Filed 4/15/13 P. v. Aceves CA2/6
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication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

                                     SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


THE PEOPLE,                                                                  2d Crim. No. B239788
                                                                            (Super. Ct. No. 1347782)
     Plaintiff and Respondent,                                               (Santa Barbara County)

v.

JOSE MACHUCA ACEVES,

     Defendant and Appellant.



                   Jose Machuca Aceves appeals from a judgment after conviction by jury of
transporting methamphetamine (Health & Saf. Code, § 11379, subd. (a)) and possession
of methamphetamine for sale (§ 11378).1 The jury acquitted him of unlawfully taking a
vehicle. (Veh. Code, § 10851, subd. (a).) The trial court found he had suffered five prior
felony convictions related to controlled substances and four prior prison commitments.
(§ 11370.2, subd. (c); Pen. Code, § 667.5, subd. (b).) The court sentenced him to 23
years in jail.
                   Aceves contends the trial court erred when it admitted evidence of his prior
controlled substance convictions because he would stipulate that he knew the narcotic
nature of methamphetamine. He would not stipulate that he knew methamphetamine was
present. We affirm.

          1 All statutory references are to the Health and Safety Code unless otherwise
stated.
                      FACTUAL AND PROCEDURAL HISTORY
              In May of 2010, Jose Martinez reported his car stolen. There were no
suspects.
              About a week later, Martinez's son Chad saw the car. Chad approached the
driver, Aceves. Aceves stopped and, when Chad insisted it was his car, Aceves explained
that he was test driving it. He said that "some guy on Bunny Street" was selling it.
Aceves gave Chad his phone number and offered to drive him to the seller. Chad
declined, and "flagged . . . down" a police officer.
              The police officer detained Aceves, confirmed that the car was stolen, and
searched it. He found three large bags of methamphetamine: one in the driver's side door
pocket, one on the driver's side floor mat, and one on the passenger side floor mat. The
bags were not covered or otherwise concealed. They were in plain view. The officer also
found seven small baggies of methamphetamine in a coin purse in the center console.
When Aceves got out of the car, he retrieved a cell phone from under the passenger seat.
The officer found two more cell phones in the center console.
              The methamphetamine weighed 83 grams in total and had a street value of
about $8,000. An expert testified that indicators such as the quantity and packaging of
the drugs and the number of cell phones were consistent with drug sales.
              The prosecution moved in limine to admit evidence of four prior
convictions for transporting methamphetamine and possessing methamphetamine for
sale. Aceves objected on the ground the evidence was unduly prejudicial.
              Aceves offered to stipulate that he knew the narcotic nature of
methamphetamine. (Evid. Code, § 352.) The trial court decided to admit the convictions
to prove knowledge of the nature and presence of methamphetamine, unless Aceves also
stipulated that he knew methamphetamine was present. He did not.
              The trial court tentatively limited the prior conviction evidence to the two
most recent convictions for possession of methamphetamine for sale in 2001 and 2005.
(§ 11378.) The court found the probative value of the other two convictions for
transportation of methamphetamine in 1997 and 1998 was outweighed by the risk of

                                              2
undue prejudice. (Evid. Code, § 352.) But the court eventually admitted the 1997 and
1998 convictions, after Aceves testified that he had never bought or sold drugs and did
not know their value.
              Aceves testified that he did not know there was methamphetamine in the
car. He was test driving it because an acquaintance named Isidro Munoz offered it to him
to satisfy a debt. On direct examination, he said he saw "[s]ome bags" and two cell
phones in the car, and "a bag in a little compartment." But he said he did not know the
bags contained drugs until the police officer told him.
              On cross-examination, Aceves said he did not see any baggies in the car.
He said he did not see a bag on the floor by his feet or in the car door. He admitted that
he knew the narcotic nature of methamphetamine.
              The prosecutor first confronted Aceves with his 2001 and 2005 convictions
for possession of methamphetamine for sale. (§ 11378.) Aceves pointed out that these
were only possession offenses. He said, "If you can show me that they caught me selling
it on that date . . . I've never sold it. It's just possession. It's minimum." He said, "I don't
buy it. I don't sell it." He had "no idea" what methamphetamine is worth. The trial court
then allowed the prosecutor to impeach Aceves with his 1997 and 1998 convictions for
transportation of methamphetamine. (§ 11379.)
              The trial court instructed the jury to consider the prior convictions only on
the question of whether Aceves knew of the nature and presence of methamphetamine,
and not as proof of propensity.
                                        DISCUSSION
                            Evidence of Prior Drug Convictions
              Aceves contends the trial court abused its discretion when it admitted
evidence of his prior drug convictions because he admitted he knew the narcotic nature of
methamphetamine. We disagree.
              Generally, a prosecutor is not compelled to accept a stipulation that would
deprive it of its right to introduce persuasive and forceful evidence of an element of an
offense. (People v. Scheid (1997) 16 Cal.4th 1, 17.) But there is an exception to this rule

                                               3
where the risk of undue prejudice to the defense outweighs the probative value of the
evidence. (People v. Thornton (2000) 85 Cal.App.4th 44, 49.) Evidence of prior
convictions may be admissible to prove a defendant's knowledge of the narcotic nature of
a substance, but not when the defendant stipulates to knowledge. (People v. Perez (1974)
42 Cal.App.3d 760, 766 [prior convictions were admissible to prove knowledge where
defendant did not offer to stipulate].) To secure convictions in this case, the prosecution
was required to prove, among other things, that Aceves knew two things: (1) he knew
methamphetamine's nature or character as a controlled substance, and (2) he knew it was
present. Aceves would not stipulate that he knew it was present. He testified that he
never would have driven the car if he had known methamphetamine was present.
              Aceves' prior convictions had a tendency in reason to prove that he did
know methamphetamine was present. It is reasonable to infer that a person with four
prior convictions for transporting methamphetamine and possessing it for sale would be
likely to notice and recognize narcotics packages on the car's floor, in the driver's door
pocket, and in the console of a car. Aceves put his knowledge into issue when he pled
not guilty, and its probative value increased when he denied ever buying or selling drugs.
Any risk that the jury might consider the prior convictions for the improper purpose of
proving propensity was alleviated by the trial court's limiting instruction.
              This case is unlike People v. Washington (1979) 95 Cal.App.3d 488, in
which the trial court erroneously admitted evidence of prior narcotics convictions to
prove knowledge that a balloon contained heroin. In Washington, the defendant was
charged with selling heroin in violation of section 11352, which, like section 11379,
requires proof the defendant knew of the nature and presence of the narcotic. The
defendant offered to stipulate that he was "familiar with heroin, the way it is packaged
and the way it is sold." (Washington, at p. 490.) That offer met the "knowledge"
elements sufficiently to render the prior convictions unduly prejudicial. Here, Aceves
admitted that he was familiar with methamphetamine in general, but he did not admit that
he knew how it is packaged. He affirmatively denied knowing about the way it is bought


                                              4
and sold. He said, "I don't buy it. I don't sell it." The trial court did not abuse its
discretion when it admitted evidence of Aceves' prior convictions.
                                       DISPOSITION
              The judgment is affirmed.
              NOT TO BE PUBLISHED.




                                            GILBERT, P.J.


We concur:



              YEGAN, J.



              PERREN, J.




                                               5
                                  Kay S. Kuns, Judge

                        Superior Court County of Santa Barbara

                         ______________________________


             Mark R. Feeser, under appointment by the Court of Appeal, for Defendant
and Appellant.


             Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Eric E.
Reynolds, William H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.




                                           6
