Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 07F01646
SCOTLAND, P. J.
A jury convicted defendant Jose A-Lopez Rodriguez of possession of methamphetamine for sale, transportation of methamphetamine, and possession of a firearm by a convicted felon. In a bifurcated proceeding, the trial court found that defendant had a prior serious felony within the meaning of the “three strikes” law, had two prior narcotics-related convictions, and had served two prison terms. He was sentenced to prison for an aggregate term of 12 years and four months.
On appeal, defendant contends the trial court abused its discretion by allowing evidence of defendant’s prior bad acts. He also asks us to review the sealed transcript of the hearing on his motion to disclose a confidential informant’s identity. We shall affirm the judgment.
FACTS
About midnight on February 16, 2007, a confidential informant (CI) informed Detective Scott Hyatt, a narcotics investigator, that the CI had arranged to buy a quarter-ounce of methamphetamine in North Highlands from a person named Jose. In Hyatt’s presence, the CI used his cell phone to call Jose, activating the speakerphone so Hyatt and another officer could hear the conversation. Jose agreed to meet the CI at an AM/PM Mini Market (AM/PM) on Watt Avenue but said, “I’m busy right now. I’ll be there in a little bit.” The CI told Hyatt the address where Jose lived, and said that Jose would be driving a white truck.
While other officers staked out the AM/PM, Detective Hyatt and his partner drove to Jose’s residence. Hyatt saw a white truck parked there. They returned to the AM/PM after getting the license plate of the truck, which Hyatt recognized as the truck used by defendant in July 2001 when Hyatt arrested him for possessing methamphetamine for sale (a felony for which defendant was convicted in 2002).
When defendant arrived at the AM/PM driving the white truck, John Hayden Hart II was in the front passenger seat. Officers detained defendant after he stopped at the gas pumps. Hart ran from the truck but was captured. Hart told officers that he ran because he “had some dope” on him. About two-tenths of a gram of methamphetamine was found in Hart’s pants pocket.
Under the steering column of the truck, hidden from view until the “bottom skirt” of the underside of the dashboard was moved, officers found a bag containing an electronic scale and crystals of methamphetamine weighing 7.53 grams. Small baggies were in the center console on the bench seat, and there were three cell phones in the truck. Detective Hyatt, an expert concerning the sale of methamphetamine, opined that based upon the amount of the drug and the presence of the scale and baggies, the methamphetamine was possessed for sale.
Detective Hyatt testified defendant “said he had a shotgun back at his house that he was gonna sell and that we were free to go back there and obtain it.” Using a key found in the truck, officers searched defendant’s residence and seized a shotgun, a box of ammunition that fit the shotgun, and a digital scale.
The sole defense witness was the woman with whom defendant was living when the officers searched the residence. She testified several other people had keys to the residence and had driven the white truck on February 15, 2007.
In closing argument, defense counsel stressed that defendant could not be found guilty of the drug offense unless he knew the methamphetamine was in the truck. Challenging the credibility of Detective Hyatt, and pointing out the drugs were hidden from the view of a person driving or riding in the truck, defense counsel asserted the prosecution had failed to prove beyond a reasonable doubt that defendant knew the methamphetamine was in the truck. In counsel’s words, defendant’s prior conviction for possessing methamphetamine for sale “doesn’t prove knowledge of the drugs being in the truck, okay. Because he did it back in 2001 doesn’t mean that if there’s any drugs ever found in the truck again, that he knows about it.”
DISCUSSION
I
The prosecutor moved in limine for permission to introduce evidence of defendant’s prior possession of methamphetamine for sale in 2001 to show defendant’s knowledge, intent, motive, and common plan with respect to the methamphetamine found in defendant’s truck in 2007. (Evid. Code, § 1101, subd. (b); further section references are to the Evidence Code unless otherwise specified.) The motion stated: “In both cases the defendant drove the same car, in both cases the defendant possessed methamphetamine in a quantity greater than that normally [possessed] for personal use, and in both cases the defendant was found in possession of items suggesting the sale of methamphetamine.” In the prosecutor’s view, because it was likely the defense would claim defendant “had no knowledge of the drugs in his vehicle, . . . the probative value of his prior crimes [transportation and possession of methamphetamine for sale . . . to show the defendant[’]s knowledge and intent to sell is magnified to a degree where it is not substantially outweighed by the possible prejudicial effect of the evidence.”
