Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. SCE264748, William J. McGrath, Judge.
O'ROURKE, J.
A jury convicted Tony Dicicco of possession for sale of a controlled substance (methamphetamine) (Health & Saf. Code, § 11378), and found true allegations that he was presumptively ineligible for probation based on the quantity of methamphetamine (Pen. Code, § 1203.073, subd. (b)(2)). Dicicco admitted allegations he suffered a prior drug-related conviction and a strike prior conviction (Health & Saf. Code, § 11370.2; Pen. Code, § 667, subds. (b)-(i)), served three prior prison terms (Pen. Code, § 667.5. subd. (b)), and committed the present criminal offense while on bail (Pen. Code, § 12022.1, subd. (b)). Striking his prior prison convictions, the trial court sentenced Dicicco to a 10-year state prison term. On appeal, Dicicco contends the evidence is insufficient to support his conviction for possession of methamphetamine for sale. He also contends the court prejudicially erred by instructing the jury with CALCRIM Nos. 2302 and 375. We reject these contentions and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On the afternoon of September 17, 2006, El Cajon Police Officer Michael Doyle was patrolling the parking lot of a Motel 6 to assist the hotel manager with problems they were having with drug activity and other crime. As he exited the parking lot, Officer Doyle spotted a gray Toyota Corolla entering the lot, with Dicicco driving and Roger Calesa in the front passenger seat. Officer Doyle contacted the vehicle's occupants and inquired about the vehicle's owner. Calesa told him the vehicle was his. The officer looked in the passenger side window of the car and saw a black shaving kit on the rear passenger floorboard. He also saw a large moving-type box wrapped in plastic wrap on the rear passenger seat. That box contained various items including household items and a W-2 form with Calesa's name on it. Nothing in the box contained Dicicco's name.
Officer Doyle took the black shaving kit from the floorboard and unzipped it, finding two additional black bags with zippers. Opening one of those, he found a large clear plastic bag containing other smaller plastic baggies holding a white crystalline substance that he suspected was methamphetamine. Those baggies were later determined to hold a substance containing methamphetamine in respective amounts of 16.52 grams, 13.11 grams and 0.03 grams, a total weight of 29.93 grams. The officer also found nine additional new or used empty plastic baggies, a small bag of marijuana, two hypodermic needles and a small, light "metal-type" spoon. Some of the empty baggies had a white powdery residue similar in color and texture to the white substance that he suspected was methamphetamine. Officer Doyle had encountered spoons in connection with methamphetamine before; they were used to move it onto a scale for weight, or to scoop substance from a larger to a smaller bag. According to the officer, the spoon was not as big as those he had seen for use in ingesting methamphetamine, and it did not have characteristic markings on its bottom from a lighter or butane indicating such use.
Inside the second black bag within the shaving kit, Officer Doyle found a digital gram scale with white residue on it similar to that found on the plastic baggies. The shaving kit also contained a yellow piece of paper on which a phone number had been written. Dicicco's cellular telephone answered to the telephone number on the yellow piece of paper.
Officer Doyle searched both Calesa and Dicicco. Calesa was in possession of a torn $5 bill, a wallet, and two keys to room 258 at the Motel 6. Dicicco had his cellular phone in his pocket, a money order with a female's name on it, and a wallet containing $622 in various denominations that were divided in an unusual way: six $20 bills separated by one $10 bill, one $20 bill separated by one $10 bill, eight $20 bills, three $100 bills and two dollar bills.
No usable finger prints were located on either of the black bags, the three plastic baggies containing the methamphetamine, the plastic baggie containing the marijuana, the hypodermic needles, the gram scales, the plastic container, or the piece of paper containing Dicicco's phone number. Though usable fingerprints were found on the empty plastic baggies, they were found to be from four different people, not from Calesa or Dicicco.
El Cajon Police Detective William Guerin testified that to determine whether a person possessed methamphetamine for sale, he would look for indicia such as the quantity of methamphetamine, the packaging and scales used to weigh the substance or place it in a smaller quantity, cash, cell phones, pagers, and "pay and owe" ledgers or sheets used to keep track of sales. According to the detective, in El Cajon and East County generally, packaging for methamphetamine was primarily in small plastic baggies, sometimes smaller than a typical sandwich baggie. He testified that in general, large cash amounts on a person would be indicative of methamphetamine sales, and sometimes but not always the denominations would be used to determine how the amounts were sold.
