P. v.
Williams
Filed 7/29/13 P. v. Williams CA3
NOT TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE
PEOPLE,
Plaintiff and
Respondent,
v.
ORLANDO JOSE WILLIAMS, JR.,
Defendant and
Appellant.
C069782
(Super. Ct. Nos. 10F00520, 10F04888)
A jury found defendant guilty of
possession of heroin and ecstasy (MDMA) in prison (Pen. Code, § 4573.6). In a bifurcated
proceeding, the trial court found true defendant’s prior strike conviction
for robbery. (Pen. Code, §§ 667, subds.
(b)-(i), 1170.12.) The trial court
sentenced defendant to six years in prison, the midterm of three years
doubled. Pursuant to Penal Code section
1170.1, subdivision (c), it also resentenced defendant on a prior conviction
for the same offense to a consecutive term of two years (one-third the midterm
doubled).
On appeal, defendant contends the
trial court erred when it admitted evidence of his prior conviction for
possessing heroin in prison, because he offered to stipulate that he knew what
heroin was, thus establishing the knowledge element of the crime. Although we agree that admission of the prior
conviction was error, we find the error harmless. Accordingly, we shall affirm.
FACTS
Current
Offense
Defendant was an inmate at Folsom
State Prison following his conviction for robbery. He and his cellmate were housed on the fifth
floor. About 4:00 a.m. on May 26, 2010, three members of the prison’s
Investigative Services Unit--Snyder, Carrillo, and Guzman--contacted defendant
to conduct a search of his cell. They
ordered both inmates out of the cell and handcuffed them. They then conducted a patdown search over the
inmates’ clothing and found no contraband.
Guzman and Carrillo escorted the two
inmates to the first tier to conduct an unclothed search. Guzman searched defendant’s cellmate and
could not see Carrillo or defendant during this search. Carrillo searched defendant. Carrillo removed defendant’s handcuffs and
ordered him to put his hands on his head and face Carrillo. Carrillo then directed defendant to hand him
one piece of clothing at a time.
Defendant was compliant and calm during the search; he made no furtive
movements.
After defendant removed his last
piece of clothing, Carrillo asked him to open his mouth. Defendant then turned and ran down the tier
toward the shower area. Carrillo and
Snyder chased after him. Just before
defendant reached the shower area, Carrillo saw him throw something
underhand. The item landed on the
slanted roof over the laundry and fell into the shower area. Defendant continued to run until he reached a
fence, where Snyder ordered him down and defendant complied. Snyder handcuffed him and escorted him to the
rotunda. There, Snyder put defendant in
a holding cell.
While Guzman was searching
defendant’s cellmate, he heard the slapping noise of defendant’s bare feet on
concrete. He followed the sound and saw
the very end of defendant’s run.
Carrillo said defendant threw something, so Guzman and Carrillo went to
the shower.
Carrillo unlocked the door and saw a
plastic bag containing five black bindles and bluish-green latex. He felt pills inside the latex. Carrillo put the item down and photographed
it where he found it. Then he secured it
in his jumpsuit.
Carrillo recovered 2.7 grams of
heroin and 22 tablets of MDMA. Both were
usable amounts. Officers searched
defendant’s cell and found a cell phone and a charger between two mattresses on
defendant’s bunk.
Defendant testified and claimed he
ran when asked to open his mouth to create a diversion because he thought his
cellmate still had the cell phone.
Possession of a cell phone in prison is a disciplinary violation. Defendant denied he threw anything or that he
possessed heroin or MDMA on this date.
He knew what heroin and MDMA were and that both are controlled substances.
Offense
On December 4, 2009, defendant was
found in possession of two bindles of heroin while in prison. On June 8, 2010, he was convicted on his plea
of a violation of Penal Code section 4573.6.
DISCUSSION
Defendant contends the trial court’s
admission of his prior conviction for possession of heroin in prison was
error. He argues the evidence had scant
probative value on the issue of knowledge because he offered to stipulate to
his knowledge of heroin. He contends the
evidence was unduly prejudicial and this was a close case, as shown by the
length of jury deliberation and the jury’s request for a readback of Carrillo’s
testimony and defendant’s testimony about the whereabouts of the cell phone.
I
Background to the Prior’s
Admission
Prior to trial, the People moved to
admit evidence of defendant’s 2010 conviction for possession of drugs in
prison. The People proposed to prove
this conviction with a certified court record.
They argued the prior offense was admissible under Evidence Code section
1101, subdivision (b) (section 1101(b)) to prove knowledge of the nature of the
heroin as a controlled substance.
