Opinion
NOT TO BE PUBLISHED
Received for Posting 1/25/08
Santa Clara County Super. Ct. No. CC619845
Bamattre-Manoukian, ACTING P.J.
Defendants Scott Balestreri and Ruth Helen Welz were convicted after jury trial of first degree burglary (Pen. Code, § 459), and theft of over $400 from an elder adult (§ 368, subd. (d)). The jury further found that the victim of the burglary was present in the residence during the commission of the offense, and that defendants knew or should have known that the victim was 65 years old or older. (§§ 667.5, subd. (c)(21), 667.9, subd. (a).) The court found that Balestreri had a prior serious felony conviction (§ 667, subd. (a)) that also qualified as a strike (§ 1170.12), and that he had served a prior prison term (§ 667.5, subd. (b)), and sentenced him to 15 years in state prison. The court sentenced Welz to five years in state prison.
Further statutory references are to the Penal Code unless otherwise specified.
On appeal, defendants contend that the evidence is insufficient to support their convictions for burglary, and that the trial court erred in admitting evidence of prior uncharged acts under Evidence Code section 1101, subdivision (b). We disagree with defendants’ contentions and, therefore, affirm the judgments.
BACKGROUND
Defendants were charged by amended information with first degree burglary (§§ 459, 460, subd. (a); count 1), theft of more than $400 from an elder adult (§ 368, subd. (d); count 2), and petty theft with a specified prior (§ 666; count 3). The information further alleged that the victim was present in the residence during the commission of the burglary (§ 667.5, subd. (c)(21)); that defendants knew or should have known that the victim was 65 years old or older (§ 667.9, subd. (a)); that Welz was on felony probation at the time of the burglary (§ 1203, subd. (k)); that Balestreri had served a prior prison term (§ 667.5, subd. (b)); and that Balestreri had a prior serious felony conviction (§ 667, subd. (a)), that also qualified as a strike (§ 1170.12).
Prior to trial the prosecutor filed an in limine motion seeking admission of evidence of uncharged acts in order to show that the defendants “harbored the intent to steal throughout all of their dealings” with the victim, and specifically “on at least one occasion when they entered the residence” at issue. Following a hearing, the court granted the motion. The court also granted Balestreri’s motion to bifurcate trial on his strike and prison priors.
The Prosecution’s Case
The Charged Offenses
Morris Taubman, a real estate agent, put his personal residence on Emory Street in San Jose up for sale in July 2005, using the real estate agency owned by Alan Vandermade, his son-in-law’s step-father. Defendants came to an open house in early August 2005 at the residence, Vandermade walked them through it, and they told Taubman that they liked the house. Balestreri also told Taubman that he was a nurse at the VA hospital. Defendants came to another open house at the residence in October 2005. Between the two open houses, Vandermade spoke to Taubman about Balestreri, and Taubman understood that Vandermade wanted Balestreri to purchase Taubman’s home. An architect came to the home to determine the feasibility of adding a second story to it for Balestreri, yet Vandermade had no personal identification information for Balestreri. Taubman drove Vandermade to a realty exposition in San Francisco on October 28, 2005. At the last minute, Vandermade called Taubman and said that defendants were going to join them. Taubman was not happy about it because he felt that Balestreri was not really interested in purchasing his home.
Vandermade has been a real estate broker for 42 years. He first met defendants when they came to the open house he held at the Emory Street residence in early August 2005. Defendants walked through the various rooms of the house then chatted with Vandermade and the Taubmans in the living room. Balestreri said that he supervised emergency rooms in Palo Alto. Although defendants did not express any interest in buying the residence at that time, after Vandermade showed them other houses in the area, their interest in the Emory Street home increased. Welz was always with Balestreri, and Vandermade got the impression that defendants were going to be living together, that Welz was “ ‘part of the package.’ ” Defendants came to additional open houses at the Emory Street residence, during which time Balestreri told Vandermade that he had a temporary cash flow problem and was essentially homeless due to a drawn-out divorce proceeding and the lack of the sale of property valued at about $3 million in Los Altos. Although Welz worked in social services and had an apartment, he could not live with her. Vandermade told defendants that he had been through a similar situation, and that he could be of some help. He started lending Balestreri cash on August 20, 2005, and eventually gave him a total of $500. Vandermade also paid for restaurant meals for both defendants and bought them both groceries, but he wrote those off as business expenses. In September 2005, Vandermade looked into putting a second story on the Emory Street residence for Balestreri although Balestreri never agreed to purchase the home.