Detective Guerin explained it was fairly common to see a person possessing methamphetamine for sale working with a partner or several other people; that working with a partner was probably more safe because both individuals could serve as lookouts, or the second person could act as a "runner" and make deliveries while the other drove. In such cases, the driver would generally hold onto the money and the bulk of the product; he would also look out for police and other rival drug dealers or criminals that would steal from them. While he did not have enough information to determine whether Dicicco's case was a driver/runner scenario, to determine whether particular facts presented such a situation, Detective Guerin would look at the relationship between the two persons, their statements, what he observed in the car and on the individuals, their criminal past, and the physical evidence, including what property was accessible to both individuals.
Detective Guerin testified that 29.93 grams of methamphetamine in an individual's possession would be possessed for sale. That amount was a little over one ounce of methamphetamine, which was worth about $600 to $1000 in street sales. According to the detective, a dosage unit was .05 grams, and one could get approximately 600 doses from 29.93 grams of methamphetamine. The presence of a digital scale, nine empty baggies, a spoon and a hypodermic needle with that amount of contraband would definitely indicate possession for sales. Accounting for the additional facts that the individual with the contraband had his own cellular telephone phone number on a piece of paper and a large amount of cash divided into various denominations, Detective Guerin opined that the 29.93 grams of methamphetamine was possessed for sale.
Detective Guerin testified that in June of 2006, he went to Dicicco's house and conducted a search of his bedroom. The detective found Dicicco home asleep in his bedroom, and upon his search, he discovered 4.2 grams of methamphetamine in a small plastic baggie in Dicicco's pants pocket. In the nightstand adjacent to Dicicco's bed, Detective Guerin found a small bowl with approximately .34 grams of methamphetamine, as well as about 100 Ziploc-type baggies and unused packing material in one of two dressers in the room. The detective found a gram scale in each dresser and a hypodermic syringe in a small cooler in the room. Detective Guerin arrested Dicicco for simple possession on that day.
San Diego County Sheriff's Deputy Kevin Barrett testified that in February of 1994, he stopped a car driven by Dicicco and searched it, finding a dagger in the floorboard area next to the driver's side and a black shaving kit on the passenger seat. In the shaving kit, Deputy Barrett found five baggies of what he recognized as marijuana, two baggies containing a white powdery substance that he recognized as methamphetamine, additional baggies, a spoon, and a small electronic scale commonly known as a gram scale. The baggies contained 22.1 grams and 1.35 grams of methamphetamine respectively.
DISCUSSION
I. Sufficiency of Evidence of Possession for Sale
Dicicco contends insufficient evidence supports his conviction; that no finding of actual or constructive possession can be made because the evidence did not show he was in a position to exercise dominion and control over the drugs in Calesa's vehicle. Specifically, Dicicco asserts he did not own the car, which had Calesa's personal possessions within it; that no fingerprints connected him to the black shaving kit or anything inside the kit; and there was no nexus between his $622 in cash and the drugs. Dicicco relies upon numerous case authorities involving distinct scenarios held insufficient to support the knowledge requirement: cases involving an individual's presence in a home or vehicle where drugs or other contraband are found. He argues they establish that his mere presence at a location where narcotics are found will not support a finding of guilt.
" 'In addressing a challenge to the sufficiency of the evidence supporting a conviction, the reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence — evidence that is reasonable, credible and of solid value — such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citations.] The same standard applies when the conviction rests primarily on circumstantial evidence. [Citation.] Although it is the jury's duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendant's guilt beyond a reasonable doubt. [Citation.] " 'If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.' " ' [Citation.] In making our determination, we focus on the whole record, not isolated bits of evidence. [Citation.] We do not reweigh the evidence; the credibility of witnesses and the weight to be accorded to the evidence are matters exclusively within the province of the trier of fact. [Citation.] We will not reverse unless it clearly appears that on no hypothesis whatever is there sufficient substantial evidence to support the jury's verdict." (People v. Upsher (2007) 155 Cal.App.4th 1311, 1321-1322.)