Defense counsel objected, asserting that the evidence would be “unduly prejudicial” because “the facts of the case of the prior are far more egregious than the case that we have here.” Counsel emphasized that defendant’s crimes in 2001 involved 97.5 grams of methamphetamine packaged in five separate baggies and that he was found with $1,500 in cash, whereas the amount of methamphetamine in this case was relatively small and “not packaged in separate baggies to be sold.” Thus, counsel’s “fear” was the jury would “use [the prior crimes evidence] as propensity evidence rather than for the -- the other reasons being offered by the prosecution.”
The prosecutor responded that he did not intend to present evidence of the amount of the methamphetamine, its separate packaging, and the money defendant possessed in 2001; the only evidence would be that defendant was convicted of possessing methamphetamine for sale and that it was possessed “in the same truck,” “hidden under the seat . . . in a cardboard box.”
Finding (1) the proffered evidence “involved circumstances very similar to those in this case,” (2) it was relevant to the disputed issues whether defendant knew the methamphetamine was in the truck and intended to sell it, and (3) it was more probative than prejudicial, the court ruled the prosecutor could introduce it but make “no mention” of the amount of drugs seized, the packaging of the drugs, and the money found on defendant’s person in 2001.
Detective Hyatt ultimately testified that on July 19, 2001, he arrested defendant for possessing methamphetamine for sale and that the drug was found in “the same white truck” defendant was driving when he arrived at the AM/PM in this case.
Defendant contends the trial court abused its discretion in permitting the prosecutor to introduce the prior crimes evidence. We disagree.
Section 1101, subdivision (b) permits introduction of evidence of a defendant’s uncharged crimes to prove knowledge and intent, among other things. (People v. Lenart (2004) 32 Cal.4th 1107, 1123; People v. Ewoldt (1994) 7 Cal.4th 380, 402, fn. 6; People v. Pijal (1973) 33 Cal.App.3d 682, 691 [prior narcotics offenses relevant to knowledge and intent].) To be admissible, such evidence must have substantial probative value that is not outweighed by its potential for undue prejudice. (People v. Lenart, supra, 32 Cal.4th at p. 1123.) Evidence is unduly prejudicial under section 352 if it tends to evoke an emotional bias against the defendant without regard to any issue in the case, not simply that it is damaging evidence. (People v. Crew (2003) 31 Cal.4th 822, 842.)
A trial court’s evidentiary ruling to permit such evidence will be overturned only if the court exercised its discretion arbitrarily and capriciously, resulting in a miscarriage of justice. (People v. Carter (2005) 36 Cal.4th 1114, 1147; People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)
Defendant argues the prior crimes evidence “was not probative in this case as it was entirely dissimilar to the current case.” This is so, he suggests, because in the prior prosecution, he did not contest “the issue(s) of actual and/or constructive possession” of the methamphetamine, whereas he in effect denied culpability in this case, claiming the prosecution was unable to show that he had “knowledge that any drugs were in his truck” in 2007. His argument misses the point. The trial court was correct in finding that the circumstances of the prior crimes were “very similar to those in this case.” In 2007, defendant allegedly used his white truck to transport methamphetamine possessed for sale, and the drugs were hidden in a bag under the dashboard. In 2001, defendant used his white truck to transport methamphetamine possessed for sale and, according to the prosecutor’s offer of proof, the drugs were hidden in a box under the seat. (People v. Rundle (2008) 43 Cal.4th 76, 132 [we evaluate a trial court’s evidentiary ruling “based upon the evidence before the court when it made its decision”].) That defendant did not contest possessing the drugs in 2001, but now professes not to have known about the drugs in 2007 does not make the crimes dissimilar. Indeed, the “difference” now proffered by defendant is precisely why the prior crimes evidence was relevant. Since the knowledge and intent elements of the alleged possession of methamphetamine for sale in 2007 were disputed, the prior crimes evidence was highly probative to show that it was defendant (not the passenger, Hart, or other persons who had used defendant’s truck) who knew the methamphetamine was in the truck and intended to sell it, consistent with a common scheme that defendant used before, i.e., hiding in his truck the drugs he possessed for sale.
