NOT TO BE PUBLISHED
A jury found defendant Rigoberto Valencia guilty of conspiracy to transport methamphetamine (declining to find the greater offense of transporting it from a noncontiguous county), in which he was substantially involved in the planning and which involved a quantity greater than a kilogram. It also convicted him of the underlying offense.
Defendant contends the trial court erred in ruling that his 1997 federal conviction for conspiracy to possess heroin with intent to distribute was admissible under Evidence Code
As we will explain, his appeal from the latter is inoperative because he did not obtain a CPC. Further, we find no abuse of discretion in the admission of his prior conviction. We shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A confidential informant, working with federal and state officials as a pretextual participant in drug transactions, learned Ceja and his brother were involved with methamphetamine and sought to initiate a deal to obtain a large amount of the drug. Ceja called the informant and said he knew someone from San Jose who could get six pounds for $21,000. At the direction of his police contact, the informant arranged to meet in a Home Depot parking lot on September 8, 2008 (rather than at Ceja's brother's home, as Ceja suggested). The informant got a call from Ceja on the scheduled date to postpone the exchange for a day because his San Jose supplier would be coming with him and had to be in court.
The informant spoke with Ceja early on the following morning to confirm the meeting at the Home Depot. The informant parked in the lot and waited for several hours, during which Ceja called him multiple times to say that they were on their way from San Jose. Ceja initially told the informant that they would be driving a gold Lincoln Navigator; however, on his arrival he called to say that he was driving a white van with lettering on it. The informant then saw a white van with "Mr. Chimney" on its side drive by and leave the lot.
In the meantime, police surveillance saw a gold Navigator registered to Ceja arrive at the same time as the white van and circle around the parking lot several times. Two people inside the Navigator appeared to be scouting the area.
The white van returned and parked on the street. The informant could see Ceja was driving. Ceja called him and said he wanted to complete the deal at his brother's house because he saw suspicious cars in the parking lot. The informant said he needed to see the "merchandise" for himself, after which they could complete the exchange at the nearby home of the informant's purported customer. The informant walked over to the van, and Ceja got out. Ceja phoned someone (whom he referred to as his supplier; his cell phone records showed a call to his brother during this time) to ask if it was acceptable for the informant to see the drugs in the parking lot. Apparently getting permission, Ceja opened a cooler that he took out of the van, and the informant saw the six pounds of methamphetamine in containers.
During this same time, police surveillance saw the Navigator park in a lot across the street. The passenger went into a fast-food establishment and returned to the car a couple of minutes later. The Navigator drove back to the Home Depot parking lot.
The informant told Ceja that he needed to phone the purported customer to tell him that they would be coming over. He returned to his car and called his police contact.
Detectives detained the Navigator. Mendoza was the driver, and defendant was the passenger. Mendoza lived in Redwood City, and defendant in Menlo Park.
Defendant had over $2,000 in his pocket and a cell phone. The police also seized the cell phones belonging to the other defendants.
During police questioning, Mendoza denied any knowledge that drugs were present in the van, or knowing Ceja (even when the latter was pointed out to him at the scene). He claimed defendant had arranged for an acquaintance to borrow the van (which defendant used in his work for Mendoza's business) in exchange for $1000. The person left his Navigator with them. They had driven to Sacramento in order to exchange vehicles. Defendant also claimed to be there to retrieve the van, and asserted he did not know the name of the person to whom he had lent it.
Ceja had fled from the van when he saw police detain the Navigator. He was arrested a short distance away. He denied having any connection with the van and said that he lived with his brother at a nearby address. He admitted owning the Navigator, and claimed to have given defendant and Mendoza (whose first names he knew) a ride from the Bay Area to Sacramento earlier that day, and had allowed them to borrow it. His brother's wife had dropped him off at the Home Depot so he could retrieve it.
The van was registered in the name of a third party, but had a certificate of insurance in Mendoza's name; business cards and a prescription bottle in his name were also in the van. Only Ceja's fingerprints matched those found in the van.
In the expert opinion of a detective witness, the occupants of the Navigator had been engaging in "counter-surveillance" when they first drove through the parking lot, looking for police or other dealers who might raid them. Large-scale transactions usually involved more than one car, with the broker carrying the drugs in one car and the supplier in the other monitoring the deal. He also noted that Modesto and Turlock were known sources of methamphetamine.
That morning, there had been calls between defendant and Mendoza and a call from defendant to Ceja just after Ceja had called the informant to confirm that the deal was taking place. Ceja made 14 unanswered calls to defendant in a 15-minute interval shortly afterward. There were also calls between the two codefendants over the course of the day. Cell tower records showed Mendoza had travelled that day from Hayward to Turlock before heading to Sacramento; Ceja had started in the vicinity of East Palo Alto, and then followed the same route as Mendoza.
