Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County, Ct.No. FSB800905 Cara D. Hutson, Judge.
Alan S. Yockelson, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI J.
On February 25, 2008, San Bernardino police officers executed a search warrant at a home occupied by defendant Carlos Maldonado and his girlfriend. Inside a detached garage, officers found 13 grams of methamphetamine, a small amount of marijuana, and methamphetamine wrapped in a plastic baggie. Also found were scales, plastic baggies commonly used to package methamphetamine, and numerous weapons and ammunition. The garage and home were equipped with surveillance cameras.
Defendant was convicted of possessing methamphetamine for sale while being personally armed with a firearm. Defendant now contends:
1. Insufficient evidence was presented to support his conviction for possession of methamphetamine for sale under Health and Safety Code section 11378 because he did not have knowledge the drug was present, did not know of its narcotic character, and did not intend to sell it.
2. Insufficient evidence was presented to support his conviction for possession of methamphetamine for sale under Health and Safety Code section 11378 because he did not have actual or constructive possession of the methamphetamine.
3. The trial court committed prejudicial error by admitting evidence of his marijuana possession despite no charges for its possession being filed in the case.
4. The trial court erred by failing to declare a mistrial when the evidence regarding a “controlled buy” conducted at the property was disclosed to the jury.
We find that no prejudicial error occurred at trial and affirm the judgment.
I
PROCEDURAL BACKGROUND
Defendant was found guilty of possession of methamphetamine for sale (Health & Saf. Code, § 11378), and the allegation that he was personally armed with a firearm while in possession of a controlled substance (Pen. Code, § 12022, subd. (c)) was found true. Defendant was sentenced to one year four months on the charge of possession of methamphetamine for sale, plus three years for being personally being armed with a firearm during the commission of the crime, for a total prison sentence of four years four months.
II
FACTUAL BACKGROUND
A. Prosecution
On February 25, 2008, about 7:13 p.m., San Bernardino Police Officer Sherry Vasilis (who was an expert in narcotic’s sales) led a team of uniformed officers executing a search warrant at a home located at 2845 North State Street in San Bernardino. As Officer Vasilis approached the property to provide knock-notice to the occupants, she observed Brenda Hoeppner (defendant’s live-in girlfriend) and two other persons quickly walk from the backyard toward the back of the house. Officer Vasilis announced she was with the San Bernardino Police Department and had a search warrant.
Officers descended upon the property and detained Jessie Kern, who was an employee of defendant. Kern was searched; no drugs were found on his person; and he did not appear to be under the influence of drugs. Defendant and Hoeppner were detained inside the house.
The officers then searched a detached garage that was on the property behind a fence. The garage consisted of three areas, including a storage area, an office area, and a music studio. The office area had a separate door that could be locked but was ajar. Officers were advised by Hoeppner and Kern at the time they executed the search warrant that defendant possessed the only key. The key to the door leading into the garage was found either inside the house on the counter or on defendant’s person.
In a drawer of one of the filing cabinets in the office, a plastic container was found that contained about 13 grams of methamphetamine. The street value of the methamphetamine was approximately $1,300. In the same filing cabinet, but in a different drawer, less than one ounce of marijuana was found in a baggie. Additionally, a small baggie containing one-half ounce of methamphetamine was found near the desk area.
Also found in the garage were empty baggies and a gram scale containing a white residue. Three rifles were found in the office area in positions where they could be easily grabbed. Surveillance monitors were found in the garage that were attached to cameras showing the yard and the entryway to the garage.
Inside the house, more weapons were found, but no contraband. There were also more surveillance monitors inside the house, which showed the front of the house and the middle of the yard between the house and the garage.
Kern expressly denied to Officer Vasilis at the scene that any drugs on the property belonged to him. Kern told Officer Vasilis that he did not have access to the garage. Kern was released.
Hoeppner advised Officer Vasilis that she had used methamphetamine the day before the search. She refused to tell Officer Vasilis where she got the drugs. Hoeppner explained that the security cameras were installed because her car had been broken into. However, none of the cameras covered the area where her car was parked. Hoeppner indicated for the first time at trial that another employee, Renee Bybee, might have had a key to the garage. Hoeppner did not have one. Hoeppner had observed defendant use marijuana that he kept in the garage. She claimed he did not use or sell methamphetamine.
In Officer Vasilis’s experience, it was a common practice for surveillance equipment to be put on property by drug dealers in order to detect approaching police officers in time for the drugs to be destroyed, as well as for protection. Drug dealers use and sell more than one type of drug. The scale and baggies were commonly used to package and sell drugs.
