Opinion
A167369
04-15-2024
THE PEOPLE, Plaintiff and Respondent, v. DARRIAN LEONDRE PERRY, Defendant and Appellant.
NOT TO BE PUBLISHED
(Alameda County Super. Ct. No. 20-CR-016563)
BANKE, ACTING P.J.
Defendant Darrian Leondre Perry appeals from his conviction of one count of attempted burglary. (Pen. Code, §§ 459, 664.) He contends the trial court abused its discretion in admitting evidence of a 10-year-old prior conviction for burglary. Defendant also contends his credits must be corrected on the abstract of judgment. We agree the abstract must be corrected and otherwise affirm.
BACKGROUND
The Attempted Burglary
In the early morning, A.S. was asleep in her bed when she was awakened by a noise coming from the window near the foot of her bed. The noise sounded like something was scratching against the window. A.S. was scared. She grabbed her cell phone and shoes and went to the back of the house where she crawled out the kitchen window and called 911 from her backyard.
Oakland Police Officer Vince Morado responded to A.S.'s 911 call regarding a burglary in progress. From his patrol car, Morado saw defendant coming out of an open window in A.S.'s house. Morado illuminated the window and watched from his patrol car. As defendant emerged from the window, Morado saw his pants and shirt get stuck on the window frame and watched defendant fall to the ground.
Officer Morado told defendant to "get down to the ground" but defendant briefly looked at Morado and ran away. Morado followed in his patrol car. Morado did not lose sight of defendant. Defendant tripped on a pothole and fell about one block away from A.S.'s house.
Another officer, Rodney Kirkland, arrived to assist, and Officer Morado handcuffed defendant. Kirkland did a preliminary search of defendant but did not locate any burglary tools or gloves. Kirkland saw damage on the right elbow sleeve of defendant's jacket. Defendant was put in Morado's patrol car and Officer Kirkland went to A.S.'s house.
Officer Kirkland took a statement from A.S. and they walked through her home together. When A.S. went to sleep the night before, both of her bedroom windows and the blinds were closed. When she went back inside, one of the windows was open but the blinds were still closed. A.S. normally kept her computer either in bed with her, or on the dresser next to her bed, but she found it on the floor at the foot of her bed near the window. Nothing was missing.
A.S. told Officer Kirkland she sleeps with the window cracked. Kirkland saw no damage to the window, no palmprints or fingerprints on the window, no footprints in the dirt beneath her window, and no dirt inside her home.
Defense Case
Defendant's ex-girlfriend was living with him at the time of the A.S. burglary. Around 3:30 a.m. on the morning of the burglary, he was playing a loud video game that woke her up. She and defendant argued; then he "walked off to cool down." She did not know where he went, but defendant left the house and did not come back that night.
Defendant testified he went for a walk after the argument with his exgirlfriend. During the walk, he approached the side of A.S.'s house to urinate. He did not open a window or enter her home. He accidentally kicked a trash can which made some noise. While he was urinating, he saw a spotlight. He ran away because he was scared of the police and knew it did not look good that he was in the wrong place at the wrong time. He ripped his jacket when he fell while running from the police.
Conviction and Sentence
The jury found defendant not guilty of first degree burglary, but guilty of the lesser included offense of attempted first degree burglary. The court sentenced him to the midterm of two years in prison.
DISCUSSION
Our standard of review of the trial court's evidentiary rulings is well established. "We review a trial court's evidentiary rulings under [Evidence Code sections 1101 and 352] for abuse of discretion." (People v. Doolin (2009) 45 Cal.4th 390, 437.)
Defendant contends the trial court erred in admitting evidence of his 2012 burglary conviction to prove his intent to commit the charged offense.
Generally, "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." (Evid. Code, § 1101, subd. (a).) Evidence of prior criminal conduct may be admissible, however, to prove some fact at issue, such as identity, opportunity, intent, knowledge, or the existence of a common plan or scheme. (Id., subd. (b).)" '" 'Because evidence of other crimes may be highly inflammatory, its admissibility should be scrutinized with great care.'" '" (People v. Jones (2013) 57 Cal.4th 899, 930.)
