P. v. Aceves CA2/6

Filed 4/15/13 P. v. Aceves CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B239788 (Super. Ct. No. 1347782) Plaintiff and Respondent, (Santa Barbara County)

v.

JOSE MACHUCA ACEVES,

Defendant and Appellant.

Jose Machuca Aceves appeals from a judgment after conviction by jury of transporting methamphetamine (Health & Saf. Code, § 11379, subd. (a)) and possession of methamphetamine for sale (§ 11378).1 The jury acquitted him of unlawfully taking a vehicle. (Veh. Code, § 10851, subd. (a).) The trial court found he had suffered five prior felony convictions related to controlled substances and four prior prison commitments. (§ 11370.2, subd. (c); Pen. Code, § 667.5, subd. (b).) The court sentenced him to 23 years in jail. Aceves contends the trial court erred when it admitted evidence of his prior controlled substance convictions because he would stipulate that he knew the narcotic nature of methamphetamine. He would not stipulate that he knew methamphetamine was present. We affirm.

1 All statutory references are to the Health and Safety Code unless otherwise stated.

FACTUAL AND PROCEDURAL HISTORY In May of 2010, Jose Martinez reported his car stolen. There were no suspects. About a week later, Martinez's son Chad saw the car. Chad approached the driver, Aceves. Aceves stopped and, when Chad insisted it was his car, Aceves explained that he was test driving it. He said that "some guy on Bunny Street" was selling it. Aceves gave Chad his phone number and offered to drive him to the seller. Chad declined, and "flagged . . . down" a police officer. The police officer detained Aceves, confirmed that the car was stolen, and searched it. He found three large bags of methamphetamine: one in the driver's side door pocket, one on the driver's side floor mat, and one on the passenger side floor mat. The bags were not covered or otherwise concealed. They were in plain view. The officer also found seven small baggies of methamphetamine in a coin purse in the center console. When Aceves got out of the car, he retrieved a cell phone from under the passenger seat. The officer found two more cell phones in the center console. The methamphetamine weighed 83 grams in total and had a street value of about $8,000. An expert testified that indicators such as the quantity and packaging of the drugs and the number of cell phones were consistent with drug sales. The prosecution moved in limine to admit evidence of four prior convictions for transporting methamphetamine and possessing methamphetamine for sale. Aceves objected on the ground the evidence was unduly prejudicial. Aceves offered to stipulate that he knew the narcotic nature of methamphetamine. (Evid. Code, § 352.) The trial court decided to admit the convictions to prove knowledge of the nature and presence of methamphetamine, unless Aceves also stipulated that he knew methamphetamine was present. He did not. The trial court tentatively limited the prior conviction evidence to the two most recent convictions for possession of methamphetamine for sale in 2001 and 2005. (§ 11378.) The court found the probative value of the other two convictions for transportation of methamphetamine in 1997 and 1998 was outweighed by the risk of