Opinion
C081551
03-10-2017
THE PEOPLE, Plaintiff and Respondent, v. MAURICE BARNETT, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15F03229)
A jury found defendant Maurice Barnett guilty of burglary (Pen. Code, § 459) but not guilty of attempted burglary (§§ 664/459). The jury also found true the allegations that defendant had two prior serious felony convictions (§ 667, subd. (a)) that qualify as strikes under the three strikes law (§§ 667, subd. (e)(2), 1170.12, subd. (c)(2)). After granting the People's motion to strike one of defendant's prior strike convictions, the trial court sentenced defendant to an aggregate term of 22 years in prison.
Undesignated statutory references are to the Penal Code.
On appeal, defendant contends the trial court prejudicially erred in admitting evidence of two prior acts to prove his intent in committing the burglary offense. We disagree and shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. Current Offenses
1. Count One--Burglary Offense
On May 28, 2015, Bryan B. lived in an apartment complex located on Windbridge Drive in Sacramento. When Bryan B. returned home from dropping his children off at school, he noticed speckles of light on his ceiling. He then heard a sound and looked to his right and saw an African-American man, later identified as defendant, standing on his enclosed patio. Bryan B. noticed that the speckles of light were caused by light refracting off broken glass from his patio door.
Initially, defendant froze when Bryan B. looked at him. He then quickly turned around, jumped over the patio's enclosure, and ran off. Bryan B. followed defendant and watched him jump over the apartment complex fence and run toward Rush River Drive. Less than 30 seconds later, Bryan B. called 911.
When the police arrived about five minutes later, Bryan B. described defendant as a slender, lighter-skinned African-American male in his mid-20's. He said that defendant was approximately five feet nine inches tall, was wearing a white shirt and jeans, and had dreadlocks that were tied into two ponytails.
In a police showup conducted approximately 30 minutes later, Bryan B. identified defendant. He said that defendant was wearing the same clothes, and had the same hairstyle, skin tone, and build as the man he had seen on his patio. Bryan B. testified that defendant might have used a bicycle to break his patio door because the bicycles on the patio were in disarray. He further testified that nothing was missing from his apartment.
On May 28, 2015, Jamal P. lived at the same apartment complex as Bryan B. As Jamal P. was returning home from dropping off his wife at work, he saw a man crossing the street at the intersection of Rush River Drive and Windbridge Drive. He described the man as a slender African-American male in his late 20's. He said that the man was approximately five feet seven inches tall, was wearing a white shirt, and had dreadlocks pulled into two ponytails. When Jamal P. arrived home, he overheard Bryan B. talking on the phone. Jamal P. told Bryan B. that he had seen the person Bryan B. was describing.
When the police arrived, Jamal P. described the individual he saw to the police. In a field showup conducted about 20 minutes later, Jamal P. identified defendant. Jamal P. told the police that he recognized defendant from the clothes he was wearing, his dreadlocks, and the bridge of his nose.
2. Count Two--Attempted Burglary
On May 28, 2015, Donald R. lived on Windbridge Drive in Sacramento. Around 8:00 a.m., Donald R. was awakened by one or two mild knocks on his door. He ignored the knocks, assuming the person would go away. The knocking, however, continued for about five minutes and the doorbell was rung once. The knocking then got louder; it became frantic with rapid pounding. During this time, the doorbell rang several times. A man also yelled that he was a neighbor from across the street.
Donald R. eventually opened the door. The man, later identified as defendant, said that his car had broken down because of a bad water pump, and that he needed a gallon of water for his car. When Donald R. refused to get defendant water, he walked away. After defendant left, Donald R. went outside and noticed that defendant's car was not where he claimed it was parked. Because Donald R. thought defendant was "casing" houses, he took a walk through his neighborhood to see if defendant was knocking on other people's doors.
Around 25 minutes after defendant left his residence, Donald R. called the police. When the police arrived about 10 minutes later, they took Donald R. to a field showup. Donald R. said that he immediately recognized defendant based on his distinctive glasses, green necklace, white top, and braided hair.
3. Field Showups
Around 8:15 a.m. on May 28, 2015, Sacramento Police Officer Randy Van Dusen was dispatched to a burglary in South Sacramento. As he was driving to the location of the reported burglary, he saw an individual matching the description he was given by the dispatcher. Officer Van Dusen watched the individual get into a car and drive away. After Officer Van Dusen stopped the car, the field showups were conducted.
When Sacramento Police Officer Marcell Loriaux arrived at the scene, defendant was detained in handcuffs. After being advised of his Miranda rights, defendant told Officer Loriaux that his car had broken down on Windbridge Drive, and that he had walked his female passenger to a bus stop. Defendant also said that he had knocked on the door of a house to ask for jumper cables, and when the man told him to leave, he got into his car and drove off.
Miranda v. Arizona (1966) 384 U.S. 436 .
