Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County No. FVA25457, Raymond L. Haight, III, Judge. Affirmed.
Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant Laura M. McDowell.
William Flenniken, Jr., under appointment by the Court of Appeal, for Defendant and Appellant Ricky L. Welch.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Marilyn George and Meagan J. Beale, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Gaut J.
Defendants Laura M. McDowell and Ricky L. Welch (defendants) appeal from judgments entered after a jury convicted them of possession of ephedrine or pseudoephedrine with intent to manufacture methamphetamine. (Health & Saf. Code, § 11383, subd. (c)(1); count 3.) Welch also appeals his conviction for possession of methamphetamine for sale (§ 11378; count 2). Welch admitted his two prior drug convictions and McDowell admitted a single prior drug conviction. (§ 11370.2, subd. (b).)
Unless otherwise noted, all statutory references are to the Health and Safety Code.
Prior to trial, the court dismissed count 1 (manufacturing methamphetamine) against defendants under Penal Code section 995.
The trial court sentenced Welch to a total 12-year eight-month prison term, consisting of an upper term of six years on count 3; a consecutive eight months (1/3 the midterm) on count 2; and two consecutive three-year terms for each of Welch’s prior drug conviction enhancements. McDowell was sentenced to the low term of two years on count 3, plus a consecutive term of three years for her prior drug conviction enhancement.
McDowell challenges her count 3 conviction on the ground the jury made no finding as to the requisite element of possession of ephedrine or pseudoephedrine. The jury verdict only states that the jury found defendants guilty of intending to manufacture methamphetamine, which is not a crime. McDowell also contends there was insufficient evidence she was in possession of ephedrine or pseudoephedrine. McDowell further asserts the trial court erred in admitting evidence of her 1999 drug conviction.
Welch joins in McDowell’s contentions and adds that there was insufficient evidence to support his count 3 conviction because there was no evidence that the amount of ephedrine or pseudoephedrine in his possession was sufficient to manufacture a usable amount of methamphetamine. Welch also challenges his sentence on count 3, arguing that the trial court erred in imposing an aggravated term based on facts not found by the jury, in violation of Cunningham v. California (2007) 549 U.S. __, 127 S.Ct. 856, 864, 871 (Cunningham).
We find no error and affirm the judgments against McDowell and Welch.
1. Facts
Around 7:00 p.m. on September 27, 2005, Corporal Schlotterbeck and several other officers conducted a surveillance of Welch’s home on 15376 Iris Drive, in Fontana. They observed David MacCharles drive up to Welch’s house, talk to Welch in the front yard for a few minutes, and drive away. Welch then got into a Dodge truck with another unidentified man, and drove off.
Schlotterbeck followed Welch. Welch picked up McDowell at a duplex on Almond Street and drove to A-All Self Storage (Self Storage). Defendants and the unidentified man left Self Storage after five minutes and returned to Welch’s home. After a couple minutes they left in the truck, dropped off McDowell near a Wal-Mart store, drove to Self Storage, and entered and exited storage unit C-106 several times.
Welch was seen walking back and forth from unit C-106 to the east side of the storage facility. MacCharles pulled up in a white Plymouth and walked with Welch in and out of storage unit C-106.
Meanwhile officers observed McDowell leaving Wal-Mart with a grocery bag and walking to Self Storage. She met Welch at storage unit C-106, handed him the bag, and entered and exited the unit with Welch.
After about an hour of observing Welch at the storage facility, Schlotterbeck believed MacCharles was about to leave. Schlotterbeck and other officers contacted defendants and MacCharles. The unidentified man fled. When asked if Welch had anything on him, Welch retrieved from his pocket a baggie containing over six grams of methamphetamine and a cigarette box containing over two grams of methamphetamine. Welch stated that everything in unit C-106 belonged to him, although some of the glassware may have been from previous methamphetamine labs.
Welch told Schlotterbeck unit C-106 was registered to a woman who was in jail. Because she was going to lose the storage unit due to nonpayment, Welch assumed possession of the unit and had been making the payments during the past six to eight months. Officers noticed an odor associated with methamphetamine laboratories, emanating from the storage unit and defendants’ clothing. Welch said he was unemployed and admitted he lived at 15376 Iris Drive.
