Filed 8/16/16 P. v. Jacobs CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

THE PEOPLE,
Plaintiff and Respondent,

v.

JAMES W. J ACOBS,
Defendant and Appellant. B267411
(Los Angeles County Super. Ct. No. KA109195)

APPEAL from a judgment of the Superior Court of Los Angeles County, Mike Camacho, Jr., Judge. Affirmed.

Michele A. Douglass, under appointmen t by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Shawn McGahey Webb and Ilana Herscovitz, Deputy Attorneys Genera l, for Plaintiff and Respondent.

____________________________2

After trial by jury, d efendant and appellant James W. Jacobs was convicted of manufacturing methamphetamine (Health & S af. Code § 11379.6, subd. (a)) and
sentenced to a n aggregate term of six years in prison to be served in county jail. Jacobs
contends that the trial court erred in admitting evidence underlying his prior conviction
for possession of methamphetamine. We find no error and affirm.
FACTS
The Tr affic Stop and Discovery of the Me thamphetamine On March 8, 2015, Jacobs was driving his Honda in the City of Industry when he was pulled over by Ivan Diaz, a reserve deputy with the Los Angeles County Sher iff’s Department. Deputy Diaz r an the Honda’s license plate number and found Jacob s was the owner of the vehicle and that it was registered as a planned non

- operation or “PNO”
vehicle. Deputy Diaz asked if there was anything illegal in the car and Jacobs said he had marijuana in the car, for which he had a medical license. Deputy Di a z lawfully searched
the car and found in the trunk a glass jar that contained methamphetamine in the final stage of the manufacturing process, two bags of a green

- leafy subst ance, and a pipe with a milky substance in the bowl.
Detective Scott Schul ze, a s enior narcotics detective with the sheriff’s d epartment, helped recover the items found in Ja cob s ’s trunk. The deputies also found cans of acetone, butane fuel , and a gas additive called “Heat.” 1 Deputy Diaz placed Jacobs under arrest and read him his Mi randa 2 rights. Jacobs waived his rights and told Deputy Diaz that the jar was not hi s, and that he did not know the jar was insid e his trunk. Deputy Diaz then asked, “ W hat stage of process was the glass jar in,” and Jacobs answered, “It’s being washed be fore use.” 3

1 H eat is a gas additive that contains alcohol and can be used at the beginning of the manufacturing process to extract pseudoephedrine or ephedrine from tablets, or in the last stage of the manufacturing process, during re

- crystallization.

2 Miranda v. Ari zona (1966) 384 U.S. 436 ( Miranda ).

3 “Washing” typically refers to cleaning or washing out the impurities in methamphetamine. In the final stage of re

- crystallization, a solvent is introduced to3

The Criminal Case Jacobs was charged with one count of manufacturing methamphetamine

. (Health & Saf. Code, § 11379.6, subd. (a).) It was further alleged he suffered a prior drug conviction within the meaning of Health and Safety Code secti on 11370.2, subdivision (b), and six convictions with a prison term . ( Pen

. Code , § 667.5, subd

. (b). ) Before trial, the prosecution moved to admit the evidence underlying Jacobs’ s prior conviction for possession of methamphetamine pursuant to Evidence Code section 1101, subdivision (b)

. 4 T he court ruled that the evidence could not be introduced in the

case

- in

- chief but indicated it would revisit its ruling if the defense presented evidence
that Jacobs did not know the methamphetamine was inside his car

. Michael West, a chemist with the Sheriff’s Department Crime Lab stated that both
“Heat” and acetone could be used in manufacturin g methamphetamine. Upon testing the evidence taken from Jacobs’s car, West concluded that it was “consistent with a

process ing stage in the manufacturing of methamphetamine.” Specifically, the last stage of the process, where the crude product is dissolved into a solvent, which then evaporates away and leaves a more refined product. Detective Shul ze also testified that becau se general users are not typically familiar with the term “washing,” a person who uses that terminology is likely a manufacturer of methamphetamine. Rudolph Estrada testified for the defense. Estrada is an automobile mechanic who previously worked on Jac obs’s Honda

. H e had Jacobs’ s car from about June 2014 through February 2015 , about a week before Jacobs was arrested for this c ase

. Estrada testified that the doors and trunk could not be locked, and that at some point he moved
the car from the street to the driveway because he noticed someone had be en tampering
with it. He stated that he did not access the trunk, nor did he see anyone pu t items in the

dissolve the crude product. After the solvent evaporates, a re

- crystallized, purified product is left over.

