People v. Jennings CA4/2 ( 2014 )

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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
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”].)
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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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