Opinion
C082808
11-15-2017
THE PEOPLE, Plaintiff and Respondent, v. JEREMY LEE DEATON, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CRF160381)
A jury found defendant Jeremy Lee Deaton guilty of possession of methamphetamine for sale (Health & Saf. Code, § 11378) and found true allegations that he had two prior drug convictions (§ 11370.2, subd. (c)). The trial court sentenced him to an aggregate term of nine years in prison.
Undesignated statutory references are to the Health and Safety Code.
Defendant now contends the trial court erred in (1) admitting evidence of his prior conviction for transportation of methamphetamine to show his intent to possess methamphetamine for sale, and (2) instructing the jury on the use of evidence of his prior conviction. Recognizing that his second contention may have been forfeited, defendant alternatively argues he received ineffective assistance of counsel.
We will affirm the judgment.
BACKGROUND
A 2016 search of defendant and the car in which he had been sleeping revealed baggies containing methamphetamine, a methamphetamine pipe, empty pill containers, a torch lighter, more than 150 small zip-top baggies, a small digital scale with white residue on it, 37 cell phones, approximately seven laptop computers, 10 sets of car keys, a small camera, a car stereo, and a fake gun.
A jury convicted defendant of possession of methamphetamine for sale. (§ 11378.) In a bifurcated proceeding, the trial court found true allegations that defendant had two prior drug convictions. (§ 11370.2, subd. (c).) The trial court sentenced defendant to an aggregate term of nine years in prison, consisting of the upper term of three years for possession of methamphetamine for sale, plus three years each for the prior drug convictions.
DISCUSSION
I
Defendant contends the trial court erred in admitting evidence of his prior 2004 conviction for transportation of methamphetamine to show his intent to possess methamphetamine for sale. He claims that evidence of the uncharged offense is not relevant to his intent in the present case because the uncharged offense is not sufficiently similar to the charged offense. He further claims that, even if evidence of the uncharged offense is relevant to prove intent, the evidence is inadmissible because its probative value is substantially outweighed by its prejudicial effect.
Prior to trial, the prosecutor filed a motion seeking admission of evidence relating to defendant's 2004 conviction for transportation of methamphetamine to show defendant's intent to possess methamphetamine for sale. At the hearing on the motion, the prosecutor indicated that she intended to call a police officer to testify that he had made contact with defendant in November 2004 while defendant was in a vehicle, and that defendant possessed a digital scale and five small baggies of methamphetamine. Defense counsel objected to admission of the evidence on the ground that defendant's prior conviction was too remote and the facts were not sufficiently similar to the present case. The trial court concluded the evidence was admissible, finding that it was probative as to defendant's intent in this case, and that its probative value was not substantially outweighed by its prejudicial effect.
" 'Subdivision (a) of [Evidence Code] section 1101 prohibits admission of evidence of a person's character, including evidence of character in the form of specific instances of uncharged misconduct, to prove the conduct of that person on a specified occasion. Subdivision (b) of section 1101 clarifies, however, that this rule does not prohibit admission of evidence of uncharged misconduct when such evidence is relevant to establish some fact other than the person's character or disposition.' [Citation.] 'Evidence that a defendant committed crimes other than those for which he is on trial is admissible when it is logically, naturally, and by reasonable inference relevant to prove some fact at issue, such as motive, intent, preparation or identity. [Citations.] The trial court judge has the discretion to admit such evidence after weighing the probative value against the prejudicial effect. [Citation.] When reviewing the admission of evidence of other offenses, a court must consider: (1) the materiality of the fact to be proved or disproved, (2) the probative value of the other crime evidence to prove or disprove the fact, and (3) the existence of any rule or policy requiring exclusion even if the evidence is relevant. [Citation.] Because this type of evidence can be so damaging, "[i]f the connection between the uncharged offense and the ultimate fact in dispute is not clear, the evidence should be excluded." [Citation.]' [Citation.] ' "We review for abuse of discretion a trial court's rulings on relevance and admission or exclusion of evidence under Evidence Code sections 1101 and 352." [Citation.]' [Citation.]" (People v. Fuiava (2012) 53 Cal.4th 622, 667-668, fn. omitted.)
To determine whether evidence of uncharged crimes is relevant, trial courts view the nature and degree of similarity between the uncharged offense and the charged offense. "The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent. [Citation.] '[T]he recurrence of a similar result . . . tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such an act . . . .' [Citation.]" (People v. Ewoldt (1994) 7 Cal.4th 380, 402.)
