Opinion
C080832
03-27-2017
THE PEOPLE, Plaintiff and Respondent, v. JUAN RODRIGUEZ, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CRF153640)
A jury found defendant Juan Rodriguez guilty of bringing a controlled substance into a jail. On appeal, defendant contends his due process rights were violated because: (1) the trial court abused its discretion by allowing admission of a clause in a stipulation regarding his prior uncharged conduct; (2) the prosecutor committed prosecutorial misconduct by introducing evidence beyond the scope of a stipulation; and (3) the cumulative effect of these errors resulted in prejudice. Finding no merit in these contentions, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On June 26, 2015, Yolo County Deputy Sheriff Andrew Livermore pulled over defendant for not having a license plate light. Deputy Livermore searched defendant's vehicle and found a folding knife attached by a clip to the vehicle's visor. Deputy Livermore arrested defendant and transported him to jail. During the intake search, a correctional officer found two baggies containing methamphetamine located in small zippered pockets on the outside of defendant's shoes. Defendant was charged with knowingly bringing a controlled substance into a jail.
The prosecutor moved in limine to admit evidence of defendant's prior crimes involving methamphetamine to establish knowledge, common design or plan, and absence of mistake or accident. Rather than admit evidence of defendant's prior crimes, both parties agreed to a stipulation (stipulation No. 1) which stated "that the defendant . . . knew the nature and character of methamphetamine, and, that he carried methamphetamine in his sock on prior occasions." Defense counsel objected to the portion of stipulation No. 1 stating defendant previously carried methamphetamine in his sock on the basis of Evidence Code sections 352 and 1101, subdivision (a) and defendant's right to due process and a fair trial. Nonetheless, he agreed to stipulate in spite of his objections in order to exclude evidence of defendant's prior crimes.
The prosecutor also moved in limine to admit defendant's postrelease community supervision status. The prosecutor argued this was relevant to explain to the jury why defendant was searched and arrested for what would otherwise be a minor traffic violation. The trial court did not allow evidence of defendant's status; however, the parties agreed to stipulate (stipulation No. 2) that the trial court instruct the jury "that the defendant . . . was legally pulled over, legally searched, and legally arrested." The jury was further instructed "not to speculate about these facts in any way."
In the prosecutor's opening statement, she stated, "[y]ou're going to hear that [Deputy Livermore] legally searched the vehicle. And that after his search of the vehicle, he found a knife, for which he legally arrested the defendant . . . ." Outside the presence of the jury, defense counsel informed the trial court that he was unaware the prosecutor would go into detail about the circumstances surrounding defendant's arrest. He feared the prosecutor misstated the location of the knife and this would lead the jury to speculate. The trial court agreed that the knife did not have to be mentioned and stated it would be fair for the prosecutor to elicit additional testimony to clarify the location of the knife, to which defense counsel replied, "[y]es, that's all I'm asking."
The jury found defendant guilty of bringing a controlled substance into a jail. This timely appeal followed.
DISCUSSION
I
The Trial Court Did Not Abuse Its Discretion By
Admitting Stipulation No. 1 In Its Entirety
Defendant contends the second clause of stipulation No. 1, relating to his carrying methamphetamine in his sock on prior occasions, violated Evidence Code sections 1101 and 352, rendering his trial fundamentally unfair. As a result, defendant claims the trial court abused its discretion by allowing admission of this clause. We disagree.
Evidence Code section 1101 prohibits evidence of specific instances of conduct when offered to prove conduct on a specified occasion; however, it does not prohibit such evidence when relevant to prove some other fact, such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. The admissibility of evidence of uncharged conduct under Evidence Code section 1101 "depends on three principal factors: (1) the materiality of the fact sought to be proved or disproved; (2) the tendency of the uncharged crime to prove or disprove the material fact; and (3) the existence of any rule or policy requiring the exclusion of relevant evidence." (People v. Thompson (1980) 27 Cal.3d 303, 315, italics omitted.) A trial court's ruling under Evidence Code section 1101 is reviewed for abuse of discretion. (People v. Roldan (2005) 35 Cal.4th 646, 705.) To prevail under the abuse of discretion standard, the defendant must 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. Foster (2010) 50 Cal.4th 1301, 1328-1329.)
We cannot conclude the trial court abused its discretion by allowing admission of stipulation No. 1 in its entirety. As to the first and second factors in Thompson, defendant acknowledges that whether he "knowingly brought a controlled substance into the jail is a material fact"; however, he claims the fact that he carried methamphetamine in his sock on prior occasions did not tend to prove that material fact. We disagree. In determining whether evidence of uncharged conduct has a tendency to prove a material fact, "the court must first determine whether or not the uncharged offense serves ' "logically, naturally, and by reasonable inference" ' to establish the fact." (People v. Thompson, supra, 27 Cal.3d at p. 316.) "If the connection between the uncharged offense and the ultimate fact in dispute is not clear, the evidence should be excluded." (Ibid.) Here, there was a clear connection between defendant's uncharged conduct and the fact in dispute. One could reasonably infer that because defendant had carried methamphetamine in his sock on prior occasions, he commonly concealed methamphetamine in his footwear and thus would have known of its physical presence in his shoe at the time he was brought into the jail.