In Officer Vasilis’s expert opinion, based on the surveillance equipment; the way the garage was concealed on the property; the close proximity of the drugs, weapons, packaging, and weighing materials; and the amount of methamphetamine, defendant possessed the methamphetamine for purposes of sale.
B. Defense
Defendant testified on his own behalf that he was a tree trimmer and handyman. He had been a noncommissioned officer in the army. He had no prior drug convictions.
After his testimony, defendant became ill and had to have surgery. He waived his presence for the remainder of the trial but returned for sentencing.
Defendant had hired Kern to help him at his home. Defendant was told by Kern several days after defendant was released from jail that the methamphetamine found in the garage was Kern’s. Despite being jailed due to Kern’s drug possession, defendant continued to employ Kern.
When the officers entered defendant’s house and asked him where the “shit” was, he thought they were talking about the marijuana, which he admitted belonged to him. Defendant was trained in the army on weapons. Most of guns in the home were collector’s items that did not function. The handgun found inside his house was in a locked cabinet. Defendant knew nothing about the methamphetamine and had never seen the scales found in the garage.
Defendant explained that the surveillance cameras were installed due to previous thefts at the property and to see people coming to join in music “jam sessions” he held in the garage.
Kern asserted his Fifth Amendment privilege against self-incrimination. A defense investigator, Lawrence Smith, who was hired on behalf of Hoeppner when she was a codefendant, interviewed Kern at the house about one month after the search. Kern was under the influence during the interview and told the investigator, “[T]he shit is mine” or, “It’s my shit.” The investigator took this to mean that the methamphetamine in the garage belonged to Kern, but Kern did not clarify his statement. Kern did not have a key to the garage and could not identify the exact location of the methamphetamine in the garage or the amount. Kern had prior arrests for narcotics possession and manufacturing.
Smith, who had extensive experience with weapons, also indicated that the weapons found in the house and the garage were not the type usually possessed by drug traffickers. Defendant also called a tree-trimming client and a neighbor, both of whom testified defendant was honest and truthful. Defendant did not appear to either of them to be selling drugs from his house. Further, defendant’s tree-trimming client, a fellow gun enthusiast, testified that the guns in defendant’s possession for the most part were not in working order.
Renee Bybee had been defendant’s bookkeeper for 15 years and had a key to the garage. She had never seen the scales found in the garage and had never known defendant to possesses methamphetamine. She believed defendant was truthful and honest.
III
INSUFFICIENT EVIDENCE OF POSSESSION OF METHAMPHETAMINE FOR SALE
Although defendant has made his sufficiency of the evidence claim in two separate arguments, we address them together, as the evidence considered supports the elements of the crime. Defendant contends the evidence did not support the following elements of violating Health and Safety Code section 11378: (1) he possessed the methamphetamine; (2) he knew of its presence or narcotic nature; and (3) he intended to sell the methamphetamine found in the garage.
A. Standard of Review
Our review of any claim of insufficiency of the evidence is limited. “‘“When the sufficiency of the evidence is challenged on appeal, the court must review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence i.e., evidence that is credible and of solid value from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt.”’” (People v. Hill (1998) 17 Cal.4th 800, 848-849.) We must presume in support of the judgment the existence of every fact the trier of fact could have reasonably deduced from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) “The standard of review is the same in cases such as this where the People rely primarily on circumstantial evidence.” (People v. Perez (1992) 2 Cal.4th 1117, 1124.)
B. Analysis
“‘Unlawful possession of a controlled substance for sale requires proof the defendant possessed the contraband with the intent of selling it and with knowledge of both its presence and illegal character. [Citation]’ [Citations.]” (People v. Harris (2000) 83 Cal.App.4th 371, 374.)
The jury was instructed on the elements of possession for sale of prohibited drugs under Health and Safety Code section 11378, that it must conclude defendant (1) unlawfully possessed a controlled substance; (2) knew of its presence; (3) knew of the substance’s nature or character as a controlled substance; (4) when defendant possessed the controlled substance, he intended to sell it; (5) the controlled substance was methamphetamine; and (6) the controlled substance was in a usable amount.” Defendant contests the first four elements of the offense, thereby conceding that the substance found in the garage was methamphetamine and was a quantity sufficient to sell.