No drugs or drug paraphernalia were found on McDowell. She stated that she had her own storage units at Self Storage, units C-134, 135, 136, and 104. Unit C-134, which was down the alley from unit C-106, was open. A search of her units turned up nothing drug-related other than a digital gram scale. McDowell said that the item she had purchased at Wal-Mart and taken to Self Storage was hydrogen peroxide. Defendants and MacCharles were arrested for manufacturing methamphetamine.
Officers found in unit C-106 various paraphernalia associated with the manufacture of methamphetamine, including biphasic liquids containing hydriodic acid, iodine, methamphetamine and pseudoephedrine; glassware commonly used for methamphetamine manufacturing; heating mantles; a scale; used cold medication blister packs; pills containing ephedrine; acetone, hydrogen peroxide; red phosphorous; a brown powder (methamphetamine) drying; and detailed instructions on how to manufacture methamphetamine.
Corporal Ohler testified that storage unit C-106, in his opinion, was being used as a methamphetamine lab. Everything necessary for the process was present. According to Ohler, iodine crystals are necessary in the beginning stages of methamphetamine manufacturing. They can be created from tinctures of iodine, using hydrogen peroxide. Ohler further stated that people who sell methamphetamine typically carry from 3.5 grams to an ounce or more of methamphetamine. Criminalist James Vaughn testified that hydrogen peroxide is used in the methamphetamine manufacturing process to reclaim iodine from the methamphetamine solution for future use.
2. Possession of Ephedrine and Pseudoephedrine
McDowell contends, and Welch joins in, that the jury made no finding that McDowell had possession of ephedrine or pseudoephedrine in violation of section 11383, subdivision (c)(1). The verdict form only states that the jury found McDowell guilty of intent to manufacture methamphetamine.
McDowell was charged with violation of section 11383, subdivision (c)(1) (count 3), which states in relevant part the following: “(c)(1) Any person who, with intent to manufacture methamphetamine or any of its analogs specified in subdivision (d) of Section 11055, possesses ephedrine or pseudoephedrine, or any salts, isomers, or salts of isomers of ephedrine or pseudoephedrine, or who possesses a substance containing ephedrine or pseudoephedrine, or any salts, isomers, or salts of isomers of ephedrine or pseudoephedrine, or who possesses at the same time any of the following, or a combination product thereof, is guilty of a felony and shall be punished by imprisonment in the state prison for two, four, or six years: . . .” (§ 11383, subd. (c)(1).)
This is the former version of section 11383, subdivision (c)(1) in effect at the time of the charged offense committed in 2005.
The trial court instructed the jury on the offense of violating section 11383, subdivision (c)(1) as follows: “The defendants Ricky Lee Welch and Laura Maria McDowell are both charged in Count 3 with possessing substances with intent to manufacture methamphetamine. To prove that the defendants are guilty of this crime, The People must prove that: One, the defendants possessed a substance containing ephedrine or pseudoephedrine; and two, when the defendants possessed these substances, they intended to use them to manufacture methamphetamine.”
McDowell complains that the first amended information failed to allege that she had possession of ephedrine or pseudoephedrine, with intent to manufacture methamphetamine or any of its analogs listed in section 11055, subdivision (d). Count 3 of the first amended information merely states that McDowell violated section 11383, subdivision (c)(1) by intending to manufacture methamphetamine or its analogs. It is further alleged that defendants unlawfully possessed methamphetamine with intent to manufacture it or its analogs.
Although McDowell does not challenge the first amended information because it correctly cites section 11383, subdivision (c)(1), McDowell argues the amended information led to a flawed verdict. McDowell acknowledges the court properly instructed the jury on the elements of the crime, but complains that the verdict forms submitted to the jury, as with the amended information, incorrectly describe the charged offense as “INTENT TO MANUFACTURE METHAMPHETAMINE OR ITS ANALOGS, in violation of Health & Safety Code Section 11383(c),” which is not a crime. McDowell argues that it cannot be inferred from the verdict forms that the jury made the necessary finding of possession of ephedrine or pseudoephedrine.
McDowell also complains the verdict did not specify that she violated subsection (1), as opposed to subsection (2), of section 11383, subdivision (c). Subsection (2) requires a finding of possession of hydriodic acid or a reducing agent or any product containing hydriodic acid or a reducing agent, whereas subsection (1) requires possession of ephedrine or pseudoephedrine, or other related substances.
