Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. Ct.No. RIF115771 Helios (Joe) Hernandez, Judge.
Jackie Menaster, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Peter Quon, Jr., Supervising Deputy Attorney General, and Pat Zaharopoulos, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P.J.
Defendant and appellant James Edward Kuzyk (defendant) is serving a 13-year prison term after a jury convicted him of manufacturing methamphetamine and possessing ephedrine. In this appeal, defendant contends the trial court erred when it: (1) admitted evidence of a prior conviction for manufacturing methamphetamine; and (2) precluded critical defense evidence tending to prove that the owner of the home in which defendant was living had framed him. As discussed below, we conclude that the trial court did not err, and thus affirm the conviction.
Statement of Facts and Procedure
On March 16, 2004, sheriff’s deputies responded to a call made by a neighbor about heavy foot traffic in and out of the home of Maria and Joseph Simon. The deputies saw defendant in the garage through the open garage door, sharpening an ax. The deputies spoke with Ms. Simon, who told them that defendant slept on the couch inside the home, but spent his days in the garage with his belongings. Defendant was on parole from a 2000 conviction for manufacturing methamphetamine, so the deputies conducted a parole search of the garage. They found clear tubing, chemicals, liquids, and coffee filters. The garage had a “weird chemical smell.” They also found ammunition on a worktable near defendant, but no weapon.
The deputies called in a narcotics investigation team. The investigators had the Simons and their two children leave the home because of the risk of explosion from the chemicals in proximity to the water heater. One of the investigators asked defendant why he would endanger the children in the home by having a methamphetamine lab in the garage. Defendant responded that he was not “batching up,” meaning he was not making methamphetamine. Defendant identified the chemicals found in the garage and said he used them for cleaning rocks. There was a shoebox full of rocks in the garage, which defendant said were his. Defendant stated that he needed three ingredients to make methamphetamine and the investigator asked him what they were. Defendant said he did not remember. The investigator commented that defendant must be aware what was involved in making methamphetamine since he had been arrested in 2000 for operating a methamphetamine laboratory next door. Defendant said that the case had been plea bargained and that he did not want to speak further. Defendant’s blood tested positive for methamphetamine and amphetamine.
An expert witness from the sheriff’s department testified at trial that evidence was present of all five steps in the methamphetamine manufacturing process. However, there was no finished methamphetamine. This is because the person making it had made a mistake at one point in the process and ended up with pseudo ephedrine instead.
Ms. Simon testified at trial that she met defendant when he previously lived next door and her children played with children who lived there. She also testified that she and her husband were married in name only, and that they stayed together for the benefit of their two children. Ms. Simon testified that she and defendant had sexual relations, that she visited him in jail, and brought him money. Mr. Simon traveled a lot, and Ms. Simon spent a lot of time with defendant. She stated that Mr. Simon probably did not approve of her relationship with defendant, although they never discussed it outright. She testified that many people, including Mr. Simon, kept things in the garage.
Mr. Simon testified that defendant came to stay in their garage when he was released from prison in 2003, after the 2000 conviction for manufacturing methamphetamine next door. Defendant was supposed to stay just a few days, but was still there a year later. Mr. Simon did not want defendant there, but Ms. Simon insisted on it and she owned half the house. Mr. Simon told investigators that he was not allowed in his own garage. Mr. Simon knew about defendant’s prior arrest and did not want his children going into the garage. Mr. Simon did not recognize most of the items the investigators pulled out of his garage, and he did not know anything about how methamphetamine was made. He noticed more people coming by the house to see defendant about a week before the search. Mr. Simon thought defendant was a bad influence and suspected defendant and Ms. Simon were having an affair. Mr. Simon worked long hours and traveled often as an engineer for the Navy, while Ms. Simon and defendant did not work. Mr. Simon wanted defendant out of his house, but testified that he did not lie to police or the court, and did not stage a methamphetamine lab in his own garage just to get rid of defendant.
Before trial, the People moved under Evidence Code sections 402 and 1101, subdivision (b) to admit evidence of defendant’s 2000 conviction for manufacturing methamphetamine. The People argued that the evidence was relevant to defendant’s intent to manufacture methamphetamine and his knowledge that the materials found in the garage were used for that purpose. The defense countered that defendant’s knowledge of how methamphetamine was manufactured was not relevant, because defendant would not be arguing that he did not know what the materials in the garage could be used for. Rather, the defense was that most of the items the deputies found in the garage did not belong to defendant, and that the rest of the items were used by defendant to maintain his rock collection, not to manufacture methamphetamine. The People then argued that the prior conviction was relevant to show defendant’s intent in possessing the items that he claimed were for cleaning rocks. The court ruled that the prior conviction was admissible to prove knowledge and intent, and that the evidence was not unduly prejudicial under Evidence Code section 352.
