Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. SWF012305, James B. Jennings, Judge. Retired judge of the Santa Barbara Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.
Michael B. McPartland, 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, Senior Assistant Attorney General, Steve Oetting, Supervising Deputy Attorney General, and Donald W. Ostertag, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RICHLI, J.
Anthony Keeton was charged with burglary (Pen. Code, § 459, count 1), making criminal threats (Pen. Code, § 422, count 2), and lewd acts on a child (Pen. Code, § 288, subd. (a), count 3). He was convicted of burglary. The jury was unable to reach a verdict on the criminal threats charge, and a mistrial was declared as to that charge. The jury found defendant not guilty on the lewd acts charge, but found him guilty of the lesser charge of battery. Defendant was sentenced to time served on that charge.
In a bifurcated proceeding, the trial court found that defendant had two prior serious offenses and that those offenses were strike offenses. The offenses were a 1994 robbery and a 1985 conviction for a lewd act on a child under age 14.
Defendant was sentenced as a third-strike offender to 25 years to life on count 1, plus two consecutive five-year terms for the serious offense priors, for a total term of 35 years to life.
On appeal, defendant contends that the trial court abused its discretion when it allowed the prosecution to play a videotape of an officer’s interview with defendant in which defendant admitted two prior car burglaries and a bank robbery.
Finding no abuse of discretion, we affirm.
FACTS
On June 20, 2005, Ricardo Ramirez was living in a two-bedroom apartment in Lake Elsinore with his wife and three sons. His sons were 11, 9, and 6 years old.
At 2:45 a.m., Ramirez heard his sons crying. He went into their bedroom and saw that the bedroom window was open. His sons told him that someone had entered and left the room through the window. The children subsequently testified individually and repeated their story. Each of the brothers testified that the man told them not to make any noise or movement or he would hurt them. Each of the brothers also testified that the man had grabbed the six-year-old by the ankle and started to pull him. At that point, Ramirez began to enter the room and the man fled.
A deputy sheriff questioned defendant on June 21, 2005, at 4:00 a.m. Defendant was stopped because he resembled a description of the burglary suspect, which had been discussed at the deputy’s briefing the preceding evening. Defendant was detained about half a mile from the Ramirez’s residence. The two older Ramirez children were brought to the location but were unable to identify defendant as the man who had entered their room. Defendant was driven to the Ramirez’s apartment and during further questioning, he admitted that he had climbed in the window of the Ramirez’s apartment.
The 11-year-old boy did, however, identify defendant at trial.
A detective then interviewed defendant and recorded the interview on a videotape. The entire videotape was subsequently played for the jury.
During the interview, defendant admitted that he went into the apartment through the window. Defendant said he was drunk at the time, and he admitted that he might have grabbed the six-year-old by the ankle. Defendant, who was a registered sex offender in Lake Elsinore, also admitted that he was “probably” going to take the six-year-old out the window. Finally, he admitted that he “probably” would have molested the child. Defendant also told the officer that he went into the apartment to look around for something to take.
One issue at trial was defendant’s intent when he entered the apartment, i.e., the intent to steal or the intent to molest the child. As noted above, defendant was convicted of burglary and simple battery.
Admission of Other Crimes Evidence
The entire videotaped interview was played for the jury. At one point, defendant said that he did not do house burglaries. After the officer pointed out that he had a burglary conviction, defendant said that the conviction was for a car burglary. He also said, “I did two car burglaries and . . . a bank robbery . . . .”
Prior to the playing of the videotape, the defense objected to playing these references, contending they were not admissible under Evidence Code sections 1101 or 1108.
Unless otherwise indicated, all further statutory references are to the Evidence Code.
The prosecution sought to play the entire videotape, arguing that the offenses were theft crimes, that the reference to them gave “context and meaning” to defendant’s admissions, and that the statements were very relevant to show defendant’s specific intent under section 1101, subdivision (b).
The trial court’s response was unclear. It said: “It may not be 1101(b), but it comes in through the relevance factor. If it comes in, the 352 and the probative value is [sic] very high and the prejudicial value is very high.” The trial court therefore allowed the entire videotape to be played, but it subsequently instructed the jury that the references to the prior robbery or car burglaries “may not be considered except for the limited purpose of showing a connection, if there is one, if you find one, between those and this. You may consider it only for that purpose.”
