Filed 4/21/14 P. v. Jennings CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
 California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E057061

v.                                                                       (Super.Ct.No. RIF1202184)

DESTINY CAROLINE JENNINGS,                                               OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Jean P. Leonard, Judge.

Affirmed.

         Gail Ganaja, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, and Charles C. Ragland and

Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.




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       Following trial, a jury convicted defendant and appellant Destiny Caroline

Jennings of unlawfully possessing methamphetamine for sale (Health & Saf. Code,

§ 11378) and found her two prior drug conviction allegations to be true. (Health & Saf.

Code, § 11370.2, subd. (a).) She was sentenced to eight years, split into six years in

county jail and two years on supervised release. Defendant appeals, contending the trial

court erred in admitting evidence of her prior convictions for possession for sale in order

to prove her intent and knowledge.

                                        I. FACTS

       On April 13, 2012, a probation search of defendant’s residence resulted in the

discovery of two bags containing a combined total of 31.7 grams of methamphetamine, a

digital scale with methamphetamine residue on the surface, $2,253 in cash (mostly in $20

bills), and two locked cell phones. Detective Ron Kipp of the Riverside Police

Department, an expert in drug-related criminal activity, opined that an ounce of

methamphetamine, a scale, two locked cell phones, and approximately $2,000 in cash

was evidence defendant was selling methamphetamine rather than merely possessing it

for personal use.

       The prosecution presented evidence of defendant’s two prior convictions for

possession of methamphetamine for sale. Deputy Steven Leone of the Riverside County

Sheriff’s Department testified about two previous incidents involving defendant. In the

first incident in June 2009, police searched defendant’s residence and found her stuffing a

bag of methamphetamine into a bleach bottle. The deputy opined this behavior was

consistent with a person attempting to get rid of the evidence. Police recovered 10.1

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grams of methamphetamine, plastic baggies, four digital scales, $1,800 in cash, a razor

blade, and pay-owe sheets. In the second incident in August 2010, police searched

defendant’s residence and found 2.3 grams of methamphetamine, plastic baggies, two

digital scales, two cell phones, a glass pipe, a straw, a spoon, and pay-owe sheets.

                II. ADMISSION OF PRIOR CONVICTIONS EVIDENCE

       Defendant contends the trial court erred in admitting evidence of her two prior

convictions for possession of methamphetamine for sale, because the incidents were

insufficiently similar to show that she harbored the same intent in the present case as she

had in the past cases. Further, she claims the probative value of the evidence was

outweighed by its prejudicial effect.

       A. Further Background Facts

       Prior to trial, the People moved, pursuant to Evidence Code section 1101,

subdivision (b),1 to introduce evidence of defendant’s June 2009 and August 2010

methamphetamine sales convictions to prove intent and knowledge. These convictions

also were alleged as enhancements. The trial court heard argument from both sides. As

to the June 2009 incident where defendant dumped methamphetamine into a bleach bottle

to destroy the narcotics, the prosecutor argued that attempting to dispose of evidence

went towards defendant’s knowledge that she possessed a controlled substance for sale.


       1   Evidence Code section 1101, subdivision (b) provides, in pertinent part:
“Nothing in this section prohibits the admission of evidence that a person committed a
crime . . . or other act when relevant to prove some fact (such as . . . intent, . . . plan, . . .
[or] absence of mistake or accident . . . other than his or her disposition to commit such
an act.”

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Defense counsel countered that knowledge was not at issue in this case and the evidence

was not sufficiently similar to show intent because no bleach bottle was found in the

current case. Regarding the August 2010 incident, the prosecutor argued the evidence of

methamphetamine and scales was sufficiently similar to the instant case to show that

defendant’s business was selling methamphetamine. Defense counsel replied that the

presence of pay-owe sheets and plastic baggies in the prior case made it dissimilar to the

current case.

       The trial court ruled that the prior convictions were admissible under Evidence

Code section 1101, subdivision (b), to show defendant’s knowledge of the nature and

character of the methamphetamine as a controlled substance, her intent to sell the drugs,

and lack of mistake. The trial court noted the evidence also showed a pattern that

indicted more than just mere possession and possibly sales.

       Defense counsel then submitted that the prior offenses should be excluded under

Evidence Code section 352 on the grounds they had no probative value, would be used to

show propensity, and would be highly prejudicial and confusing. The court weighed the

probative value against the potential for prejudice and concluded the probative value of

the prior offenses outweighed any undue prejudice or confusion, because defendant had

already been convicted and punished for those crimes. Moreover, the court noted there

were consequences for being convicted of selling narcotics, and thus, the jury should be

able to decide what weight to give each prior offense when determining whether the

elements of the charged crime were met.



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       At the end of trial, the jury was admonished not to consider the prior convictions

as propensity evidence. Jurors were told that defendant’s prior convictions could only be

used for the limited purpose of deciding whether defendant intended to sell

methamphetamine and whether she knew she possessed a controlled substance.

       B. Standard of Review

       “Evidence Code section 1101, subdivision (b), permits the admission of other-

crimes evidence against a defendant ‘when relevant to prove some fact (such as motive,

opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or

accident . . .) other than his or her disposition to commit such an act.’ [Citation.]