Defendant moved to exclude the prior
as unduly prejudicial. Defendant
objected that knowledge was not in dispute, arguing, “Well, let’s be serious
about things here. One, those kinds of
things are not in dispute. I mean,
seriously if somebody has heroin in prison, they know what it is.†He asserted that admitting a conviction for
the same crime “is probably the most prejudicial fact that you could put into
any proceeding.†Defendant argued the
real issue was possession.
The trial court recited the law from
People v. Perez (1974) 42 Cal.App.3d
760 (Perez) as follows: “If defendant admitted the narcotic nature of
the substance, the court cannot admit the prior conviction. Generally, however, the prior conviction is
admissible under section 1101(b) unless it is overly prejudicial. The safeguard is the limiting instruction.â€
Defendant argued the limiting
instruction was not effective and that he was willing to stipulate that “he
knows heroin when he sees it and understands it’s a narcotic.†The trial court responded the “bigger
question†was whether defendant knew what was in the package and defendant was
unlikely to admit that, instead he would claim it was not his. Defendant agreed that was his defense.
The trial court asked how defendant
would “get past†section 1101(b).
Defendant responded, “It’s called section 352 of the Evidence
Code.†The court stated that all
relevant evidence is prejudicial, but here evidence of defendant’s prior was
not unduly prejudicial. “I don’t see how
the People are denied under section 1101(b) the right to present evidence that
he had heroin and was convicted of it a month or two before for that limited
purpose that he knew what heroin was, he had it in his pocket before, he had it
in his mouth this time and threw it out as he was running.â€
The court ruled the evidence was admissible under section 1101(b) for
the limited purpose of showing “the plan or motive or intent.â€
Defendant’s prior conviction was
read to the jury as an “undisputed fact.â€
The trial court then instructed the jury: “This is brought to your attention for the
sole purpose of establishing the degree of knowledge that the defendant may
have about what heroin is. It is not
brought for any other purpose.†Later,
the jury was instructed: “If you decide
that the defendant committed the uncharged offense, you may but are not
required to consider that evidence for the limited purpose of deciding whether
or not the defendant knew that heroin and MDMA are controlled substances when
he allegedly acted in this case.
[¶] Do not consider this evidence
for any other purpose except for the limited purpose of knowledge that heroin
and MDMA are controlled substances. Do
not conclude from this evidence that the defendant has a bad character or is
disposed to commit crime.†The court
further instructed the jury that evidence of the uncharged offense was
insufficient alone to prove guilt.
II
The Law
“The essential elements of
are ‘dominion and control of the substance in a quantity usable for consumption
or sale, with knowledge of its presence and of its restricted dangerous drug
character.’†(People v. Martin (2001) 25 Cal.4th 1180, 1184.) Defendant’s not guilty plea puts in issue all
the elements of the offense. (
1243.) Therefore, the People had to
prove defendant knew of the narcotic character of the substance found in the
shower.
“Evidence Code section 1101,
subdivision (a), generally prohibits the admission of evidence of a person’s
character or a trait of his or her character when offered to prove his or her
conduct on a specified occasion.†(
586.) Section 1101(b), however, permits
admission of defendant’s past criminal acts when relevant to prove a material
fact at issue, such as identity, motive, or knowledge. (People
v. Roldan (2005) 35 Cal.4th 646, 705, disapproved on other grounds in
421, and fn. 22.) “In prosecutions for
drug offenses, evidence of prior drug use and prior drug convictions is
generally admissible under Evidence Code section 1101, subdivision (b), to
establish that the drugs were possessed for sale rather than for personal use
and to prove knowledge of the narcotic nature of the drugs. [Citation.]â€
(People v. Williams (2009) 170
Cal.App.4th 587, 607.)
In Perez, supra, 42
Cal.App.3d 760, the court set forth guidelines for the admission of prior
narcotic activity to show defendant’s knowledge of the narcotic nature of the
substance in a drug case. The guidelines
were: “(1) The prosecution must prove every element of
its case including the defendant’s knowledge of the narcotic character of the
substance involved. [¶] (2) To
prove this element, prior or subsequent narcotic activity on the part of the
defendant is sometimes admissible.
[¶] (3) The trial court has the discretion to allow
the defendant to admit his knowledge of the narcotic nature of the object
involved in the primary prosecution.
[¶] (4) If the defendant stipulates to such
knowledge, it is error to admit evidence of other narcotics activity. [¶]
(5) There is no duty imposed on
the trial court to sua sponte elicit
a stipulation from the defendant as to his knowledge of the narcotic character
of the substance involved. [¶] (6) It
is not necessary for the defendant to raise this issue before the People can
present such evidence. [¶] (7) However, before admitting any such
evidence, the court must determine that the probative value of that evidence
outweighs its inherent prejudicial effect and find that the evidence is not
merely cumulative with respect to other evidence which the People have used to prove
the same issue. . . .†(Perez,
supra, at p. 766.)
