Filed 8/24/17 P. v. Silva CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

Defendant Amie Robin Silva was convicted of four drug-related offenses arising from two separate incidents in which methamphetamine was found on or near her person. On appeal, Silva contends the trial court abused its discretion in denying her request to sever. She also contends the trial court erred by instructing the jury on consciousness of guilt. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The San Mateo County District Attorney filed a five-count information against Silva arising from two incidents: a traffic stop that occurred on August 20, 2013 (counts 1 through 3), and a search of Silva while she was in county jail that occurred on September 3, 2014 (counts 4 and 5). She was charged with possession of methamphetamine for purpose of sale (Health & Saf. Code,[1] § 11378; count 1), transportation of methamphetamine (§ 11379, subd. (a); count 2), possession of drug paraphernalia (§ 11364.1; count 3), possession of methamphetamine while in the San Mateo County Women’s Correctional Facility (Pen. Code, § 4573.6; count 4), and possession of methamphetamine (§ 11377, subd. (a); count 5). It was further alleged that Silva had two prior convictions of possession of methamphetamine for purpose of sale. (§11370.2, subd. (c).)

In a motion in limine, Silva asked the trial court to sever the charges arising from the search in the correctional facility in 2014 from the charges related to the earlier traffic stop in 2013. She argued evidence of the later incident “would affect the verdict on the other charge [sic] because it imparts knowledge of the controlled substances to Ms. Silva.” The trial court denied the request for severance. The prosecution dismissed count 5 before the case went to the jury. Evidence of the following was presented at trial.

First Incident: August 2013 Traffic Stop

On the evening of August 20, 2013, San Mateo Police Officer Carlos Basurto observed Silva driving a white Dodge Magnum. There was a male passenger in the front seat of the Dodge, and Basturo noticed that Silva was not wearing a seatbelt. The officer initiated a traffic stop for the seatbelt violation. Basurto approached the driver’s side of the Dodge. He asked Silva for her driver’s license, and she responded that it had been confiscated. He asked her if she had any other form of identification, and she responded, “No.” Then Silva told him she did have a temporary driver’s license, which she gave him.

During the traffic stop, Basurto learned that the front-seat passenger, Luis Castillo, was on probation with a search condition. (There was no one else in the Dodge besides Silva and Castillo.) The officer had Castillo get out of the car and searched him. Basurto found a small bag of marijuana, $212 in cash, and a metal marijuana grinder in the right front pocket of Castillo’s shorts.

Basurto then searched the Dodge. In the front center console, he found a small metal electronic scale, a small women’s Coach purse, and two cell phones. Inside the small Coach purse, he found two glass methamphetamine pipes with residue indicating use, a sponge, a plastic baggie with several cards in it—including a California driver’s license for Silva that expired in 2003 and a current California identification card for Silva—a sock (one of the glass pipes was inside the sock), and two baggies that contained methamphetamine.[2] The officer also found a number of plastic grocery bags behind the driver’s seat.[3] Based on what he found in the search, Basurto arrested Silva and Castillo.

The prosecution called an expert in the field of use and sales of methamphetamine. The expert explained factors he considers to distinguish possession of methamphetamine for sale from simple possession for personal use. Among other things, he looks at the packaging of the drug, the amount, and whether “tools of the trade” such as scales, pay-owe sheets, baggies and packaging equipment, and cell phones are found. The expert testified it is extremely common for methamphetamine users also to sell the drug to support their habit. A person who only uses methamphetamine and does not sell it would rarely carry more than 2 grams in public. The methamphetamine found in the Dodge was packaged in two baggies, one containing 12.70 grams of methamphetamine and the other containing 13.11 grams. Assuming a hypothetical situation tracking the evidence presented at trial, the expert opined that the methamphetamine found in the console of a car would be possessed for purposes of sale.