Around October 2005, Balestreri showed Vandermade a house in Los Altos and said that it was the one he was trying to sell. Balestreri also told Vandermade that he expected the release of some money in a few days but needed a place to stay over the weekend. Vandermade made arrangements for Balestreri to get a motel room. This happened again several times; Balestreri would say that he had real expectations but they always seemed to not develop into anything. Balestreri also expressed displeasure and frustration with the way his attorney was handling things. Over a period of time, Vandermade and Balestreri looked for an apartment for Balestreri to rent.
On October 1, 2005, Balestreri went to Frontier Ford in order to rent a Crown Victoria. Vandermade met him there. Although Vandermade appeared apprehensive about doing so, he used his credit card and the company rented the car to Balestreri for three days. Both Vandermade and Balestreri signed the contract. Balestreri later called and extended the lease, and the car was not returned until October 8, 2005. The contract on the car was extended without Vandermade’s knowledge or permission.
Vandermade leased a furnished one-bedroom apartment at Oakwood Apartments for Balestreri for one-month beginning October 17, 2005. Balestreri extended the lease four times and stayed into January 2006. Vandermade called Oakwood on January 23, 2006, and said that he would no longer pay for the apartment. Vandermade paid a total of $5,186.50 for the lease. Vandermade testified that he would not have paid for the rental car and the apartment if he knew that Balestreri’s story was not true.
Vandermade made four payments on the lease: $2,634.99 on October 18, 2005; $1,274.85 on November 22, 2005; $851.41 on December 8, 2005, and $425.25 on January 27, 2006.
Balestreri assured Vandermade that he would pay him back when his divorce matter settled. Vandermade never checked Balestreri’s credit because Balestreri said that his credit was bad and that he expected to purchase the Emory Street residence with cash. Nor did Vandermade ever check to see if Balestreri owned any property. Vandermade did not discuss the expenditures he made on Balestreri’s behalf with his family. He did ask Taubman to allow Balestreri to live with him at no cost, and to allow Balestreri to receive mail at Taubman’s home. Taubman became concerned that Vandermade was not selling his home in a timely manner, and Vandermade later learned that Taubman was concerned about Vandermade inviting defendants to join them on the San Francisco trip.
Between January 1, 1981 and April 24, 2006, no recorded grant deeds in Santa Clara County had Balestreri’s or Welz’s name on them.
Welz moved into the Miranda Villa senior living complex in July 2005. Welz and Balestreri were often seen by Kathy Joe Swift, another resident, at the complex in the afternoon and early evening. Balestreri told Swift that he was working at Stanford Hospital and that he made over $100,000. He said that he was going through a divorce and that he was looking for real estate. Judith Sue Torres, another resident of the complex, met Welz at the complex in November 2005. Torres met Balestreri when he was with Welz at the complex about a month later, and Welz later told Torres that she and defendant were a couple. Balestreri told Torres that he owned the BMW she saw parked in front of the complex. A few days later, when the car was gone, Balestreri said that it was in the shop getting fixed.
Henry Tempelman, a fingerprint examiner with the San Jose Police Department, testified as an expert in fingerprint comparison that the booking photographs and fingerprints in case No. BB301410, as well as for Balestreri and Welz in this case, belong to the same two people. Copies of documents related to defendants’ prior convictions in case No. BB301410 were admitted into evidence as exhibits Nos. 10A and 11A. Balestreri and the prosecutor stipulated that Balestreri “served time in a penal institution for case number BB301410.”
Uncharged Acts
In 2001, defendants, who presented themselves as a married couple, requested financial assistance from the Saint Vincent DePaul Society (the Society). Balestreri told Paul Foster, who is retired but sometimes works as a substitute teacher and volunteers with the Society, that he and Welz needed a place to stay and money for food and a rental car. He said that they were expecting several thousand dollars from the IRS soon. Foster helped defendants get some assistance from the Society, and he personally gave defendants money for motel rooms and rental cars with the understanding that it was a loan. Defendants paid back the initial money Foster lent them, so Foster felt that he could trust them. When defendants requested additional money to pay bills, Foster lent it to them. Both defendants said that they would pay him back, and he believed them. Once, after Foster had paid for a motel room for defendants with his credit card, defendants continued to rent the room using Foster’s card without his permission. At one point, Welz told Foster that if he did not give them more money, he would never see any of what they owed him. Foster gave defendants over $40,000 between 2001 and 2003. In 2003, Foster demanded that defendants repay him. Other than the one time, however, defendants never repaid Foster.