In People v. Washington (1979) 95 Cal.App.3d 488 (Washington), the defendant was willing to stipulate he knew the
narcotic nature of heroin, but not that he knew the specific contents of the
balloon in the prosecution’s case. The
trial court found this stipulation insufficient and admitted Washington’s prior
conviction for possession of heroin. (
490.) The appellate court held it was
reversible error to admit evidence of defendant’s prior conviction, concluding
that Perez was incorrectly analyzed
because the defendant need only stipulate to knowledge of the
narcotic nature of the “precise object or
substance.†(Washington, supra, at p. 492, original italics.) The court found defendant had a
stipulate to an element of a crime if it would impair the effectiveness of
their case, the court found no possible impairment of the legitimate
effectiveness of the People’s case, but only improper and unnecessary
prejudice. (Ibid.)
More recent cases have emphasized
that the People are not required to stipulate to elements of a crime, to
prevent admission of certain evidence, if stipulating would weaken the force of
the case. (See, e.g.,
17; People v. Edelbacher (1989) 47
Cal.3d 983, 1007.) “There is a strong
policy against depriving the People’s case of its persuasiveness and strength
by forcing the prosecutor to accept stipulations that soften the impact of the
evidence in its entirety.
[Citations.] Thus, prosecutors
are not required to stipulate to the existence of any elements of the crime
they are trying to prove where the stipulation will impair the effectiveness of
their case and foreclose their options to obtain convictions under differing
theories. [Citation.]†(People
v. Cajina (2005) 127 Cal.App.4th 929, 933.)
The United States Supreme Court has
recognized the importance of permitting prosecutors to present their full case,
citing the rule that “a criminal defendant may not stipulate or admit his way
out of the full evidentiary force of the case as the Government chooses to
present it.†(Old Chief v. United States (1997) 519 U.S. 172, 186-187 [136
L.Ed.2d 574] (Old Chief).) “In sum, the accepted rule that the
prosecution is entitled to prove its case free from any defendant’s option to
stipulate the evidence away rests on good sense. A syllogism is not a story, and a naked
proposition in a courtroom may be no match for the robust evidence that would
be used to prove it. People who hear a
story interrupted by gaps of abstraction may be puzzled at the missing
chapters, and jurors asked to rest a momentous decision on the story’s truth
can feel put upon at being asked to take responsibility knowing that more could
be said than they have heard. A
convincing tale can be told with economy, but when economy becomes a break in
the natural sequence of narrative evidence, an assurance that the missing link
is really there is never more than second best.†(Old
Chief, supra, 519 U.S. at pp. 189-190.)
Even where a prosecutor is not
required to accept a stipulation to prevent the admission of other crimes
evidence, such evidence is still subject to weighing under Evidence Code
section 352 (section 352) to determine if its probative value is substantially
outweighed by the substantial danger of prejudice. (People
v. Ewolt (1994) 7 Cal.4th 380, 404 (Ewolt).) “Evidence of uncharged offenses ‘is so
prejudicial that its admission requires extremely careful analysis. [Citations.]’
[Citations.] ‘Since “substantial
prejudicial effect [is] inherent in [such] evidence,†uncharged offenses are
admissible only if they have substantial probative value.’ [Citation.]â€
(Ewolt, supra, 7 Cal.4th at p.
404.)
III
Analysis
Defendant argues that the trial
court erred in requiring that defendant stipulate to his knowledge of the drugs
found in the shower in order to keep evidence of his prior offense from the
jury. He relies on Washington, which, as we have described ante, rejected that requirement and held instead that the “intended
meaning†of Perez was that the
defendant need only stipulate to “‘his knowledge of the narcotic nature of the
[type of] object involved’†in the
case at hand. (Washington, supra, 95 Cal.App.3d at p. 492, original italics and
bracket.)
A. Effect of Offer to Stipulate
Defendant argues that admission of
his prior drug offense was error under the reasoning of Washington because he offered to stipulate to knowledge. However, as we have discussed
accept a defendant’s stipulation to knowledge of the narcotic nature of a drug
is always error has been eroded by
subsequent cases emphasizing the prosecution’s right to present its case in
full without accepting defense offers to stipulate.
In light of this clear trend in the
law (as well as the different rule set forth in Perez requiring a stipulation to the narcotic nature of the
to hold that the prior’s admission, despite the offer to stipulate to general
knowledge, was error per se, but instead advance to consideration of whether
the trial court properly balanced the probative value of the evidence against
its potential for undue prejudice pursuant to section 352.