We reject McDowell’s contentions challenging her conviction for violating section 11383, subdivision (c)(1). The trial court properly instructed the jury on the offense. Even though the verdict form does not state the jury found McDowell possessed ephedrine or pseudoephedrine, the court instructed the jury it must make such a finding in order to find McDowell guilty of the offense. It thus is presumed the jury properly followed the court’s instructions.
McDowell argues that because the verdict form did not say it pertained to count 3, the jury would not necessarily have known that the jury instructions stating the elements of a section 11383, subdivision (c)(1) offense related to the offense stated in the verdict form. Since the verdict form contained language that the crime involved the manufacture of methamphetamine in violation of section 11383, subdivision (c), it was sufficiently clear that the jury instruction stating the elements of the section 11383, subdivision (c)(1) crime referred to the verdict form signed by the jury.
It is presumed the jury properly followed the court’s instructions. (People v. Sanchez (2001) 26 Cal.4th 834, 852; People v. Bonin (1988) 46 Cal.3d 659, 699, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1; People v. Billings (1981) 124 Cal.App.3d 422, 428, disapproved on other grounds in People v. Karis (1988) 46 Cal.3d 612, 642, fn. 22.) This court must “assume that the jurors are intelligent beings and capable of understanding and correlating all instructions which are given to them.” (People v. Billings, supra, at pp. 427-428.)
The verdict form should have included a full description of the count 3 crime. Nevertheless, since the jury was properly instructed on the offense, we must assume the jury understood that in order to convict McDowell of violating section 11383, subdivision (c)(1), it was required to find that defendants possessed a substance containing ephedrine or pseudoephedrine.
We further note that, because defendants did not object to the verdict form, defendants forfeited the objection on appeal. (People v. Dennis (1998) 17 Cal.4th 468, 514; People v. Rodrigues (1994) 8 Cal.4th 1060, 1189; People v. Jones (2003) 29 Cal.4th 1229, 1259; People v. Bolin (1998) 18 Cal.4th 297, 331.)
3. Sufficiency of Evidence of Possession of Ephedrine and Pseudoephedrine
McDowell challenges her count 3 conviction on the ground there was insufficient evidence she was in possession of ephedrine or pseudoephedrine.
Although Welch joins in this argument, it is meritless as to Welch because he concedes in his appellant’s opening brief that he possessed pseudo ephedrine or ephedrine.
In addressing a challenge to the sufficiency of the evidence, the court must review the entire record in the light most favorable to the judgment and determine whether it discloses substantial evidence, i.e., evidence that is reasonable, credible, and of solid value, to support the jury’s guilty verdict. (People v. Maury (2003) 30 Cal.4th 342, 396.) “The same standard of review applies to cases in which the prosecution relies mainly on circumstantial evidence [citation], and to special circumstance allegations [citation]. An appellate court must accept logical inferences that the jury might have drawn from the circumstantial evidence.” (Ibid.)
During a search of storage unit C-106, officers found over 100 pills. Sixty-five of the pills were contained in a pill bottle labeled “ECA stacked dietary supplement ephedrine alkaloids.” Sixteen of the pills were Contac pills, one of which was tested and the test results showed it contained ephedrine or pseudoephedrine, a substance necessary for the manufacture of methamphetamine. McDowell was seen handing Welch a bag containing hydrogen peroxide she had just purchased, and entering unit C-106 with Welch. McDowell argues that despite this evidence, there was no evidence she had actual or constructive possession of the ephedrine or pseudoephedrine. McDowell also argues there was no evidence she had possession or control of storage unit C-106, particularly since she had her own separate storage units. There also was no evidence she lived with Welch at the time.
Citing People v. Jenkins (1979) 91 Cal.App.3d 579, 584 (Jenkins), McDowell asserts that her presence at the unit was not enough to show dominion and control over the pills. Due to insufficient evidence, the court in Jenkins, supra, at page 587, reversed the defendant’s convictions for manufacturing phencyclidine (PCP) and for possession of piperdine and cyclohexanone with intent to manufacture PCP (§ 11383, subd. (b)).
In Jenkins,there was evidence the defendant had been in the PCP laboratory. The defendant’s fingerprints were on containers in the laboratory but those containers did not contain chemicals used to manufacture PCP. (Jenkins, supra, 91 Cal.App.3dat p. 582.) The Jenkins court explained that “more than mere presence must be shown in order to prove constructive possession: the People must also show that defendant had dominion and control over the contraband.” (Jenkins, supra, at p. 584.) The court noted there was no evidence as to when the defendant touched the containers; where the items were or what was in them when he touched them; or that the contents of the containers were used in the manufacture of PCP. (Jenkins, supra, at p. 583.)
