Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. SC060851
Haerle, P.J.
I. INTRODUCTION
A jury found defendant Dwight Donohue Morrell guilty of grand theft (count 1; Pen. Code, § 487, subd. (a)) and petty theft with priors (priors undisclosed to the jury) (count 2; Pen. Code, § 666), and the court, in bifurcated proceedings on three enhancing prison priors (Pen. Code, § 667.5), found all three to be true. At sentencing, count 2 was dismissed on the People’s motion, and the court imposed a total prison term of five years. Morrell appeals, claiming trial error in the admission of a statement he made, shortly after the thefts, about having recently smoked crack cocaine. We find no error and affirm.
II. FACTUAL AND PROCEDURAL BACKGROUND
Both counts concern a theft of tools from Robert Oller in the parking lot of a Motel 6 in South San Francisco on the morning of March 13, 2006. Oller, a carpenter for a construction company, had stopped his open-bed pickup truck in the lot and, as he sat in the cab doing a work drawing on a clipboard, felt a bump and the truck move side to side. Looking around, he only saw construction workers doing window work on the building and, passing it off as someone sliding by his truck, resumed drawing. About 15 minutes later, he felt and heard a big bang, like something hitting the tailgate.
Over his shoulder, Oller saw a man he did not know (Morrell) toting away a 50-plus-pound yellow and black toolbox that had been in his truck bed. The toolbox held over $1,300 in tools. Morrell carried it with both hands and passed between two vehicles. Oller got out and caught up with him beyond a Cadillac, where Morrell was opening the side door of a van. “What the fuck are you doing with my tools?” Oller demanded. Morrell was big-eyed with surprise, as if he had not known Oller was in the truck. He said he was taking them “to the front counter.” Still, he kept loading them into the van. Oller pointed this out, again claimed ownership and asked him what he was doing with the tools. A “back and forth” ensued in which Morrell said he was “doing favors for someone”—one of the ladies who ran the motel—and “would take them to the front counter,” but “a lot of it didn’t make sense.” As Morrell stepped back from the van, Oller retrieved his toolbox and lifted it back into his truck, over the tailgate. He got into the cab, started the engine and put it in gear, but then thought to check the rest of his tools. He got out, checked and realized that a brand new screw gun set in a black case (worth $275 to $280) was missing.
Oller immediately returned to the van, confronted Morrell again and asked where his screw gun set was. Morrell claimed to have no idea what Oller was talking about, and a heated exchange ensued. Oller demanded his screw gun back, and Morrell at one point called up to a woman up in the second-floor window of room 202 (where he had stayed the past couple of weeks), and asked her, but both acted ignorant of what a “screw gun” was. When the woman said somebody else had taken “the case,” Oller was confirmed in his suspicions and demanded that Morrell open the van. Morrell kept stalling until Oller proposed that they have the police come and open it. Morrell then opened the van, and Oller saw inside what looked like a “very large treasure chest.” Morrell told him to open it, but Oller, nervous about exposing his “blind sides,” demanded that Morrell do it. Morrell did, and Oller saw his screw gun set inside. Oller grabbed the set and threw it into his truck. As a verbal “back and forth” continued, Morrell grew “very vulgar,” saying “racial” things, calling Oller names, and saying Oller was “keeping him down,” “the reason the problem was there,” and generally “the bad guy in the situation.” Oller told Morrell he deserved to be in jail, and Morrell dared him to call the police, “because if the police came [Oller] would be the one to go to jail.” Morrell also said “that he didn’t need the cops to come, because he had dope in the room. His words.”
Oller decided to call the police. He went to the front desk in the motel lobby, where either desk clerk Viktor Ivanov or a woman at the desk dialed for him and handed him the phone to speak with a police dispatcher. Morrell had followed Oller into the lobby but, as soon as Oller had the phone in his hand, walked out. Oller told dispatch what happened, hung up and, while waiting for police, saw that Morrell had reentered the lobby, his clothes now changed to “nicer attire” than the “pajama wear” he had worn in the parking lot. Oller spoke with responding Officer Bryan Travis of the South San Francisco Police Department.