B. Section 352 Balancing
The only permissible probative value
of the prior conviction in this case was to show defendant’s knowledge of the
narcotic nature of the heroin in his possession, should the jury find that he
possessed it. Defendant had offered to
stipulate to such knowledge. The
probative value of admitting the prior conviction, which defendant had suffered
very recently and under similar circumstances, in lieu of presenting the
general stipulation to the jury, was slight.
The potential for prejudice, however, was high.
In assessing the potential for
prejudice, the trial court stated merely that “every piece of evidence that
comes in against a defendant is prejudicial, that’s why it’s being
offered.†Along the same lines, it
added, “It does create a prejudice, there is no question about it, but at the
same time, all relevant evidence is going to create prejudice at one time or
another. The question is whether it’s
undue, and in this case, I don’t see how the People are denied under [section
1101(b)] the right to present the evidence that he had heroin and he was
convicted of it a month or two before for that limited purpose that he knew what
heroin was, he had it in his pocket before, he had it in his mouth this time,
and he threw it out as he was running. I
think it has to come in under 1101(b) . . . .â€
This assessment of prejudice was
inadequate. “‘The “prejudice†referred
to in [section 352] applies to evidence which uniquely tends to evoke an
emotional bias against defendant as an individual and which has very little
effect on the issues. In applying
section 352, “prejudicial†is not synonymous with “‘damaging.â€â€˜ [Citation.]â€
(People v. Bolin (1998) 18
Cal.4th 297, 320.) Here, the prejudice
inherent in admitting defendant’s recently-suffered prior conviction for
possession of heroin in prison was the danger that the jury would apply it to
the facts of this case--where the
charge was possession of heroin in prison--as propensity evidence; that is, as
defendant had possessed heroin in prison very recently, he was likely to have
possessed it in prison again, as alleged.
The trial court failed to recognize and address this potential prejudice,
arguably endorsing the use of the prior to prove propensity in its own
description of the permissible use of the evidence; the prior’s admission to
assist the People in proving defendant’s knowledge of the narcotic nature of
heroin should not result in the
jury’s consideration of the prior as proof that defendant “had it in his pocket
before, he had it in his mouth this time and threw it out as he was running,â€
as suggested by the trial court.
C. Effect of Error
Although the record indicates the trial
court improperly conducted the balancing test under section 352, we find any
error in admitting the evidence of defendant’s prior conviction harmless.
While the evidence of defendant’s
prior conviction was “prejudicial†in that its potential for prejudice
outweighed its probative value, we find it was not so “prejudicial†such that
it affected the case as a whole. First,
the trial court properly instructed the jury on the proper limited use of the
evidence, that it could not be considered as propensity evidence, and that such
evidence alone was insufficient to prove guilt.
These instructions were correct and are not challenged on appeal. “We ‘credit jurors with intelligence and
common sense’ [citation] and presume they generally understand and follow
instructions [citation].†(
610, 670.)
Further, the evidence against
defendant was very strong. After
undergoing a patdown search and a strip search, defendant ran when asked to
open his mouth. Carrillo saw him throw
something in the direction of the showers; the drugs were found there
immediately. Although the case was a
credibility contest between Carrillo and defendant, defendant’s story was less
than credible. He claimed he ran to
create a diversion because he feared his cellmate possessed a prohibited cell
phone. Since his cellmate was separately
searched by Guzman, it is unclear how running from Carrillo and Snyder would
aid his cellmate. Further, defendant
testified that possession of a cell phone was a
obey an order, such as running when ordered to open his mouth, while possession
of drugs was a crime. Defendant asked
the jury to believe not only that Carrillo lied--committed perjury--without
apparent motive, but that his falsehood was followed by the fortuitous
discovery of drugs, an extraordinary coincidence. The jury did not believe defendant’s story.
Defendant contends the case was
close because the jury requested readbacks of both Carrillo’s testimony and his
testimony about the whereabouts of the cell phone, and spent considerable time
deliberating. We disagree that the
jury’s request for a readback of testimony, which lengthened the deliberations,
necessarily indicates this case was close.
Given the state of the evidence, it is more likely the careful
deliberations show that the jury was conscientious and serious in approaching
its task, giving defendant the full presumption of innocence. Had it improperly considered defendant’s
prior conviction as propensity evidence, it is likely its verdict would have
come much sooner.
Having reviewed the entire record,
we conclude it is not reasonably probable the result would have been different
but for the trial court’s evidentiary ruling in admitting the prior
conviction. (People v. Watson (1956) 46 Cal.2d 818, 836.)
DISPOSITION
The judgment is affirmed.
DUARTE , J.
We
concur:
NICHOLSON , Acting P. J.
HULL , J.
name="_ftn1" title="">[1] As
we discuss briefly post, this
analysis incorrectly suggests that defendant’s prior may be considered as
propensity evidence.