4 All further section references are to the Evidence Code unless otherwise noted.4

trunk. Estrada drove the car to the beach once and i t blew a head gasket. Estrada
testified he was no t able to fix the locks on the door or the trunk. Once the defense rested, the prosecution renewed its motion to introduce evidence surrounding Jacobs ’s prior conviction for possession of methamphetamine

. The trial

court then ruled that the evidence coul d be admitted. During rebuttal, Deputy Rene Arguelles testified that, d uring a 2014 traffic stop,
he searched Jacobs and found a “clear plastic baggy containing some methamphet amine .”
Jacob s told Arguelles , “Shit. I did not know that was in there

. ” Afte r the deputy read
Jacobs his Miranda rights, Jacobs agreed to speak with Arguelles and when asked if
Jacobs knew what was found in his pocket, he responded that it was an “eight ball” 5 of “meth.” Jacobs said that he had been an addict since the third gra de, was tired of usi ng, and wanted help. The jury found Jacobs guilty of manufacturing methamphetamine, as charged. Thereafter, he admitted the prior convic tion allegations. The trial court sentenced Jacobs to six years in county jail , comprised of th e low term of three years for the crime and an
additional three years for the prior drug conviction.
Jacobs filed a tim ely notice of appeal.
DISCUSSION
Jacobs contends his conviction must be reversed because the trial court erred when it allowed the pros ecutor to introduce evidence about his prior possession of

m ethamphetamine. We d isagree. Character evidence is generally inadmissible to prove a person acted in conformity with it on a specific occasion. (§ 1101, subd. (a).) It therefore is inadmissib le to establish criminal propensity. ( People v. Demetrulias (2006) 39 Cal.4th 1, 14.) It may be admissible, however, where relevant to prove a material fact at issue, for example, motive, opportunity, intent, preparation, plan, knowledge or identity. (§ 1101, subd. (b).)

“ The admissibility of other crimes evidence depends on (1) the materiality of the facts

5 Eight ball is a slang term used to describe at least three grams of methamphetamine.5

sought to be proved, (2) the tendency of the uncharged crimes to prove those facts, and (3) the existence of any rule or policy requiring exclusion of the evidence. ” ( People v. Carpenter (1997) 15 Cal.4th 312, 378

- 379, superseded by statute on other grounds as
stated in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106.) As the court explained
in People v. Ewoldt (1994 ) 7 Cal.4th 380: “ The leas t degree of similarity (between the uncharged act and the charged offense) is required . . . to prove intent. [Citation.] ‘ [T]he recurrence of a similar result . . . tends (increasingly with each instance) to negative
accident or inadvertence or self

- def ense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such an act . . . . ’ [Citation.] . . . [T]o be admissible to prove i ntent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant ‘ “ probably harbor[ed] the same intent in each
instance. ” [Citations.] ’ ” ( Id . at p. 402.)

“ Even if evidence of an uncharged crime is admissible und er [] section 1101, subdivision (b), the evidence may be excluded under [] section 352 if its probative value is substantially outweighed by the probability its admission would unfairly prejudice the defendant, mislead the jury, or confuse the issues. ( Pe ople v. Abilez (2007) 41 Cal.4th 472, 500; People v. Balcom (1994) 7 Cal.4t h 414, 426

- 427.) A trial court’ s ruling to admit evidence of an uncharged crime sections 1101, subdivision (b), and 352, is reviewed on appeal under the abuse of discretion standar d. ( People v. Memro (1995) 11 Cal.4th 786, 864; overruled on other grounds in People v. Gaines (2009) 46 Cal.4th 172, 181, fn. 2.) In order to prove Jacobs is guilty of manufacturing methamphetamine, the prosecution had to prove that defendant knew the substance being manufactured was methamphetamine. ( People v. Coria (1999) 21 Cal.4th 868, 878

