Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Contra Costa County Super. Ct. No. 071977-3
OPINION
Haerle, J.
I. INTRODUCTION
Following a jury trial, appellant Santiago Maciel was convicted of burglary (Pen. Code, § 459/460, subd. (b)), vandalism (§ 594, subd. (b)(1)), and grand theft (§ 487, subd. (a)). On appeal, he contends that the trial court abused its discretion in admitting evidence of prior misconduct pursuant to Evidence Code section 1101, subdivision (b). We disagree and hence affirm the judgment.
All further unspecified statutory references are to the Evidence Code.
II. FACTUAL AND PROCEDURAL BACKGROUND
On December 24, 2007, the Contra Costa County District Attorney filed an information charging appellant with second degree burglary (Pen. Code, § 459/460, subd. (b); count 1), felony vandalism (§ 594, subd. (b)(1); count 2) and grand theft (Pen. Code, § 487, subd. (a); count 3), and alleged that he was presumptively ineligible for probation (Pen. Code, § 1203, subd. (e)(4)).
Sharon Enea testified at trial that she owned a small florist shop in San Ramon. She used a nearby empty bank building owned by her cousin to store business materials such as seasonal items, vases, flags, ribbons and fixtures, and as a work area for busy times such as holidays, recitals and proms because her shop was so small. Although the building, formerly the site of a bank, had been vacant for about 15 years, the electrical systems still functioned properly. The building had front and rear entrances that were kept locked. The rear entrance was secured by a chain and key lock around the doors; the front entrance had an internal locking mechanism, opened with a key.
On November 7, 2007, at around 3:00 p.m., Enea dropped off some vases in the main room of the bank building, entering and exiting through the front door. When she left her florist shop for the day around 7:00 p.m., she checked and made sure the front and rear doors of the bank building were locked.
On November 7, 2007, at 11:00 p.m., Officer Allen Molien of the San Ramon Police Department was on patrol in the 9000 block of Alcosta Boulevard. He saw appellant emerge from bushes on a darkened, unlit, back area of the vacant bank building, and made contact. Molien searched appellant and found on his person a pair of wire/cable cutters, a small flashlight, a headband flashlight, gloves, a screwdriver, magnets, an extension drill bit holder, and an electrical tester.
Molien also found a Ford key and a Chrysler key in appellant’s front pocket, and determined that one of them fit into the ignition of a blue pickup truck parked adjacent to the bank building. Molien was able to start up the truck with the key. He peered inside the truck and observed tools, copper wire, a copper fountain, circuit breakers, boxes, tripod extended contractor lights, decorations, shelves, boxes with glassware, vases, a large pipe cutter, and a heater. When Molien told appellant he was free to leave, appellant walked in the direction of a nearby 7-11 convenience store.
Molien checked the rear of the bank building and found that the chain and lock used to secure the back door were missing. He easily opened the door, went inside, and saw bundles of cut copper wire rolled up and stacked on the floor near the back of the building. A storage bin was full of wiring. Electrical receptacles had been removed from the walls. It looked to Molien as though the building had been “dewired.” Molien opined that the point of entry was the roof hatch; point of exit was the back door. Molien also noticed a partially-consumed 12-pack of soda, empty wrappers and chili dog boxes. He called for back-up and a canine unit to search the building.
When Molien came out of the bank building, he found appellant standing by the blue truck. While Molien waited for a check on wants, warrants and probation, appellant went to the water main box that was set into the sidewalk, removed the cover, and tried to turn off the valve with a wrench.
The police summoned Enea to the scene. She looked into the cab and recognized a small copper tabletop fountain which had been removed from the building. In the bed of the truck were a number of items she identified, including storage bins, bolt cutters, a garbage disposal, a heater, Christmas decorations, glass vases, hoses, a large portable light fixture, and shelving. Enea estimated the value of the stolen merchandise in appellant’s truck was approximately $6,000.
