Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 08F02147
BLEASE, J.
A jury convicted defendant Carla Jean Klein on count one of violating Health and Safety Code section 11377, subdivision (a), possession of a controlled substance (methylphenidate), and on counts two and three of violating Health and Safety Code section 11364, possession of narcotic paraphernalia. In a bifurcated proceeding, the trial court found true the allegations pursuant to Penal Code section 667.5, subdivision (b), that defendant had served two prior prison terms following felony convictions in 1999 and 2006.
The trial court sentenced defendant to the middle term of two years for count one plus one year for each of the prior conviction enhancements. The trial court stayed the prison term and placed defendant on probation for a period of five years.
Defendant argues the trial court erred in admitting evidence of her two prior convictions for possession of a controlled substance, and erred in imposing, then suspending the execution of her sentence. We shall not reverse the conviction because we conclude any error was harmless. However, the trial court should have suspended imposition of defendant’s sentence, and we shall direct it to do so.
FACTUAL AND PROCEDURAL BACKGROUND
A police officer stopped defendant in an area of Sacramento known for prostitution and narcotics. The officer asked defendant if she had anything illegal on her, and defendant replied that she had a crack pipe inside a Newport cigarette box in her purse. The officer searched defendant’s pink bag, and discovered two crack pipes and a prescription bottle full of pills. The prescription bottle was inside a plastic pouch along with the Newport cigarette box containing one of the crack pipes. The plastic pouch was inside the pink bag. The prescription was made out to Daniel Dogens.
The prescription stated the pills were methylphenidate, which is a generic form of Ritalin. The 60 pills in the bottle were identified from markings as methylphenidate hydrochloride, and one tablet was analyzed and found to contain methylphenidate. Methylphenidate is a central nervous system stimulant. It is a schedule II narcotic. (Health & Saf., § 11055.)
Defendant testified in her own defense. She testified that she is homeless, that she gets money from prostitution, and that she smokes crack and considers herself an addict. She stated she found the pink bag while “dumpster diving” just 10 minutes before the officer stopped her. She did not look to see what was in the bag, but just put her own belongings from her pockets into the bag. She stated she did not see the bottle of pills in the bag. She testified she did not know that Ritalin was a central nervous system stimulant, did not know it was a controlled substance, and did not know what effect it would have on a person taking it.
I
Evidence of Prior Convictions
Defendant brought a motion in limine to exclude evidence of her prior convictions. The prosecutor indicated she might want to introduce defendant’s two prior convictions for possession of cocaine under Evidence Code section 1101, subdivision (b). The prosecutor informed the court her expert would testify that Ritalin, like cocaine, was a central nervous system stimulant, and that based on his training and experience drug users would use any drug they could get, and that Ritalin could be smoked. The prosecutor argued that these facts made defendant’s prior convictions relevant to show she had knowledge the Ritalin pills were a controlled substance.
Evidence Code section 1101 provides that evidence of a person’s character is inadmissible to prove the person’s conduct on a specified occasion, but is admissible when relevant to prove some fact other than a disposition to commit the act in question. Specifically, other crimes evidence is relevant to show motive, opportunity, intent, preparation, plan, knowledge, identity, and absence of mistake or accident. (Evid. Code, § 1101.)
In a hearing to determine the admissibility of the evidence, Jeff Morris, the prosecution’s expert witness, testified that Ritalin is a central nervous system stimulant, like methamphetamine and cocaine. He testified that Ritalin is usually consumed by swallowing it, but that if smoked it would have a more rapid effect. He stated that in his experience, drug abusers who use a central nervous system stimulant may have a drug of choice, but if that drug is not available, they will substitute any drug they can obtain. His research indicated Ritalin could be ingested by smoking it.
The trial court ruled that the evidence of defendant’s prior convictions for possession of cocaine would be admissible. In so ruling, the trial court reasoned that her prior convictions for the possession of stimulants showed a motive to possess a controlled substance, a stimulant, and showed knowledge that the substance was a controlled substance. The trial court instructed the jury that the evidence of defendant’s prior convictions for possession of cocaine base was being admitted for a limited purpose, and not to prove that she was a bad person. The court instructed the jury it could consider the evidence only for the purpose of deciding whether defendant had a motive to commit the crime or had knowledge of the nature of the substance as a controlled substance.
Defendant argues the trial court abused its discretion in admitting evidence of her prior convictions because her prior conviction for possessing cocaine did not tend to show she had knowledge of the nature of Ritalin as a controlled substance, and because the prejudicial effect of the evidence outweighed its probative value. We need not decide whether the trial court abused its discretion in admitting the prior convictions because we conclude any error was harmless.
When determining whether an error in the admission of prior-crimes evidence was prejudicial, we determine if it was reasonably probable that a result more favorable to the defendant would have resulted if the evidence had not been admitted. (People v. Williams (2009) 170 Cal.App.4th 587, 612.) Defendant asserts the admission of the evidence was a violation of her federal due process rights because it made her trial fundamentally unfair. But even under the higher standard for prejudicial error set forth in Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710] any error is harmless.
Defendant objects to the introduction of her two prior convictions for possession of controlled substances. However, she took the stand in her own defense and testified that: (1) she had been up for four days prior to her arrest smoking crack, (2) she had used crack for 11 years, (3) she was a crack addict, (4) she earned money by prostitution in order to get drugs, and (5) she had been convicted once of receiving stolen property and twice for prostitution. In light of this testimony, the evidence of defendant’s prior convictions could not have prejudiced her either because they showed her history of drug use or because they showed a criminal record. This evidence was in front of the jury without the prior drug convictions.
Defendant argues she might not have testified had evidence of her prior convictions not been admitted. However, defendant’s entire defense was based on her testimony that she found the bag in the trash minutes before she was stopped, and was unaware that the pills were inside it. To convict defendant, the prosecution had to prove she had dominion and control of the drug in a useable quantity for consumption, with knowledge of the drug’s presence and its restricted dangerous drug character. (People v. Palaschak (1995) 9 Cal.4th 1236, 1242.) The circumstances of defendant carrying a bag containing a useable amount of a controlled substance would have been sufficient to prove her knowledge of the drug’s presence and her dominion and control over it. Mere possession also justified an inference that she knew of the drug’s restricted character. (People v. Carnesi (1971) 16 Cal.App.3d 863, 872.) Defendant’s own testimony was critical if she hoped to show she had no knowledge of the drug’s presence or character.
Given defendant’s own testimony, we conclude any error in the admission of her prior drug convictions was harmless beyond a reasonable doubt.
II
Suspension of Sentence
The trial court was required to grant defendant probation pursuant to Proposition 36 by suspending the imposition of her sentence, rather than by imposing, then staying the execution of her sentence. Penal Code section 1210.1 provides that a person convicted of a nonviolent drug possession offense shall receive probation, and that probation “shall be imposed by suspending the imposition of sentence.”
The trial court imposed a four-year prison sentence, but stayed it as a condition of probation. We shall direct the trial court to modify the minute order and order of probation accordingly.
DISPOSITION
The imposition of a prison sentence is reversed. The trial court is directed to modify the minute order and order of probation to reflect that the imposition of defendant’s sentence is suspended pending successful completion of the Proposition 36 program. The judgment is in all other respects affirmed.
We concur: SCOTLAND , P. J., CANTIL-SAKAUYE , J.