Filed 5/20/13 P. v. Morris CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


THE PEOPLE,                                                          B242335

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. MA055074)
         v.

CHARLES HENRY MORRIS,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County, John
Murphy, Temporary Judge. (Cal. Const., art. VI, § 21.) Affirmed.
         Randall Conner, 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, Scott A. Taryle and
Kimberley J. Baker-Guillemet, Deputy Attorneys General, for Plaintiff and Respondent.


                                            _____________________
                                      INTRODUCTION


       Defendant Charles Morris appeals from a judgment of conviction entered after a
jury trial. The jury found defendant guilty of possession of a controlled substance
(Health & Saf. Code, § 11350, subd. (a)). The trial court found true the allegations
defendant suffered four prior convictions for which he served prison terms (Pen. Code,
§ 667.5, subd. (b)), and that he suffered two prior serious felony convictions (id., §§ 667,
subds. (a), (b)-(i), 1170.12).
       Defendant was sentenced to state prison for a total term of 10 years. The sentence
was composed of three years as the base term, doubled as a second strike pursuant to
section 1170.12, subdivisions (a) through (d), of the Penal Code, plus four one-year
enhancements pursuant to Penal Code section 667.5, subdivision (b).
       On appeal, defendant contends that the trial court erred in admitting evidence of
his 2007 conviction for violating section 11350, subdivision (a), of the Health and Safety
Code to show intent, pursuant to Evidence Code section 1101, subdivision (b). We
disagree and affirm the conviction.


                                          FACTS


A. Prosecution
       On January 6, 2012, at approximately 7:10 p.m., Los Angeles County Sheriff‟s
Department Deputies Uriel Cruz and Lee Warren were on patrol in Lancaster in a marked
vehicle. They entered the parking lot of the Shadow Park Inn, an area known for high
narcotics and prostitution activity. They saw five men walking, one of whom was
defendant. The men appeared surprised as they glanced at the patrol car and resumed
walking at a quickened pace.
       The deputies got out of their patrol car and ordered the men to stop. Everyone in
the group complied with the request except defendant. Defendant continued to walk
away from the officers. The deputies ordered defendant to stop five times. Deputy Cruz
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followed defendant while Deputy Warren remained with the other four men. Defendant‟s
pace increased to “almost a light jog,” and Deputy Cruz “thought it was going to be a foot
pursuit.”
       Defendant was carrying an aluminum-colored box, which contained instruments
and material for inscribing tattoos. As Deputy Cruz was following defendant, defendant
made a left turn so that he was on the other side of some pine trees. Deputy Cruz saw
defendant make “a slight tossing motion from his waistband, stomach area” and saw “a
little plastic bindle fly off from his general waistband area and land on the ground,”
approximately two to three feet away from defendant. It appeared to Deputy Cruz that
defendant was attempting to block “himself from [the deputy‟s] view by putting the pine
trees directly in between [the deputy] and himself.”
       Deputy Cruz retrieved the object that defendant had thrown, which was a piece of
plastic containing a substance resembling rock cocaine. After advising defendant of his
Miranda1 rights, Deputy Cruz questioned defendant regarding the object he had thrown.
Defendant responded in a surprised tone, “You saw that?” After showing the object to
Deputy Warren, Deputy Cruz booked it into evidence. With regard to the box and its
contents, defendant told Deputy Cruz that “it was a tattoo kit that he carried around with
him at all times just in case he got a client where he could just do a tattoo real quick and
earn some money.”
       On January 9, 2012, Senior Criminalist Gregory Burke examined the object that
Deputy Cruz had recovered from defendant. After conducting two different tests on the
substance, he concluded that it contained cocaine in base form and weighed 0.14 grams.


B. Defense
       Darrell Duncan (Duncan) testified that on January 6, 2012, he was arrested at the
Shadow Park Inn along with defendant. Duncan had called defendant to meet him in a



1      Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694].