" 'Unlawful possession of a controlled substance for sale requires proof the defendant possessed the contraband with the intent of selling it and with knowledge of both its presence and illegal character.' " (People v. Harris (2000) 83 Cal.App.4th 371, 374; see People v. Palaschak (1995) 9 Cal.4th 1236, 1242 [elements of possession of a controlled substance]; People v. Williams (1971) 5 Cal.3d 211, 214-215 [elements of possession of narcotics], superseded by statute as recognized in People v. Romero (1997) 55 Cal.App.4th 147, 152-153; People v. Meza (1995) 38 Cal.App.4th 1741, 1745-1746.) "[P]ossession may be imputed when the contraband is found in a place which is immediately and exclusively accessible to the accused and subject to his dominion and control, or to the joint dominion and control of the accused and another." (People v. Newman (1971) 5 Cal.3d 48, 52, disapproved on other grounds in People v. Daniels (1975) 14 Cal.3d 857, 862; People v. Francis (1969) 71 Cal.2d 66, 71.) Neither exclusive possession of the premises nor physical possession of the drug is required. (People v. Harrington (1970) 2 Cal.3d 991, 998; People v. Eckstrom (1986) 187 Cal.App.3d 323, 331.) The elements of unlawful possession may be proven by circumstantial evidence and any reasonable inference drawn from that evidence. (Newman, at p. 52; Meza, at pp. 1745-1746; Eckstrom, at p. 331.)
As Dicicco points out, exercise of dominion and control must be something more than mere presence at the scene where contraband is located and more than the opportunity to access a location where contraband is found. (People v. Redrick (1961) 55 Cal.2d 282, 285 [citing cases]; People v. Glass (1975) 44 Cal.App.3d 772, 777; e.g., People v. Tabizon (1958) 166 Cal.App.2d 271, 273-274.) But courts have upheld a finding of possession where a defendant was in a vehicle and the controlled substance was in plain view and immediately accessible to the defendant. (E.g., People v. Williams, supra, 5 Cal.3d at p. 216; People v. Meza, supra, 38 Cal.App.4th at p. 1746.) Substantial evidence may be found even if the controlled substance is not in plain view, depending upon the placement of the contraband and its quantity. For example, in People v. Meza, the court found substantial evidence supported a possession of cocaine charge for the passenger of a vehicle carrying a substantial quantity of drugs, even though he was not the vehicle's owner and he had no "apparent connection" to the car. (Meza, at pp. 1746-1747.) The court concluded the evidence showed more than guilt by association: "[The vehicle's registered owner] brought Meza to the residence when he was about to make a drug delivery. He parked the pickup some distance away, and both looked around in all directions before going to the residence. An expert described their actions as counter surveillance activity commonly employed by drug traffickers. After a very short stay at the residence the defendants left, only this time driving the Marquis, a vehicle containing over 70 pounds of cocaine, and with which neither defendant had any apparent connection. Expert testimony established the car had been modified for use as a 'load' vehicle so it could transport drugs. The cocaine was loaded in the car in such a manner that it would require some effort to remove, thereby suggesting a need for someone to accompany the driver when making a delivery. It is unlikely the residence's other occupants, who knew what was in the car, would allow someone not involved in drug trafficking to ride in a vehicle delivering cocaine worth $3 million. Thus, it is inferable Meza went along to assist [the vehicle's owner]." (Meza, supra, 38 Cal.4th at p. 1746.)
Based in part on the reasoning of People v. Meza, we are compelled to disagree with Dicicco's characterization of the evidence in this case as showing he was "nothing more than a person in the driver's seat of Calesa's vehicle who was in no position to exercise dominion and control over the drugs on the floorboard of the rear seat." As stated, the jury is permitted to draw reasonable inferences from circumstantial evidence to find the elements of possession for sale. This is not a case where the evidence shows only opportunity and access, without any link between Dicicco and the controlled substance in the vehicle. (E.g., People v. Glass, supra, 44 Cal.App.3d 772, 776-777 [amphetamines located under couch in living room of house could not be linked to defendant who slept in bedroom, without other evidence defendant resided in or was a joint possessor of premises; the most that could be inferred was that he was a visitor at the residence that morning].) Dicicco was not a mere passenger; he held the keys to Calesa's vehicle and was driving the car into a parking lot, facts demonstrating at minimum joint control (which does not defeat a finding of possession, People v. Harrington, supra, 2 Cal.3d at p. 998), but also direct personal control over the car at the time it was carrying a substantial amount of methamphetamine concealed in the shaving kit, which was in plain sight on the vehicle's rear floorboard. Dicicco's previous possession of methamphetamine concealed in a shaving kit as well as packaging and weighing tools used for drug sales, combined with the fact that in this case Calesa entrusted Dicicco with his vehicle carrying large quantities of methamphetamine and the same tools, permits a jury to fairly infer Dicicco's knowledge of the contraband and its unlawful character. (See People v. Kanos (1971) 14 Cal.App.3d 642, 653.) Officer Doyle found Dicicco driving the car into a parking lot known for drug activity. A jury can reasonably conclude Calesa would be unlikely to permit Dicicco to drive his vehicle with those contents unless he was involved in the drug sales. (E.g. People v. Meza, supra, 38 Cal.App.4th at p. 1746.)
