Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County Nos. SCE263458, SCE264991, Herbert J. Exarhos, Judge.
AARON, J.
I.
INTRODUCTION
Defendant Thomas Edward Kolasz appeals from a judgment after a jury convicted him of drug and weapons related offenses. On appeal, Kolasz asserts that the trial court erroneously allowed the prosecution to present evidence of two 1995 convictions that Kolasz suffered for possession of methamphetamine for sale. Kolasz also contends that the trial court abused its discretion in not granting his motion to sever one of the charges against him (a simple possession charge arising out of an incident in which he admitted to possessing methamphetamine for personal use), from the other more serious drug and weapons possession charges that arose from a search of his residence on a different date. According to Kolasz, the evidence from the two cases would not have been cross-admissible in separate trials, and the simple possession case was much stronger than the other case, thereby causing a prejudicial spill-over effect that affected the result in the weaker case.
We conclude that the trial court did not err in admitting evidence of two of Kolasz's prior convictions for possession of methamphetamine for sale. We further conclude that the court did not abuse its discretion in denying Kolasz's motion to sever one of the charges from the other four, since the evidence of the offenses would have been cross-admissible in separate trials, thereby dispelling any inference of prejudice. In addition, the difference in the relative strength or weakness of the two cases was not so significant as to create a prejudicial spill-over effect. We therefore affirm the judgment.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual background
1. The August 2006 incident
During the first week of July 2006, officers with the El Cajon narcotics investigation unit began conducting surveillance of a residence on Ensenada Street in Lemon Grove. Kolasz was seen leaving the residence in his car. On July 20, an officer drove by the residence and saw Kolasz's vehicle parked in the driveway. That officer contacted the United States Postal Service and obtained information that three people were registered to receive mail at the Ensenada Street address, including Kolasz. Department of Motor Vehicles records indicated that Kolasz listed his current address as the Ensenada Street residence, and that he had two cars registered in his name at that address.
On March 12, 2007, after the incidents that gave rise to the charges at issue in this case, Kolasz sold a third car to Jesse Franco, and listed the Ensenada residence as his address on the transfer of title document.
On August 1, 2006, at approximately 7:26 a.m., officers conducted a search of the Ensenada Street residence. Leanne Lehn let the officers in. Lehn testified that she and Kolasz lived at the Ensenada Street home with their daughter. However, Lehn said that she and the daughter had not been at the Ensenada Street residence between July 11 and July 31, 2006, due to a surgery that Lehn had undergone, and a weekend trip that Lehn had taken with Kolasz and his son. While Lehn was out of the home due to her surgery and recovery, Kolasz had access to the residence. When Lehn returned to the home on July 31, Kolasz did not return with her.
Lehn's mother owned the home and resided in the upstairs level of the home, while Lehn and Kolasz resided downstairs.
According to Lehn, Kolasz moved in with her at the Ensenada Street residence in 2000. Lehn and Kolasz's relationship soured in 2006, but Kolasz never moved out. Lehn said that Kolasz did not stay at the residence every night. At the time of the search of the residence, Lehn considered Kolasz to be a roommate. Both Lehn and Kolasz had keys to a front gate, as well as to the front door.
At the Ensenada Street residence, officers discovered that a three-camera surveillance system had been set up, with at least one camera connected to a television inside the residence. The surveillance system would allow an individual inside the home to see someone coming to the gate and approaching the front door of the residence. The television was connected to a VCR. Kolasz had told Lehn that the surveillance system was in place to guard his automotive mechanic tools, which he kept in the garage and on the patio near the front door of the home. An officer testified that surveillance cameras are commonly used by drug dealers to monitor for police and to protect themselves.
In a covered patio area outside the front door of the residence, officers found an electronic gram scale located on top of a large toolbox. Inside the toolbox, officers found a half-ounce of methamphetamine, a magazine for a Mac-12 assault weapon, 25 rounds of.380 ammunition, a number of plastic baggies, pipes of the kind used to smoke methamphetamine, and marijuana.