B. Prior Acts Evidence
In a motion in limine, the People sought admission of evidence relating to several prior incidents that resulted in the arrest of defendant for first degree burglary. The People sought to introduce this evidence under Evidence Code section 1101, subdivision (b) to show defendant's intent, common plan, or design in committing the charged offenses.
At the hearing on the parties' motions in limine, the prosecutor stated that he wanted to introduce the prior-acts evidence only to show defendant's intent. Defendant argued that the evidence should not be admitted because the prejudicial effect of the evidence outweighed its probative value under Evidence Code section 352. Defendant asserted that the acts were not sufficiently similar to the charged offenses, and that identity rather than intent was the key issue in the case. In deciding to admit evidence regarding three prior acts, the trial court found that intent was the primary issue in this case, and that the prior acts reflected on defendant's intent to steal. The court, noting that the prior acts were very similar to the charged offenses, determined that the probative value of the evidence substantially outweighed the prejudicial effect and the evidence would be admitted to show defendant's intent.
At trial, the prosecutor introduced evidence of two prior acts. Prior to the introduction of this evidence, the trial court instructed the jury that the evidence was to be considered for the limited purpose of whether or not defendant acted with the intent to commit theft, and that it could not be considered as evidence of bad character or evidence that defendant is disposed to commit a crime.
The first prior act occurred in July 2004. Officer Randall Moe of the Bakersfield Police Department testified that on July 9, 2004, he received a call regarding a possible burglary in progress. When he arrived at the location of the reported burglary, another officer had already detained defendant. Defendant told Officer Moe that he was running from some gang members, and that he went inside the residence to ask the owner if he could use the phone. Later, however, defendant admitted that he had broken into the residence. Defendant said that he knocked on the door to see if anybody was home, and when no one answered, he used tools from the garage to gain entry into the residence. Defendant said the police arrived so quickly he did not have time to take anything. An inspection of the residence revealed that the back door of the residence had been forcibly opened.
The second prior act occurred in May 2011. On May 31, 2011, Cora H. and Donald H. lived on Flamingo Way in Sacramento. Around 5:45 p.m., a man, later identified as defendant, repeatedly rang the doorbell. Cora H. and Donald H. both looked out the window until defendant walked away. Because it appeared that defendant was walking towards the back of the house, Donald H. opened the door to the backyard. When he did so, he saw defendant and asked him what he was doing. Defendant said that he went into the backyard because no one answered the door. After Donald H. told Cora H. to call 911, defendant jumped the backyard fence and ran off. In a field showup, both Donald H. and Cora H. identified defendant.
C. Jury Instructions
The jury was instructed pursuant to CALCRIM No. 375 as follows: "The People presented evidence that the defendant committed other offenses that were not charged in this case. [¶] You may consider this evidence only if the People have proved by a preponderance of evidence that the defendant in fact committed the uncharged offenses . . . [¶] . . . [¶] If you decide that the defendant committed the uncharged offenses, you may, but are not required to, consider that evidence for the limited purpose of deciding whether or not: [¶] The defendant acted with the intent to commit theft in this case. [¶] In evaluating this evidence, consider the similarity or lack of similarity between the uncharged offenses and the charged offenses. [¶] Do not consider this evidence for any other purpose. [¶] Do not conclude from this evidence that the defendant has a bad character or is disposed to commit a crime. [¶] If you conclude that the defendant committed the uncharged offenses, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of the charged offenses. The People must still prove each charge beyond a reasonable doubt."
The court also instructed the jury that the crime of burglary and attempted burglary required specific intent. (See CALCRIM Nos. 460, 1700.) With respect to the burglary offense, the court instructed: "To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant entered a building; [¶] AND [¶] 2. When he entered a building, he intended to commit theft." (See CALCRIM No. 1700.) With respect to the attempted burglary offense, the court instructed: "To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant took a direct step toward committing burglary; [¶] AND [¶] 2. The defendant intended to commit burglary." (See CALCRIM No. 460.)
Pursuant to CALCRIM No. 1701, the jury was instructed that "[a] house includes an attached patio designed to be entered only from inside a private residential apartment."
D. Verdict and Sentence
A jury trial found defendant guilty of burglary (§ 459) but not guilty of attempted burglary (§§ 664/459). The jury also found true the allegations that defendant had suffered two prior serious felony convictions (§ 667, subd. (a)) that qualify as strikes under the three strikes law (§§ 667, subd. (e)(2), 1170.12, subd. (c)(2)). After granting the People's motion to strike one of defendant's prior strike convictions, the trial court sentenced defendant to an aggregate term of 22 years in state prison.
Defendant filed a timely notice of appeal.
DISCUSSION
Defendant contends the trial court prejudicially erred in admitting evidence of prior acts to prove his intent in committing the burglary offense. We disagree.
Under Evidence Code section 1101, subdivision (b), evidence of a crime or prior act is admissible when offered to prove motive, opportunity, preparation, plan, knowledge, intent, identity, absence of mistake, or lack of accident. Admissibility under Evidence Code section 1101, subdivision (b) depends on (1) the materiality of the facts sought to be proved, (2) the tendency of the uncharged acts to prove those facts, and (3) the existence of any rule or policy requiring exclusion of the evidence. (People v. Lindberg (2008) 45 Cal.4th 1, 22.)