Here, the trial court did not abuse its discretion when it determined that evidence of defendant's prior conviction for transportation of methamphetamine was sufficiently similar to the charged offense such that it was relevant to show defendant's intent. "The question . . . is not the number of points of similarity but their logical relevance to establish the mental element of the charged offense." (People v. Rocha (2013) 221 Cal.App.4th 1385, 1394.) Here, there was sufficient similarity between the uncharged offense and the charged offense for the jury to infer defendant, acting in a similar fashion in each of the incidents, possessed methamphetamine with the specific intent to sell it. Contrary to defendant's contention, the fact that intent to sell was not an element of the crime of transportation of methamphetamine in 2004 does not establish a lack of similarity between the uncharged offense and the charged offense such that evidence of the uncharged offense lacked probative value. The relevant inquiry is whether defendant acted similarly in similar situations. The record discloses that the facts of the uncharged offense and the charged offense were not dissimilar in any material way. In both cases, defendant possessed a scale containing white residue and more than one baggie containing methamphetamine. In the 2004 incident, defendant possessed a portable scale with white residue on it and five small baggies containing methamphetamine. In this case, he was found in possession of, among other things, a small digital scale with white residue on it, two baggies containing methamphetamine, and numerous small unused baggies.
The trial court also did not abuse its discretion in admitting the evidence of the uncharged offense under Evidence Code section 352. "Evidence Code section 352 provides that a court 'in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.' . . . 'Prejudice 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.' [Citation.]" (People v. Valdez (2012) 55 Cal.4th 82, 133.) Here, the evidence of the uncharged offense was probative on the issue of intent. The similarity between the uncharged offense and the charged offense tended to show defendant had the intent to sell methamphetamine. The probative value of the evidence of the uncharged offense was enhanced because it came from a source independent of the evidence of the charged offense. This is "because the risk that the witness's account was influenced by knowledge of the charged offense is thereby eliminated." (People v. Tran (2011) 51 Cal.4th 1040, 1047 (Tran).)
The trial court reasonably determined that the probative value of the evidence of the uncharged offense was not substantially outweighed by its prejudicial effect. "Evidence is substantially more prejudicial than probative . . . [only] if, broadly stated, it poses an intolerable 'risk to the fairness of the proceedings or the reliability of the outcome' [citation]." (People v. Waidla (2000) 22 Cal.4th 690, 724.) Here, the prosecution presented evidence of the uncharged offense in a succinct manner, and the facts elicited were no more inflammatory than the facts of this case. "The potential for prejudice is decreased . . . when testimony describing the defendant's uncharged acts is no stronger or more inflammatory than the testimony concerning the charged offense. [Citation.]" (Tran, supra, 51 Cal.4th at p. 1047.) Further, because defendant was convicted of the uncharged offense, the prejudicial effect of the evidence was reduced. The jury was not tempted to convict defendant of the charged offense in order to assure he would be punished for the uncharged offense, and the jury's attention was not diverted to determining whether defendant committed the uncharged offense because his conviction demonstrated he did. (People v. Lewis (2009) 46 Cal.4th 1255, 1287; People v. Balcom (1994) 7 Cal.4th 414, 427.) Finally, the court instructed the jury on the limited purpose for which it could consider evidence of the uncharged offense, which "eliminated any danger 'of confusing the issues, or of misleading the jury.' " (People v. Lindberg (2008) 45 Cal.4th 1, 25-26.) We presume the jury followed that instruction. (Id. at p. 26.)
In view of the foregoing, we conclude the trial court did not abuse its discretion in admitting evidence of the uncharged offense. But even if we were to assume the trial court erred in admitting the evidence, we would find the error harmless. "Absent fundamental unfairness, state law error in admitting evidence is subject to the traditional Watson test: The reviewing court must ask whether it is reasonably probable the verdict would have been more favorable to the defendant absent the error. [Citations.]" (People v. Partida (2005) 37 Cal.4th 428, 439; see People v. Carter (2005) 36 Cal.4th 1114, 1152 [applying Watson standard to claim that other crimes evidence was improperly admitted].) Having reviewed the record, we are convinced that defendant would not have obtained a more favorable verdict had evidence of the uncharged offense not been admitted.
People v. Watson (1956) 46 Cal.2d 818 (Watson).
II
Defendant also contends the trial court erred by instructing the jury on the use of evidence of his prior conviction. Recognizing that this contention may have been forfeited, defendant alternatively argues he received ineffective assistance of counsel.
The jury was instructed on the offense of possessing methamphetamine for sale pursuant to a modified version of CALCRIM No. 375 as follows:
"The People presented evidence that in 2004, the defendant committed the offense of transportation of methamphetamine that was not charged in this case.
"The crime of transportation of methamphetamine has the following elements:
"1. The defendant transported a controlled substance;
"2. The defendant knew of its presence;
"3. The defendant knew of the substance's nature or character as a controlled substance;
"4. The controlled substance was methamphetamine;
"AND
"5. The controlled substance was in a usable amount.
"A person transports something if he or she carries or moves it from one location to another, even if the distance is short.