In the master bedroom where Lehn, Kolasz and their daughter slept, officers found a locked safe, which they were able to open. Inside the safe was $5,600 in cash, 329 grams of methamphetamine in 11 baggies, an electronic gram scale, and a check payable to Kolasz. Lehn testified that Kolasz had brought the safe to the house sometime after he moved in, and said that she did not have the combination to the safe.
Above the bed in the master bedroom, a two- by four-inch board was nailed to a beam attached to the ceiling. This arrangement created a hidden shelf. Officers discovered a loaded.22-caliber semiautomatic pistol on the shelf. A person standing on the bed would be able to reach the gun, but it was otherwise not visible from elsewhere in the bedroom.
The bedroom also contained a rolltop desk. Inside the desk, officers found the registration to a Harley-Davidson motorcycle in Kolasz's name, as well as a baggie that contained a quarter-ounce of methamphetamine. There was an electronic gram scale on top of the desk.
In a closet in the master bedroom, officers found men's clothing, which Lehn identified as belonging to Kolasz. In the garage, officers found a sawed-off shotgun on top of a six-foot-tall toolbox. Officers also found a gun case on top of a stack of boxes. Inside the gun case there was a Cobray Mac-12 assault machine pistol. A.22-caliber rifle was found next to the machine pistol. There was a second safe in the garage, which contained $8,900 in cash.
Inside one of the safes, officers discovered a VHS videotape. A portion of the videotape was played for the jury. It showed surveillance video from the camera that was pointed at the front door of the residence. In the video, Kolasz could be seen pulling keys out of his pocket, unlocking a lock, and meeting Lehn. Based on an assessment of Lehn and Kolasz's daughter's age in the video, an officer guessed that the video had been made within a year prior to the search of the residence.
The officer's testimony does not unambiguously identify which of the two safes contained the VHS videotape.
While officers were conducting their search of the residence, one officer saw Kolasz drive by the home on his motorcycle. Officers were unsuccessful in their attempts to locate Kolasz after that sighting.
Lehn testified under a grant of immunity. She denied knowledge or possession of any of the methamphetamine at the house. She also disclaimed any knowledge that Kolasz was dealing methamphetamine out of the home, or that there were weapons in the home. Lehn conceded that prior to 2005 she had used methamphetamine.
2. The September 2006 incident
On September 26, 2006, one of the police officers who had conducted the search of the Ensenada Street residence obtained an arrest warrant for Kolasz at an address on Ariane Drive. When officers arrived at that address, Kolasz attempted to flee. Kolasz tripped and fell, and was caught by officers. Kolasz had 2.59 grams of methamphetamine, $1,411 in cash, and a counterfeit driver's license with his photograph and the name "Armando Camacho" in his pockets. Kolasz told one of the arresting officers that he possessed the methamphetamine for personal use.
B. Procedural background
The San Diego County District Attorney charged Kolasz with possession of a controlled substance for sale (Health & Saf. Code, § 11378; count 1); possession of a methamphetamine (Health & Saf. Code, § 11377, subd. (a); count 2); possession of a deadly weapon (Pen. Code, § 12020, subd. (a)(1); count 3); possession of a firearm silencer (Pen. Code, § 12520; count 4); and possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a); count 5). Counts 1 through 4 were related to the August 1, 2006 incident, while count 5 was related to the September 26, 2006 incident.
The information further alleged with respect to count 1 that (a) Kolasz had incurred three prior convictions within the meaning of Health & Safety Code section 11370.2, subdivision (b); (b) Kolasz was armed with an assault weapon at the time of the offense (Pen. Code, § 12022, subd. (a)(2)); and (c) he was armed with a firearm at the time of the offense (Pen. Code, § 12022, subd. (a)(1)).
Jury trial commenced on September 30, 2009. On October 2, the jury found Kolasz guilty on counts 1, 4, and 5, and found true the corresponding enhancement allegations. The jury found Kolasz not guilty on count 3. Kolasz admitted that he had suffered the three prior drug convictions.
Because count 2 was a lesser included offense of count 1, the jury was instructed not to consider count 2 if it found Kolasz guilty on count 1.