                                              3
friend‟s motel room so defendant could give him a tattoo. Duncan had met defendant the
day before, when defendant tattooed Duncan‟s girlfriend.
       Defendant started the tattoo process and had completed the outline of the tattoo on
Duncan‟s arm, when Duncan got hungry. Duncan left to go to the store to get food.
When he returned, defendant was on his way up to the room. Duncan saw the police in a
patrol car. The patrol car pulled up on a group of three to four people who were right
behind defendant and Duncan. At the time, Duncan had two plastic bags and an orange
container containing a green leafy substance resembling marijuana on his person.
       Duncan stated that the police walked towards the group, told them to stop, turn
around and walk back to the car. The police flashed a light on defendant‟s back and told
him to come to the car, but defendant continued to walk because “[h]e didn‟t hear them at
first. And then the police officer started walking towards [defendant] real fast.”
       While he was being detained by Deputy Warren, Duncan could see what was
taking place. Defendant stopped in response to the deputy‟s commands “about five feet
away from the car, if that.”2 Duncan did not see defendant toss anything on the ground.
Defendant had his tattoo equipment in his hands the entire time.
       Duncan stated that in the area near the motel, “it‟s drugs all over the ground. It‟s
plastic bags. It‟s a lot of stuff on the ground.” To Duncan‟s knowledge, defendant did
not have any drugs, including cocaine, on his person that day.


C. Rebuttal
       After Deputy Cruz advised Duncan of his Miranda rights, Duncan told the deputy
that he was staying at the motel with friends. Duncan did not mention receiving tattoos
from defendant. Deputy Cruz recovered marijuana from Duncan, and Duncan told
Deputy Cruz that he sold marijuana.



2      Duncan used objects in the courtroom to describe the relative distance defendant
walked away from the patrol car. The court approximated that the distance Duncan
described was “about 14 feet.”
                                             4
       Defendant told Deputy Cruz that he was “just hanging out” with the other
individuals in the group that day. Defendant stated he was carrying around the tattoo box
“in case he got a client for a tattoo.”


                                          DISCUSSION


       Defendant contends the trial court erred in admitting evidence of his 2007
conviction for violating Health and Safety Code section 11350, subdivision (a),
possession of a controlled substance, because its prejudicial effect outweighed its
probative value. We find no abuse of discretion.


A. Procedural Background
       Prior to trial, the People sought to admit one of defendant‟s prior convictions for
possession of a controlled substance. Defendant‟s counsel argued that the prior
conviction evidence was inadmissible to prove similar conduct. During the discussion
with the trial court, the court stated that the People had to prove, among other things,
“that the defendant knew of the substance‟s nature or character as a controlled
substance.” The court conducted an Evidence Code section 352 analysis and ruled that
defendant‟s 2007 conviction would be admitted. The court stated “[t]his is not coming in
to show that the defendant has a bad character. It is coming in to show simply intent
[pursuant to Evidence Code section 1101, subdivision (b)]. And I‟m not going to let the
People prove up four of them. Only one of them, that he has a conviction for 11—this
very same [Health and Safety] Code section[] 11350, subdivision (a).”
       Defense counsel argued that the People had other ways to show that defendant was
aware of the illegal nature of the substance, the fact that defendant allegedly “tried to
distance himself from [the substance], which would imply knowledge that it‟s illegal.”
       The court noted that it was defendant‟s position that he never threw the substance.
The court stated that it would give a limiting instruction to the jury that the prior
conviction was not being introduced to show that defendant had a character for
                                              5
possessing illegal drugs and/or cocaine base specifically, but only to show that he was
aware that the substance he possessed was illegal.
       The jury was instructed with CALCRIM No. 303, limited purpose evidence, as
follows: “During the trial, certain evidence was admitted for a limited purpose. You
may consider that evidence only for that purpose and for no other. This instruction
pertains to the [P]eople‟s exhibit #3. You are to consider that exhibit for the exclusive
purpose of determining if the [P]eople have proved beyond a reasonable doubt that the
defendant knew of the substance‟s nature or character as a controlled substance.”
       During closing argument, the prosecutor argued to the jury that defendant had
known that the substance he possessed was a controlled substance. During part of her
argument, the prosecutor displayed a power-point slide that stated “[t]he defendant was
convicted of the same offense back in 2007.” Defense counsel made a motion for a new
trial on the grounds that the prior conviction was wrongfully admitted and the prosecutor
committed misconduct in her closing arguments regarding that evidence, in that “that
slide, it also says, defendant was convicted of the same — same offense. And then I
believe three or four exclamation points after that. There are no exclamation marks in
any of the other slides I saw. . . . I think the only inference or insinuation that [the
prosecutor] could have been making . . . was the propensity to commit the same
crime . . . .” Defense counsel believed the prosecutor‟s action “just subverted the whole
protection” that the trial court was trying to apply.
       The court denied the motion, finding that there was no prosecutorial misconduct
and the admission of the evidence was proper, especially in light of the fact that the court
had given an explicit limiting instruction to the jury regarding evidence.