Possession here was constructive, not actual. “[P]ossession may be imputed when the contraband is found in a place which is immediately and exclusively accessible to the accused and subject to his dominion and control, or to the joint dominion and control of the accused and another.” (People v. Newman (1971) 5 Cal.3d 48, 52.) “‘[A] conviction [for unlawful possession of narcotics] will be sustained if the accused had the immediate right to exercise dominion and control over the known narcotic even though his possession is constructive [citation] or joint with that of another person. [Citations.]’ [Citation.]” (People v. Shoals (1992) 8 Cal.App.4th 475, 495.)
“Knowledge by the defendant of both the presence of the drug and its narcotic character is essential to establish unlawful transportation, sale, or possession of narcotics. [Citations.] Such knowledge may be shown by circumstantial evidence.” (Rideout v. Superior Court (1967) 67 Cal.2d 471, 474-475; see also People v. Newman, supra, 5 Cal.3d at p. 52 [elements of possession may be proven by circumstantial evidence].) As discussed, post, the jury reasonably could conclude that defendant had knowledge and possession of the drugs found in the garage and that he intended to sell them.
The evidence clearly established that the methamphetamine was possessed for purposes of sales. Officer Vasilis testified that based on the surveillance equipment; the way the garage was concealed on the property; the close proximity of the drugs, weapons, packaging, and weighing materials; and the amount of methamphetamine, defendant possessed methamphetamine for sale. “‘[E]xperienced officers may give their opinion that the narcotics are held for purposes of sale based upon such matters as quantity, packaging and normal use of an individual; on the basis of such testimony convictions of possession for purpose of sale have been upheld.’ [Citations.]” (People v. Parra (1999) 70 Cal.App.4th 222, 227 [Fourth Dist., Div. Two].) Hence, if the evidence established he had possession of the methamphetamine, he clearly intended to sell it.
There is no dispute that defendant had access to the garage area where the methamphetamine was found. Several persons at the scene stated that defendant was the only one with a key to the garage. Defendant did not dispute he had a key. Further, defendant used the garage during his “jam sessions.”
The fact that Bybee may also have had a key to the garage does not establish that defendant did not possess the methamphetamine or have knowledge of it. Her testimony was not compelling because the first time anyone stated she had a key was at trial. Moreover, even if she also had access to the garage, either she could have possessed the methamphetamine jointly with defendant, or she simply was not involved in the drug sales.
Moreover, defendant admitted he kept his marijuana in the garage in the same cabinet as the methamphetamine. Although it was in a different drawer, the jury could reasonably conclude that defendant kept all of his drugs in the same area. Moreover, Officer Vasilis, an expert in narcotic’s sales, opined that drug dealers usually use and sell different types of drugs. This was further evidence that defendant possessed the methamphetamine. Moreover, his admitted marijuana possession was circumstantial evidence that he was aware of the narcotic character of the methamphetamine.
Moreover, a scale containing a white residue was found in plain view on the desk in the garage, along with baggies. These are commonly used by drug dealers to package and weigh drugs. Defendant provided no other explanation for the presence of these items (except that Kern was selling the drugs which we discuss, ante). The jury could reasonably infer from this evidence that defendant was aware of the scales and the baggies and therefore had knowledge of the presence of the methamphetamine. Moreover, it showed that defendant knew of its illegal nature.
Additionally, Hoeppner admitted to using methamphetamine. Officer Vasilis advised the jurors that it was common that a drug dealer’s girlfriend was a user. This was further evidence that defendant was involved in drug sales from his home.
Further, there was no dispute that surveillance cameras were mounted throughout the property. If it were Kern who was covertly hiding his methamphetamine in the garage without defendant’s knowledge, defendant would have had no need of numerous surveillance cameras and monitors throughout his house and garage. The assertion that he installed an elaborate surveillance system because his girlfriend’s car had been broken into is not credible, especially given that the cameras did not cover the area where the car is parked. Further, Officer Vasilis opined that drug dealers oftentimes use cameras to detect police officers. Defendant, as the occupant of the house, could reasonably be found by the jury to have installed the cameras to aid in the sale of narcotics. This was strong circumstantial evidence not only of defendant’s knowledge of the drug’s presence, but also that he was aware it was an illegal substance.