Castillo testified for the defense. At the time of Silva’s trial, Castillo had already been convicted of possession of methamphetamine for sale in connection with the August 20, 2013, traffic stop. He testified that in August 2013, he was using a lot of methamphetamine, but he was not selling it. Silva was his girlfriend then, and on the day of the traffic stop, Castillo was helping her move. (Basurto, however, testified that he did not see any moving boxes, luggage, furniture, or other indication that the Dodge was being used in a move.)

Castillo testified that he kept his methamphetamine on his person or in the middle console of the Dodge.[4] Castillo identified the small Coach purse Basurto found in the console of the car as the “pouch” he used to hold his methamphetamine and pipes. He testified that Silva did not use methamphetamine, and he did not tell her that he was using methamphetamine. He tried to hide his drug use from Silva. Castillo explained that he hid his pipes and drugs in the Dodge because he was the primary user of the car at that time and Silva did not normally use it. He further claimed that “[w]hatever you guys found in there” in the car belonged to him.

Defense counsel also elicited testimony from Castillo about an incident on December 10, 2013. Castillo was driving the Dodge, and he led the police on a high-speed chase. After Castillo was apprehended, the police found methamphetamine on his person, and he was arrested. He was convicted of evading the police and possession of methamphetamine for sale as a result of this incident.[5]

Second Incident: September 2014 Strip Search

On September 3, 2014, Silva was in custody at the San Mateo County women’s jail. A correctional officer conducted a strip search of Silva. The correction officer could see paper or tissue in between her buttocks. She instructed Silva to drop it on the floor, and eventually Silva complied and dropped the item. Another officer retrieved the item from the floor, and it was found to contain a useable amount of methamphetamine.

The jury found Silva guilty as charged. In a bifurcated proceeding, the trial court found true the allegations of prior convictions. The trial court imposed a nine-year term, suspended five years of the sentence, and ordered Silva to serve the remaining four years in county jail.

DISCUSSION

I. Request to Sever

As we have mentioned, Silva asked, in a motion in limine, to sever trial on the charges related to the jail search from the charges arising from the traffic stop. At a hearing on motions in limine, Silva’s attorney argued there was no cross-admissibility of evidence. The trial court responded, “I think the potential of cross-admissibility of the evidence is showing her having the methamphetamine in jail would go to show knowledge potentially and potential intent for the other case.”[6] The court denied the motion, stating, “So, I am going to deny the severance motion. It is a close call, but I will deny it. It saves time for one thing, and I don’t think that one case is necessarily . . . stronger than the other, although it is—well I take that back. I think the second case is a little—is . . . stronger, but I think that overall the factors in balancing justify the cases being kept together.”

On appeal, Silva contends the trial court abused its discretion in denying her motion in limine to sever the charges arising from the jail search. We find no abuse of discretion.

A. Applicable Law and Standard of Review

Penal Code “[s]ection 954 provides that ‘two or more different offenses’ may be charged in the same pleading if the offenses are . . . ‘of the same class.’ This ‘statute permits the joinder of different offenses, even though they do not relate to the same transaction or event, if there is a common element of substantial importance in their commission, for the joinder prevents repetition of evidence and saves time and expense to the state as well as to the defendant.’ ” (People v. Armstrong (2016) 1 Cal.5th 432, 455 (Armstrong).)

Our Supreme Court “often ha[s] observed, because consolidation or joinder of charged offenses ordinarily promotes efficiency, that is the course of action preferred by the law.” (Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1220.)

“We review the trial court’s decision to deny a severance motion for abuse of discretion. [Citation.] To establish an abuse of discretion, the defendant must make a ‘ “clear showing of prejudice.” ’ ” (Armstrong, supra, 1 Cal.5th at pp. 455–456.) “In reviewing a trial court’s denial of a motion for severance, . . . ‘[w]e first consider whether evidence of each of the offenses would be cross-admissible in ‘hypothetical separate trials.’ ” (Id. at p. 456.)