Officer Molien accompanied Enea into the bank building, and she found that it had been “ransacked.” The back door chain and padlock were not on the door, but were found inside the building; the chain had been cut. Copper electric wiring had been stripped from the “main panel” which controlled the light switches and power to the building. Bundles of wire that had been removed from the walls were on the floor. Merchandise had been dumped from plastic bins, and the bins had been filled with wire. Circuit breakers were removed from the walls. A contractor estimated the cost to rewire the building would be $75,000 to $100,000.
When Enea was last in the building prior to November 7, the wiring, electrical panels, and circuit breakers were all in proper working condition. A hatch leading to the attic and the roof was open. Enea did not keep the hatch secured. She told Molien that, prior to November 7, someone had been breaking in through the roof nightly and taking things. Enea did not recognize appellant or give him permission to enter the bank building or do any work on her property.
Over defense objections, Michael Hicks, the regional manager of Pick-n-Pull auto salvage, which sold auto parts and recycled the metals, testified that, on April 10, 2007, he observed appellant being arrested on the premises of the salvage yard. At about 7:00 a.m. that morning, Hicks saw appellant inside the fenced yard standing near some copper radiators. Normally, copper radiators were either attached to a vehicle in the sales area where parts were sold off the cars or they were collected in a large bin in the production area. On the morning of April 10, however, Hicks saw about 15 copper radiators in several stacks: appellant was standing near one stack; another was against the fence; and the others were off the property outside the fence perimeter. These radiators were the largest Pick-n-Pull carried, each weighing 40 to 50 pounds. Hicks believed it would take someone several hours to scour the property to find 15 of that type. Each was valued at about $50.00. Hicks was sure a crime was occurring because the only way to get into the facility was to break in. The metal corrugated fence in the area where the radiators were placed had been broken open. Hicks called the police because appellant did not belong on the premises.
It appears from the record that, in exchange for dismissal of a charge of disorderly conduct (Pen. Code, § 647, subd. (h)), appellant pled to a charge of trespassing (Pen. Code, § 602, subd. (k)).
On February 22, 2008, a jury convicted appellant on all counts.
On April 18, 2008, the court sentenced appellant to the 16-month lower term on count 1 and stayed sentence on the remaining counts. Appellant filed his notice of appeal on the same day.
III. DISCUSSION
A. Section 1101.
“Subdivision (a) of section 1101 prohibits admission of evidence of a person’s character, including evidence of character in the form of specific instances of uncharged misconduct, to prove the conduct of that person on a specified occasion. Subdivision (b) of section 1101 clarifies, however, that this rule does not prohibit admission of evidence of uncharged misconduct when such evidence is relevant to establish some fact other than the person’s character or disposition.” (People v. Ewoldt (1994) 7 Cal.4th 380, 393 (Ewoldt).) Thus, the threshold inquiry under section 1101 is whether the uncharged misconduct is relevant to some fact other than the defendant’s criminal disposition. Examples of proper bases for admitting such evidence that are expressly approved in the statute are “motive, opportunity, intent, preparation, plan, knowledge, [and] identity . . . .” (§ 1101, subd. (b).)
The relevance of uncharged misconduct to show identity, intent, or the existence of a common design or plan is determined by the nature and degree of the similarity between such misconduct and the charged crime. “Evidence of uncharged crimes is admissible to prove identity, common design or plan, or intent only if the charged and uncharged crimes are sufficiently similar to support a rational inference of identity, common design or plan, or intent.” (People v. Kipp (1998) 18 Cal.4th 349, 369 (Kipp).) “The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent.” (Ewoldt, supra, 7 Cal.4th at p. 402.) “A greater degree of similarity is required in order to prove the existence of a common design or plan.” (Ibid.) “The greatest degree of similarity is required for evidence of uncharged misconduct to be relevant to prove identity.” (Id. at p. 403.) The trial court’s ruling under section 1101 is reviewed under the abuse of discretion standard. (Ewoldt, supra, 7 Cal.4th at p. 405; Kipp, supra, 18 Cal.4th at p. 369.)