Further, we disagree that the $622 in Dicicco's possession had no reasonable link to the drugs. Given the unusual manner in which the bills were arranged and Detective Guerin's testimony that it could indicate a record of drug sales, the jury could fairly infer that Dicicco carried his money in that manner as a result of sales of the methamphetamine in the vehicle. An expert's opinion as to the incriminatory significance of otherwise innocuous circumstances is a reasonable basis for finding guilt. (See e.g., People v. Harvey (1991) 233 Cal.App.3d 1206, 1219-1220 [papers identified as ledgers by expert admissible in narcotics case as circumstantial evidence of cocaine sales and to show intent with which defendants possessed cocaine].) The unusual arrangement of the bills and the detective's explanation of that circumstance distinguishes this case from People v. Glass, supra, 44 Cal.App.3d at p. 777, in which the court reasoned the defendant's $270 found in his pocket did not support a finding he possessed the contraband found in another room, absent some evidence he was then unemployed. (Ibid.)
These facts present more than just evidence of Dicicco's presence in the vehicle and access to the contraband. It is more than that presented in People v. Van Syoc (1969) 269 Cal.App.2d 370, relied upon by Dicicco, in which the court reversed the possession conviction of a vehicle's owner in circumstances where marijuana cigarettes were found on the right side of the dashboard in the owner's unlocked and unattended car. It is more than that presented in People v. Foster (1953) 115 Cal.App.2d 866, 868-869, in which the court reversed a vehicle passenger's possession of narcotics conviction (and order denying a new trial) where the sole evidence was that he was riding in the car's front seat with two other defendants and police officers stopping the car saw a small package containing heroin and a needle come out of the car's front passenger window. We conclude, viewing all of the evidence in the light most favorable to the People and presuming every fact the jury could reasonably deduce from the evidence, substantial evidence supports Dicicco's conviction.
II. CALCRIM No. 2302
Dicicco contends the trial court did not properly instruct the jury on the element of possession, and that the error denied his right to a jury trial in violation of the Fifth, Sixth and Fourteenth Amendments of the U.S. Constitution.
The court read to the jury Judicial Council of California Criminal Jury Instructions (2006), CALCRIM No. 2302, which in part instructs that "[t]wo or more people may possess something at the same time" and "[a] person does not have to actually hold or touch something to possess it. It is enough if the person has control over it, either personally or through another person." Focusing on the above quoted portion of the instruction, Dicicco contends the instruction overly simplifies the concept of possession by eliminating the distinction between actual and constructive possession and any scienter requirement; that the possession instruction replaces the specific scienter requirement set forth in Armstrong v. Superior Court (1990) 217 Cal.App.3d 535, 539 (Armstrong), with the "unhelpful notion of controlling contraband 'through' another person." Dicicco argues CALCRIM No. 2302 fails to inform the jurors that the sufficiency of a defendant's control must be equivalent to actual possession, making it impossible to apply the proper approach set out in Armstrong. He asks us to view the instruction as excluding an essential element from the jury's consideration – knowing and intentional exercise of dominion and control over the drugs – requiring application of a per se reversal standard. Alternatively, he argues the error cannot be held harmless beyond a reasonable doubt given the weakness of the prosecution's evidence of possession.
As adapted by the parties, CALCRIM No. 2302 provided in full: "The defendant is charged in Count One with possession for sale of Methamphetamine, a controlled substance. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant possessed 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. When the defendant possessed the controlled substance, he intended to sell it; [¶] 5. The controlled substance was Methamphetamine; AND [¶] 6. The controlled substance was in a usable amount. [¶] Selling for the purpose of this instruction means exchanging Methamphetamine for money, services, or anything of value. [¶] 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, or to produce the effect it is ordinarily expected to produce. [¶] The People do not need to prove that the defendant knew which specific controlled substance he possessed, only that he was aware of the substance's presence and that it was a controlled substance. [¶] Two or more people may possess something at the same time. [¶] A person does not have to actually hold or touch something to possess it. It is enough if the person has control over it or the right to control it, either personally or through another person."