The People introduced the prior crimes evidence at trial through the testimony of a criminologist assigned to the chemistry unit of the California Department of Justice crime laboratory in Riverside. The criminologist answered “yes” when asked if he had tested “items for the presence of methamphetamine in a case involving James Kuzyk.” The trial court asked the prosecution to clarify whether the testimony involved “[t]he current case or prior case,” and the prosecution stated that it was “[t]he prior case.” The criminologist also gave the offense date as “January 8th, 2000.” The criminologist then described the various samples and materials he was asked to analyze and stated that the materials were consistent with the manufacture of methamphetamine.
The jury also heard about the prior crime during the defense case. The defense attorney asked defendant to describe his involvement in the 2000 incident, disclosing that this took place at the home next door to the Simon’s home. Defendant testified that he was living in the home with his brother and the brother’s girlfriend. Defendant denied being involved in manufacturing methamphetamine, stating that he only allowed his brother to store the manufacturing materials in his bedroom because his brother was supplying him with methamphetamine. Defendant said that he paled guilty because “I just wanted to get it over with,” and that in 2000 he could “[p]robably not” recognize a methamphetamine lab.
On cross-examination, the People asked defendant about his 2000 arrest and the circumstances surrounding it. Specifically, the People questioned defendant about the items that were stored in his bedroom and his knowledge that he was “storing every ingredient to produce methamphetamine in your bedroom in 2000.”
The jury convicted defendant of manufacturing methamphetamine (Health & Saf. Code, § 11379.6, subd. (a)) and possessing ephedrine with the intent to manufacture methamphetamine. The jury also found true allegations defendant had suffered a prior conviction for manufacturing methamphetamine (Health & Saf. Code, § 11370.2, subd. (b)), and that the manufacturing and possession offenses took place in a structure where children were present (Health & Saf. Code, § 11379.7, subd. (a)). The jury acquitted defendant of being a felon in possession of ammunition. (Pen. Code, §§ 12021, 12021.1.) The trial court sentenced defendant to five years on the manufacturing count, two years for each of the allegations regarding the presence of children, and one year for having served a prior prison term. (Pen. Code, § 667.5.) The court stayed the term for possessing ephedrine under Penal Code section 654. This appeal followed.
Discussion
1. Prior Crimes Evidence
Defendant contends the trial court should not have granted the People’s motion to introduce evidence about defendant’s 2000 conviction for manufacturing methamphetamine. Specifically, defendant argues: (1) the evidence was inadmissible under Evidence Code section 1101, subdivision (b) because it failed to prove any contested issue; (2) the evidence was improperly presented to impeach defendant’s testimony, rather than during the People’s case-in-chief; (3) the evidence was more prejudicial than probative under Evidence Code section 352; and (4) the improper admission of the evidence was prejudicial.
The People argue that the evidence was admissible to show intent, plan, and common scheme, and that its probative value outweighed its prejudicial effect.
Evidence of other crimes committed by a defendant is admissible under Evidence Code section 1101 when relevant to prove some fact, such as motive, opportunity, intent, or knowledge, other than the defendant’s propensity or disposition to commit such acts. (Evid. Code, § 1101, subd. (b).) The probative value of such evidence must be substantial, and because other-crimes evidence is so prejudicial, its admissibility “‘must not contravene other policies limiting admission, such as those contained in Evidence Code section 352. [Citations.]’ [Citation.]” (People v. Ewoldt (1994) 7 Cal.4th 380, 404, quoting People v. Thompson (1988) 45 Cal.3d 86, 109.) In other words, to be admissible, the trial court must find that the probative value of the evidence is substantial, and it must determine whether that probative value “is ‘substantially outweighed by the probability that its admission [would] . . . create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.’ [Citation.]” (People v. Ewoldt, supra, at p. 404, quoting Evid. Code, § 352; see also People v. Cole (2004) 33 Cal.4th 1158, 1194.) On appeal, we review the trial court’s rulings on both questions for abuse of discretion. (People v. Cole, supra, at p. 1195; see also People v. Kipp (1998) 18 Cal.4th 349, 369.)