Defendant now argues that the trial court erred because the testimony was made inadmissible by section 1101, subdivision (a), and did not qualify under the exception of section 1101, subdivision (b).
DISCUSSION
Section 1101 provides: “(a) Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion. [¶] (b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act. [¶] (c) Nothing in this section affects the admissibility of evidence offered to support or attack the credibility of a witness.”
As applied here, defendant’s admissions that he had committed two car burglaries and a bank robbery were clearly “specific instances of his . . . conduct,” which were inadmissible under section 1101, subdivision (a), to prove his conduct on the specific occasion in issue. But section 1101, subdivision (b), allows such evidence to show intent. As noted above, the prosecution had to show that, when defendant entered the apartment, he either climbed in the window to molest a child or to steal something, i.e. to commit a felony. (Pen. Code, § 459.)
Because of the child molestation possibility, evidence of defendant’s prior sex crime conviction for molesting a five-year-old niece was admissible under section 1108, as a specific exception to section 1101, subdivision (a), subject only to analysis under section 352. The prior sex crime conviction was therefore properly admitted to show defendant’s possible intent to molest when he entered the apartment.
Section 1108, subdivision (a), states: “In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352.”
The issue, then, is whether the evidence of prior theft convictions was properly admitted to show a specific intent to steal property from the apartment.
Section 1101, subdivision (b), provides a specific exception which allows use of prior conduct evidence when it is relevant to prove defendant’s intent. The parties both cite the leading case of People v. Ewoldt (1994) 7 Cal.4th 380 (Ewoldt). In that case, our Supreme Court analyzed the issue and held “that evidence of a defendant’s uncharged misconduct is relevant where the uncharged misconduct and the charged offense are sufficiently similar to support the inference that they are manifestations of a common design or plan. [¶] In determining whether evidence of uncharged misconduct is relevant to demonstrate a common design or plan, it is useful to distinguish the nature and degree of similarity (between uncharged misconduct and the charged offense) required in order to establish a common design or plan, from the degree of similarity necessary to prove intent or identity.” (Ewoldt, at pp. 401-402, fns. omitted.)
Since Ewoldt involved lewd conduct charges, its specific holdings have been superseded by the subsequent enactment of section 1108. (People v. Britt (2002) 104 Cal.App.4th 500, 505.)
With regard to intent, the trial court said, “The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent. [Citation.] ‘[T]he recurrence of a similar result . . . tends (increasingly with each instance) to negative [sic] 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.]” (Ewoldt, supra, 7 Cal.4th at p. 402.)
Although the parties disagree as to whether the trial court decided that the section 1101, subdivision (b), exception was applicable, the prior crimes mentioned by defendant were theft crimes and that similarity tends to establish that defendant did not enter the apartment in an innocent mental state.
At one point, defendant told the officer that he entered the apartment thinking it was the apartment of a friend.
We therefore agree with the People that the trial court did not abuse its discretion in admitting defendant’s statements: “Evidence of uncharged crimes is inherently prejudicial but may still be admitted if it has substantial probative effect. [Citation.] The matter lies within the discretion of the trial court. [Citations.] The ruling here was well within the court’s discretion. The evidence was highly probative on the issues for which it was admitted.” (People v. Carpenter (1997) 15 Cal.4th 312, 380.) The trial court found the evidence highly probative and relevant, noting that defendant’s intent in entering the apartment was “[p]robably the most important thing in the case . . . because if he hadn’t had intent he didn’t do any crimes.”
Superseded on other grounds in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106.
Since the trial court did not abuse its discretion in admitting defendant’s statements, we do not reach the question of prejudice. We note, however, that any error would have been harmless because defendant admitted that he entered the apartment with the intent to find something to take. Moreover, we agree with the People that the potential prejudicial effect of the evidence was minor compared to the potential prejudicial effect of the admission of the evidence under section 1108—that defendant was a registered sex offender who had previously been convicted of molesting his five-year-old niece and who probably would have molested the young boy in this case if he had been successful in removing the child from the apartment.
DISPOSITION
The judgment is affirmed. The trial court is directed to amend the abstract of judgment in accordance with the views expressed in this opinion and to forward a certified copy to the appropriate prison authorities.
We concur: RAMIREZ, P. J., HOLLENHORST, J.