All further statutory references are to the Evidence Code unless otherwise indicated.
In Limine Motion
The prosecutor made a motion in limine to introduce evidence of defendant's prior burglary conviction. The prosecutor argued the crimes were factually similar because in both crimes defendant moved laptops, indicating an intent to take them.
Defense counsel objected, stating "[the] defense will not claim [defendant] mistakenly but innocently climbed through [A.S.'s] bedroom window at 4:00 a.m." Instead, defendant argued his defense at trial would be that he did not enter A.S.'s house at all, and both Officer Morado and A.S. were mistaken. Defendant also argued the prior crime was insufficiently similar to the present offense.
The trial court allowed the prosecution to introduce evidence of the prior burglary, finding it was relevant and material to intent. The court observed the evidence was highly probative because "intent is probably the most challenging of the facts of the elements that need to be proved." The crimes were sufficiently similar because in both cases the victims were women, the entry was to bedrooms, and the target was a laptop. The court concluded the probative value was not substantially outweighed by potential for prejudice because the prior crime was "less egregious," the court had already ruled the prior conviction was admissible for impeachment, and the jury would not be misled because the offenses were separated in time and location and different witnesses would testify.
Prior Offense
J.W. testified at trial regarding the burglary of her room at her sorority house at the University of California, Berkeley.
One evening in April 2011, J.W. and a friend returned to the sorority house around 10:00 p.m. J.W. intended to go to her own room but became suspicious when she saw an unfamiliar young man standing in front of her room. She and her friend went to the friend's room first and then decided to approach J.W.'s room together.
When J.W. and her friend returned to her room, J.W. saw the same man in the hallway and another man inside her room, holding her laptop and "poking through" things in her room. J.W. "got pretty upset" and asked the man holding her laptop who he was and what he was doing. She told him to put her stuff down and moved toward him. The man seemed frustrated, put her things down, and asked to leave. J.W. could not tell if he was being truthful about not having taken any of her things, so she made him empty his pockets and "felt around a little bit to make sure." He was not violent and did not try to get away, but asked the women to" 'let [him] go'" and said he was" 'just looking for someone.' "
When the men tried to leave, "a little bit of a scuffle" ensued. J.W.'s friend tried to block them from leaving, but they gave her a push to squeeze through the door, ran down the stairs, and walked quickly up the street. J.W. and her friend chased them and J.W. called the police. The police arrived quickly and detained both men.
When J.W. returned to her room, she noticed her laptop had been moved. "Usually [she] would have left it on [her] desk, but when [she] got back it was someplace weird, like [her] closet or on [her] clothing. A place [she] wouldn't have left it."
During his testimony at trial on the current offense, defendant stated he had moved J.W.'s laptop because he intended to steal it.
The Prior Burglary Was Admissible to Prove Intent
Defendant first contends the trial court erred by admitting evidence of his 2012 burglary because in this case the issue of intent was not actually in dispute. Not so.
Defendant's not guilty plea placed all the elements of the burglary offense, including his intent, in dispute. (People v. Chhoun (2021) 11 Cal.5th 1, 29 ["a not guilty plea places in issue all elements of the charged crimes"]; People v. Scott (2011) 52 Cal.4th 452, 470 [evidence of uncharged crimes was cross-admissible on issue of intent to commit burglary even where defendant argued intent was" 'never a contested issue' "; defendant disputed the issue by pleading not guilty]; People v. Rowland (1992) 4 Cal.4th 238, 260 ["[A] fact-like defendant's intent-generally becomes 'disputed' when it is raised by a plea of not guilty .... [and] remains 'disputed' until it is resolved."].)
Defendant acknowledges his intent "generally became 'disputed' through his not guilty plea" but contends it did not remain so because it was "resolved" at the in limine hearing. (Italics added.) Defendant asserts his defense was that he did not commit the act at all, not that he lacked intent, and accordingly, evidence of the prior burglary was not admissible to prove or disprove a material fact.