Mendoza testified in his own defense. He owned a chimney cleaning and concrete business, in which he used the van (which belonged to a friend who could not afford the payments any longer). Defendant was an employee of Mendoza's. Mendoza did not have any court appearances on September 8. When he arrived at work early the next morning, the van was already gone. Defendant told him he had loaned it to Ceja, with whom Mendoza had spoken a few times (and whom he knew only by his given name). Mendoza told defendant that they needed the van for work that day. Ceja was already on his way to Sacramento, so defendant used Mendoza's cell phone to arrange to meet Ceja in Turlock to exchange vehicles. When they arrived in Turlock, however, Ceja told defendant on the phone that they had to come to Sacramento to get the van. They drove through the Home Depot parking lot looking for the van. After driving across the street for defendant to use a restroom, they were arrested on their return to the parking lot. He disavowed his statements at the time of his arrest.
Proceedings to Admit Defendant's Prior Drug Crime
The People filed a pretrial motion in limine to admit defendant's 1997 federal conviction for conspiracy to possess heroin with intent to distribute under section 1101, subdivision (b), as evidence of knowledge, and the absence of mistake or accident. The People argued this prior conviction demonstrated defendant's knowledge of methods for organizing a conspiracy to transport controlled substances, and the absence of any mistake or accident in associating with others involved in transporting them.
The People proposed to prove defendant's prior conduct by certified documents, asserting that the overt acts set forth in the indictment were admissible under section 452.5.
In the plea agreement, defendant admitted conspiring to possess a mixture containing heroin with intent to distribute, but he did not expressly admit any of the overt acts.
In opposition to admission, defendant argued the overt acts in the indictment were hearsay and inadmissible under section 452.5. He argued only those facts that were part of the factual basis of the plea agreement had been proven.
At the start of the fourth day of trial, the court stated that it intended to admit the evidence of the 1997 conviction. The court opined the 1997 facts were sufficiently similar to refute the defense that defendant was present at the time of the methamphetamine transaction only to exchange vehicles, without any knowledge or intent to join in the criminal enterprise. Defense counsel argued to the contrary, asserting that the effect of admitting the evidence would amount to a directed verdict. In response to the defense request for a ruling as to what evidence the People could use to prove the prior conduct, the court ruled the People could use the overt acts shown in the indictment.
The court admitted the documents relating to the 1997 conviction at the close of trial. The court instructed the jury, inter alia, that it was to only consider the evidence of defendant's prior if proved by a preponderance of the evidence and then only "for the limited purpose of deciding whether or not the defendant knew that the illegal drugs were being transported . . . or the defendant's alleged actions were not the result of mistake or accident."
The prosecutor observed in argument that "the evidence that you will be hearing about [the prior 1997 conviction] is from the documents; no live witness. So these are some exhibits that you ha[ve] not seen before." The prosecutor summarized the facts of the prior offense, first emphasizing the instruction that they could be used only for the limited purposes of proving defendant's knowledge that transportation of controlled substances was taking place and that his presence was not the result of accident or mistake. The prosecutor urged the jury to use this evidence to "determine whether, on this occasion, is [defendant] simply in the wrong place at the wrong time?"
Defense counsel highlighted defendant's lack of any subsequent drug convictions, and the prior offense being similar in only the most generic sense of using cell phones to arrange a shifting site for a transaction (as opposed to any indication defendant had also claimed previously that he was an innocent bystander).
Admission of Evidence under Section 1101(b)
Defendant contends the trial court erred in admitting evidence of his prior "bad acts"—that is, evidence of his conduct that resulted in his 1997 federal conspiracy conviction. He contends the evidence was not sufficiently similar to the charged offense to be admissible under section 1101, subdivision (b), and it should have been excluded as too prejudicial under section 352.
We review the trial court's rulings in admitting or excluding evidence under sections 1101 and 352 for an abuse of discretion. (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
"As a general rule, evidence the defendant has committed crimes other than those for which he is on trial is inadmissible to prove bad character, predisposition to criminality, or the defendant's conduct on a specific occasion. [Citation.]" (People v. Williams (2009) 170 Cal.App.4th 587, 607.) Under section 1101, subdivision (b), however, evidence that defendant committed a crime or other "bad act" is admissible "when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or . . .) other than his or her disposition to commit such an act."
The degree of similarity required between the uncharged act and the charged offense varies, depending on what the uncharged act is used to prove. Here, the People offered the uncharged crime to prove knowledge and absence of mistake. This use requires the least degree of similarity because, as in the case where intent is the fact to be proved, the evidence of the uncharged crime is admissible to prove the state of mind accompanying the act; that defendant committed the act itself is conceded or assumed.
"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.] In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant `"probably harbor[ed] the same intent in each instance." [Citations.]' [Citation.]" (People v. Ewoldt (1994) 7 Cal.4th 380, 402.) A greater degree of similarity is required to prove the existence of a common design or plan and the greatest degree of similarity is required to prove identity. (People v. Ewoldt, supra, 7 Cal.4th at pp. 402-403.)