Travis testified that Morrell was agitated and told him that he passed a truck on the way back from his car that morning and, seeing a toolbox and screw gun in the back, took the equipment, “planning on giving it back to the front office or turning it in for brownie points.” Asked if he had checked the truck to see if anyone was in it, Morrell “couldn’t give . . . a straight answer,” “rambling on” and not directly answering, but eventually said “he didn’t see Mr. Oller sitting in there.” Morrell said he put the tools in his van and, when asked why, said he was going to drive them to the lobby because a walkway was muddy. Travis found the grass on that walkway saturated from overnight rain but not “muddy to a point where you can’t walk on it, because I walked on it . . . .”
Over a defense objection that forms the basis for this appeal, Travis testified that Morrell “said he had smoked crack cocaine in San Francisco about 12 hours earlier.” Nevertheless, and while Morrell was talking a lot, he “was making sense,” did not show signs of having ingested crack cocaine and, in the officer’s experience, was not under the influence of any narcotic.
Morrell invited Travis to go to the lobby to corroborate his story, and Travis did. He spoke with the desk clerk, Ivanov, who said he was not aware of Morrell having ever turned in property. Ivanov confirmed this in testimony, saying that he was working five days a week, had property turned in daily, but never had any turned in by Morrell, and that things of value were generally kept at the front desk where he worked.
Morrell consented to a search of his room, and Travis (accompanied by a second officer) was admitted by a woman identifying herself as Mrs. McGraw, Morrell’s wife. From the window in the room, Travis could see the bed of the pickup truck. He found no narcotics or stolen goods in the room. He arrested Morrell, and Oller showed Travis the truck and tools.
Morrell did not testify or present witnesses. His counsel argued to the jury that Morrell did in fact intend to turn the tools in at the lobby.
III. DISCUSSION
The defense objected to the cocaine-use testimony from Officer Travis. This and discussion between court and counsel initially occurred in an unreported conference just before the officer testified. This brief further exchange occurred when Travis was asked if Morrell spoke of taking any narcotics: “[Defense counsel]: I’m going to object. Relevance grounds and Evidence Code section 352. [¶] The Court: We discussed this in the back hall, and I will overrule the objection, bearing in mind the 352 weighing process.”
All further section references are to the Evidence Code.
The court later elaborated, out of the jury’s presence: “I want to put my 352 reasoning on the record regarding the crack cocaine statement. [¶] The first witness, Mr. Oller, testified that the defendant told him that he couldn’t have the police come—defendant couldn’t have the police come because he had narcotics in his room. I believe that given the evidence of what he told the officer, if that evidence is believed, to wit: That he smoked crack cocaine in San Francisco 12 hours earlier, a reasonable jury could put those two facts together and conclude, with the other evidence in the case, that the defendant was trying desperately to keep the police away, even to the point of claiming he had drugs in his room, due to a consciousness of guilt and to gain the victim’s sympathy, and I believe the probative value of that outweighs any possible prejudicial effect, since the record already shows that the defendant told the victim that he had drugs in his room, which is obviously a damning statement, and so that was my reasoning.”
Morrell claims error, both in the section 352 ruling, as articulated on the record, and because his drug use was an uncharged crime that was used as propensity evidence in violation of section 1101. We find the latter ground forfeited on appeal by failure to raise it below. (People v. Partida (2005) 37 Cal.4th 428, 431.) Morrell’s contrary argument is based on the fact that a section 1101 inquiry includes a section 352 weighing and that the court here understood his objection as being based on section 352. This, however, is not enough. The record suggests the court knew it was being asked to weigh the probative value of the claimed drug use, an uncharged offense, against undue prejudice, and we accept that such a weighing is implicit in a section 1101 analysis (People v. Ewoldt (1994) 7 Cal.4th 380, 404). However, that weighing under section 1101 comes only if the court first finds that the uncharged act bears such similarities that it may be admitted, not to show criminal propensity, but to show some specific fact in the charged offense like motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. (People v. Gray (2005) 37 Cal.4th 168, 202.) No such analysis was undertaken here; nor did the prosecutor or court justify admission based on a theory that, if Morrell smoked crack earlier that day, he must have had a theft intent, or perhaps lack of mistake, in taking tools from Oller’s truck. Rather, the claimed drug use was offered, analyzed, and ultimately used in jury argument as it allowed an inference of guilt consciousness. If the court had truly been alerted to and satisfied by a threshold analysis under section 1101, it certainly would have given jury instructions on the proper use of such evidence (CALJIC No. 2.50.1; CALCRIM No. 375). No such instruction was given, proposed or discussed, as far as the record reveals. The section 1101 issue is forfeited, and we confine ourselves to the section 352 ruling.