Again, defendant’s sole defense was that Kern possessed the methamphetamine, and defendant himself knew nothing about it. This defense was weak. Kern did not have a key to the garage where the drugs were located. Moreover, when he admitted to Smith that the “shit” was his, he was unable to state the amount of drugs or where they were located. Additionally, defendant was still employing Kern at the time of trial. If defendant sincerely did not have any knowledge that Kern was keeping his drugs on the property, it is not credible that he would go to prison due to his employee’s actions and yet continue to employ such a person. Moreover, if Kern were concealing the methamphetamine from defendant, why would he leave the scale with white residue on the desk? Finally, based on the amount and monetary value of the methamphetamine, it is inconceivable that Kern would have kept it in defendant’s garage, to which he did not have a key.
It was for the jury to accept or reject the testimony of witnesses, and we cannot second guess the verdict on the ground that the circumstantial evidence might also have supported the conclusion that Kern was the possessor of the methamphetamine. Where circumstantial evidence reasonably justifies the jury’s verdict or findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding. (People v. Whisenhunt (2008) 44 Cal.4th 174, 201, fn. 4.) Based on the foregoing evidence, all of the elements of Health and Safety Code section 11378 were shown by the evidence.
Defendant relies on several cases to support his claim that defendant did not have knowledge of the methamphetamine. Three of those cases differ from the case here in that there was no evidence presented in them that any of the persons had dominion or control over the drugs or the location in which the drugs were located. (See People v. Foster (1953) 115 Cal.App.2d 866, 868-869 [reversing conviction of one of three people in a car where one of the three threw a very small amount of drugs from the car but no evidence the other defendants had knowledge of the possession as it was only enough for a single user]; People v. Tabizon (1958) 166 Cal.App.2d 271, 273-274 [defendant’s conviction reversed because evidence showed only that he was staying with an acquaintance in a motel room; there was no evidence the defendant had any dominion and control over the drugs]; People v. Fernandez (1959) 172 Cal.App.2d 747, 754-755 [conviction reversed for owner of dry cleaning business where drugs were found located in pocket of clothes that were left at dry cleaner].) Here, defendant possessed a key to the garage where the drugs were located, he held his music sessions in the garage, and he stored his marijuana in the same cabinet as the drugs. Also, items indicative of sales scales and baggies were in plain view in the garage.
Defendant also cites to People v. Antista (1954) 129 Cal.App.2d 47. In Antista, the appellate court reversed the defendant’s conviction for possession of marijuana found in his home because he was not home at the time; there were two persons, one of whom was a known drug user, at his home at the time; and the marijuana was hidden from sight. The appellate court concluded the mere fact of the marijuana’s presence, with no other incriminating evidence, was insufficient to support the defendant’s conviction. (Id. at pp. 52-53.) Here there is other incriminating evidence that supports that defendant had dominion and control over the methamphetamine.
Defendant also cites to numerous cases to support that he did not have possession of the methamphetamine. However, we have reviewed the cases, which are all factually distinctive, and none of them present the same set of facts found in this case. “[N]o sharp line can be drawn to distinguish the congeries of facts which will and that which will not constitute sufficient evidence of a defendant's knowledge of the presence of a narcotic in a place to which he had access, but not exclusive access, and over which he had some control, but not exclusive control.” (People v. Redrick (1961) 55 Cal.2d 282, 287.) We find in this case the “congeries of facts” support that defendant had dominion and control over the methamphetamine.
We conclude the evidence supports that defendant had knowledge and possession of the methamphetamine secreted in his garage, that he knew it was methamphetamine, i.e. an illegal substance, and that he intended to sell it.
IV
ADMISSION OF MARIJUANA POSSESSION
Defendant contends that the trial court erred by allowing in evidence of marijuana found near the methamphetamine, as he was not charged with its possession. He insists it was inadmissible under Evidence Code section 1101, and it was more prejudicial than probative under Evidence Code section 352.
A. Additional Factual Background
Prior to trial, defendant brought a motion in limine to exclude evidence of marijuana found near the methamphetamine in the garage office because he was not charged with marijuana possession. The People were seeking to admit the evidence on two grounds: (1) an expert officer would testify that drug dealers oftentimes sell more than one type of drug; and (2) defendant admitted he smoked marijuana so it would show he possessed drugs found near the methamphetamine. Defendant argued it was prejudicial to have the jury hear he used marijuana. The People clarified that it was relevant to the issue of sales in that it was found near the methamphetamine and goes to knowledge of the methamphetamine. Defendant stated it was highly prejudicial in that he was denying possession of the methamphetamine. The People indicated that the jury could be admonished that defendant was not charged with possession of marijuana. The matter was taken under submission.