On December 4, 2009, the court sentenced Kolasz to a total prison term of nine years four months. With respect to count 1, the court sentenced Kolasz to the midterm of two years, plus an additional consecutive term of three years for one prior drug-related conviction and another consecutive term of three years for being armed with an assault weapon at the time of the offense. With respect to count 4, the court sentenced Kolasz to a consecutive term of eight months (one-third the midterm), and with respect to count 5, an additional consecutive term of eight months (one-third the midterm). The court struck two of Kolasz's prior drug conviction enhancements, and stayed the enhancement for being armed with a firearm pursuant to Penal Code section 654.
Kolasz filed a timely notice of appeal on January 28, 2010.
III.
DISCUSSION
A. The trial court did not commit reversible error in admitting evidence of Kolasz's prior drug offenses
Kolasz contends that the trial court erred in allowing the prosecution to introduce evidence of two of his prior convictions for possession of methamphetamine for sale.
1. Additional background
Prior to trial, the prosecutor filed a motion seeking to admit evidence of three of Kolasz's prior drug convictions pursuant to Evidence Code section 1101, subdivision (b).
One of the convictions that the prosecutor sought to admit was a 1995 conviction for possession of methamphetamine. In that case, police officers responded to a call about shots being fired. When they arrived on the scene, the officers found empty shell casing on the steps leading to a basement apartment. Kolasz was the tenant of the apartment. Officers searched the apartment and found marijuana and 34 grams of methamphetamine in an open drawer of a rolltop desk in the bedroom. They also found a.44-caliber pistol in another drawer, and a rifle hanging from a beam near the bed that was difficult to see from the rest of the bedroom, but that could be accessed by a person standing by the bed. Officers also found a triple beam scale, pay-owe sheets, packaging materials, and a locked safe that contained $2,500 in cash and other valuables, including stones, coins, and watches, as well as 91 grams of methamphetamine and additional marijuana.
Another conviction that the prosecutor sought to admit involved a search of Kolasz's apartment on Jacquelyn Court. Kolasz's girlfriend at the time gave officers permission to search the master bedroom, where they found documents belonging to Kolasz, as well as pay-owe sheets. Kolasz had a key to the garage on his key ring. Inside the garage, officers found a rolltop desk similar to the desk in the 1995 case. Another key on Kolasz's key ring fit the desk. Inside the desk there were 40 grams of methamphetamine, pay-owe sheets, scales, and $1,600 in cash.
The third conviction as to which the prosecutor proffered evidence involved a vehicle stop of Kolasz's car. During a search conducted after the stop, officers found $708 in Kolasz's wallet. In the car, officers found a bag with a chemical smell that smelled like methamphetamine, a pager, and documents indicating that Kolasz had dominion and control over the vehicle.
Defense counsel opposed the prosecutor's motion to introduce evidence of these prior convictions, arguing that the offenses were too remote in time and "so tenuous [as to] defeat[] any notion" of the existence of a common scheme or plan or to demonstrate intent. Defense counsel also argued that the facts of the offenses were common to all drug cases, and that none of the facts tied Kolasz to the current offenses. Defense counsel further argued that the case against Kolasz for the contraband found on August 1 was weak, and that there was little evidence that Kolasz actually had dominion and control over any of the items found that day.
The trial court granted the prosecutor's motion with respect to two of the convictions, finding that the fact that more than 10 years had passed since the commission of the priors did not render them too remote to be relevant. The court concluded:
"I find that there are sufficient similarities in the two to warrant admitting them into evidence under [Evidence Code, section] 1101[, subdivision] (b). The one involving strictly the vehicle would not satisfy the requirements of that similarity and would be of value to show propensity, which is not admi[ssible]. So the two involving the safe will be admitted. The People may do so...."
During trial, the jury was provided with a stipulation pertaining to Kolasz's 1995 convictions. The prosecutor read the following stipulation to the jury:
"In 1995, defendant Kolasz was convicted of Health and Safety Code section 11378, possession of methamphetamine for sales. Officers responded to radio call of shots being fired. An apartment in the basement of the house was searched and the defendant was present along with Michael Martinez and Steven Roach. They discovered 17 empty.22 caliber casings on the steps to the apartment. Inside the apartment Detective Sutherland observed a baggie and a vial of methamphetamine on the rolltop desk in the bedroom of the apartment, totaling 34.5 grams. Also found in the bedroom was a Ruger rifle loaded with a round in the chamber. The rifle was hanging on a beam in the bedroom facing the rear of the wall and difficult to see. There was also a.44 caliber automag pistol in the bottom right-hand drawer of the desk.