“If the evidence is not cross-admissible, we then consider ‘whether the benefits of joinder were sufficiently substantial to outweigh the possible “spill-over” effect of the “other-crimes” evidence on the jury in its consideration of the evidence of defendant’s guilt of each set of offenses.’ [Citation.] In making this assessment, ‘we consider three additional factors, any of which—combined with our earlier determination of absence of cross-admissibility—might establish an abuse of the trial court’s discretion: (1) whether some of the charges are particularly likely to inflame the jury against the defendant; (2) whether a weak case has been joined with a strong case or another weak case so that the totality of the evidence may alter the outcome as to some or all of the charges; or (3) whether one of the charges (but not another) is a capital offense, or the joinder of the charges converts the matter into a capital case. [Citations.] We then balance the potential for prejudice to the defendant from a joint trial against the countervailing benefits to the state.’ ” [Citation.] [¶] On the other hand, if the evidence is cross-admissible, ‘that factor alone is normally sufficient to dispel any suggestion of prejudice and to justify a trial court’s refusal to sever properly joined charges.’ ” (Armstrong, supra, 1 Cal.5th at p. 456.)

B. Analysis

Here, Silva does not dispute that the charged offenses were “of the same class” (Pen. Code, § 954) since they were all drug-related crimes. (See People v. Coleman (1968) 263 Cal.App.2d 697, 702 [possession for sale of marijuana and possession of amphetamine of the same class of crimes].) The trial court determined that evidence of the methamphetamine found on Silva in the jail search was cross-admissible to show knowledge and intent for the charges arising from the traffic stop. This factor alone is sufficient to justify the denial of Silva’s request to sever. (Armstrong, supra, 1 Cal.5th at p. 456.)

We reject Silva’s argument that evidence of the two incidents was not cross-admissible because “knowledge of the substance in both cases was methamphetamine was not an issue.” As the Attorney General correctly points out, the offenses of possession, possession for purpose of sale, and transporting methamphetamine all require proof that the defendant knew of the “nature or character as a controlled substance” of the methamphetamine found. (See People v. Coria (1999) 21 Cal.4th 868, 874–875 [“knowledge of the character of the substance possessed is an essential element of the crime[s]” of possession, selling, and transporting a controlled substance].) Silva maintains that knowledge was not at issue because she stipulated at trial that the two baggies found in the console of the Dodge contained a useable amount of methamphetamine. But this only meant the prosecution could dispense with presenting evidence that the baggies contained methamphetamine. (So, for example, the prosecutor was not required to call a criminalist to testify about analyzing the material and determining it was methamphetamine.) The stipulation did not relieve the prosecution of the obligation to prove Silva had knowledge of the nature or character of the methamphetamine found in the console. Thus, contrary to Silva’s argument, evidence of Silva’s knowledge of the nature or character of the methamphetamine found in the console of the Dodge was at issue.

It has been observed that “n prosecutions for drug offenses, evidence of prior drug use and prior drug convictions is generally admissible under Evidence Code section 1101, subdivision (b), . . . to prove knowledge of the narcotic nature of the drugs.” ([i]People v. Williams (2009) 170 Cal.App.4th 587, 607.) The California Supreme Court has also recognized that subsequent conduct may be as relevant as prior conduct under Evidence Code section 1101. (People v. Balcom (1994) 7 Cal.4th 414, 425–426.) Given these precedents, the trial court did not abuse its discretion in determining that evidence of the jail search was cross-admissible to show Silva’s knowledge of the character of the methamphetamine found in the console of the Dodge.[7] It follows that the court did not abuse its discretion in denying Silva’s request to sever based on the cross-admissibility of evidence. (Armstrong, supra, 1 Cal.5th at p. 456.)

Finally, to the extent Silva claims the failure to sever trial of the two incidents was unduly prejudicial and deprived her of a fair trial despite the cross-admissibility of the evidence, we are not persuaded. She argues the circumstances of the jail search were considerably more inflammatory than the circumstances of the traffic stop. We do not find the facts of the second incident to be more inflammatory than the facts of the first incident. Both involved possession of methamphetamine, and the first incident, but not the second, involved possession of methamphetamine for sale. (It could be argued that selling drugs is much more likely to inflame jurors than using drugs.) We also note that the trial court instructed the jury that each count charged was a separate crime to be considered separately. The court further explained that evidence of the September 2014 offense could only be used “for the limited purpose of deciding whether or not the defendant knew the methamphetamine’s nature or character as a controlled substance during the August 20, 2013 offense.” And, similarly, the court instructed that evidence of the August 2013 offense could only be used for the limited purpose of proving knowledge with respect to the September 2014 offense. Under these circumstances, we cannot say the trial court’s denial of Silva’s request to sever deprived her of a fair trial.