‘[Evidence Code] [s]ection 1101 prohibits the admission of other-crimes evidence for the

purpose of showing the defendant’s bad character or criminal propensity.’ [Citation.] As

with other circumstantial evidence, its admissibility depends on the materiality of the fact

sought to be proved, the tendency of the prior crime to prove the material fact, and the

existence or absence of some other rule requiring exclusion. [Citation.]” (People v.

Whisenhunt (2008) 44 Cal.4th 174, 203.)

       “The probative value of the uncharged offense evidence must be substantial and

must not be largely outweighed by the probability that its admission would create a

serious danger of undue prejudice, of confusing the issues, or of misleading the jury.

[Citation.]” (People v. Kipp (1998) 18 Cal.4th 349, 371.)




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       The trial court’s rulings on the admissibility of evidence under Evidence Code

sections 1101 and 352 are reviewed for abuse of discretion. (People v. Davis (2009) 46

Cal.4th 539, 602.) We generally find reversible error only if the court’s exercise of

discretion was arbitrary, capricious, and resulted in a miscarriage of justice. (People v.

Williams (2009) 170 Cal.App.4th 587, 606 [Fourth Dist., Div. Two].)

       C. Analysis

       In People v. Ewoldt (1994) 7 Cal.4th 380, the court explained that the requisite

degree of similarity between the uncharged misconduct and the charged offense varies

depending upon what fact the evidence is offered to prove. (Id. at pp. 402-403.) The

least degree of similarity is required when the evidence is offered to prove the

defendant’s intent. (Id. at p. 402.) Furthermore, “[i]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 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. Willams, supra, 170 Cal.App.4th at p. 607; see also People

v. Ellers (1980) 108 Cal.App.3d 943, 953 [evidence of defendant’s prior dealing

relationship with informant was admissible “to prove knowledge of the narcotic nature of

the heroin he sold” and “his intent to sell it”]; People v. Pijal (1973) 33 Cal.App.3d 682,

691 [evidence of prior narcotics offenses admissible to show knowledge, motive, and

intent where defendant’s “knowledge of the narcotic contents of the drug and his intent to

sell were at issue”].)



                                             6
       Defendant faults the trial court for admitting evidence of her prior convictions on

the grounds they were not sufficiently similar to her charged offense to allow the

inference that she harbored the same intent to sell all three occasions, and they provided

cumulative evidence of her knowledge of the narcotic nature of the substance recovered

by the police. Regarding intent, she argues that her prior convictions were “markedly

different from the current case,” focusing on the fact that the current case lacked any

evidence of “packing material, e.g., baggies,” or “pay-owe sheets which kept track of the

drug sales and the amounts paid or due.” We disagree.

       Viewed in the light most favorable to the trial court’s ruling, the incidents were

very similar: in all three incidents, the controlled substance was methamphetamine; it

was found in defendant’s residence in large quantities (2009—10.1 grams; 2010—2.3

grams; and 2012—31.7 grams); in two incidents defendant attempted to disassociate

herself from the methamphetamine by discarding it before contact with the officer; in all

three incidents she possessed digital scales used to weigh methamphetamine for sales;

and in two incidents she possessed cell phones and a large amount of cash (2009—$1,800

and 2012—$2,253 (mostly $20 bills)). The similarities of the items found in the prior

cases and the current case constituted convincing evidence that defendant knew of the

presence of the large quantities of methamphetamine and its nature and she intended to

possess it for sale. The absence of plastic baggies or pay-owe sheets is insignificant

because exact similarity between the charged and uncharged acts is not required to prove

intent. Rather, it is only required that they be similar enough to permit an inference.

(People v. Rowland (1992) 4 Cal.4th 238, 261.) That other items evidencing possession

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for sale were present in the prior incidents does not negate the remaining distinct

similarities.

       Furthermore, the probative value of defendant’s prior conduct outweighed the

prejudice. Defendant’s prior convictions were relevant to disprove facts that might have

negated her intent to possess the drugs for sale. The conduct was very similar and recent,

no more inflammatory than the current offense, and the jury was aware that defendant

had gone to prison and been punished for her prior conduct, which “substantially

mitigates the kind of prejudice usually associated with the introduction of prior bad act

evidence.” (People v. Jennings (2000) 81 Cal.App.4th 1301, 1315.) Nonetheless,

defendant notes that during deliberations the jury asked about defendant’s income and

monthly expenses, whether she had been recently drug tested and the results of any tests,

and why her cell phone records were not subpoenaed. She argues this suggests that

deliberations were so close that the admission of her prior convictions was prejudicial.

We disagree. The court instructed the jury on the limited purpose of the evidence of her

prior convictions. We must assume the jury followed these instructions. (See People v.

Sanchez (2001) 26 Cal.4th 834, 852.)

       In view of the foregoing, we conclude defendant has failed to show that the trial

court abused its discretion by admitting the evidence.




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                                  III. DISPOSITION

     The judgment is affirmed.

     NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                     HOLLENHORST
                                                              Acting P. J.
We concur:

     RICHLI
                             J.

     MILLER
                             J.




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