The Jenkins court defined possession of the contraband as follows: “As far as constructive possession is concerned, it ‘occurs when the accused maintains control or a right to control the contraband; possession may be imputed when the contraband is found in a place which is immediately and exclusively accessible to the accused and subject to his dominion and control, or to the joint dominion and control of the accused and another.’” (Jenkins, supra, 91 Cal.App.3dat p. 583, quoting People v. Newman (1971) 5 Cal.3d 48, 52, overruled on other grounds in People v. Daniels (1975) 14 Cal.3d 857, 862.)
In considering whether an inference could be made that the defendant had dominion and control, the Jenkins court explained that “The inference of dominion and control is easily made when the contraband is discovered in a place over which the defendant has general dominion and control: his residence [citation], his automobile [citation], or his personal effects [citation]. However, when the contraband is located at premises other than those of the defendant, dominion and control may not be inferred solely from the fact of defendant’s presence, even where the evidence shows knowledge of the presence of the drug and of its narcotic character.” (Jenkins, supra, 91 Cal.App.3dat p. 584.)
The instant case is distinguishable from Jenkins. Unlike in Jenkins, there was overwhelming evidence that McDowell was directly involved with Welch in manufacturing methamphetamine in storage unit C-106. In Jenkins, on the other hand, there was no evidence that the defendant was at the PCP laboratory during the manufacture of PCP or was involved in any way in the manufacturing process.
Here, during surveillance, officers observed defendants together entering and leaving the methamphetamine lab, where the ephedrine and pseudoephedrine was found. In addition, McDowell was seen in possession of hydrogen peroxide, an ingredient used to manufacture methamphetamine, which she had just purchased and given to Welch at the storage facility. When officers apprehended defendants at the storage unit, there was substantial evidence that the storage unit had been recently used to manufacture methamphetamine. Also, defendants both smelled like the odor associated with manufacturing methamphetamine and had previously manufactured methamphetamine together.
Even though unit C-106 was not leased in McDowell’s name, the totality of evidence was sufficient to support a finding that McDowell, as well as Welch, was in possession of the ephedrine or pseudoephedrine pills, with the intent to use them to manufacture methamphetamine.
4. Sufficiency of Evidence of Possession of Ephedrine or Pseudoephedrine
Welch contends there was insufficient evidence to convict him of possession of ephedrine or pseudoephedrine with intent to manufacture methamphetamine (§ 11383, subd. (c)(1)). Citing People v. McCall (2004) 32 Cal.4th 175 (McCall) and People v. Herrera (2006) 136 Cal.App.4th 1191 (Herrera), Welch argues the amount of ephedrine or pseudoephedrine found at storage unit C-106 was not enough to manufacture a useable amount of methamphetamine.
During a search of unit C-106, officers found a box of 16 Contac pills, which contained ephedrine, and a pill box containing 65 ephedrine alkaloid pills (exh. 25). There was no evidence that these pills would have provided enough ephedrine or pseudoephedrine to produce a useable amount of methamphetamine.
Neither Herrera nor McCall support Welch’s proposition that in order to convict him of a section 11383, subdivision (c)(1) offense, there must be evidence that he possessed enough ephedrine or pseudoephedrine to produce a useable amount of methamphetamine. Herrera merely states experts said 456 cold pills contained enough pseudoephedrine or ephedrine to manufacture between three-quarters of an ounce and one ounce of methamphetamine.
In McCall, the court held that section 11383, subdivision (f) prohibits not only possession of hydriodic acid with intent to manufacture methamphetamine, but also prohibits possession of hydriodic acid’s essential chemicals, red phosphorus and iodine, “where these two chemicals are found in sufficient quantity to manufacture hydriodic acid and are possessed with intent to manufacture methamphetamine.” (McCall, supra, 32 Cal.4that p. 191.)
Neither Herrera nor McCall holds that a defendant must possess enough ephedrine or pseudoephedrine to manufacture a usable amount of methamphetamine.
Section 11383, subdivision (c)(1) and jury instruction, CALCRIM No. 2337, as read to the jury, also do not state possession of a usable amount is required. Section 11383, subdivision (c)(1) provides in relevant part: “Any person who, with intent to manufacture methamphetamine or any of its analogs . . . possesses ephedrine or pseudoephedrine . . . or who possesses a substance containing ephedrine or pseudoephedrine . . . is guilty of a felony . . . .”