As the People point out, the Third District Court of Appeal recently upheld the use of CALCRIM No. 2302 in People v. Montero (2007) 155 Cal.App.4th 1170. There, the defendant argued that the instruction erred by omitting the elements of "dominion and control" and "knowing exercise of control" from its definition of possessing methamphetamine for sale. (Id. at p. 1174.) Pointing to the entirety of CALCRIM No. 2302, the Montero court disagreed, holding the instruction correctly expressed the two kinds of knowledge required: " 'knowledge of the fact of possession,' and 'knowledge of the character of the thing possessed.' " (Id. at p. 1176, quoting 2 Witkin and Epstein, Cal. Criminal Law (3d ed. 2000) Crimes Against Public Peace and Welfare, § 90, p. 602.) It pointed out that in People v. Martin (2001) 25 Cal.4th 1180, 1191 the California Supreme Court had approved a summary of the elements of simple possession that did not contain the phrase "dominion and control," namely, "[t]he defendant exercised control over the narcotics, he or she knew of its nature and presence, and possessed a usable amount." (People v. Montero, 155 Cal.App.4th at pp. 1176-1177.) It also pointed out the high court upheld the predecessor jury instruction, CALJIC No. 12.00, as accurately restating the law, even though it did not contain the phrase "dominion and control." (Montero, at p. 1177, citing People v. Morales (2001) 25 Cal.4th 34, 47-48.) The court concluded that CALCRIM No. 2302 "captures all of the elements of the crime of possession for sale. It correctly states the elements of possession and knowledge in a manner reasonable jurors are able to understand. The trial court committed no error in giving the instruction to the jury." (Montero, at p. 1177.)
Here, Dicicco's argument is slightly different from the defendant in Montero in that he challenges the accuracy or completeness of CALCRIM No. 2302 on the concepts of actual or constructive possession. Dicicco points to CALJIC No. 1.24 as a correct instruction on possession, which described both actual and constructive possession using those labels. He also argues that it is "well established that a possession element encompasses the requirement that the defendant act with the intent to exercise dominion and control over contraband," a principle he maintains is lacking from the CALCRIM instruction.
CALJIC No. 1.24, entitled " 'Possession' – Defined," provided: "There are two kinds of possession: actual possession and constructive possession. [¶] Actual possession requires that a person knowingly exercise direct physical control over a thing. [¶] Constructive possession does not require actual possession but does require that a person knowingly exercise control over or the right to control a thing, either directly or through another person or persons. [¶] One person may have possession alone, or two or more persons together may share actual or constructive possession." The Use Note to that instruction indicated that if possession of a controlled substance was involved, the party was to use CALJIC No. 12.00. (Use Note, CALJIC No. 1.24.)
The latter argument regarding a purported intent to possess requirement is meritless. The People have no burden of proving a defendant specifically intended to possess drugs in order to be guilty of the possession for sale offense; the element only requires knowledge of the contraband's nature and presence. (See e.g., People v. Martin, supra, 25 Cal.4th at p. 1185, fn. 4 [no specific intent element required for the crime of simple possession of controlled substances].) "Although the possessor's knowledge of the presence of the controlled substance and its nature as a restricted dangerous drug must be shown, no further showing of a subjective mental state is required." (Id. at pp. 1184-1185.)
As for Dicicco's remaining arguments, Dicicco ignores the remaining portions of CALCRIM No. 2302, read to the jury in this case, which instructs that the People must prove "the defendant possessed a controlled substance," "knew of its presence," and "knew of the substance's nature or character as a controlled substance." This statement, combined with the further explanation later in the instruction that a "person need not have to actually hold or touch something to possess it" but that "it is enough if the person has control over it, either personally or through another person" (language tracking that contained in CALJIC No. 1.24 set out in footnote 2, ante)sufficiently describe the notions of actual possession and constructive possession. That the instruction describes personal control and control via another person without using the phrases "actual possession" and "constructive possession" is of no concern as long as the concepts are accurately described in language jurors can understand.