Defendant's in limine motion to exclude the evidence asserted he would not "claim he mistakenly but innocently climbed through [A.S.'s]
Contrary to defendant's contention, however, his counsel's willingness to concede the issue of intent did not render the issue undisputed. The prosecution is generally entitled to prove its case even in the face of a defendant's failure to contest an element. (People v. Jones (2011) 51 Cal.4th 346, 372 (Jones) [" '[T]he prosecution's burden to prove every element of the crime is not relieved by a defendant's tactical decision not to contest an essential element of the offense.' "]; People v. Steele (2002) 27 Cal.4th 1230, 1243 ["Defendant argues that he conceded at trial the issue of intent to kill. Even if this is so, 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."].) Even where circumstantial evidence of intent is strong, "the prosecution ha[s] the right to present all available evidence to meet its burden of proving the requisite mens rea...." (People v. Rogers (2013) 57 Cal.4th 296, 330 (Rogers).)
Moreover, defendant, through his own testimony and that of his exgirlfriend, adduced evidence that he was on a walk to "cool off" after a fight with his girlfriend and only approached A.S.'s house to urinate. By introducing evidence about an alternative, innocent explanation for his conduct and presence at A.S.'s house, defendant made the evidence regarding his intent to commit a burglary relevant and probative.
Relying primarily on People v. Balcom (1994) 7 Cal.4th 414 (Balcom) and People v. Lopez (2011) 198 Cal.App.4th 698 (Lopez), defendant bedroom window at 4:00 a.m.," and at the hearing, defense counsel argued "there is no innocent explanation for climbing through a stranger's window at 4:00 a.m. and being inside their house." Similarly, during closing argument, defense counsel told the jury: "The state's case, is entirely premised on the idea that [defendant] broke into a stranger's bedroom window at 4:00 a.m. and moved her laptop. Intent is not an issue." nonetheless asserts the trial court erred in admitting his prior conviction because intent to commit burglary can be inferred from the offense itself and cannot be reasonably disputed. We are not persuaded.
In Balcom, our Supreme Court held the trial court erred by admitting evidence at defendant's rape trial that he had committed another rape at gunpoint several weeks later. (Balcom, supra, 7 Cal.4th at p. 421.) The defendant conceded he had sex with the victim but claimed it was consensual. (Id. at p. 422.) Although the high court acknowledged defendant's not guilty plea placed the element of intent at issue, it reasoned "the victim's testimony that defendant placed a gun to her head, if believed, constitute[d] compelling evidence of defendant's intent" and evidence of the subsequent rape would be "merely cumulative on this issue." (Id. at pp. 422-423.) Thus, the court concluded, the "limited probative value" of the evidence of the subsequent rape on the issue of intent was substantially outweighed by its prejudicial effect. (Ibid.)
In Lopez, supra, 198 Cal.App.4th 698, the defendant was charged with first degree burglary after someone stole two purses from a victim's kitchen and the victim's credit card was used at a store. Surveillance video showed defendant at the store with the person who actually used the card. (Id. at pp. 703-704.) Under those circumstances, the Lopez court held the trial court erred in admitting evidence of prior uncharged thefts because it lacked "substantial probative value that outweighed its inherent prejudice." (Id. at p. 715.) Noting that "evidence of uncharged acts cannot be used to prove something that other evidence showed was beyond dispute," the court explained the evidence "regarding the [charged] burglary showed that someone entered the kitchen . . . 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." (Ibid.)
Here, unlike in Balcom and Lopez, the evidence regarding defendant's intent was not so unambiguous. A.S. testified she heard noises at her window, but she did not hear the window being opened and did not see a person outside the window. When she returned to her room, her blinds were still down and were not damaged. Although Officer Morado testified he saw defendant emerge from the house through the window, A.S. testified nothing was missing. When defendant was searched, no burglary tools, gloves, or stolen items were found on him. Officer Kirkland testified he saw no damage to the window, no palmprints or fingerprints, no footprints in the dirt beneath the window, and no dirt in A.S.'s home. Moreover, as discussed above, defendant's own evidence regarding his innocent reasons for being in A.S.'s yard made evidence of his intent to commit burglary relevant and probative. Even if the defense did not contest intent, the prosecution carried the burden of showing that element beyond a reasonable doubt.