Here, the People argued before the trial court that the evidence was relevant to prove defendant’s intent to manufacture methamphetamine and his knowledge that the materials found in the garage could be used to make methamphetamine. Defendant argued that lack of intent or knowledge was not part of his defense. Rather, defendant argued that his defense would be that most of the materials in the garage that could be used to manufacture methamphetamine did not belong to him, and that the materials that did belong to him were used for cleaning rocks.
We conclude that the trial court did not abuse its discretion when it ruled that the prior crime evidence was relevant to defendant’s intent in possessing the materials that he admitted to possessing. “Evidence of intent is admissible to prove that, if the defendant committed the act alleged, he or she did so with the intent that comprises an element of the charged offense. ‘In proving intent, the act is conceded or assumed; what is sought is the state of mind that accompanied it.’ [Citation.]” (People v. Ewoldt, supra, 7 Cal.4th at p. 394 fn. 2, italics omitted.) As defendant admits, part of his defense was that some of the materials found in the garage that could be used to manufacture methamphetamine did belong to him, but that he possessed them with the sole intent to maintain his rock collection. This is a classic issue of intent, and thus the prior conviction for manufacturing methamphetamine was admissible.
Neither did the trial court abuse its discretion when it concluded that the prior crime evidence was more probative than prejudicial. As the People point out, the probative effect of the evidence as to defendant’s intent was overwhelming, in that it was the only evidence that defendant possessed the materials with the intent to manufacture methamphetamine instead of to maintain his rock collection. This outweighed the evidence’s prejudicial effect.
Defendant also contends that the People improperly introduced the prior crimes evidence only when it cross-examined defendant during the defense’s case, rather than during its own presentation of evidence. This is simply not accurate. As described above, the People in its case-in-chief called a crime lab criminologist to describe the methamphetamine manufacturing materials that formed the basis of defendant’s 2000 conviction. The witness clearly identified defendant as the subject of that case, and both the trial court and the prosecutor clarified that the witness was testifying as to the 2000 case. Further, the People’s mention of the prior conviction during its cross-examination of defendant took place only after defendant had already described his version of events leading up to the conviction. The cross-examination was properly aimed at eliciting testimony about defendant’s knowledge about the materials and processes involved in manufacturing methamphetamine, which was directly relevant to proving knowledge and intent regarding the current case. Thus, the evidence was properly presented.
2. Exclusion of Defense Evidence
Defendant also contends the trial court rendered his trial unfair by excluding two items of defense evidence: (1) that the Simons’13-year-old son had walked in on defendant and Ms. Simon having sex and may have told Mr. Simon about it; and (2) that a specific bag depicted in one of the photographs offered into evidence by the prosecution did not belong to defendant.
Prior to trial, defendant’s counsel moved to admit into evidence statements by the Simons’ son that counsel said were contained in a detention report and a disposition report prepared for juvenile court proceedings under Welfare and Institutions Code section 300. Counsel said that the gist of the statements was that the son had caught defendant and Ms. Simon having sex. Defendant also sought to admit another statement by the son to the effect that, “My dad hates [defendant] more than hell.” Counsel initially sought to call the child as a witness, and to ask him whether he told his father about seeing defendant and Ms. Simon having sex. The court denied this request based on the detriment to the child. However, the court told the defense regarding Mr. Simon, “You can ask him if he doesn’t like [defendant] and the depth of his dislike. You can ask if he told that to the police or other people. You can’t mention [Child Protective Services].” If Mr. Simon denied disliking defendant, then the court would reconsider its ruling. At the Evidence Code section 402 hearing, Mr. Simon testified that he did not like defendant, did not want him in his home, and had expressed that feeling to other individuals. Mr. Simon also stated that he believed there was a possibility that his wife was having an affair with defendant. The court then ruled that the Child Protective Services records were not admissible to impeach Mr. Simon’s testimony because his testimony about disliking defendant was consistent with what was in the Child Protective Services records.
Like the trial court, we have examined the juvenile detention report that was made part of the augmented record in this case and do not find any mention of the son telling a therapist that he had walked in on defendant and Ms. Simon having sex. Also like the trial court, we decide this issue anyway out of an abundance of caution.
When Mr. Simon testified in front of the jury, he denied “hating” defendant “like hell,” but instead described his feelings toward defendant as “extreme dislike.” Mr. Simon admitted to telling the investigating deputies that he wanted defendant out of his home.