In May 2002, defendants went to the Jewelers Bench in Los Gatos together. Balestreri ordered a rosary from Karen Parrish, who has owned the store for 30 years, giving Parrish a local address and telephone number. When defendants came back on a Friday to pick up the order, Parrish presented them with a bill of sale. Balestreri gave her a credit card that was declined. Balestreri said that he was staying at a hotel in town and that his credit card had been compromised by a hotel employee. Because Balestreri agreed to pay for the rosary at a later date, Parrish let him take it with him. Balestreri was upset that he was left with no cash for the weekend and he asked to borrow some money. Parrish gave $200 to Welz with the understanding that it was a loan until defendants got the credit card problem resolved.
Defendants subsequently returned to the store four or five times and said that they needed more money because they could not get the credit card problem straightened out. They asked for a recommendation for where to go to pawn some jewelry, and Parrish gave them a recommendation. Balestreri also said that they were staying in the hotel because their home was being remodeled. In June 2002, after defendants’ third or fourth visit, they said that they had pawned their wedding rings and wanted to pick out a new set. Parrish wrote out a bill of sale and offered to let defendants take the rings they picked out and pay for them within 90 days.
In total, Parrish gave defendants $550 in cash, a $7,600 wedding ring set, and a $200 rosary. She did so because defendants were very convincing, she knew that they had a local address and a valid telephone number, and she often gave customers 90 days to pay for merchandise with no interest. Balestreri did most of the talking while Welz was silent, but the last time Parrish gave Welz money she came in to the store alone. In September 2002, Parrish sent an invoice to the home address Balestreri gave her, and she called the number she had, but she never received a response. If she had known that the story Balestreri gave her was not true, she would not have given defendants cash and let them take the jewelry without paying for it.
Defendants went to the Destino Spa in Palo Alto on April 7, 2003, and asked for a tour. Christine Rivera, the owner of the spa, gave them a tour, during which time defendants said that they had just moved to Los Altos from Carmel, and they asked Rivera a lot of questions about her and the spa. When Rivera’s sister brought her some lunch, defendants asked her questions also. They booked four appointments with Rivera’s sister, which they later can celled.
Balestreri subsequently called the spa on a Saturday afternoon and first talked to Rivera, then to Caroline Monteavaro regarding skin care products and treatments. Rivera told Balestreri that she was leaving and that Monteavaro would help them. She also said that whatever products Monteavaro recommended to them, Monteavaro could give to Rivera so that Balestreri could pick them up from her. Monteavaro volunteered to stay late so that defendants could come into the spa for personal service. Defendants came in and both of them asked Monteavaro a lot of questions about the spa’s products and services. In their conversations, defendants said that they were married and they mentioned the names of Rivera’s fiancé and sister, so Monteavaro thought defendants knew Rivera’s family. When Monteavaro rang up defendants’ selections, which totaled over $500, Balestreri said that he had already made arrangements with Rivera to pay for everything when they were both scheduled to come back in a few days for treatments. Monteavaro believed him; if she had known that defendants did not have an arrangement with Rivera, she would not have let them take the products without paying for them.
The next morning, after learning what Monteavaro had done, Rivera called the number Balestreri had given her and asked Welz to either pay for the products or return them. Welz came into the store with a bag full of products, threw it over the counter, and said, “Here are your products back.” All of the products had been used and could not be resold.
Joseph Baxter met Balestreri at the gym of their apartment complex, the Oakwood Apartments, in January 2006. Balestreri told Baxter that he was a physician’s assistant in the cardiology department at Stanford. He said that he had just been through a divorce, that he had frozen his bank account to keep his wife from taking money out of it, and that he had trouble getting the money transferred to another account. He said that his financial problems were temporary, that he would be getting the money in a few days, and he asked Baxter for money. Baxter initially gave Balestreri $400, thinking that if Balestreri could afford to stay in a corporate apartment, he could afford to pay back $400. Baxter later gave Balestreri $400 in additional cash in Welz’s presence, and also bought defendants dinner. When Balestreri offered to buy a BMW for Welz that Baxter was selling, Baxter let Balestreri drive the BMW off and on for a week. Balestreri never paid Baxter for the use of the car or repaid the money Baxter lent him.