The trial court indicated it had researched the issue and found two relevant cases: United States v. Ali (2007) 493 F.3d 387 and United States v. Ramos (1997) 971 F.Supp. 186. The trial court explained that Ali was a case involving an uncharged drug trafficking charge that the court found was more probative than prejudicial and was therefore admissible. In Ramos, the court found the uncharged offenses relevant because they were “inextricably intertwined” with the charged crime and completed the story of the charged crime. The trial court here found the marijuana possession was similar to these cases and could be admitted. Its ruling was without prejudice if defendant found other authority to support his claim. It noted that the marijuana was only relevant if it proved the sale of methamphetamine. If the expert were to testify that it was relevant to showing possession for sale, that was sufficient to admit it.
The trial court referred to this case as “U.S. versus Alley at 493 Fed Sup 4387....” However, it is clear it was referring to the case cited herein.
Although the trial court indicated that it would give a limiting instruction on the issue to the jury, we have reviewed the record and found no such limiting instruction.
B. Analysis
Defendant first claims the evidence was not relevant under Evidence Code section 1101, subdivision (b), as other crimes evidence. The People respond that defendant never objected to the evidence on this ground in the lower court, and has therefore waived the issue on appeal. Further, the People contend that the trial court did not admit the evidence as propensity or character evidence under Evidence Code section 1101. We agree that the defendant in this case mischaracterizes the evidence as propensity or other crimes evidence.
“No evidence is admissible except relevant evidence.” (Evid. Code § 350.) “‘Relevant evidence’ means evidence... having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code § 210.) “The trial court has broad discretion in determining the relevance of evidence. [Citation.] We review for abuse of discretion a trial court’s rulings on the admissibility of evidence. [Citations.]” (People v. Harris (2005) 37 Cal.4th 310, 337.)
Here, the trial court relied on two federal cases that most closely resembled the facts of this case in admitting the evidence. Although we are not bound by federal court precedent, we do find the two cases persuasive. (See People v. Bradley (1969) 1 Cal.3d 80, 86.)
We have failed to find any California cases that directly address the issue here, and the parties have not provided us with such a case.
In United States v. Ali, supra, 493 F.3d 387, a case involving fraud and racketeering, the district court allowed in evidence of defendant’s contact with drug dealers even though he was not charged with a drug offense. (Id. at pp. 388-389.) The Third District Court of Appeals analyzed the evidence under Federal Rules of Evidence, rule 403, which is essentially the equivalent of Evidence Code section 352 (People v. Falsetta (1999) 21 Cal.4th 903, 921). (Ali, at p. 391.) The federal court concluded that evidence that defendant was a known drug dealer helped establish the elements of the charged crimes and was not more prejudicial than probative. (Id. at pp. 391-392.)
In United States v. Ramos, supra, 971 F.Supp. 186, a drug conspiracy prosecution, a district court in Pennsylvania admitted evidence that the defendant and the coconspirators had engaged in violent acts to prove that they were engaged in the drug conspiracy. The federal court analyzed the issue under Federal Rules of Evidence, rule 404(b), which is similar to Evidence Code section 1101, subdivision (b) in that it excludes evidence of uncharged acts to show propensity unless the acts are shown to be relevant to motive, intent, etc. (Ramos, at p. 191.) The court rejected that rule 404(b) was implicated in the case because “the violent acts at issue are in furtherance of the crime charged, the conspiracy, and thus independently relevant.” (Ramos, at p. 191.) The court distinguished intrinsic and extrinsic acts. It found, “When the other acts ‘occurred at different times and under different circumstances from the offense charged, ’ they are extrinsic; intrinsic acts ‘are those that are part of a single criminal episode.’ [Citation.]” (Id. at pp. 191-192.) The court found the evidence admissible: “Thus, an act is intrinsic to the charged act or crime if it is inextricably intertwined with the charged act or crime, in this case, the conspiracy, or is necessary to complete a coherent story of the crime charged.” (Id. at p. 192.)
Similarly here, the evidence of defendant’s marijuana possession was intrinsic evidence “inextricably intertwined” with the charged act. The officers were told by both defendant and Hoeppner that defendant kept his marijuana in the garage. This was the same location as the methamphetamine. Moreover, Officer Vasilis tied the marijuana to this case by testifying that it was common for drug dealers to sell more than one type of drug. This evidence of defendant’s marijuana possession was part of a single criminal episode and admissible as relevant evidence to show the elements of possession of methamphetamine for sale.