The trial court instructed the jury that in order to find defendants guilty of committing the crime of possessing substances with intent to manufacture methamphetamine, in violation of section 11383, subdivision (c)(1), “The People must prove that: One, the defendants possessed a substance containing ephedrine or pseudoephedrine; and two, when the defendants possessed these substances, they intended to use them to manufacture methamphetamine.” (CALCRIM No. 2337.) Defendants did not object to this instruction or request a pin-point instruction stating that the jury must find Welch possessed enough pseudoephedrine or ephedrine to manufacture a usable amount of methamphetamine.
The “usable-quantity” rule in People v. Leal (1966) 64 Cal.2d 504, relied on by Welch in his appellant’s opening brief, is inapplicable here. The usable-quantity rule prohibits a conviction for possession of contraband when the substance is useless in form or quantity, such as when a defendant possesses a blackened residue or useless trace of an illegal substance. (People v. Rubacalba (1993) 6 Cal.4th 62, 66.)
Although, here, the amount of pseudoephedrine/ephedrine contained in the pills may not have been enough to manufacture a usable amount of methamphetamine, the jury could reasonably conclude that the amount of ephedrine/pseudoephedrine contained in the 81 pills was a usable amount, as opposed to a useless trace amount; there was enough to manufacture methamphetamine, even if more was needed to manufacture a usable amount. The evidence was thus sufficient to find that the ephedrine/pseudoephedrine was in a form or amount usable for manufacturing methamphetamine.
Furthermore, the usable-quantity rule is inapplicable here since it generally applies to simple possession cases, not to cases of possession of precursors with intent to manufacture illegal drugs. And even if the usable-quantity requirement does apply, it would apply to the precursors, not the illegal drug intended to be manufactured, as Welch argues. The issue would be whether there was a usable amount of pseudoephedrine or ephedrine, as opposed to a useless or trace amount; not whether there was enough to create a usable amount of methamphetamine.
We reject Welch’s contention that the People were required to show that the amount of pseudoephedrine or ephedrine in Welch’s possession was sufficient to manufacture a usable amount of methamphetamine. The evidence was thus more than sufficient to support Welch’s conviction for possessing pseudoephedrine or ephedrine with intent to manufacture methamphetamine, particularly since Welch admitted possessing ephedrine/pseudoephedrine.
5. Admissibility of Evidence of McDowell’s Prior Conviction
McDowell contends, and Welch joins in, that the trial court violated her constitutional rights to due process and a fair trial by admitting evidence of McDowell’s 1999 conviction for manufacture of methamphetamine under Evidence Code sections 1101, subdivision (b) and 352.
Before trial, the prosecution moved to admit evidence of Welch’s conviction in 1997 and 1999 for manufacturing methamphetamine, and McDowell’s 1999 convictions for manufacturing methamphetamine. The prosecution argued the evidence would be used to show defendants’ intent, knowledge, and common plan or scheme. Defendants objected on the ground the convictions were more prejudicial than probative. The trial court ruled the evidence was admissible.
McDowell thereafter stipulated to the facts of her prior arrest and conviction, but objected to admission of any evidence of the facts underlying her 1999 conviction because such evidence was unnecessary and unduly prejudicial. The trial court disagreed, finding the underlying facts relevant to issues of knowledge and intent, and thus allowed such evidence.
Defendants repeated their objections to the evidence before it was introduced at trial, and the trial court reiterated its previous ruling.
A. Evidence of McDowell’s Prior Offense
At trial, Officer Rodgers testified to the underlying facts of defendants’ 1999 convictions. Rodgers stated he went to defendants’ home and discovered a methamphetamine lab in their garage. When Rodgers asked McDowell what Welch and another individual were doing at her home, McDowell falsely told Rodgers that she had hired Welch and the other individual as day laborers to do concrete work. Later, McDowell admitted Welch was her boyfriend. Rodgers also testified that when he initially asked McDowell if she knew Welch was on probation for manufacturing methamphetamine, she said she had no idea, but later admitted she knew he was.