"In the closet was a 14 by 14 Quicksilver safe, triple beam scale and scale weights. There were two electronic organizers. One with what appeared to be pay and owe sheets. There was also packaging, empty one by one plastic baggies. There w[ere] dominion and control documents in the defendant's name and keys found on the defendant which fit the desk lock and the defendant's truck outside.
"The safe was forced open and contained $2,570, along with 90.75 grams of methamphetamine. The controlled substances in this case were tested by trained forensic chemist Ferris Van Sickle of the San Diego Sheriff's Crime Lab and contained methamphetamine as outlined above.
"ECR9816: In 1995, the defendant, Kolasz, was convicted of possession of methamphetamine for sales. In this case, Detective Shakowski, with others, conducted a legal search of... Jacquelyn Court in El Cajon. The defendant was seen outside the residence in a car registered to him. Shortly thereafter he was contacted and returned to the residence for the search. Jan Hungate was also present for the search at the premises. In the defendant's wallet was $708. On the rear floorboards, directly behind the driver's seat, was a zippered pouch that was magnetized, only methamphetamine residue was inside. A telephone pager was found attached to the sun visor of the car and dominion and control papers belonging to the defendant were in the center console.
"In the upstairs bedroom, the defendant told Officer Huggins the drugs were in a locked rolltop desk and admitted to sharing the bedroom with Jan Hungate. In the attached garage the rolltop desk was unlocked by a key from the defendant's key ring. One of the doors was locked and that was also opened with a key from the same ring.
"In that drawer was another zippered magnetized pouch similar to the one found in the car. It contained 43.56 grams of methamphetamine. There w[ere] also scales, packaging, pay and owe sheets and dominion and control [sic] for defendant Kolasz in this desk.
"Underneath the locked drawer was a plastic bindle of U.S. currency totaling $1,650, also a police scanner and cutting agent were in the desk. Also found on the defendant's person, in his socks, were two baggies of methamphetamine totaling 4.33 grams when he was booked into jail. The methamphetamine in this case was analyzed by Karen Fleury, a trained forensic criminalist with the El Cajon Police Department Forensic Lab."
The trial court instructed the jury with the following limiting instruction regarding its use of the evidence of Kolasz's prior convictions:
"The People and the defendant have stipulated that the defendant has previously been convicted of possession of a controlled substance for sale and to the facts that supported those convictions.
"You may, but are not required to consider that evidence for the limited purpose of deciding whether or not, one, the defendant acted with intent to sell a controlled substance in this case. Two, the defendant knew that he possessed a controlled substance. Three, the defendant knew of the presence of the controlled substance. Four, the defendant knew of the substance's nature and character as a controlled substance. Five, the defendant knew he possessed a firearm. Six, the defendant knew he was armed with or had a firearm available when he allegedly acted in this case. Or seven, the defendant had a plan or scheme to commit the offenses alleged in this case.
"In evaluating this evidence, consider the similarity or lack of similarity between those prior offenses and the charged offenses. Do not consider this evidence for any other purpose. Do not conclude from this evidence that the defendant has a bad character or is disposed to commit crime. The fact that the defendant committed the previous offense is only one factor to consider with all the other evidence. It is not sufficient, by itself, to prove that the defendant is guilty of any of the charges in this case or that any of the allegations have been proved. The People must still prove each charge and allegation beyond a reasonable doubt."
Kolasz did not seek any further limiting instruction or otherwise challenge the instruction that the court provided.