Defendant next contends that even if the evidence was relevant, its probative value was outweighed by the prejudice, citing to Evidence Code section 352. “The court in its discretion may 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.” (Evid. Code § 352.)
The evidence was highly relevant in this case to show that defendant was selling the methamphetamine and had knowledge of it. Moreover, it was not overly prejudicial. “The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. ‘[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant’s case. The stronger the evidence, the more it is “prejudicial.” The “prejudice” referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues.’” (People v. Karis (1988) 46 Cal.3d 612, 638.)
We do not believe this highly relevant evidence would tend to evoke an emotional bias against defendant. The marijuana found was less than one ounce. The methamphetamine was 13 grams with a street value of $1,300. The trial court did not err by finding this evidence more probative than prejudicial.
Even if the evidence was erroneously admitted, we conclude it was not reversible prejudicial error. “[T]he erroneous admission of [irrelevant evidence] warrants reversal of a conviction only if the appellate court concludes that it is reasonably probable the jury would have reached a different result had the [evidence] been excluded. [Citation.]” (People v. Scheid (1997) 16 Cal.4th 1, 21.) As is evidenced from our detailed discussion, ante, defendant’s marijuana possession was only a small piece of the overwhelming evidence against him. There is no probability that defendant would have received a more favorable result had the testimony regarding the marijuana been excluded.
V
MISTRIAL MOTION
Defendant contends that a mistrial should have been declared when one of the officers discussed a “controlled buy” at defendant’s house apparently conducted prior to the search warrant.
A. Additional Factual Background
During Officer Devon Reid’s testimony (an officer who assisted in the search), he described how he approached defendant’s house in executing the search warrant and testified, “I immediately exited the van and saw Officer Vasilis run toward the northwest portion of the residence. There was a large yard in there. I was semi-familiar with the residence due to the fact that I was with Officer Vasilis when we made the controlled buy from there.” Defense counsel immediately objected and moved to strike the testimony. The trial court responded, “Based upon?” Defense counsel responded, “We’ll question him about it a great deal, ” and the trial court stated, “Thank you.”
During a break, the parties had a chambers conference off the record apparently discussing how to cleanse the record of the testimony regarding the controlled buy. Defense counsel felt the testimony opened the door as to how a controlled buy came about on the property. However, defendant himself wanted a mistrial. The People responded it was a brief statement and could be adequately sanitized by an admonition to the jury.
The trial court denied the mistrial motion and intended to give a limiting instruction. The trial court admonished the jury as follows: “Ladies and gentlemen of the jury, there was testimony that there was a controlled buy. There is no evidence that a controlled buy took place involving Mr. Maldonado. This testimony was in error and is hereby stricken from the record in it’s [sic] entirety. The jury is admonished not to consider this testimony for any purpose....” The jury was later instructed, “If I ordered testimony stricken from the record, you must disregard it and must not consider that testimony for any purpose.”
B. Analysis
Defendant argues that the trial court erred by denying his motion for mistrial because the evidence that a “controlled buy” occurred on the property prior to the search warrant being executed was improper because it was inadmissible, irrelevant evidence under Evidence Code section 1101, and more prejudicial than probative.
“A trial court should grant a motion for mistrial ‘only when “‘a party’s chances of receiving a fair trial have been irreparably damaged’”’ [citation], that is, if it is ‘apprised of prejudice that it judges incurable by admonition or instruction’ [citation]. ‘Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions.’ [Citation.] Accordingly, we review a trial court’s ruling on a motion for mistrial for abuse of discretion. [Citation.]” (People v. Avila (2006) 38 Cal.4th 491, 573.)
Here, the jury briefly heard about a controlled buy at defendant’s house. The defense in this case was that Kern was the possessor of the narcotics, not defendant. The fact of a controlled buy did not impact that defense. Certainly, the jury could infer, if they believed defendant’s defense, that Kern was the person who sold from the location. In fact, the jury was instructed that even if a “controlled buy” occurred, there was no testimony that defendant was involved. Additionally, there is no indication that the jurors in fact understood what a “controlled buy” consisted of or if it was related to the instant case.
Further, the jury was instructed that they were to ignore that evidence. We must presume that the jury understood and followed the instructions. (People v. Jablonski (2006) 37 Cal.4th 774, 834.)
The court’s action in sustaining the objection, striking the evidence, and admonishing the jurors was sufficient to prevent any harm. The brief statement was not incurably prejudicial.
VI
DISPOSITION
The judgment is affirmed.
We concur: McKINSTER Acting P.J.KING J.