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                                                  NOT TO BE PUBLISHED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
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                     IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                             THIRD APPELLATE DISTRICT

                                                            (Sacramento)

                                                                    ----



THE PEOPLE,                                                                                               C069782

                     Plaintiff and Respondent,                                               (Super. Ct. Nos. 10F00520,
                                                                                                     10F04888)
          v.

ORLANDO JOSE WILLIAMS, JR.,

                     Defendant and Appellant.




          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




                                                                     1
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.



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       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.

       Prior 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,

                                                   3
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.”

       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




                                                  4
as he was running.”1 The court ruled the evidence was admissible under section 1101(b) for the

limited purpose of showing “the plan or motive or intent.”

       Defendant‟s prior conviction was read to the jury as an “undisputed fact.” 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 unlawful possession of a controlled substance 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. (People v.

Steele (2002) 27 Cal.4th 1230, 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.” (People v. Avila (2006) 38 Cal.4th 491, 586.) Section



1   As we discuss briefly post, this analysis incorrectly suggests that defendant‟s prior may be
considered as propensity evidence.

                                                 5
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 People v. Doolin (2009) 45 Cal.4th 390, 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.]” (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. (Washington,

                                                 6
supra, 95 Cal.App.3d at p. 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 type of narcotic at issue, not the

narcotic nature of the “precise object or substance.” (Washington, supra, at p. 492, original

italics.) The court found defendant had a right to stipulate. (Ibid.) While acknowledging that

the People need not 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., People v. Scheid (1997) 16 Cal.4th 1, 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

                                                  7
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.]”

(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

ante, the persuasive effect of Washington’s rule that the refusal to 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.



                                                  8
       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 precise substance at issue), we decline 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) . . . .”

       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.”„ [Citation.]” (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

                                                  9
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,” 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].” (People v. McKinnon

(2011) 52 Cal.4th 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

                                                 10
possession of a cell phone was a disciplinary violation, as was failing to 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.



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