Dicicco misplaces reliance on Armstrong, supra, 217 Cal.App.3d 535 in attacking CALCRIM No. 2302, because Armstrong'sdiscussion of the concept of constructive possession is not inconsistent with the concepts described in that instruction. In Armstrong, this court held that constructive possession cannot be found where a defendant merely enters into a verbal agreement or contract to buy contraband, without more. (Armstrong, at pp. 539-540.) Armstrong concluded that "in the prosecution of an individual for the offense of possession of narcotics for purposes of sale, the nature and terms of such purchase agreements are more appropriately factors in determining whether the defendant has exercised the requisite control over the illegal goods." (Id. at p. 540; see also People v. Barnes (1997) 57 Cal.App.4th 552, 556.) In reaching this conclusion, this court stated: "For purposes of drug transactions, the terms 'control' and 'right to control' are aspects of a single overriding inquiry into when the law may punish an individual who is exercising such a degree of intentional direction over contraband that he can be justifiably and fairly punished in the same manner as if he were indeed in actual physical possession of a controlled substance. Implementation of this policy necessarily encompasses a potentially wide variety of conduct in a wide variety of settings, all directed by such factors as the alleged offender's capacity to direct the illicit goods, the manifestation of circumstances wherein it is reasonable to infer such capacity exists and the degree of direction being exercised by the accused over the contraband." (Armstrong, supra, 217 Cal.App.3d at p. 539.) This discussion does not recognize an intent-to-possess requirement, nor does it require a jury to find a defendant's right of control is essentially "equivalent to actual possession" to constitute constructive possession. It simply acknowledges that the idea of "right to control" resists easy definition, and may include a wide array of conduct that does not amount to personal possession but reflects a degree of control warranting criminal punishment. Armstrong does not compel us to find any deficiency in CALCRIM No. 2302.
Penal Code section 1138 requires the trial court to inform the jurors of the law applicable to the case and assist them in understanding the legal principles they must apply. The court is not required to elaborate on the standard instructions. (People v. Beardslee (1991) 53 Cal.3d 68, 97; People v. Montero, supra, 155 Cal.App.4th at p. 1179.) Here the trial court instructed the jury it could not convict unless it determined whether or not Dicicco possessed drugs, knew drugs were present, and possessed them with intent to sell. It explained that personal physical possession was not required, and that possession could be found if the defendant had control over the substance directly ("personally") or indirectly ("through another person"). It did not err in giving CALCRIM No. 2302 .
III. CALCRIM No. 375
Dicicco contends the court erred by instructing the jury with a modified version of CALCRIM No. 375, concerning the use of prior acts evidence. He maintains the instruction does not accurately state the law as set out in People v. Ewoldt (1994) 7 Cal.4th 380, in which the court emphasized the need for proof of sufficiently common or characteristic features to establish a common plan or scheme. Dicicco argues that by omitting the word "common" and the preliminary findings necessary to apply the "common plan or scheme" theory, the instruction "took the Ewoldt issues away from the jury" and "invaded the jury's province." He also argues the instruction is prejudicially confusing because it suggests the charged offense involved some plan or scheme.
The modified version of CALCRIM No. 375 told the jury: "The People presented evidence that the defendant committed other offenses that were not charged in this case. [¶] You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged offenses. 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 uncharged offenses, you may, but are not required to, consider that evidence for the limited purpose of deciding whether or not: [¶] The defendant acted with the intent to possess methamphetamine for sale in this case; or, [¶] The defendant knew of the methamphetamine's presence when he allegedly acted in this case; or, [¶] The defendant had a plan or scheme to commit the offense alleged in this case. [¶] In evaluating this evidence, consider the similarity or lack of similarity between the uncharged offenses and the charged offense. [¶] 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 offenses, 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 a controlled substance. The People must still prove each element of every charge beyond a reasonable doubt." (Italics added.)
Because Dicicco's contention is that the jury instruction was incomplete or confusing, we agree with the People that by failing to raise this specific asserted deficiency in the trial court, he waived it for appellate review. A jury instruction that is too general, incomplete, lacks clarity or is confusing must be objected to or the error may not be reviewed. (People v. Hillhouse (2002) 27 Cal.4th 469, 503; People v. Hart (1999) 20 Cal.4th 546, 622 [citing cases].) Having failed to request an additional or qualifying instruction in the trial court, Dicicco may not raise this instructional challenge for the first time on appeal.