"A usable amount is a quantity that is enough to be used by someone as a controlled substance. Useless traces are not usable amounts. On the other hand, a usable amount does not have to be enough, in either amount or strength, to affect the user.
"You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the offense. Proof by a preponderance of the evidence is a different burden of proof than proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true.
"If the People have not met this burden, you must disregard this evidence entirely.
"If you decide that the defendant committed the offense, you may, but are not required to, consider that evidence for the limited purpose of deciding whether:
"The defendant acted with the intent to possess methamphetamine for sale in this case . . .; or
"The defendant knew that he was in possession of methamphetamine when he allegedly acted in this case.
"In evaluating this evidence, consider the similarity or lack of similarity between the uncharged offense and the charged offenses.
"Do not consider this evidence for any other purpose.
"Do not conclude from this evidence that the defendant has a bad character or is disposed to commit crime.
"If you conclude that the defendant committed the uncharged offense, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of possession for sale of controlled substance. The People must still prove every charge beyond a reasonable doubt."
Defendant did not object to the instruction.
"[F]ailure to object to instructional error forfeits the objection on appeal unless the defendant's substantial rights are affected. [Citations.] 'Substantial rights' are equated with errors resulting in a miscarriage of justice under People v. Watson[, supra,] 46 Cal.2d 818. [Citation.]" (People v. Mitchell (2008) 164 Cal.App.4th 442, 465.) The purpose of the forfeiture rule is to "encourage parties to bring errors to the attention of the trial court, so that they may be corrected. [Citation.]" (In re S.B. (2004) 32 Cal.4th 1287, 1293, superseded by statute on another ground in In re S.J. (2008) 167 Cal.App.4th 953, 962.) "In requiring an objection at trial, the forfeiture rule ensures that the opposing party is given an opportunity to address the objection, and it prevents a party from engaging in gamesmanship by choosing not to object, awaiting the outcome, and then claiming error. [Citation.]" (People v. Kennedy (2005) 36 Cal.4th 595, 612, disapproved on another ground in People v. Williams (2010) 49 Cal.4th 405, 459.)
Defendant contends the trial court erred by using the word "offense" in the instruction rather than the pattern instruction's suggested term "uncharged offense/or act." According to defendant, the modified version of CALCRIM No. 375 lowered the prosecution's burden of proof and allowed the jury to convict him of possession of methamphetamine for sale by a preponderance of the evidence. Defendant's claim is forfeited because his substantial rights were not affected by the instruction as given.
"It is well established in California that the correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction." (People v. Burgener (1986) 41 Cal.3d 505, 538-539, overruled on another ground in People v. Reyes (1998) 19 Cal.4th 743, 753-754.) "In reviewing the purportedly erroneous instructions, 'we inquire "whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way" that violates the Constitution.' " (People v. Frye (1998) 18 Cal.4th 894, 957, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
Here, although use of the word "offense" rather than "uncharged offense" could arguably create some ambiguity, there is no reasonable likelihood the jury misapplied the instruction as it relates to the state's burden of proof given the totality of the jury instructions. The modified version of CALCRIM No. 375 clearly referred to the use of the evidence, not to the standard for convicting defendant in this case. It instructed the jury that the People must prove every charge beyond a reasonable doubt, and that, even if the People proved defendant committed the uncharged offense, such evidence was not sufficient by itself to prove that defendant was guilty of possession of methamphetamine for sale. The jury was instructed to consider evidence of the uncharged offense for the limited purpose of deciding whether defendant acted with the intent to possess methamphetamine for sale in this case. The jury was also instructed orally and in separate written instructions that the People must prove the charged offenses beyond a reasonable doubt. The prosecutor and defense counsel repeatedly reminded the jury during closing argument that the prosecution was required to prove the charged offenses beyond a reasonable doubt. Under the circumstances, the challenged instruction could not have misled the jury in the manner defendant contends.
We reject defendant's alternative argument that he received ineffective assistance of counsel. To establish ineffective assistance of counsel, defendant must demonstrate that "(1) counsel's representation was deficient in falling below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficient representation subjected [him] to prejudice, i.e., there is a reasonable probability that, but for counsel's failings, the result would have been more favorable to [him]." (In re Neely (1993) 6 Cal.4th 901, 908.) Here, defendant has failed to show deficient performance or prejudice. Because the jury instructions correctly informed the jury of the relevant legal principles regarding the state's burden of proof, it was not objectively unreasonable for trial counsel not to object to the trial court's modified version of CALCRIM No. 375. Moreover, there is no reasonable probability defendant would have received a more favorable verdict had counsel objected to the alleged instructional error on the ground he now raises on appeal.
DISPOSITION
The judgment is affirmed.
/S/_________
MAURO, J. We concur: /S/_________
RAYE, P. J. /S/_________
RENNER, J.