"Evidence of uncharged offenses 'is so prejudicial that its admission requires extremely careful analysis. [Citations.]' [Citations.] 'Since "substantial prejudicial effect [is] inherent in [such] evidence," uncharged offenses are admissible only if they have substantial probative value.' [Citation.] [¶] . . . We . . . examine whether the probative value of the evidence of defendant's uncharged offenses 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.)" (People v. Ewoldt (1994) 7 Cal.4th 380, 404 (Ewoldt).) "We review the trial court's determination for abuse of discretion, and view the evidence in the light most favorable to the trial court's ruling." (People v. Edwards (2013) 57 Cal.4th 658, 711.)
"Evidence of intent is admissible to prove that, if the defendant committed the act alleged, he or she did so with the intent that comprises an element of the charged offense. 'In proving intent, the act is conceded or assumed; what is sought is the state of mind that accompanied it.' " (Ewoldt, supra, 7 Cal.4th at p. 394, fn. 2.) "The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent [as compared to the degree of similarity required to prove a common design or plan]. [Citation.] '[T]he recurrence of a similar result . . . tends (increasingly with each instance) to negat[e] accident or inadvertence or self-defense 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.] In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant ' "probably harbor[ed] the same intent in each instance." [Citations.]' [Citation.]" (Id. at p. 402.)
Defendant asserts that the only material fact in issue at trial with respect to the burglary offense was identity, and that intent was not a significant issue because the intent of the person on Bryan B.'s patio was not seriously contested. Thus, he contends the trial court erred by admitting the prior-acts evidence because the evidence did not have substantial probative value that outweighed its inherent prejudice. We conclude the trial court did not abuse its discretion.
A "[d]efendant's not guilty plea put[s] in issue all of the elements of the offense[]" and even if an element of the crime is conceded by the defendant at trial, "the prosecution is still entitled to prove its case and especially to prove a fact so central to the basic question of guilt as intent." (People v. Steele (2002) 27 Cal.4th 1230, 1243.) When weighing the probative value of the evidence against the undue prejudicial effect of the evidence, "[t]he trial court should consider whether the party objecting to the evidence actually disputes the fact for which it is offered . . . . If the fact is undisputed, the evidence has less true probative value." (Id. at p. 1246.)
Although defendant claims that the issue of intent with respect to the burglary offense was not seriously contested, he pleaded not guilty to that offense and refused to stipulate regarding the issue of intent. Assuming defendant was the person on Bryan B.'s patio, the evidence did not show that his intent was beyond dispute. Defendant's intent to commit theft was at issue because there was no evidence that he stole anything from Bryan B. Thus, the prior-acts evidence was relevant to show defendant intended to steal Bryan B.'s property. In light of the similarity between the prior acts and the burglary offense, the prior acts tended to negate an innocent mental state. The evidence of defendant's uncharged acts shared sufficient common features (i.e., similarities) with the burglary offense to support the inference that defendant intended to steal from Bryan B. The prior uncharged acts showed a reoccurrence of a similar result; namely, defendant had a pattern of determining whether occupants of a residence were at home by knocking on the front door, and if no one answered, entering, or attempting to enter, the residence through the rear. The prior acts had substantial probative value in that they made it very unlikely that defendant did not have the requisite intent to steal from Bryan B. Accordingly, the trial court did not abuse its discretion in admitting the prior-acts evidence.
Because defendant only challenges the admission of the prior acts evidence to show his intent regarding the burglary offense, we will limit our analysis to that offense.
Defendant's reliance on People v. Lopez (2011) 198 Cal.App.4th 698, is misplaced. In Lopez, the defendant was charged with and convicted of residential burglary, and the trial court admitted evidence of a prior car burglary and car theft. (Id. at pp. 714-715.) In concluding that the trial court abused its discretion, the appellate court reasoned that "[e]vidence regarding the Mendicino burglary showed that someone entered the kitchen of the Mendicino residence and took two purses. Assuming [the defendant] committed the alleged conduct, his intent in so doing could not reasonably be disputed--there could be no innocent explanation for that act. Thus, the prejudicial effect of admitting evidence of a prior car burglary and prior car theft outweighed the probative value of the evidence to prove intent as to the Mendicino burglary charge. [Citation.] [¶] Simply put, evidence of uncharged acts cannot be used to prove something that other evidence showed was beyond dispute." (Id. at p. 715.) Here, unlike in Lopez, defendant's intent was not beyond dispute. The facts of the burglary offense did not eliminate any doubt as to whether he acted with the requisite mental state. The facts were not such that there could be no innocent explanation for the conduct giving rise to the charge.
DISPOSITION
The judgment is affirmed.
/s/_________
Blease, J. We concur: /s/_________
Raye, P. J. /s/_________
Renner, J.