We also reject defendant’s suggestion that the prior crimes evidence should have been excluded because it was “cumulative (there was no need for this evidence since the officers [who] performed the search of [his] person, as well [as his truck and] the apartment, testified regarding their observations and findings in the present case).” For starters, this assertion is contradicted by his earlier argument that the 2001 crimes were “dissimilar” to the 2007 crime. Evidence that is dissimilar cannot be considered cumulative, which generally means “the addition of new material of the same kind as that already collected” (Webster’s New Intern. Dict. (2d ed. 1986) p. 553). In any event, defendant’s assertion is wrong. The fact that officers testified regarding their observations and discoveries in 2007 did not make the 2001 crimes evidence unnecessary. As we have explained, it was relevant to show that defendant knew about, and intended to sell, the methamphetamine the officers observed and discovered in 2007.
Equally without merit is defendant’s claim that the jury would have considered the 2001 crimes evidence only as evidence of his “propensity to commit similar crimes to that for which he was on trial, notwithstanding his denial of culpability.” The trial court told the jurors they could consider the 2001 crimes evidence only “for the limited purpose of deciding whether or not the defendant . . . acted with the intent to sell methamphetamine in this case, and whether or not [he] knew of the presence of the methamphetamine and of its narcotic nature when he allegedly acted in this case.” The court went on to advise the jurors: “Do not conclude from this evidence that the defendant . . . has a bad character or is disposed to commit crimes.” We presume the jurors followed the instructions. (People v. Adcox (1988) 47 Cal.3d 207, 253.)
That, in the words of defendant’s appellate counsel, the “prior ‘bad acts’ evidence clearly undercut the credibility of [the] defense theory,” which was “premised on a complete denial of culpability,” does not mean the evidence was prejudicial within the meaning of section 352, as defendant contends. “Prejudicial” does not mean “damaging.” (People v. Karis (1988) 46 Cal.3d 612, 638.) As we have noted, “[p]rejudice for purposes of Evidence Code section 352 means evidence that tends to evoke an emotional bias against the defendant with very little effect on issues, not evidence that is probative of a defendant’s guilt.” (People v. Crew, supra, 31 Cal.4th at p. 842.) Contrary to defendant’s claim, the 2001 crimes evidence was not “inflammatory,” and it was not likely to evoke an emotional bias against him unrelated to the disputed issues. The brief testimony about the prior crimes was unremarkable other than being strong evidence that, as with the methamphetamine hidden in defendant’s truck in 2001, defendant knew of the methamphetamine hidden in the same truck in 2007 and intended to sell the drugs.
We also disagree with defendant’s assertion that the trial court “did not conduct the ‘closely reasoned’ weighing process mandated by Evidence Code section 352.” Actually, the court’s ruling shows it conscientiously exercised its discretion in allowing the evidence. Indeed, to minimize the potential of prejudice, the court ordered the prosecution not to introduce evidence of the packaging and large amount of the drugs, and the substantial sum of money found on defendant, in 2001.
Lastly, we find no merit in defendant’s characterization of this as “an extremely close case” as illustrated by the jury’s deliberation over four days. The evidence of defendant’s guilt was strong. In the presence of officers who overheard the cell phone conversation, the CI arranged with a person named Jose (defendant’s first name) for Jose to sell methamphetamine to the CI at an AM/PM on Watt Avenue. Defendant arrived there driving the truck in which he had previously possessed methamphetamine for sale. As it had before, the truck contained methamphetamine in a saleable amount and materials associated with dealing, concealed from casual view. Defendant presented no evidence other than speculation that another person could have hidden the drugs in defendant’s truck without his knowledge. That deliberations stretched over four court days is deceiving. The jury deliberated for only 35 minutes on the first day and returned verdicts soon after 9:00 a.m. on the fourth day, and jurors had to address the charges against codefendant Hart.
There was no evidentiary error.
II
We have reviewed the in camera proceedings and the sealed reporter’s transcript of the trial court’s hearing on defendant’s motion to disclose the CI’s identity. (People v. Hobbs (1994) 7 Cal.4th 948.) Having done so, we conclude the court did not abuse its discretion in denying the motion because the CI could not have given testimony helpful to defendant. (Id. at p. 959.)
DISPOSITION
The judgment is affirmed. The trial court is directed to amend the abstract of judgment reflecting that a sentence of one year and four months was imposed on count four, and to send a copy of the amended abstract to the Department of Corrections and Rehabilitation.
We concur: SIMS , J. BUTZ , J.