- 879 ( Coria ).) More specifically, the prosecution had to prove that the defendant had both knowledge of the drug’s presence and it’s nature. ( People v. Carrasco (1981) 118 Cal.App.3d 936, 944

- 945.)6

Jacobs argues that the evidence of the June 2014 possession of methamphetamine should have been excluded because the two offenses, possession and manufacturing, are different, like “apples and oranges.” We disagr ee and find no abuse of discretion in the trial court’s determination that evidence of the prior possession was sufficiently similar so as to prove Jacobs’s knowledge of the presence of the methamphetamine in his car and

to rebut his defense that someone e lse placed the drug s there.
The evidence underlying Jacobs’ s 2014 conviction for possession of methamphetamine involved a traffic stop in the same Honda that was owned by and registered to Jacobs. In both cases, Jacobs was found with the contraband,

me thamphetamine. Most significantly, i n 2014, Jacobs also state d he did not know the methamphetamine was in his possession

. The similarities between the 2014 crime and the charged crime support use of the prior acts

. As a result, t he 2014 crime was proper ly admitted to rebut Jacobs’ s defense that he did not know the methamphetamine was in his car and that someone else put it there. We agree with the People that this case is like People v. Torres (1950) 98 Cal.App.2d 189, 192

. As in this case, evidence o f a prior incident where defendant

possess ed marijuana in a car was properly found admissible to rebut the defendant’s claim in a later trial that he did not know marijuana was in the same car.
We also note that
, contrary to Jacobs’ s claims that the tw o crimes are different , the knowledge requirement for manufacturing is the same as that for possession. ( Coria,

supra, 21 Cal.4th at pp. 878

- 879.) Accordingly, that Jacobs previously possessed methamphetamine was relevant to show he knew and was aware of the methamphetamine
in his trunk. Further, the trial court did not abuse its discretion in determining the probative
value of the prior conviction was not substantially outweighed by its prejudicial value
under section 352. Initially, the trial court ruled the evidence inadmissible in the People’s

case

- in

- chief, finding it was more prejudicial t han probative. However, the court changed its ruling a t the conclusion of the defense’s case

. This demonstrate s the court cautiously considered the admissibi lity of the facts about his prior possession of7

methamphetamine

. The court recognized the prejudicial nature of the evidence, and
waited until the defense ’s case increased the probative value of the evidence. Indeed,

o nce the defense brought in evidence indicating Jacobs did not have the car until about a week before his arrest in this case, that the trunk did not lock, and that someone was seen tampering with the trunk
, Jacobs’s knowledge of the presence of the methamphetamine in
his car became an issue for the jury to resolve.
While Jacobs is correct that the prejudicial effect of the admission of other crimes evidence increases if the uncharged act did not result in a conviction ( People v. E woldt
, supra, 7 Cal.4th at p. 405), defense counsel repeated ly informed the jury that Jacobs was convicted for the prior act, thus ameliorating any such issue in this case. Finally, Jacobs ’s claim that the evidence was unduly prejudic ial because the jury
used the evidence to show his propensity to possess drugs is unavailing

. The trial court instructed the jurors with CALCRIM No. 375, which directed that it cons ider the evidence concerning Jacobs’s prior crime for the limited purpose of establishing knowledge of possession of a controlled substance. The court f urther instructed: “Do not conclude from this evidence that the defendant has a bad character or is disposed to commit crime.” We presume the jurors understood and followed the court’s instructions. ( People v. Holt (1997) 15 Cal.4th 619, 662.) We rejec t Jacobs’s purely speculative supposition that the jury was likely to have disregarded the instruction and used the prior charge as propensity evidence.
DISPOSITION The judgment is affirmed.

BIGELOW, P.J.
We concur:

RUBIN, J. FLIER, J.