2. Legal standards
Evidence of a prior crime or bad act is admissible as long as it is relevant to prove a fact such as motive, opportunity, intent, plan, or knowledge. (Evid. Code, § 1101, subd. (b); People v. Davis (2009) 46 Cal.4th 539, 602.) " 'The admissibility of other crimes evidence depends on (1) the materiality of the facts sought to be proved, (2) the tendency of the uncharged crimes to prove those facts, and (3) the existence of any rule or policy requiring exclusion of the evidence.' [Citation.]" (People v. Lindberg (2008) 45 Cal.4th 1, 22.)
"We have explained that 'there exists a continuum concerning the degree of similarity required for cross-admissibility, depending upon the purpose for which introduction of the evidence is sought: "The least degree of similarity... is required in order to prove intent. [Citation.]... In order to be admissible [for that purpose], the uncharged misconduct must be sufficiently similar to support the inference that the defendant ' "probably harbor[ed] the same intent in each instance." ' " ' [Citations.] 'By contrast, a higher degree of similarity is required to prove common design or plan, and the highest degree of similarity is required to prove identity.' [Citation.]" (People v. Lynch (2010) 50 Cal.4th 693, 736 (Lynch).)
" 'For identity to be established, the uncharged misconduct and the charged offense must share common features that are sufficiently distinctive so as to support the inference that the same person committed both acts. [Citation.] "The pattern and characteristics of the crimes must be so unusual and distinctive as to be like a signature." ' [Citation.] The inference of identity, however, 'need not depend on one or more unique or nearly unique common features; features of substantial but lesser distinctiveness may yield a distinctive combination when considered together.' [Citation.] Moreover, 'the likelihood of a particular group of geographically proximate crimes being unrelated diminishes as those crimes are found to share more and more common characteristics.' [Citation.]" (Lynch, supra, 50 Cal.4th at p. 736.)
On appeal, we review a trial court's decision to admit or exclude evidence under Evidence Code section 1101 for an abuse of discretion. (People v. Hovarter (2008) 44 Cal.4th 983, 1004.)
3. Analysis
Kolasz asserts that the trial court erred in admitting the evidence of his prior convictions "because as evidence of intent evidence of the prior acts was significantly more prejudicial than probative, and there was not sufficient similarity between the prior acts and the details of the current offense to merit admitting the evidence to prove identity or a common plan or scheme."
Despite Kolasz's contention on appeal, the record demonstrates that the trial court did not admit evidence of Kolasz's prior convictions for the purpose of proving identity. Rather, as the court's limiting instruction to the jury made clear, the court permitted introduction of the evidence to establish only intent, knowledge, and a common plan or scheme. Thus, we need not consider whether the prior crimes evidence was sufficiently similar to the charged offenses to merit its introduction to establish identity.
Kolasz also contends that the trial court should not have admitted the prior acts evidence for the purpose of proving intent because the evidence was more prejudicial than probative. We conclude that the trial court did not abuse its discretion in admitting the evidence of Kolasz's prior convictions. Although one could infer from the quantity of drugs present at the Ensenada Street residence and some of the other items found in the residence that the stash of drugs was possessed for the purpose of selling the drugs, we disagree with Kolasz's argument that this fact rendered the prior acts evidence merely cumulative and of little probative value on the question of intent. (See People v. Williams (2009) 170 Cal.App.4th 587, 607 (Williams) [evidence of a prior drug conviction may be admitted 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].) The other evidence of intent to sell was circumstantial, and not so overwhelming that the introduction of the evidence of prior uncharged acts lacked additional probative value. We therefore conclude that the trial court did not abuse its discretion in determining that the evidence of Kolasz's prior convictions for possession for sale was not substantially more prejudicial than probative on the issue of his intent in the current case.
Finally, we need not decide whether Kolasz is correct that the prior acts evidence was not sufficiently similar to the charged offenses to be admissible to establish a common plan or scheme. The prior acts evidence was properly admitted for the purpose of establishing intent, and Kolasz requested no further limiting instruction. The trial court had no sua sponte duty to provide a limiting instruction that restricted the jury's consideration of the prior acts evidence to establishing intent. (See People v. Smith (2007) 40 Cal.4th 483, 516 ["Even assuming that defendant is correct in noting that the evidence should only have been admitted for a limited purpose, the trial court had no sua sponte duty to give a limiting instruction"].)