B. Evidence Code section 1101, subdivision (b)
       Evidence Code section 1101, subdivision (a), prohibits, with specified exceptions,
admission of “evidence of a person‟s character or a trait of his or her character (whether
in the form of an opinion, evidence of reputation, or evidence of specific instances of his
or her conduct) . . . when offered to prove his or her conduct on a specified occasion.”
                                               6
Subdivision (b) of section 1101 provides: “Nothing in this section prohibits the
admission of evidence that a person committed a crime, civil wrong, or other act 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.”
       Evidence of uncharged offenses is admissible and “relevant to prove a material
fact other than [the] defendant‟s criminal disposition, [when] the similarity between the
circumstances of the [uncharged offenses] and the charged offenses supports the
inference that [the] defendant committed the charged offenses pursuant to the same
design or plan [the] defendant used to commit the uncharged misconduct.” (People v.
Ewoldt (1994) 7 Cal.4th 380, 393.) The requisite similarity is “„not merely a similarity in
the results, but such a concurrence of common features that the various acts are naturally
to be explained as caused by a general plan of which they are the individual
manifestations.‟. . . [¶] To establish the existence of a common design or plan, the
common features must indicate the existence of a plan rather than a series of similar
spontaneous acts, but the plan thus revealed need not be distinctive or unusual.” (Id. at
pp. 402-403; accord, People v. Balcom (1994) 7 Cal.4th 414, 423-424.)
       The admissibility of evidence of a prior crime or wrong in order to prove a fact
such as motive or intent depends on three factors: “(1) the materiality of the fact sought
to be proved or disproved; (2) the tendency of the uncharged crime to prove or disprove
the material fact; and (3) the existence of any rule or policy requiring the exclusion of
relevant evidence.” (People v. Thompson (1980) 27 Cal.3d 303, 315, italics omitted
[disapproved on another ground as stated in People v. Scott (2011) 52 Cal.4th 452, 470].)
       As noted in Thompson, evidence of prior crimes or bad acts of the defendant has a
“„highly inflammatory and prejudicial effect‟ on the trier of fact” and its admissibility
“must be „scrutinized with great care.‟ „[A] closely reasoned analysis‟ of the pertinent
factors must be undertaken before a determination can be made of its admissibility.”
(People v. Thompson, supra, 27 Cal.3d at p. 314, fns. omitted.)


                                              7
       The evidence of defendant‟s 2007 conviction for possession of a controlled
substance tended to prove that defendant knew that the substance he possessed was a
controlled substance. (People v. Ewoldt, supra, 7 Cal.4th at pp. 402-403.) The trial court
correctly stated before sentencing defendant, “because of the conviction for exactly the
same offense, the likelihood is extremely high that the defendant knew of the substance‟s
character as a controlled substance.”
       Defendant‟s involvement in the same behavior was evidence that the knowledge
element was met. The California Supreme Court‟s standard requiring the least degree of
similarity between the uncharged misconduct and the charged offense to prove
knowledge is satisfied because defendant‟s 2007 conviction for the same offense makes it
extremely unlikely that he was not aware that the substance he possessed in the instant
case was a controlled substance. (People v. Ewoldt, supra, 7 Cal.4th at p. 402.)
Defendant‟s prior conviction was relevant to show that he had the requisite knowledge to
violate the same code section as charged in the instant case. The court properly admitted
the prior conviction.