Upon searching the home and garage, Rodgers discovered evidence indicating defendants were living together in the home and Welch’s 13-year-old daughter was also living there. Rodgers found 11 guns, including a loaded gun in the master bedroom. Welch told Rodgers the items in the garage were used for manufacturing methamphetamine and admitted handling the items. McDowell also admitted she had handled some of the glassware in the garage.
Rodgers testified in detail to the items found in defendants’ house and garage. Rodgers said that instructions on how to manufacture methamphetamine were found in a desk drawer in defendants’ living room. Rodgers also explained how the items in the garage were used to manufacture methamphetamine.
Criminalist Paul Mirra testified that the items found in the garage revealed that defendants were processing ephedrine and pseudoephedrine, precursors to methamphetamine, when Rodgers discovered the lab.
At the end of the trial, the court admonished the jury that the evidence of defendants’ prior convictions could be considered only on the limited issues of knowledge and intent; and the evidence could not be used to conclude that defendants had bad characters or were disposed to commit the charged crimes. The court also instructed the jury that the prior conviction evidence was not by itself sufficient to prove defendants were guilty of the charged offenses. The evidence could be considered only as one factor among the rest of the evidence.
B. Applicable Law
Under Evidence Code section 1101, subdivision (b), “[n]othing 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 . . . intent, . . . plan, knowledge, identity, absence of mistake or accident . . .) other than his or her disposition to commit such an act.” Evidence of prior crimes is so inherently prejudicial, however, “‘that its admission requires extremely careful analysis. [Citations.]’” (People v. Ewoldt (1994) 7 Cal.4th 380, 404 (Ewoldt).) “In ruling upon the admissibility of evidence of uncharged acts, therefore, it is imperative that the trial court determine specifically what the proffered evidence is offered to prove, so that the probative value of the evidence can be evaluated for that purpose.” (Id. at p. 406.) This requires the trial court to weigh the probative value and prejudicial nature of the evidence under Evidence Code section 352.
The standard of review of a trial court’s decision to admit or reject evidence under Evidence Code section 352 is abuse of discretion. Reversal is not required unless the defendant can show the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Cain (1995) 10 Cal.4th 1, 33; People v. Jones (1998) 17 Cal.4th 279, 304.)
C. Discussion
Here, the trial court weighed the probative value of the evidence against its prejudicial nature. In doing so, the court concluded that, even though McDowell stipulated to her 1999 conviction, the probative nature of evidence of the underlying facts of the conviction outweighed any prejudicial impact since the evidence was relevant to show McDowell’s intent to commit the charged offense, and knowledge of the methamphetamine lab and presence of ephedrine or pseudoephedrine in unit C-106.
In order to show knowledge and intent a low degree of similarity between the prior uncharged act and the current offense is needed. (People v. Lenart (2004) 32 Cal.4th 1107, 1123; Ewoldt, supra, 7 Cal.4th at p. 402.) The uncharged offense need only be sufficiently similar to support the inference that the defendant probably harbored the same intent in each instance. (People v. Robbins (1988) 45 Cal.3d 867, 879; Ewoldt, supra, at p. 402; People v. Lewis (2001) 25 Cal.4th 610, 637.) The prior offense need not be so similar as to be a virtual fingerprint. (Ewoldt, supra, at pp. 402-403.) This is because “[w]e have long recognized ‘that if a person acts similarly in similar situations, he probably harbors the same intent in each instance’ [citations], and that such prior conduct may be relevant circumstantial evidence of the actor’s most recent intent. The inference to be drawn is not that the actor is disposed to commit such acts; instead, the inference to be drawn is that, in light of the first event, the actor, at the time of the second event, must had [sic] the intent attributed to him by the prosecution. [Citations.]” (People v. Robbins, supra, at p. 879.)
Here, the trial court’s ruling was not an abuse of discretion. The underlying facts of the 1999 convictions were similar to those of the charged offense. In both the charged and uncharged crimes, McDowell was involved with Welch in manufacturing methamphetamine, at methamphetamine labs similar in nature. The evidence thus established that McDowell did not unwittingly purchase and deliver hydrogen peroxide to Welch, unaware that unit C-106 contained an active methamphetamine lab. The stipulation of defendants’ 1999 convictions, in the absence of evidence of the underlying facts of the offense, would not have revealed that McDowell had knowledge of the methamphetamine manufacturing process.
The evidence of McDowell’s involvement in manufacturing methamphetamine at her home in 1999, in a lab similar to the storage unit lab was highly probative in establishing her involvement in the lab at unit C-106 and her imputed possession of the chemicals contained in the lab, including ephedrine and/or pseudoephedrine.