B. The trial court did not abuse its discretion in denying Kolasz's motion to sever the August 1 charges from the September 26 charge
Kolasz contends that the trial court abused its discretion in denying his motion to sever trial of the charges arising from the events of August 1 from the charges arising from the September 26 incident. According to Kolasz, evidence of the September simple possession would not be cross-admissible in a trial on the August charges, and the court's ruling permitted the prosecution to join a very strong case (the September offense) with a relatively weak case (the August offenses), thereby resulting in a spillover effect that prejudiced the outcome with respect to the charges arising from the August incident.
1. Additional background
Prior to trial, the prosecutor filed a motion to consolidate the August 1 charges with the September 26 charge. The trial court considered the motion on September 23, 2009, and heard argument from the prosecutor and defense counsel.
Defense counsel argued that the prosecution was joining a weak case (the August offenses) with a strong case (the September offense). Specifically, counsel contended that there was virtually nothing connecting Kolasz to the drugs and guns in the Ensenada Street residence, whereas the evidence of Kolasz's guilt with respect to the September offense was strong, since he was found with drugs in his personal possession and admitted to possessing them. Defense counsel argued that the spillover effect of the evidence of the September possession offense would detrimentally affect the outcome on the offenses stemming from the August search of the Ensenada Street residence. Defense counsel believed that without the evidence of the possession offense from September, the defense had a "very good shot at being able to convince the jury that [Kolasz] was not the one that had anything to do with" the contraband found in the home in August.
The prosecutor argued that the evidence stemming from the August 1 search of the Ensenada Street residence was not particularly weak, since there were documents found in the bedroom that demonstrated Kolasz's dominion and control, a neighbor identified Kolasz as living at the residence at the time of the search, and Kolasz was seen driving by the residence while the police were searching it. According to the prosecutor, this constituted strong circumstantial evidence that Kolasz resided in the home and, at a minimum, that he jointly possessed the contraband that was found in the home.
The trial court ruled, "The nature of the charges and the time that they occurred are such that consolidation is warranted. There's not significant disparity in the strength of the cases such as would warrant keeping them separate. They will be consolidated."
2. Legal standards
a. The law pertaining to severance
The statutory authorization for joinder of criminal charges is set forth in section 954. That section provides in relevant part:
"An accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts, and if two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated."
Even where criminal charges are properly joined pursuant to section 954, a trial court may exercise its discretion to order separate trials in the interests of justice. "[A] determination as to whether separation [of the trial of offenses] is required in the interests of justice is assessed for abuse of discretion." (People v. Alvarez (1996) 14 Cal.4th 155, 188.)
"Denial of a severance may be an abuse of discretion where (1) evidence related to the crimes to be tried jointly would not be cross-admissible in separate trials; (2) certain of the charges are unusually likely to inflame the jury against the defendant; (3) a 'weak' case has been joined with a 'strong' case'; and (4) any one of the charges carries the death penalty. [Citations.] The first criterion is the most significant because, if evidence on each of the joined charges would have been admissible in a separate trial on the other, ' "any inference of prejudice is dispelled." ' [Citations.]" (People v. Cunningham (2001) 25 Cal.4th 926, 985 (Cunningham); accord People v. Soper (2009) 45 Cal.4th 759, 775 ["If we determine that evidence underlying properly joined charges would not be cross-admissible, we proceed to consider 'whether the benefits of joinder were sufficiently substantial to outweigh the possible "spill-over" effect of the "other-crimes" evidence on the jury in its consideration of the evidence of defendant's guilt of each set of offenses.' [Citations.]"].)
3. Analysis
In this case, it is clear that the offenses charged in counts 1, 2, and 5 were of the same class, in that they were drug offenses. Counts 3 and 4, the weapons possession counts, were connected in their commission with counts 1 and 2. As a result, the offenses met the requirements of joinder under section 954.
Kolasz contends that the trial court should nevertheless have severed counts 1 through 4 from count 5 because the evidence pertaining to the two cases would not have been cross-admissible, and because the joinder allowed the prosecution to tie what he contends was a weak case to a much stronger case. We disagree.