Brian Elie posted an ad to sublet his San Jose apartment in February 2006, and received a call from Balestreri. Elie showed both defendants the apartment. Balestreri said that he was a physician’s assistant in the cardiology department at Stanford. He said that he needed an apartment because he was going through a divorce, his wife was living in their Los Altos Hills home, and he could not live with Welz, his fiancée. Both defendants told Elie’s girlfriend, a chiropractic student, that they would like to become her patients once Balestreri moved in. When Elie asked Balestreri for his driver’s license, a deposit, and rent, Balestreri said he would call Elie. Balestreri did call Elie a few days later to say that he still wanted to move in, but Elie never heard from Balestreri again.
Verdicts, Findings on Priors, and Sentencing
On May 19, 2006, the jury found both defendants guilty of burglary (§ 459; count 1), and theft of more than $400 from an elder adult (§ 368, subd. (d); count 2). The jury further found that the burglary was in the first degree, that a person other than an accomplice, Vandermade, was present in the residence during the commission of the burglary (§ 667.5, subd. (c)(21)), and that defendants knew or reasonably should have known that the victim of the burglary, Vandermade, was 65 years old or older (§ 667.9, subd. (a)). The court dismissed count 3 on motion of the People. Balestreri waived jury trial on the alleged priors and, following a court trial, the court found that Balestreri had served a prior prison term (§ 667.5, subd. (b)), and that he had a prior serious felony conviction that qualified as a strike (§§ 667, subd. (a); 1170.12).
On August 31, 2006, the trial court sentenced Welz to five years in state prison. On September 14, 2006, the court denied Balestreri’s request to dismiss his prior strike under section 1385, and sentenced him to 15 years in state prison.
DISCUSSION
Sufficiency of the Evidence
Defendants contend that the evidence is insufficient to support their convictions for burglary. Balestreri argues that burglary requires a close connection between the entry of the premises at issue and the crime intended upon entry, and that the entry be necessary to facilitate commission of that time. “Recent Court of Appeal decisions have held that there need not be any specific spatial or temporal relationship between the structure entered and the crime intended upon entry. . . . However, no case has purported to hold that burglary may be found where the unlawful intent upon entry is to commit a crime wholly unconnected to the entry itself, and where the entry was not a necessary step in the commission of the intended crime. . . . Yet [his] conviction in the instant case is premised on an entry without such a connection to the crime. Even viewed in the light most favorable to the judgment, such an entry cannot, as a matter of law, support a conviction for burglary.”
Welz argues that she should not have been found guilty as an aider and abettor because her “mere presence and failure to prevent a crime are insufficient to support a guilty verdict,” and “there is no evidence [she] benefited in any way from the criminal conduct of Balestreri, except for having shared in, at most, a few of the restaurant meals which Vandermade provided.”
The Attorney General argues that defendants’ contentions “are without merit.”
In reviewing a claim of insufficiency of the evidence on appeal, “ ‘the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” (People v. Johnson (1980) 26 Cal.3d 557, 576; Jackson v. Virginia (1979) 443 U.S. 307, 318-319.) “An appellate court must view the evidence in the light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” (People v. Reilly (1970) 3 Cal.3d 421, 425; People v. Pensinger (1991) 52 Cal.3d 1210, 1237.) “A reasonable inference, however, ‘may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture or guess work. [¶] . . . A finding of fact must be an inference drawn from evidence rather than . . . a mere speculation as to probabilities without evidence.’ [Citations.]” (People v. Morris (1988) 46 Cal.3d 1, 21, overruled on other points in In re Sassounian (1995) 9 Cal.4th 535, 543-545, fns. 5, 6.) A trier of fact may rely on inferences to support a conviction only if those inferences are “of such substantially that a reasonable trier of fact could determine beyond a reasonable doubt” that the inferred facts are true. (People v. Raley (1992) 2 Cal.4th 870, 891.)
“The same standard of review applies to cases in which the prosecution relies mainly on circumstantial evidence [citation], . . . An appellate court must accept logical inferences that the jury might have drawn from the circumstantial evidence.” (People v. Maury (2003) 30 Cal.4th 342, 396.)