We find the more recent authority of Jones, supra, 51 Cal.4th 346, instructive here. In Jones, the defendant and another person entered a residence, killed the occupants, and stole some items. (Id. at p. 351.) Although the defendant argued evidence of his prior robbery should not have been admitted because identity was the only disputed issue at trial and he did not dispute the perpetrator's intent to commit robbery, our Supreme Court concluded this was "not dispositive." (Id. at p. 372.) As the court explained," 'The prosecution, of course, must prove each element of its case. Defendant's assertion that his defense to the two charges was bound to focus upon identity, and not intent, would not eliminate the prosecution's burden to establish both intent and identity beyond a reasonable doubt.'" (Ibid; see Rogers, supra, 57 Cal.4th at p. 330 [a defendant may not" 'stipulate or admit his way out of the full evidentiary force of the case as the Government chooses to present it' "].) Similarly, here, the fact defendant chose to focus his defense on whether he committed the act at all rather than his intent, did not alleviate the prosecution of its burden to establish that element beyond a reasonable doubt.
Probative Value
Defendant next contends the trial court abused its discretion in admitting evidence of the 2012 burglary because the crimes were too dissimilar to have any probative value and the prior burglary was remote in time.
"To be admissible, there must be some degree of similarity between the charged crime and the other crime, but the degree of similarity depends on the purpose for which the evidence was presented. The least degree of similarity is needed when, as here, the evidence is offered to prove intent." (Jones, supra, 51 Cal.4th at p. 371; People v. Ewoldt (1994) 7 Cal.4th 380, 402 (Ewoldt) [same].) When admitting evidence of another offense to demonstrate intent, the uncharged offense need only be similar enough "to support the inference that the defendant' "probably harbor[ed] the same intent in each instance." '" (Ewoldt, at p. 402; see, e.g., People v. Nible (1988) 200 Cal.App.3d 838, 848 ["when the other crime evidence is admitted solely for its relevance to the defendant's intent, a distinctive similarity between the two crimes is often unnecessary for the other crime to be relevant"].)
We agree with the trial court that the crimes were sufficiently similar to demonstrate intent because in both cases the victims were women, the entry was to bedrooms where someone would sleep, and the target was a laptop. In addition, the movement of the laptops in both instances was probative of an intent to take them. Defendant's emphasis on the dissimilarities between the two offenses, including that the prior offense involved a co-participant, was in a dorm space, did not involve forced entry, and defendant admitted his guilt, is not determinative. (See, e.g., Jones, supra, 51 Cal.4th at p. 371 [charged and prior robberies were "not particularly similar, but they contained one crucial point of similarity-the intent to steal from victims whom defendant selected"].) On this record, the similarities between the two incidents were sufficient to support an inference defendant probably harbored the same intent in both instances.
Moreover, as we previously discussed, the probative value of defendant's prior offense was increased by his own testimony that he only approached A.S.'s house to urinate, effectively disclaiming an intent to commit burglary, and making evidence of the similar, uncharged offense relevant and probative of his intent. (See, e.g., People v. Phillips (2022) 75 Cal.App.5th 643, 671-672 (Phillips) [" '" '" '[I]t is clear that where a felonious intent is an essential ingredient for the crime charged, and the act done is claimed to have been innocently or accidentally done, or by mistake, or when the result is claimed to have followed an act lawfully done for a legitimate purpose, or where there is room for such an inference, it is proper to characterize the act by proof of other like acts . . . tending to show . . . intent.'" '"' "]; Ewoldt, supra, 7 Cal.4th at p. 402 [" '[T]he recurrence of a similar result . . . tends . . . to negative accident or inadvertence . . . 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 accompany such an act....' "].)