II. Jury Instruction on False Statements and Consciousness of Guilt

At the request of the prosecution and over Silva’s objection, the trial court instructed the jury on CALCRIM No. 362, consciousness of guilt, as follows: “If the defendant made a false or misleading statement before this trial relating to the charged crime, knowing the statement was false or intending to mislead, that conduct may show she was aware of her guilt of the crime and you may consider it in determining her guilt. If you conclude that the defendant made the statement, it is up to you to decide its meaning and importance. However, evidence that the defendant made such a statement cannot prove guilt by itself.”

On appeal, Silva contends this instruction was improper and prejudicial. The instruction relates to the evidence that Basurto asked Silva whether she had any form of identification, and she responded, “No,” before producing a temporary driver’s license. Silva’s response was misleading because she also had a current California identification card, which she did not mention and which was kept in the small Coach purse found in the console of the Dodge.

Silva argues, “Even though an unexpired California identification card was also in that purse, no evidence indicated [Silva] failed to produce that identification to mislead the officer when he had asked for a driver’s license.” This argument ignores two important points. First, after Silva told the officer her license had been confiscated, he asked “if she had any other form of identification.” (Italics added.) His question was not limited to licenses to drive. By answering, “No,” and then producing only a temporary driver’s license, Silva conveyed that she had no other form of identification when, in fact, she had a current California identification card with her in the console of her car. Second, that current California identification card responsive to Basurto’s request for identification was located in the small Coach purse that also contained two baggies of methamphetamine, two glass pipes, and a scale. As the prosecutor argued in her closing argument, “f [Silva] didn’t know there was meth in that tiny pursue right next to her ID, she would have gone in and retrieved the ID.”

Silva also seems to make the claim that CALCRIM No. 362 creates an impermissible inference of guilt. She acknowledges that the California Supreme Court has rejected this challenge to a similar predecessor instruction, CALJIC No. 2.03 (see [i]People v. Crandell (1988) 46 Cal.3d 833, 870–871, abrogated on other grounds in People v. Crayton (2002) 28 Cal.4th 346, 365–366), but she argues CALCRIM No. 362, unlike CALJIC No. 2.03, advises that the jury that it may consider evidence of awareness of guilt “in determining her guilt.” We do not believe CALCRIM No. 362 creates an impermissible inference of guilt. The instruction goes on to advise the jury, “If you conclude that the defendant made the statement, it is up to you to decide its meaning and importance. However, evidence that the defendant made such a statement cannot prove guilt by itself.” CALCRIM No. 362, thus, properly allows the jury to consider evidence of consciousness of guilt, but also clarifies that such evidence is not sufficient to prove guilt. (See People v. McGowan (2008) 160 Cal.App.4th 1099, 1104 [“Although there are minor differences between CALJIC No. 2.03 and CALCRIM No. 362 . . ., none is sufficient to undermine our Supreme Court’s approval of the language of these instructions.”].)

Further, the trial court instructed the jury on all of the elements of each of the charged offenses and told the jury that the prosecution was required to prove Silva’s guilt beyond a reasonable doubt. Considering the instructions as a whole, we conclude there is no reasonable likelihood the jury would have understood CALCRIM No. 362 as creating an impermissible inference of guilt. (See People v. Bryant (2014) 60 Cal.4th 335, 433 [defendant challenging a jury instruction must demonstrate a reasonable likelihood that the jury understood the instruction in the erroneous manner claimed].)

DISPOSITION

The judgment is affirmed.

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Miller, J.

We concur:

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Kline, P.J.

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Richman, J.

A144921, People v. Silva