Turning to the third factor in Thompson, defendant argues that Evidence Code section 352 required exclusion of the fact that he carried methamphetamine in his sock on prior occasions. Evidence Code section 352 allows the trial court to "exclude evidence if its probative value is substantially outweighed by the probability that admission will . . . create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." Our Supreme Court has held that "[s]ince 'substantial prejudicial effect [is] inherent in [such] evidence,' uncharged offenses are admissible only if they have substantial probative value." (People v. Thompson, supra, 27 Cal.3d at p. 318.) Here, the evidence at issue possessed substantial probative value. As previously discussed, it had a strong tendency to prove defendant knew he was concealing methamphetamine. Defendant asserts the lack of similarity between hiding methamphetamine in a sock compared to a shoe diminished the probative value of the evidence. Defendant admits that both socks and shoes can be quick and convenient places to conceal controlled substances, but he focuses on the fact that his shoes were unique due to the zippered pockets where a substance would not necessarily be dislodged when taking off the shoe. We find this deviation to be insignificant. The probative value of the evidence at issue did not rest upon whether defendant could dislodge the methamphetamine upon removal of his shoe. It was probative because it could lead a jury to reasonably infer that defendant commonly concealed methamphetamine in his footwear and thus would have known it was concealed in his shoe when he entered the jail. In drawing this inference, it does not matter whether methamphetamine was in defendant's socks or shoes on prior occasions. Thus, any dissimilarity between the circumstances of the present offense and the prior uncharged misconduct is trivial.
Defendant further argues that the probative value was diminished because the second clause in stipulation No. 1 was cumulative to the testimony that methamphetamine was found in his shoes during the intake search. (See People v. Hendrix (2013) 214 Cal.App.4th 216, 244 [if the other crimes evidence is merely cumulative of other evidence, then the probative value of the other crimes evidence is diminished].) We disagree. The fact that methamphetamine was found in defendant's shoes during the intake search demonstrated the physical presence of methamphetamine but did not necessarily demonstrate knowledge of its presence. But when combined with the fact that defendant had carried methamphetamine in his sock on prior occasions, such knowledge becomes more likely. As such, the substantial probative value of the fact that defendant carried methamphetamine in his sock on prior occasions was not diminished because of a lack of similarity to the present offense or because it was cumulative of other evidence.
We next look to the prejudicial effect of the evidence of defendant's uncharged misconduct. Defendant claims that admission of the second clause in stipulation No. 1 made it more likely the jury would find him guilty based on his criminal propensity. Defendant also argues this led to confusion because the jury was not instructed that the stipulation could be used to demonstrate only knowledge and not criminal propensity. We have already discussed the inherent substantial prejudice in evidence of uncharged misconduct. (See People v. Thompson, supra, 27 Cal.3d at p. 318.) Substantial prejudice, however, is not enough to require exclusion under Evidence Code section 352. Rather, the probative value must be substantially outweighed by the probability that admission would "create a substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352, italics added.) Given that the probative value of the fact that defendant carried methamphetamine in his sock on prior occasions was also substantial, we cannot conclude the probative value of the evidence was substantially outweighed by the danger of undue prejudice.
Having found nothing in the record indicating that the trial court acted in an arbitrary, capricious, or patently absurd manner by allowing admission of stipulation No. 1 in its entirety, we conclude defendant's abuse of discretion claim is without merit.
II
Defendant's Claim Of Prosecutorial Misconduct Has Been Forfeited
Defendant claims the prosecutor committed prosecutorial misconduct by telling the jury he was arrested for possession of a knife. According to defendant, this statement was beyond the scope of stipulation No. 2 and violated his right to a fair trial. We need not address the merits of defendant's claim of prosecutorial misconduct because it was forfeited by defense counsel's failure to object and request an admonition.
" '[A] defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion -- and on the same ground -- the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety.' " (People v. Stanley (2006) 39 Cal.4th 913, 952.) Here, defense counsel did not object to the prosecutor's statement regarding the knife on prosecutorial misconduct grounds. He merely notified the trial court that he was unaware the prosecutor would go into detail about the circumstances leading to defendant's arrest and expressed concern that the jury might speculate as to the whereabouts of the knife. Defense counsel also did not request that the jury be admonished to disregard the prosecutor's statement regarding the knife. Instead, his only request was for the prosecutor to elicit further testimony to clarify the location of the knife. Accordingly, defendant has forfeited his right to raise this argument on appeal.
Defendant also asserts the cumulative effect of the alleged errors resulted in a deprivation of his due process rights. (AOB 14; ARB 11-12) The record does not demonstrate that there were any errors or resulting prejudice. Accordingly, defendant's cumulative effect argument is without merit. --------
DISPOSITION
The judgment is affirmed.
/s/_________
Robie, Acting P. J. We concur: /s/_________
Mauro, J. /s/_________
Hoch, J.