If the trial court finds that uncharged conduct evidence is relevant to a fact other than criminal disposition, it must then consider whether the probative value of the evidence is substantially outweighed by the probability that its admission would “(a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (§ 352; Ewoldt, supra, 7 Cal.4th at pp. 404-405.) On appeal, the trial court’s ruling is reviewed for abuse of discretion. (Kipp, supra, 18 Cal.4th at p. 371; Ewoldt, supra, 7 Cal.4th at p. 405.) “A court abuses its discretion when its ruling ‘falls outside the bounds of reason.’ [Citation.]” (Kipp, supra, 18 Cal.4th at p. 371.)
Moreover, “the erroneous admission of prior misconduct evidence does not compel reversal unless a result more favorable to the defendant would have been reasonably probable if such evidence were excluded. [Citations.]” (People v. Scheer (1998) 68 Cal.App.4th 1009, 1018-1019 (Scheer).)
B. Background.
Prior to trial, the defense filed a motion in limine to exclude any evidence of prior criminal acts or uncharged misconduct by appellant. The District Attorney then filed a supplemental motion in limine to admit the conduct behind appellant’s prior conviction involving attempted theft of copper radiators to show “intent to steal copper wiring, knowledge of copper metal, and modus operandi” pursuant to Evidence Code section 1101, subdivision (b). At the hearing, the prosecutor pointed out that the bundled copper wire was still inside the building and argued that appellant’s intent was to take the wire but he had not yet done so when Officer Molien contacted him. He argued that the prior misconduct evidence was relevant to show appellant’s “method of operation” and “his intent to enter the building with the intent to steal the copper.” Defense counsel argued that intent was not an issue in the case; rather, the defense was based on the lack of evidence that appellant ever entered the building. Relying on Ewoldt, supra, 7 Cal.4th 380, the court admitted the evidence, finding it sufficiently similar to the charged conduct to support an inference that the two incidents manifested a common design or plan. The court instructed the jury to consider the uncharged misconduct only for the limited purpose of determining whether it evidenced a common plan or scheme.
C. Analysis.
1. Relevance.
“ ‘The presence of a design or plan to do or not to do a given act has probative value to show that the act was in fact done or not done.’ ” (Ewoldt, supra, 7 Cal.4th at p. 393.) To be probative of a common plan or scheme, evidence of uncharged conduct “must demonstrate ‘not merely a similarity in the results, but such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations.’ [Citation.] ‘[T]he difference between requiring similarity, for acts negativing innocent intent, and requiring common features indicating common design, for acts showing design, is a difference of degree rather than of kind; for to be similar involves having common features, and to have common features is merely to have a high degree of similarity.’ [Citations.]
“To establish the existence of a common design or plan, the common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual. For example, evidence that a search of the residence of a person suspected of rape produced a written plan to invite the victim to his residence and, once alone, to force her to engage in sexual intercourse would be highly relevant even if the plan lacked originality. In the same manner, evidence that the defendant has committed uncharged criminal acts that are similar to the charged offense may be relevant if these acts demonstrate circumstantially that the defendant committed the charged offense pursuant to the same design or plan he or she used in committing the uncharged acts. Unlike evidence of uncharged acts used to prove identity, the plan need not be unusual or distinctive; it need only exist to support the inference that the defendant employed that plan in committing the charged offense.” (Ewoldt, supra, 7 Cal.4th at pp. 402-403.)
Appellant argues that the evidence of the prior incident at the salvage yard was not admissible to show a common plan or scheme because the two incidents lacked sufficient similarity. According to appellant, “[t]he charged offense occurred at night, whereas the uncharged offense was in the morning. The charged offense involved an enclosed building, whereas the uncharged offense involved an open yard. The charged offense had a point of entry through the roof, whereas the uncharged offense had an entry point through a fence. The charged offense required dismantling, whereas the uncharged offense involved reconnoitering. The charged offense included an assortment of objects, whereas the uncharged offense exclusively involved copper radiators.” We find these superficial differences to be inconsequential, and to be considerably outweighed by the similarities in the two offenses.