Moreover, contrary to McDowell’s contentions, the evidence did not create a substantial danger of undue prejudice, confusing the issues, or misleading the jury. (Evid. Code, § 352.) The evidence did not tend to evoke an emotional bias against McDowell. The prior act and current act were sufficiently similar that neither would evoke a stronger emotional bias against McDowell than the other.
Also, any possible emotional bias evoked by evidence that Welch’s daughter lived with defendants in 1999, and that guns were found in defendants’ home, is not significant as weighed against the highly probative evidence of defendants manufacturing methamphetamine in 1999. Given the facts in this case, we find no abuse of discretion in the trial court’s decision to admit evidence of the facts underlying defendants’ 1999 convictions.
Furthermore, the trial court limited any prejudicial impact of the uncharged-crimes evidence by instructing the jury that the evidence of defendants’ prior convictions could be considered only on the limited issues of knowledge and intent; that the evidence could not be used to find defendants had bad characters or were disposed to commit the charged crimes; and that the prior conviction evidence was not by itself sufficient to prove defendants were guilty of the charged offenses. (CALCRIM Nos. 303 and 375.)
6. Imposition of the Upper Term
Welch contends the court erred in imposing an upper term sentence on count 3 based on facts not found by the jury.
In sentencing Welch to the upper term, the court stated it found the following aggravating factors present: “[H]e really does have an extensive – he’s had the same activity at least two and perhaps three prior convictions for the exact same conduct, and I . . . think punishment is to protect society because his activity is potentially dangerous.” The court added that “[f]actors relating to the defendant is his prior convictions as an adult are numerous and increase in seriousness”; “the defendant served a prior prison term”; and “defendant’s prior performance on probation is unsatisfactory.” The court also found that the crime was sophisticated and involved planning. The court did not find any mitigating factors.
Defendants have a constitutional right to have the jury, not the trial judge, decide all facts increasing the penalty for a crime beyond the prescribed statutory maximum. (Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi); Blakely v. Washington (2004) 542 U.S. 296, 301 (Blakely); Cunningham, supra, 127 S.Ct. at p. 871.) For purposes of the right to a jury trial, the statutory maximum is “the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” (Blakely, supra, at p. 303, italics omitted.) If a judge imposes a sentence based on facts not encompassed in the guilty verdict, “such judicial fact finding violates a defendant’s jury trial right.” (Cunningham, supra, at pp. 865, 868-869.) An exception to the Apprendi rule allows a sentencing court to enhance punishment beyond the statutory maximum based on the “fact of a prior conviction.” (Apprendi, supra, at p. 490.) The prior conviction exception extends to other related recidivist matters that may be determined by examining the records of the prior convictions and includes the fact the defendant’s prior convictions were numerous or increasingly serious. (People v. Black (2007) 41 Cal.4th 799, 818 (Black II).)
In Cunningham, the United States Supreme Court held California’s sentencing scheme violates a defendant’s right to jury trial because it authorizes the judge to impose the upper term by relying on aggravating facts not found true by a jury or admitted by the defendant. (Cunningham, supra, 127 S.Ct. at p. 871.) In Black II, supra, 41 Cal.4th at page 813, the California Supreme Court concluded that under California’s determinate sentencing system, “the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term.”
Accordingly, the “imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (Black II, supra, 41 Cal.4th at p. 816.) Once the defendant is eligible for the upper term based on a constitutionally established fact, “the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term . . . regardless of whether the facts underlying those circumstances have been found true by a jury.” (Id. at p. 813.) Thus, any additional fact finding by the trial court in selecting the appropriate sentence does not violate the defendant’s right to jury trial. (Id. at p. 812.)
Here, the trial court sentenced Welch to the upper term based on recidivism factors, including the increasing seriousness of his convictions, a factor specifically recognized in Black II as a constitutionally valid factor making a defendant eligible for an upper term sentence. (Black II, supra, 41 Cal.4th at pp. 818-819.) We are bound by the California Supreme Court’s decision. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) There thus was no constitutional violation in imposing the upper term on Welch’s conviction for possession of pseudoephedrine or ephedrine with intent to manufacture methamphetamine (count 3).
7. Disposition
Defendants’ judgments are affirmed.
We concur: McKinster Acting P. J, King J.