California Court of Appeal Sep 12, 2016 No. D069213Unpublished
Filed 9/12/16 P. v. Espino CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D069213
Plaintiff and Respondent,
v. (Super. Ct. No. SCS278080)
GENAVIEVE ESPINO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Dwayne
K. Moring, Judge. Affirmed.
John L. Staley, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
Anthony DaSilva and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and
Respondent.
A jury found defendant and appellant Genavieve Espino guilty of possessing
methamphetamine for sale. (Health & Saf. Code, § 11378.) The trial court sentenced
Espino to serve a six-year split sentence, with two years served in jail and four years of
mandatory supervision. On appeal, Espino asserts the trial court abused its discretion and
violated her due process rights by granting the prosecution's motion to admit evidence of
her prior conviction for possession of methamphetamine for sale. We reject Espino's
Under section 1101(b), evidence of uncharged crimes is admissible to prove intent
only if the charged and uncharged crimes are sufficiently similar to support a rational
inference of intent. Whereas higher levels of similarity are required to prove identity and
common plan, the least degree of similarity between the uncharged act and the charged
offense is required to prove intent and knowledge. Exact similarity between the charged
and uncharged acts is not required to prove intent; it is only required that they be similar
enough to permit an inference. (People v. Rowland (1992) 4 Cal.4th 238, 261.)
"[T]he truth of the prior uncharged act and defendant's connection to it are
preliminary factual issues which must be decided before the prior misconduct can be
deemed admissible; if the prior and defendant's connection to it are not established by a
preponderance of the evidence, the prior is irrelevant to prove the Evidence Code section
1101(b) fact for which it is being offered." (People v. Garelick (2008) 161 Cal.App.4th
1107, 1115.)
In the context of a defendant's prior conviction for possessing a controlled
substance for sale being admitted under section 1101(b), evidence of prior drug use and
prior drug convictions is generally admissible 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. (People v. Williams (2009) 170 Cal.App.4th 587, 607; see People v. Pijal (1973)
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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"].)
" 'There is a broad consensus that similar acts evidence may be introduced on a
doctrine of chances rationale to prove the defendant committed an actus reus when the
defendant asserts that he did not cause the . . . harm . . . . This type of evidence is
admitted under several of the familiar category labels—absence of mistake or accident,
modus operandi, or plan or scheme—but probability based reasoning underlies its
relevance.' " (People v. Spector (2011) 194 Cal.App.4th 1335, 1379.) "The inference to
be drawn is not that the actor is disposed to commit such acts; instead, the inference to be
drawn is that, in light of the first event, the actor, at the time of the second event, must
have had the intent attributed to him by the prosecution." (People v. Robbins (1988) 45
Cal.3d 867, 879.)
Importantly, the court must also examine whether the probative value of the prior
bad act evidence is " 'substantially outweighed by the probability that its admission
[would] . . . create substantial danger of undue prejudice, of confusing the issues, or of
misleading the jury.' (Evid. Code, § 352.)" (Balcom, supra, 7 Cal.4th at p. 427.)
Because this type of evidence can be so damaging, " ' "[i]f the connection between the
uncharged offense and the ultimate fact in dispute is not clear, the evidence should be
excluded." ' " (People v. Fuiava (2012) 53 Cal.4th 622, 667.) We review the trial court's
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ruling on the admission of evidence under sections 1101 and 352 for abuse of discretion.
(Id. at pp. 667-668.)
B. Analysis
1. Section 1101(b) Admissibility
Espino argues that, because only her bare admission to having been previously
convicted of possession of methamphetamine for sale was admitted into evidence and not
any facts surrounding the conviction, the jury could not have compared the similarity of
her current possession of methamphetamine to the circumstances of her prior possession
and could only use the admission improperly as propensity evidence. Espino argues that
her one previous instance of possessing methamphetamine for sale was simply not
enough to show that, on this occasion, she possessed methamphetamine for the same
purpose. Like the trial court, we disagree.
The People only needed to show the prior conviction was "sufficiently similar" to
the charged offense to support an inference of Espino's intent. (People v. Ewoldt (1994)
7 Cal.4th 380, 402.) While more instances of prior misconduct decrease the likelihood of
mistake or accident, all that is required for a prior conviction to be admissible is that both
instances are sufficiently similar to negative accident, inadvertence, good faith or other
innocent mental state. (Id. at p. 402, see People v. Hendrix (2013) 214 Cal.App.4th 216,
242-243 [to establish knowledge when that element is akin to absence of mistake, the
uncharged events must be sufficiently similar to the circumstances of the charged
offense].) Here, the jury was presented with a stipulation which stated that Espino had
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admitted under oath that she had previously possessed methamphetamine for sale.
Espino's conviction of possessing methamphetamine for sale in 2011 was more than
sufficient to give rise to an inference that, in this case, her possession of more than three
grams of the drug was neither a mistake nor an accident.
2. Section 352
As we have discussed, when uncharged crime evidence otherwise meets the
criteria for admission under section 1101(b), the court is also required to consider the
impact of section 352, which "requires the exclusion of evidence only when its probative
value is substantially outweighed by its prejudicial effect. 'Evidence is substantially
more prejudicial than probative [citation] [only] if, broadly stated, it poses an intolerable
"risk to the fairness of the proceedings or the reliability of the outcome" [citation].' "
(People v. Tran (2011) 51 Cal.4th 1040, 1047, quoting People v. Waidla (2000) 22
Cal.4th 690, 724.)
Here, the trial court found the probative value of Espino's prior possession was not
substantially outweighed by its prejudicial effect. Again, we agree with the trial court.