Because on appeal defendant has not challenged the nature of the evidence offered by the People to prove defendant's prior conduct, we consider all the evidence before the trial court, including the overt acts set forth in the indictment. Based on this evidence, we find no abuse of discretion in the trial court's conclusion that there was sufficient similarity to support the inference defendant knew he was involved in a drug conspiracy and that his presence was not simply a mistake.
In both cases, the meeting and its shifting times and locations were arranged by phone. Changes were made in response to the buyers' concerns about the police—in the first case, changing the time of the exchange, and in the second, proposing a different location. Both times the buyer met with the sellers before the actual exchange. Both exchanges were to take place in a parking lot, with the drugs in a vehicle. All of the conspiring sellers (three in each case) were present for the exchange, with one of the three arriving separately.
Defendant contends the trial court should have excluded the evidence of the 1997 conspiracy under section 352 because it was more prejudicial than probative. He first argues the record fails to demonstrate affirmatively that the trial court made a closely reasoned determination of the probative value of the 1997 offense outweighing any prejudicial effect. The record reveals otherwise; the trial court expressly found "any prejudicial effect of that evidence is outweighed by that probative value." Moreover, a trial court does not need to weigh probative value against prejudice on the record, or even state expressly that it has undergone this process. (People v. Mickey (1991) 54 Cal.3d 612, 656; People v. Waidla (2000) 22 Cal.4th 690, 724, fn. 6 [disapproving language suggesting otherwise in any earlier case].)
Defendant then asserts in conclusory fashion that the error was prejudicial because the prosecutor used it to challenge the essence of his defense, but does not make any assessment of the sufficiency of the evidence against him otherwise. He argues the deliberations reflect that the jury considered this a close case.
The evidence of the prior conspiracy was very probative because it addressed the issue at the heart of defendant's defense—knowledge and absence of mistake. "A trial court should not exclude highly probative evidence unless the undue prejudice is unusually great." (People v. Walker (2006) 139 Cal.App.4th 782, 806.)
That the challenged evidence eviscerated the defense of ignorance or mistake did not make it unduly prejudicial under section 352. "The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. `[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant's case. The stronger the evidence, the more it is "prejudicial." The "prejudice" referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, "prejudicial" is not synonymous with "damaging."' [Citation.]" (People v. Karis (1988) 46 Cal.3d 612, 638.)
In arguing that the admission of the 1997 conspiracy unduly prejudiced him because the jury must have used it as propensity evidence to convict him, defendant ignores the strength of the evidence against him. The evidence provided strong indicia that defendant was aware a drug transaction was taking place. He was present in a car that the informant and the expert established would be the one containing the supplier. The Navigator circled the parking lot where the delivery was to occur several times, conducting "counter-surveillance." The meandering course to Sacramento through Turlock, notorious to law enforcement as a source of methamphetamine, had no logical explanation. There were multiple telephone calls between defendant and the other participants in the conspiracy, and multiple phone calls between the other co-conspirators and defendant's traveling companion, with whom he had spent the majority of the day. On his arrest, defendant falsely denied knowing Ceja. He also had an inexplicably large amount of cash with him.
In arguing that the jury considered evidence of his prior conviction as propensity evidence to convict him, defendant also ignores the fact that the trial court carefully instructed the jury not to do precisely what defendant now argues it did—consider defendant's prior as other than state of mind evidence. Jurors are presumed to have followed the court's instructions. (People v. Avila (2006) 38 Cal.4th 491, 574.) That the jury found defendant guilty but could not reach a verdict as to Mendoza's guilt under the same circumstances is not evidence that it disregarded the court's instructions. Mendoza testified, and therefore might have been able to convey reasonable doubt to at least one juror. Further, defendant was in the car with Mendoza and closely associated with him in every aspect of the conspiratorial conduct. Had the jury convicted defendant due to perceived propensity, it is highly likely that this perception would have it led to the conclusion that all of the participants were of the requisite state of mind, and resulted in its conviction of Mendoza as well.
Defendant has failed to show the evidence was unduly prejudicial and we find no abuse of discretion in its admission.
Further, the strength of this evidence against defendant shows that any error in admitting the evidence of the 1997 prior was harmless because it is not reasonably probable the jury would have reached a result more favorable to defendant in its absence. (People v. Watson (1956) 46 Cal.2d 818, 836.)
Prior Drug Crime Enhancement
Defendant argues the trial court erred in failing to elicit waivers of his rights to remain silent and to confront adverse witnesses on the record before accepting his admission of the allegation of a prior drug crime, citing People v. Mosby (2004) 33 Cal.4th 353, 356, 362. The People cite our decision in People v. Fulton (2009) 179 Cal.App.4th 1230, 1235, 1237, which held that a defendant cannot challenge procedural irregularities in the acceptance of an admission of an enhancement unless the defendant obtains a CPC. Defendant failed to address Fulton in his opening brief; in reply, he simply asserts we wrongly decided that case. We do not find any cogent basis to depart from that ruling and therefore find defendant's argument is not cognizable on appeal.
The judgment is affirmed.
RAYE, P. J. and ROBIE, J., concurs.