The Pick-n-Pull incident involved an attempted theft in which appellant broke through the fence and entered the locked premises of a salvage yard when it was closed and no employees were present. Under cover of darkness, he searched the premises for copper radiators that were kept in various locations, including still attached to vehicles, and gathered them together. This endeavor would have taken several hours. At the time he was arrested, appellant was inside the fence and had moved some of the radiators to the other side of the fence, off the premises. There was no indication that anyone else was involved in the attempted theft of the radiators. Similarly here, the bank building was closed and locked; it was dark outside; it would have taken some time to dewire the building and bundle or coil the copper wire; and appellant was the only person in the vicinity when Officer Molien contacted him. Accordingly, we conclude that the similarities in the two offenses supported an inference that both were manifestations of a common design or plan to steal copper to sell it to a recycler.
Appellant further argues that the evidence should have been excluded because evidence of a common design or plan is only relevant to establishing that the defendant engaged in the conduct alleged to constitute the charged offense, not to prove intent or identity. At trial, appellant conceded that he had items in his truck that did not belong to him, but argued that there was no evidence that he entered the bank building and dewired it. Thus, according to appellant, the conduct was conceded and the only issue was the identity of the perpetrator. Appellant relies on the following footnote in Ewoldt: “Evidence of a common design or plan is admissible to establish that the defendant committed the act alleged. Unlike evidence used to prove intent, where the act is conceded or assumed, ‘[i]n proving design, the act is still undetermined . . . .” [Citation.] For example, in a prosecution for shoplifting in which it was conceded or assumed that the defendant was present at the scene of the alleged theft, evidence that the defendant had committed uncharged acts of shoplifting in a markedly similar manner to the charged offense might be admitted to demonstrate that he or she took the merchandise in the manner alleged by the prosecution. [¶] Evidence of identity is admissible where it is conceded or assumed that the charged offense was committed by someone, in order to prove that the defendant was the perpetrator. For example, in a prosecution for shoplifting in which it was conceded or assumed that a theft was committed by an unidentified person, evidence that the defendant had committed uncharged acts of shoplifting in the same unusual and distinctive manner as the charged offense might be admitted to establish that the defendant was the perpetrator of the charged offense. [Citation.]” (Ewoldt, supra, 7 Cal.4th at p. 394, fn. 2.)
Relying on Ewoldt, appellant contends that common plan evidence was inadmissible in this case because it was beyond dispute that the charged offenses were committed and the primary issue to be determined was the identity of the perpetrator. We disagree. Appellant was apprehended outside the bank building and had items belonging to Enea in his truck. Appellant put on no evidence, but his counsel argued in closing that the prosecution failed to prove that appellant actually entered the building. Counsel also argued that, in light of the extensive destruction and the length of time it would take to dewire the building, appellant did not have time to remove all the electrical materials from the walls and ceiling. In effect, appellant’s counsel conceded that appellant possessed stolen property, but argued that he did not burglarize the building. The evidence of prior misconduct at the salvage yard supports the inference that appellant committed the act of entering the bank building in accordance with the common plan.
2. Section 352.
Although the evidence of appellant’s prior misconduct is relevant to establish a common design or plan, to be admissible, such evidence “must not contravene other policies limiting admission, such as those contained in Evidence Code section 352. [Citations.]” (People v. Thompson (1988) 45 Cal.3d 86, 109.) Under section 352, we consider whether the probative value of the evidence of appellant’s uncharged misconduct 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.” (§ 352.)
We find no abuse of discretion here. As discussed above, both offenses shared a number of common features such that evidence of the Pick-n-Pull attempted theft had substantial probative value on the issue of common plan or design in the bank building crimes. The attempted theft of copper radiators was committed in a manner very similar to the instant offenses, “and the charged and uncharged acts together suggested a planned course of action rather than a series of spontaneous events.” (Ewoldt, supra, 7 Cal.4th at p. 404.)