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.” This section permits the exclusion of evidence when it is cumulative. (People v. Brown (2003) 31 Cal.4th 518, 576; People v. Mincey (1992) 2 Cal.4th 408, 439.) The exclusion of evidence on this ground will not be reversed on appeal unless the court abused its discretion. (People v. Brown, supra, at p. 576.) This standard implies “‘“absence of arbitrary determination, capricious disposition or whimsical thinking.”’ [Citation.] ‘[D]iscretion is abused whenever the court exceeds the bounds of reason, all of the circumstances being considered.’ [Citation.]” (People v. Mullens (2004) 119 Cal.App.4th 648, 658.)
In addition, the “‘[a]pplication of the ordinary rules of evidence . . . does not impermissible infringe on a defendant’s right to present a defense.’ [Citations.]” (People v. Fudge (1994) 7 Cal.4th 1075, 1102- 1103.) However, Evidence Code section 352 “must yield to a defendant’s due process right to a fair trial and to the right to present all relevant evidence of significant probative value to his or her defense.” (People v. Cunningham (2001) 25 Cal.4th 926, 998-999.)
Here, the defense sought to introduce evidence that would impeach Mr. Simon if he denied disliking defendant or wanting him out of his home. Mr. Simon testified that he felt “extreme dislike” for defendant and had told the investigating deputies that he wanted defendant out of his home. We agree with the trial court that the evidence about the Simons’ son witnessing defendant and Ms. Simon having sex would not have “significant” probative value, beyond confirming the emotions about which Mr. Simon had already testified—that he felt “extreme dislike” for defendant and wanted him out of his home. The trial court did not abuse its discretion when it ruled that the evidence could not be admitted except if Mr. Simon lied on the witness stand about disliking defendant and telling others he wanted him out of his home.
Further on in the trial, defense counsel moved to admit photographs that Child Protective Services had taken of the garage and the items that the narcotics investigators had spread out on the driveway several hours after the investigators had taken their pictures. Specifically, counsel focused on a photograph showing a suitcase-type bag that had not appeared in the photos taken by the narcotics investigators. Counsel planned to call defendant to the stand to testify that the bag did not belong to him and that it was not in the garage the last time he was there. The purpose was to allow counsel to argue to the jury that Mr. Simon had used the bag to carry and then plant evidence of a methamphetamine lab to frame defendant. The court ruled that the existence or nonexistence of the bag was not relevant or probative because: (1) the pictures were taken after the narcotics investigators had pulled everything for the methamphetamine lab out of the garage, not before; and (2) “So there’s a bag there. Lots of people stored stuff there. When people store stuff, they take it there in bags. To say this is a recently-arrived bag is total speculation.” After more argument from defense counsel, the court declined to change its ruling and commented that the defense had not mentioned any bag in its opening statement.
In this appeal, defendant argues that this bag was an important piece of evidence tending to show that Mr. Simon had brought the methamphetamine lab items into the garage to frame defendant. Defendant also argues that the error was not harmless because the case was a close one. We find no error in the trial court’s decision to omit this evidence. This is because the presence in the garage of a bag that does not belong to defendant is simply not relevant to whether defendant was operating a methamphetamine lab or to whether Mr. Simon had framed defendant. The testimony was clear that the garage was quite cluttered and that both defendant and Mr. Simon, along with other friends, stored their belongings in the garage.
Ms. Simon agreed with defense counsel’s description of the garage—“I don’t know how to put this delicately. . . . It looks like there’s a lot of junk in there.”
In determining whether evidence is relevant, the trial court must examine whether the evidence tends to “‘logically, naturally, and by reasonable inference’” establish material facts. (People v. Garceau (1993) 6 Cal.4th 140, 177.) The defense simply planned to offer the photograph of the bag into evidence along with defendant’s testimony that he did not recognize the bag. This evidence does not “logically, naturally, and by reasonable inference” tend to establish that Mr. Simon used the bag to plant a methamphetamine lab in his own garage to frame defendant. The bag could have belonged to any number of people. Even if the evidence tended to prove that the bag belonged to Mr. Simon, it was his garage, full of many of his belongings. The mere presence of the bag does not tend to establish that Mr. Simon used it to bring a
methamphetamine lab into his garage. The trial court did not abuse its discretion when it declined to admit this evidence.
Disposition
The judgment of conviction is affirmed.
We concur: McKINSTER, J., KING, J.