drug transaction or acted as a “go-between.” (People v. Edwards, supra, 39 Cal.3d at p. 114, fn. 5.) Taniguchi and McGlothlin were simply buyers.
The trial court did not err in not instructing on accomplices.
III
Claim Of Prosecutorial Misconduct
Finally, defendant contends that the prosecutor committed prejudicial misconduct in that she commented on defendant’s failure to call his parents to testify and corroborate defendant’s claim that he lived with them. Defense counsel objected and moved to strike, claiming the prosecutor was “shifting the burden.” The court overruled the objection. We find no misconduct. The prosecutor did nothing more than comment on defendant’s failure to call logical witnesses.
“The applicable federal and state standards regarding prosecutorial misconduct are well established. ‘“A prosecutor’s . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct ‘so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.’”’ [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves ‘“‘the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.’”’ [Citation.]” (People v. Samayoa (1997) 15 Cal.4th 795, 841.) A showing of bad faith is not required because the standard is an objective one. (People v. Hill (1998) 17 Cal.4th 800, 822-823.)
“To prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner.” (People v. Frye (1998) 18 Cal.4th 894, 970.)
Defendant argues the prosecutor improperly shifted the burden of proof requiring defendant to prove his innocence. In context, the prosecutor argued as follows:
“Now, you heard the defendant’s testimony and you heard defense counsel make certain comments about that testimony, and the defense counsel is right, you have to go with what is the most reasonable interpretation of the facts, and looking at specific information the defendant provided you with, did a lot of what he said really make sense to you?
“He claim he’s a drug addict. So that’s why -- one of the reasons that he’s hanging out at this house, but he doesn’t live there because he had told Sandra that there was too much ‘riff-raff’ there and he wasn’t going to be living in a house with a bunch of ‘riff-raff.’ Well, I asked him on the stand, Doesn’t that make you part of the riff-raff because you’re hanging out with them? And he said, ‘No, I’m above that.’ He’s above that because he’s the supplier of these -- for the riff-raff. He’s their supplier. He is above that. Those people in that house are keeping him in business, that’s why they were there. The people who were there that day and the people [who] came by looking for him was to get their dope.
“Now, he also told us that everything that he owned was in that box in the bedroom and that he lives over at his parents house. Well, if that’s true, where are his parents? Why aren’t -- why didn’t his parents come in here and testify on his behalf?
“[Defense counsel]: Move to strike, that’s shifting the burden.
“The Court: Overruled.
“[Prosecutor]: Why didn’t his parents come in and tell us that he’s in fact living at their house as he claims? If you were his parents, wouldn’t you come in on behalf of your son or daughter and testify on their behalf and make sure that the jury was listening to the evidence and knew that your son or daughter was living at your house if that was true?”
This argument was nothing more than a permissible comment on the failure to call logical witnesses. (People v. Bell (1989) 49 Cal.3d 502, 539.) No reasonable jury would have construed the argument as saying that defendant had the burden of proving his innocence. There was no prosecutorial misconduct.
DISPOSITION
The judgment is affirmed.
We concur: SIMS , Acting P.J., NICHOLSON , J.