We likewise reject defendant's assertion the court erred in admitting the prior burglary because it was 10 years old and thus too remote to have any probative value. "No specific time limits have been established for determining when an uncharged offense is so remote as to be inadmissible."(People v. Branch (2001) 91 Cal.App.4th 274, 284 [allowing evidence of past offense despite a 30-year gap]; People v. Robertson (2012) 208 Cal.App.4th 965, 992 [34-year gap was not "too remote to have probative value"].) Given the similarities between the prior and charged offenses, we cannot conclude the prior offense was too remote to be probative. (See, e.g., People v. Johnson (2010) 185 Cal.App.4th 520, 534-536 [similarities in uncharged and charged incidents may" 'balance out the remoteness' "].)
Defendant relies on section 1109, subdivision (e) to argue his prior burglary was too remote. That provision concerns prior acts of domestic violence, abuse of an elder or dependent person, or child abuse, circumstances not at issue here. (Ibid.)
Nor do we find merit in defendant's argument the prior offense lacked probative value because he was 18 years old when the crime was committed. Defendant cites no authority precluding admission of a prior offense on such grounds.
Prejudicial Effect
Defendant maintains that even if evidence of his prior burglary was admissible under section 1101, subdivision (b), it should have been excluded because its probative value was substantially outweighed by the risk of undue prejudice.
"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." (§ 352.)
"[T]he 'undue prejudice' with which . . . section 352 is concerned flows from evidence that '" '" 'uniquely tends to evoke an emotional bias against the defendant as an individual and . . . has very little effect on the issues'" '" '-evidence '" 'of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the juror's emotions reaction.'" '" (Phillips, supra, 75 Cal.App.5th at pp. 674-675.) Here, evidence of the prior burglary did not tend to evoke an emotional bias against defendant because the circumstances of the 2012 burglary were no more inflammatory than the charged offense. (See People v. Harris (2013) 57 Cal.4th 804, 842 (Harris) [evidence of prior burglary was not inflammatory when compared with charged crime].)
Several other factors further mitigated against the risk of undue prejudice. The fact that defendant had been convicted and already punished for the prior burglary lessened the potential prejudicial effect of the evidence. (Balcom, supra, 7 Cal.4th at p. 427; People v. Ortiz (2003) 109 Cal.App.4th 104, 118.) Moreover, the trial court instructed the jury on the limited permissible use of the prior crime evidence, and we presume the jury followed those instructions. (Harris, supra, 57 Cal.4th at p. 842.) Finally, evidence of the prior burglary was not unduly cumulative or consumptive of trial time, as it was presented through the testimony of only one witness.
On balance, we cannot conclude the trial court exceeded the bounds of reason in concluding evidence of the prior burglary was more probative than prejudicial. Nor does the trial court's proper application of routine evidence rules constitute a deprivation of defendant's due process or other constitutional rights. (People v. Hovarter (2008) 44 Cal.4th 983, 1010 ["The 'routine application of state evidentiary law does not implicate [a] defendant's constitutional rights.' "].) Credits
Defendant contends the abstract of judgment incorrectly states the number of credits. He is correct. The record reflects defendant spent 31 days in actual custody, and thus was entitled to 31 days of conduct credits. (Pen. Code, § 4019; People v. Chilelli (2014) 225 Cal.App.4th 581, 588, 591 [conduct credits accrue at rate of two days for every two days in actual custody].) The abstract of judgment, however, reflects 31 days of total credits and 62 days of local conduct credits (it appears those numbers were inadvertently transposed). The trial court shall correct the abstract of judgment to reflect 62 total days of credits-31 days of actual custody credit and 31 days of good conduct credits.
DISPOSITION
The judgment is affirmed. The trial court shall correct the abstract of judgment to reflect 62 total days of credits comprised of 31 days of actual credits and 31 days of conduct credits and forward a copy to the Department of Corrections and Rehabilitation.
We concur: Langhorne Wilson, J. Castro, J. [*]
[*]Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.