The evidence related to the crimes would have been cross-admissible in separate trials. As we discussed with respect to Kolasz's argument concerning his prior convictions, " 'evidence of uncharged crimes is admissible to prove, among other things, the identity of the perpetrator of the charged crimes, the existence of a common design or plan, or the intent with which the perpetrator acted in the commission of the charged crimes. [Citation.]' " (People v. Lenart (2004) 32 Cal.4th 1107, 1123 (Lenart).) " 'Evidence of uncharged crimes is admissible to prove identity, common design or plan, or intent only if the charged and uncharged crimes are sufficiently similar to support a rational inference of identity, common design or plan, or intent. [Citation.]... ' [Citation.]" (Ibid.)
The evidence as to the September drug offense was admissible as to the August offenses to prove knowledge of the nature of the drug, and the evidence of the August offenses was similarly admissible as to the September offense for the same reason. (See Williams, supra, 170 Cal.App.4th at p. 607 [evidence of drug offense may be admitted to prove knowledge of the narcotic nature of the drugs].) Because the evidence pertaining to each of the joined charges would have been admissible in a separate trial on the other, " 'any inference of prejudice [was] dispelled.' " (Cunningham, supra, 25 Cal.4th at p. 985, citation omitted.)
Kolasz contends that the evidence of the September simple possession was strong, and that this strong case was used to bolster the weak August case. He complains that the spillover effect from the evidence of the September offense inflamed the jury with respect to the August offenses and altered the outcome on those charges.
Kolasz acknowledges that "the inflammatory tendency of admitting evidence of simple possession of methamphetamine is relatively minor considering the charges that appellant was facing with regards to the August 1, 2006 events." We agree that the September offense of simple possession of methamphetamine was unlikely to inflame the jury against Kolasz. Kolasz nevertheless contends that the discrepancy in the strength of the two cases created a prejudicial effect in the jury's consideration of the weaker of the two cases. We disagree with Kolasz on this point.
The evidence as to the September simple possession offense was clearly strong. On that occasion, a detective detained Kolasz and found 2.59 grams of methamphetamine on Kolasz's person. Kolasz told the detective that the drugs were for his personal use. However, the evidence of the August offenses was not as weak as Kolasz portrays it on appeal. Although the drugs found on August 1 were not in Kolasz's personal possession and he was not present at the home at the time officers entered it and found the evidence in question, there was a considerable amount of evidence that linked the contraband in that residence to Kolasz, including Lehn's testimony that Kolasz had been living at the residence, that she did not know about the presence of the drugs or guns, and that the items in which the drugs and weapons were found (i.e., the toolboxes, the rolltop desk, and the safe) all belonged to Kolasz.
Although Kolasz raises questions about the veracity of Lehn's testimony, other evidence corroborated her claims. Police found some of Kolasz's personal papers in the bedroom, including the registration for his motorcycle; Kolasz received his mail at that address; there was men's clothing in the closet of the bedroom and no evidence of a man other than Kolasz living there; Kolasz was a mechanic and the garage was filled with mechanic's tools (near which some of the methamphetamine and a weapon was found); and the locked safe in the bedroom contained not only a large amount of cash, drugs, and a scale, but also a check made out to Kolasz. Further, officers saw Kolasz drive by the house as they were conducting a search of the home. Thus, although the evidence of Kolasz's September offense was quite strong, on this record, we conclude that the trial court did not abuse its discretion in determining that its relative strength in comparison to the August offenses was not so great as to render it unfairly inflammatory, or to unfairly alter the outcome of the charges related to the August offenses.
The cross-admissibility of the evidence of the two incidents was sufficient, in itself, to justify joinder of the charges stemming from those incidents, and supports the trial court's denial of Kolasz's motion to sever. However, the trial court also acted reasonably in determining that the discrepancy in the relative strength of the cases was not so great that severance of the two cases was required, and in concluding that evidence of Kolasz's September possession of methamphetamine was not sufficiently inflammatory to require severance.
IV.
DISPOSITION
The judgment of the trial court is affirmed.
WE CONCUR: HUFFMAN, Acting P. J.NARES, J.