C. Evidence Code section 352
       Even if the evidence of prior bad acts is admissible to prove a fact other than
criminal propensity, as permitted by subdivision (b) of Evidence Code section 1101, it
may be highly prejudicial. (People v. Thompson, supra, 27 Cal.3d at p. 318.) And,
before it may be admitted, it must be found that its probative value outweighs its
prejudicial effect. (People v. Ewoldt, supra, 7 Cal.4th at p. 404; see Evid. Code, § 352.)
Evidence Code section 352 gives the trial court the discretion to “exclude evidence if its
probative value is substantially outweighed by the probability that its admission will
(a) necessitate undue consumption of time or (b) create substantial danger of undue
prejudice, of confusing the issues, or of misleading the jury.” Evidence of other crimes
may be “admitted if it „(a) “tends logically, naturally and by reasonable inference” to
prove the issue upon which it is offered; (b) is offered upon an issue . . . material to the
People‟s case; and (c) is not merely cumulative with respect to other evidence which the
                                              8
People may use to prove the same issue.‟ [Citation.]” (People v. Guerrero (1976) 16
Cal.3d 719, 724.)
       Admission of evidence pursuant to Evidence Code section 1101, subdivision (b),
is confided to the sound discretion of the trial court. (People v. Linkenauger (1995) 32
Cal.App.4th 1603, 1609.) Its decision to admit such evidence will not be disturbed on
appeal absent an abuse of discretion. (Id. at p. 1610; see, e.g., People v. Ewoldt, supra, 7
Cal.4th at p. 405.) A reviewing court “will disturb a trial court‟s exercise of discretion
under Evidence Code section 352 only if the court‟s decision exceeds the bounds of
reason.” (People v. Funes (1994) 23 Cal.App.4th 1506, 1519.)
       Defendant contends that the trial court erroneously admitted the prior conviction
evidence because it was cumulative, and more prejudicial than probative. Defendant
relies in part on People v. Lopez (2011) 198 Cal.App.4th 698, 715, which states
“evidence of uncharged acts cannot be used to prove something that [the] other evidence
showed was beyond dispute.” In Lopez, the court held that the prejudice from the
evidence of a prior car burglary and a prior car theft outweighed the probative value of
that evidence as to intent, because the charged act of entering a kitchen and taking two
purses showed intent, making the prior crimes evidence cumulative. Error in admitting
the prior acts evidence required reversal, because the evidence connecting defendant to
the charged burglary was minimal and conflicting. (Id. at p. 716.)
       In Lopez, however, the critical issue was identity of the perpetrator; the defense
put on evidence that someone other than the defendant committed the crime. (People v.
Lopez, supra, 198 Cal.App.4th at pp. 706-707.) Intent was not an issue; identity was.
(Id. at p. 715.)
       Here, the probative value of the challenged evidence was its tendency to
demonstrate defendant‟s knowledge of the narcotic nature of the substance he possessed,
required for a conviction under Health and Safety Code section 11350, and a fact which
was in dispute. Not only did defendant deny that he possessed a controlled substance, he
denied that he engaged in any furtive acts or suspicious conduct which would indicate
consciousness of guilt. Defendant‟s witness, Duncan, testified that defendant did not
                                              9
walk at a quickened pace and was not attempting to flee, but simply did not hear the
commands from the sheriff‟s deputies. Defendant‟s knowledge that he was in possession
of a controlled substance would support the prosecution‟s evidence that defendant was
attempting to flee and to get rid of the substance.
       As the trial court noted, “[t]he issue was whether the defendant had knowledge of
the illegal character of the substance that was thrown. Because the defense position was
this isn‟t my substance, I didn‟t throw it. So that had to have put a[t] issue something that
the People had to prove, which was knowledge.”
       Moreover, the testimony concerning the prior conviction was not cumulative, was
certainly not more inflammatory than the charged offense, did not unduly consume time,
and did not confuse the jury. (See People v. Lopez, supra, 198 Cal.App.4th at p. 715.)
Inasmuch as the probative value of the evidence outweighed its prejudicial effect, the trial
court did not abuse its discretion in admitting the evidence under Evidence Code
section 352. (People v. Ewoldt, supra, 7 Cal.4th at p. 404.)
       In any event, admission of the evidence of defendant‟s prior conviction was not
prejudicial, in that it is not reasonably probable defendant would have been acquitted had
the evidence been excluded. (Evid. Code, § 353, subd. (b); People v. Earp (1999) 20
Cal.4th 826, 878.)
       Deputy Cruz was following defendant, who kept speeding up to get away from
him. The deputy saw defendant try to hide from him and make “a slight tossing motion
from his waistband, stomach area” and saw “a little plastic bindle fly off from his general
waistband area and land on the ground.” After Deputy Cruz advised defendant of his
Miranda rights and questioned defendant regarding the object he had thrown, defendant‟s
response was not that he had not thrown anything or that the object was not his, it was,
“You saw that?” This was in effect an admission that defendant had thrown the object.
       While defendant did present Duncan as a defense witness, he was not a
particularly credible witness. He had drugs in his possession when stopped by the
deputies, and his testimony differed both from what he told the deputies at the scene and


                                             10
what defendant told the deputies. It is not reasonably probable the jury would have
believed Duncan absent the evidence of defendant‟s prior conviction.


                                    DISPOSITION


      The judgment is affirmed.



                                                JACKSON, J.


We concur:



             PERLUSS, P. J.



             WOODS, J.




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