The prior conviction was highly probative of the material elements of the crime
charged, and the prejudicial effect was minimal. The prior conduct was not remote,
occurring only four years prior to the current charge, and not overly inflammatory,
because the prior was no more egregious than the current charge. (See Balcom, supra, 7
Cal.4th at p. 427 ["close proximity in time of the uncharged offenses to the charged
offenses increases the probative value of [the] evidence"]; see also People v. Douglas
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(1990) 50 Cal.3d 468, 511 [remoteness of other crimes evidence generally goes to its
weight and not to its reliability]; People v. Ewoldt, supra, 7 Cal.4th at p. 405 [potential
for prejudice was decreased where evidence "describing defendant's uncharged acts . . .
was no stronger and no more inflammatory than the testimony concerning the charged
offenses"].)
Additionally, the form of the evidence as an admission rather than as a prior
"conviction" also decreased the probability of unduly inflaming the passions of the jury.
(See, e.g., People v. Massey (1987) 192 Cal.App.3d 819, 822, 825 [proper to admit prior
convictions, sanitized as undesignated felonies, to impeach defendant]; People v.
Foreman (1985) 174 Cal.App.3d 175, 182 [no error to sanitize prior burglary as "felony
involving theft"].)
We also reject Espino's contention the trial court's failure to give a version of
CALCRIM No. 3752 insured that the uncharged crime would be used as propensity
2 The model CALCRIM No. 375 instruction states in pertinent part: "[The People presented evidence that the defendant committed ((another/other) offense[s]/the offense[s] of <insert description of alleged offense[s]>) that (was/were) not charged in this case.] [¶] . . . [¶] "You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the (uncharged offense[s]/act[s]). Proof by a preponderance of the evidence is a different burden of proof than proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. "If the People have not met this burden, you must disregard this evidence entirely. "If you decide that the defendant committed the (uncharged offense[s]/act[s]), you may, but are not required to, consider that evidence for the limited purpose of deciding whether: [¶] . . . [¶] "<B. Intent> "[The defendant acted with the intent to <insert specific intent required to prove the offense[s] alleged> in this case](./; or) 9
evidence. Espino did not request the instruction, and, "in general, the trial court is under
no duty to instruct sua sponte on the limited admissibility of evidence of past criminal
conduct." (People v. Collie (1981) 30 Cal.3d 43, 64, italics and fn. omitted.) We also
note that, even though the limiting instruction was not given, the prosecutor twice
cautioned the jury that it was not to rely on Espino's prior admission as the only fact to
find her guilty of possessing methamphetamine for purposes of sale.
3. Harmless Error
Error is harmless unless it is reasonably probable a more favorable result would
have been obtained. (People v. Watson (1956) 46 Cal.2d 818, 836.) Here, other
substantial evidence was presented which established that Espino knew
methamphetamine was in the black bag and that the drug was going to be sold.
In particular, the two sheets of paper with written names, telephone numbers and
dollar amounts found in Espino's possession were plainly pay/owe sheets and, as such,
were fairly persuasive evidence Espino was engaged in the sale of methamphetamine.
Their persuasive power came not only from the expert testimony about pay/owe sheets,
but from the coincidence that the sheets were found in Espino's possession along with
more than three grams of methamphetamine.
"<D. Knowledge> "[The defendant knew <insert knowledge required to prove the offense[s] alleged> when (he/she) allegedly acted in this case](./; or) "<E. Accident> "[The defendant's alleged actions were not the result of mistake or accident]." 10
This, of course, brings us to Espino's claim the sheets were a record of bail
contributions. Because the bail contributions claim was so at odds with the inference to
be drawn from the coincidental discovery in her possession of both a relatively large
amount of methamphetamine and the sheets, the jury was not likely to have given the
claim much credit. Espino's overall lack credibility was established at the outset of the
trial when her dishonest denial with respect to her waiver of her Fourth Amendment
rights was relayed to the jury by the deputy who stopped her.
In sum, it is not reasonably probable that Espino would have obtained a more
favorable result if the prior conviction had been excluded. Thus, any error by the trial
court in admitting Espino's prior conviction was harmless. (People v. Watson, supra, 46
Cal.2d at p. 836.)
4. Due Process
Because Espino's prior conviction was properly admitted under section 1101(b) to
determine the legitimate issues of intent, knowledge, and absence of mistake,
"defendant's due process right to a fair trial was not transgressed by the admission of such
evidence." (People v. Rogers (2013) 57 Cal.4th 296, 332.)
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DISPOSITION
The judgment is affirmed.
BENKE, J.
WE CONCUR:
McCONNELL, P. J.
PRAGER, J.*
* Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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AI Brief
AI-generated · verify before citing
Holding. The trial court did not abuse its discretion by admitting evidence of the defendant's prior conviction for possession of methamphetamine for sale to prove intent, knowledge, and absence of mistake, as the evidence was sufficiently similar to the charged offense and not unduly prejudicial.
Issues
Did the trial court abuse its discretion under Evidence Code sections 1101 and 352 by admitting evidence of a prior conviction?
Was the trial court required to provide a sua sponte limiting instruction regarding the prior conviction?
Did the admission of the prior conviction violate the defendant's due process rights?
Disposition. Affirmed
Quotations verified verbatim against the opinion
“Espino's conviction of possessing methamphetamine for sale in 2011 was more than sufficient to give rise to an inference that, in this case, her possession of more than three grams of the drug was neither a mistake nor an accident.”
“The prior conviction was highly probative of the material elements of the crime charged, and the prejudicial effect was minimal.”