Opinion
G031511.
11-12-2003
THE PEOPLE, Plaintiff and Respondent, v. CARLOS SANCHEZ MEJIA, Defendant and Appellant.
Maureen J. Shanahan, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Anthony Da Silva and David Delgado-Rucci, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant Carlos Sanchez Mejia of possession for sale of cocaine base (Health & Saf. Code, § 11351.5) and of possession of a deadly weapon (Pen. Code, § 12020, subd. (a)(1)). Defendant contends the trial court erred in admitting evidence of a prior incident when he was apprehended for and admitted to selling cocaine. We reject defendants contention that the admission of this evidence violates Evidence Code sections 1101, subdivision (a) and 352, and therefore affirm the judgment. (All further statutory references are to the Evidence Code.)
FACTS
Defendant was apprehended after a private security guard observed him seated in an automobile while attempting to package a piece of "rock." The guard recovered a plastic film canister containing baggies, pieces of cellophane, and more "rock." Defendant also admitted the contents of a black container were drugs. After police officers took defendant into custody, they recovered a total of 9 grams of cocaine base; one of the officers testified that cocaine with a street value of $20 typically contains two tenths of a gram.
A narcotics investigator was permitted to testify to an incident that took place some three years earlier. On that occasion he had videotaped defendant while the latter engaged in a drug sale; defendant subsequently admitted having sold $20 worth of cocaine and had stated that he earned $200 per day selling cocaine.
Before the trial began, there was an in-chambers conference between the judge and the lawyers wherein they discussed the admission of prior acts evidence. Thereafter, on the record, the court summarized what had transpired and recited that the district attorney had sought to have evidence of a number of transactions involving defendant admitted under section 1101, subdivision (b). The court stated it had evaluated the matter and had ruled that the admission should be limited to the single prior incident we described earlier. The court expressed the opinion this evidence was relevant to the elements of knowledge and intent to sell. The court recited that defendants lawyer "indicates this case is primarily a trial over the possession with intent to sell as opposed to simple possession," but noted that counsel had been unwilling to stipulate that defendant knew the nature of the substance in his possession, although counsel had stated that he did not consider this issue to be a "linchpin" of the defense. Neither lawyer contradicted the courts summary of the in-chambers discussion.
Defendants lawyer stated he had objected to the introduction of the evidence based both on section 352 and as improper character evidence under section 1101, subdivision (a). The context of the on-the-record discussion shows that counsel had been told during the preceding in-chambers discussion that his objections would be overruled with respect to the incident we described. Counsel then asked that the court limit the evidence further by not admitting the portion of the evidence wherein defendant stated he earned $200 per day from the sale of cocaine. After further discussions, the court confirmed that it overruled the defenses objections.
When the evidence was subsequently introduced, the court told the jury it could only consider it on issues of knowledge and intent to sell. At the conclusion of the trial the court instructed the jurors in the language of CALJIC No. 2.50 that they could only consider the evidence of the earlier crime if it tended to show intent or knowledge and, in the language of CALJIC No. 2.09 that they should only consider evidence admitted for limited purposes for the purposes for which it was admitted.
DISCUSSION
Defendant Did Not Waive His Objection
The Attorney General bases his sparse reply brief primarily on an argument that defendant waived the objection to the admission of this evidence. This argument is grounded on a careless reading of the record. Without a record reference the respondents brief states: "Appellants counsel acknowledged that this type of evidence could be introduced under . . . section 1101, subdivision (b). However, trial counsel argued that under . . . section 352, the evidence should be limited only to testimony that, on that prior occasion, appellant sold $20 worth of cocaine . . . ." As we noted earlier, defendants lawyer recited that he had objected to the evidence, basing his objections on both sections 352 and 1101, subdivision (a) as improper character evidence. We suggest the deputy attorney general who wrote the brief examine the fifth and sixth pages of the reporters transcript. On page five defense counsel recites his objection and on the next page the court explicitly notes that it overruled the objection. It is obvious that defense counsels attempt to further limit the evidence came after counsel knew his objection would be overruled; this does not constitute a waiver.
The Evidence Was Properly Admitted
Defendant bases his objection to the admission of the earlier evidence on three grounds: (1) It constituted improper character evidence to be excluded under section 1101, subdivision (a); (2) the prior incident lacked substantial similarity with the charged crime; and (3) the evidence should have been excluded under section 352.
Defendant recognizes that, although section 1101, subdivision (a) precludes admission of evidence of prior conduct as tending to show that a person had the disposition to commit the charged offense, subdivision (b) creates an exception where such evidence is relevant on some other issue. But he argues the exception does not apply. We disagree.
The court instructed the jury the evidence could only be considered for a limited purpose; whether it tended to show intent and knowledge. Section 1101, subdivision (b) allows evidence of prior misconduct when it is relevant to establish material facts other than a persons bad character or criminal disposition. (People v. Ewoldt (1994) 7 Cal.4th 380, 393.) It expressly applies to cases where a persons intent or knowledge are at issue. Defendants prior statement amounting to an admission that he made money selling drugs, coupled with other evidence, such as the quantity of contraband in his possession, tended to show that he knew both the nature of the substance in his possession and did not hold the cocaine base solely for personal use.
Relying on People v. Ewoldt, supra, 7 Cal.4th at p. 402, defendant next points out that, before evidence of prior acts may be admitted under the exceptions contained in section 1101, subdivision (b), a "degree of similarity between the prior bad act and the present conduct is required." He argues that such similarity is missing because the charged offense involved cocaine base while the record is silent whether the prior incident involved cocaine base or cocaine powder. We fail to see the relevance of the distinction insofar as it pertains to the issue of defendants intent to sell; the evidence tended to show that defendant intended to sell illegal narcotics. Whether or not he had changed his merchandise since the prior incident from cocaine powder to cocaine base does not bear on his intent to sell.
Assuming the substance in the prior transaction was in fact cocaine powder, the evidence would have less of a tendency to prove defendants knowledge of the nature of the contraband. But defense counsel acknowledged that fact was not a significant part of his defense strategy. Thus, if there were error in admitting the evidence on the knowledge issue, the error would be harmless. It is not reasonably probable the jury would have concluded defendant did not know the nature of the substance he was currently selling. It is extremely unlikely that he would have obtained a more favorable verdict had the court limited the evidence of the prior incident solely to the issue of intent. (See People v. Watson (1956) 46 Cal.2d 818, 836.)
Section 352 permits the court, in its discretion, to exclude relevant evidence if it "create[s] substantial danger of undue prejudice." Defendant argues it was an abuse of discretion not to exclude evidence of the prior incident on this ground. Again, we disagree. We apply the deferential abuse of discretion standard when reviewing a trial courts ruling under section 352. (People v. Cudjo (1993) 6 Cal.4th 585, 609.) On appeal, "`[a] trial courts exercise of discretion will not be disturbed unless it appears that the resulting injury is sufficiently grave to manifest a miscarriage of justice. [Citation.] In other words, discretion is abused only if the court exceeds the bounds of reason, all of the circumstances being considered. [Citation.] [Citation.]" (People v. Green (1995) 34 Cal.App.4th 165, 182-183.) Applying this standard we cannot conclude that the trial court abused its discretion under section 352.
DISPOSITION
The judgment is affirmed.
WE CONCUR: MOORE, J. and FYBEL, J.