However, setting aside Dicicco's waiver to address a possible claim of ineffective assistance of counsel, we would nevertheless reject his contentions. Evidence that a defendant committed "a crime, civil wrong, or other act" is admissible "when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . .) other than his or her disposition to commit such an act." (Evid. Code, § 1101, subds. (a), (b).) "In order to be relevant as a common design or plan, 'evidence of uncharged misconduct must demonstrate "not merely a similarity in the results, but such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations." ' " (People v. Catlin (2001) 26 Cal.4th 81, 111, quoting People v. Ewoldt, supra,7 Cal.4th at p. 402.) Ewoldt establishes a test for admissibility of prior act evidence; it is the trial court that ultimately decides whether there is a sufficient degree of similarity to admit the evidence of prior uncharged acts (essentially a relevance determination, People v. Lenart (2004) 32 Cal.4th 1107, 1123), and it is for the jury to decide whether the prior uncharged acts permit it to infer the elements of intent, knowledge, plan or scheme sought to be proven in the present case. (See People v. Miller (2000) 81 Cal.App.4th 1427, 1448 [the inference to be drawn from prior acts evidence is that in light of the uncharged act, the actor in the present case must have had the intent attributed to him by the prosecution].) Dicicco does not challenge the trial court's admission of the uncharged act evidence, which encompassed the threshold finding of similarity set out in Ewoldt. And the jury was properly instructed it could "consider the similarity or lack of similarity between the uncharged offenses and the charged offense" in assessing whether the prior uncharged acts tended to prove whether or not Dicicco had the required knowledge and intent or had a "plan or scheme" to commit the charged offense. Thus, the Ewoldt determinationwas not eliminated, and CALCRIM No. 375 does not misstate the law in the manner Dicicco suggests.
We further disagree that CALCRIM No. 375 is confusing. Again, it was Dicicco's burden to request an amendment or clarification of that instruction to raise this argument on appeal. Nevertheless, based on the instruction as well as the prosecutor's closing arguments, the jury would reasonably understand it was to decide whether it could conclude Dicicco knew about, and was in possession or control of, the contraband in the present case based on his prior possession of methamphetamine and related tools, not that the offense involved some sort of plan or scheme (an error that, as the People point out, would benefit Dicicco in any event, because it would add an unproven element to the offense). (People v. Dieguez (2001) 89 Cal.App.4th 266, 276, 277 [instructional error is to be assessed by considering jury instructions as a whole in the context of the charge and the entire trial record].) "The meaning of instructions is no longer determined under a strict test of whether a 'reasonable juror' could have understood the charge as the defendant asserts, but rather under the more tolerant test of whether there is a 'reasonable likelihood' that the jury misconstrued or misapplied the law in light of the instructions given, the entire record of trial, and the arguments of counsel." (Id. at p. 276.) There is no reasonable likelihood the jury would have misunderstood the law on this record, and thus the court did not err in giving the instruction.
The prosecutor argued, "Those [prior offenses] are here to help you to determine whether or not [Dicicco] had a possessory interest in the methamphetamine found in this black bag in Mr. Calesa's car. It's not that he possessed meth before, it's what he possesses the meth with before."
However, even if the instruction were considered misleading, such an error would be harmless under the People v. Watson (1956) 46 Cal.2d 818 harmless error standard. (Cal. Const., art. VI, § 13; People v. Breverman (1998) 19 Cal.4th 142, 149, 164-179 [Watson harmless error standard is used to evaluate violations of California instructional requirements that are not structural defects in criminal proceedings].) Under this standard, we assess, "after an examination of the entire cause, including the evidence" (Cal. Const., art. VI, § 13), whether it appears reasonably probable that the defendant would have obtained a more favorable outcome if the error had not occurred. (Watson, at p. 836.) It is not conceivable the jury could have misapplied the instruction in the manner Dicicco contends because there was no evidence of any prior planning or scheme by Dicicco to commit the present offense. Given the similarities between the uncharged offenses (Dicicco's possession of methamphetamine in a shaving kit in 1994 with extra baggies and a scale, and his 2006 possession of methamphetamine in a baggie with additional baggies, packing material, and a gram scale), we conclude it is not reasonably probable Dicicco would have received a more favorable result had the trial court instructed the jury differently. Even under the most rigorous standard of harmless error review (harmless beyond a reasonable doubt), Dicicco was not sufficiently prejudiced by any arguable error in the court's instructions to warrant reversal. (See People v. Flood (1998) 18 Cal.4th 470, 490 [instructional error is subject to harmless error analysis].)
DISPOSITION
The judgment is affirmed.
WE CONCUR: BENKE, Acting P. J., McINTYRE, J.