In addition, the evidence of the two offenses came from independent sources in that they were separately investigated by different law enforcement agencies and proved by the testimony of different witnesses. (See Ewoldt, supra, 7 Cal.4th at pp. 404-405.) Thus, there was no risk that Hicks’ testimony regarding the Pick-n-Pull incident was influenced by knowledge of the instant offense. The probative value of the prior misconduct is further enhanced by the closeness of the two incidents in time (the Pick-n-Pull incident preceded the instant offenses by seven months) and location (the prior incident took place in San Jose; the charged offense took place in San Ramon). (See Kipp, supra, 18 Cal.4th at p. 371.)
Against the substantial probative value of the evidence, we must weigh the danger of undue prejudice, of confusing the issues, and of misleading the jury. Evidence of the Pick-n-Pull incident posed a danger of prejudice to appellant because a jury would be inclined to view the evidence that he had tried to steal copper radiators as evidence of his criminal propensities. “But prejudice of this sort is inherent whenever other crimes evidence is admitted [citation], and the risk of such prejudice was not unusually grave here.” (Kipp, supra, 18 Cal.4th at p. 372.) The prior misconduct evidence was not significantly more inflammatory than the evidence of the current offense.
In addition, the court’s limiting instruction directed the jury to consider the prior offense only to show a common plan. “If you decide that the defendant committed the uncharged offense, you may, but are not required to, consider that evidence for the limited purpose of deciding whether or not the defendant had a plan or scheme to commit the offense involved in this case. [¶] In evaluating this evidence, consider the similarity or lack of similarity between the uncharged offense and the charged offense. [¶] Do not consider this evidence for any other purpose except for the limited purpose of common plan or scheme. [¶] Do not conclude from this evidence that the defendant has a bad character or is disposed to commit crime.” The court also instructed the jury that evidence of the uncharged crime was only one factor among all the other evidence to be considered and it could not find appellant guilty solely on the basis of the prior incident. The jury is presumed to have followed the court’s instructions. (People v. Frank (1990) 51 Cal.3d 718, 728; Scheer, supra, 68 Cal.App.4th at p. 1023.)
3. No Miscarriage of Justice.
Further, even if it was error for the trial court to admit the evidence, there was no miscarriage of justice that would require the judgment to be reversed. It is not reasonably probable that the jury would have reached a more favorable verdict had the evidence been excluded. (Scheer, supra, 68 Cal.App.4th at p. 1021.) As in Scheer, the evidence of appellant’s guilt was “overwhelming.” (Ibid.) Officer Molien observed appellant walking from behind bushes next to the bank building at 11:00 at night. Appellant possessed a number of items which could have been used to break into and out of the building and pull wiring from the walls and ceiling. Molien found appellant carrying gloves, flashlights (including one strapped to his head), wire/cable cutters, a screwdriver, magnets, and an electrical tester. In appellant’s truck were a number of items taken from inside the building, including copper wire, bolt cutters, and electrical circuits.
4. No Due Process Violation.
Finally, appellant asserts with no elaboration that the admission of the prior misconduct evidence violated his due process right to a fundamentally fair trial. However, “[a]s a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused’s right to present a defense. Courts retain, moreover, a traditional and intrinsic power to exercise discretion to control the admission of evidence in the interests of orderly procedure and the avoidance of prejudice. [Citations.]” (People v. Hall (1986) 41 Cal.3d 826, 834; see also People v. Snow (2003) 30 Cal.4th 43, 90 [“Application of the ordinary rules of evidence, such as Evidence Code section 352, generally does not deprive the defendant of the opportunity to present a defense . . . .”].) Moreover, in light of our conclusion that the trial court did not err in admitting the evidence, we necessarily conclude that no due process violation occurred.
IV. DISPOSITION
The judgment is affirmed.
We concur: Kline, P.J., Lambden, J.