“When an objection to evidence is raised under Evidence Code section 352, the trial court is required to weigh the evidence’s probative value against the dangers of prejudice, confusion, and undue time consumption. Unless these dangers ‘substantially outweigh’ probative value, the objection must be overruled. [Citation.]” (People v. Cudjo (1993) 6 Cal.4th 585, 609.) A trial court exercises broad discretion is assessing whether probative value outweighs the potential for prejudice, and an appellate court will not find an abuse of discretion “except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner. [Citation.]” (People v. Coddington (2000) 23 Cal.4th 529, 619.) The possibility that a different judge might have ruled differently merely shows room for a reasonable difference of opinion, not an abuse of discretion. (People v. Clair (1992) 2 Cal.4th 629, 655.)
Jurors were instructed in pertinent part, from CALCRIM No. 362: “If defendant made a false or misleading statement relating to the charged crime and/or lesser included offense, knowing the statement was false or intending to mislead, that conduct may show he was aware of his guilt of the crime and you may consider it in determining his guilt.” Such an instruction, of course, does not ask the jury to consider such a statement for its truth but, rather, for whether it was meant to mislead and, hence, to draw attention away from guilt. (People v. Edwards (1992) 8 Cal.App.4th 1092, 1102-1103.)
The jurors had myriad false and misleading statements, unchallenged by Morrell, from which to conclude that he meant his statements, individually and collectively, to divert attention from his guilt, and his statement to the officer about having used crack cocaine 12 hours earlier could reasonably be seen as part of that effort. He had said he was just returning lost property, earning brownie points or doing favors for some woman at the hotel, but this was belied by his failure to first check the truck cab for an owner, and by his arguing with the owner, who confronted him, rather than just handing over the “lost” property. Then he solicited a lie from the woman at the window in his room, a story of someone else taking a case when, in fact, the case was in a chest in his van. Jurors could find that Morrell then changed tactics and tried to avoid police involvement by spewing a vulgar and false diatribe of “racial” complaints, insisting that if police were called, they would jail Oller. He dared Oller to call the police but, when Oller did, left the lobby. His statement to Oller about having “dope” in his room, jurors could infer, was an effort to change tactics yet again and appeal to Oller’s sympathy, and the claim to Officer Travis that he had smoked crack cocaine 12 hours earlier could be seen as yet another appeal to sympathy. Jurors could tie this behavior to Morrell having “consented” to his room being searched by police only after he had returned to the room to change clothes and ensure that any incriminating evidence would not be found.
Morrell urges that his cocaine use was irrelevant because, in the words of the instruction, it was not a misleading statement “relating to the charged crime.” But jurors, unless they wrote it off as pure rambling (against testimony that Morrell was not under the influence), could reasonably find that it was part of a slew of misleading statements designed to obfuscate. This connection to the charged offense also removed the statement from the realm of impeachment on a “collateral matter.” (People v. Lang (1989) 49 Cal.3d 991, 1017.) Morrell’s various statements were inconsistent, but this was important for the jury to assess, having heard Oller testify that Morrell was “stalling” and that a lot of what he said “didn’t make sense.” The jury also heard Travis testify that Morrell was “rambling on” and not giving him “a straight answer.”
As for risks of undue prejudice, the statement took minimal time to relate and, since it was implicitly not admitted for the truth of the matter, but to show obfuscation, would not seem to confuse the issues. There was some risk that learning of crack cocaine use might evoke an emotional bias of the sort section 352 is designed to guard against (People v. Hart (1999) 20 Cal.4th 546, 616; People v. Karis (1988) 46 Cal.3d 612, 638), but the court considered this and reasonably rejected it given that “damning” testimony, already in evidence without objection, showed that Morrell had also said he had drugs in his room. Moreover, as already noted, the statement was used, not for the truth of the matter, but to show that Morrell was trying to mislead the officer.
No abuse of discretion appears in the court’s determination that Morrell’s cocaine-use statement had probative value that was not substantially outweighed by the risk of undue prejudice. Morrell’s claim that admission of the statement also denied him federal due process is preserved to the extent that he bases it on the same section 352 analysis (People v. Partida, supra, 37 Cal.4th at pp. 436-437), but nothing in that analysis reveals that the trial was rendered fundamentally unfair (id. at p. 439).
IV. DISPOSITION
The judgment is affirmed.
We concur: Lambden, J., Richman, J.