“The crime of burglary consists of an act—unlawful entry—accompanied by the ‘intent to commit grand or petit larceny or any felony.’ (§ 459.)” (People v. Montoya (1994) 7 Cal.4th 1027, 1041, fn. omitted (Montoya).) “ ‘Although the People must show that a defendant charged with burglary entered the premises with felonious [or larcenous] intent, such intent must usually be inferred from the facts and circumstances disclosed by the evidence, rarely being directly provable. [Citations.] When the evidence justifies a reasonable inference of felonious [or larcenous] intent, the verdict may not be disturbed on appeal. [Citations.]’ [Citation.]” (People v. Price (1991) 1 Cal.4th 324, 462, superseded by statute on another point as stated in People v. Allen (1999) 21 Cal.4th 846, 856; People v. Kwok (1998) 63 Cal.App.4th 1236, 1245 (Kwok).) Such inferences are reasonable so long as they are not based solely on speculation. (People v. Holt (1997) 15 Cal.4th 619, 669.)
“California cases do not require that a defendant break and enter premises with the intent to commit a crime therein in order to commit burglary. [Citations.]” (People v. Ortega (1992) 11 Cal.App.4th 691, 694, italics added; People v. Griffin (2001) 90 Cal.App.4th 741, 748 (Griffin).) “If the jury can reasonably infer from a defendant’s conduct and other circumstances of a case that he or she entered a building in order to facilitate commission of theft or a felony, . . . the defendant need not intend to commit the target crime in the same building or on the same occasion as the entry in order to be guilty of burglary.” (Kwok, supra, 63 Cal.App.4th at p. 1248; see also Griffin, supra, 90 Cal.App.4th at p. 749 [the entry must still be closely connected with, and in order to facilitate, the intended crime].)
In the case before us, Balestreri’s burglary conviction is supported by substantial evidence because the jury could reasonably infer from Balestreri’s conduct and other circumstances of the case that Balestreri entered Taubman’s residence on at least one occasion with the intent to commit theft. The jury could reasonably infer from the record before us that when Balestreri entered Taubman’s residence during an open house on one or more occasions, he did so with the intent to obtain cash from Vandermade under false pretenses and/or to obtain Vandermade’s consent to purchase goods or services for Balestreri under false pretenses. Balestreri pretended to be a prospective buyer of the residence with a temporary cash-flow problem and used that pretense to obtain money, restaurant meals, groceries, a rental car, and the use of a furnished apartment from Vandermade. Because the jury could reasonably find that Balestreri’s entry of the residence on one or more occasions was closely connected with the theft, and was in order to facilitate it, we find that substantial evidence supports the jury’s verdict as to Balestreri. (Kwok, supra, 63 Cal.App.4th at p. 1248; Griffin, supra, 90 Cal.App.4th at p. 749.)
To be guilty of aiding and abetting, a person must “act with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.” (People v. Beeman (1984) 35 Cal.3d 547, 560.) Where the offense is burglary, the person must form the intent to aid and abet before the perpetrator leaves the burglarized structure. (Montoya, supra, 7 Cal.4th at pp. 1044-1045.) But formation of that intent need not precede the perpetrator’s initiation of the crime. (Id. at p. 1042.) A person can be liable as an aider and abettor to burglary if the requisite intent is formed “at any time prior to the perpetrator’s final departure from the structure.” (Id. at p. 1046.) “Whether a person has aided and abetted in the commission of a crime is a question of fact, and on appeal all conflicts in the evidence and attendant reasonable inferences are resolved in favor of the judgment. Among the factors which may be considered in determining aiding and abetting are: presence at the crime scene, companionship, and conduct before and after the offense.” (In re Juan G. (2003) 112 Cal.App.4th 1, 5, fn. omitted; People v. Campbell (1994) 25 Cal.App.4th 402, 409.)
Here, Welz’s burglary conviction is supported by substantial evidence because the jury could reasonably infer that Welz aided and abetted Balestreri’s commission of burglary. The jury could reasonably infer from the record before us that Welz knew about Balestreri’s intent to obtain money, goods and services from Vandermade by false pretenses, and that Welz intended to aid and abet Balestreri. She was present much of the time when Balestreri spoke with Vandermade, she acted as Balestreri’s companion, and their concerted action reasonably implies a common purpose. Since there is no evidence that Welz was surprised by Balestreri’s conduct or that she was afraid to interfere with it, the jury could reasonably conclude that Welz assumed her persona with the intent to encourage or facilitate Balestreri’s conduct. Accordingly, we find substantial evidence supports the jury’s verdict as to Welz also. (In re Juan G., supra, 112 Cal.App.4th at p. 5; People v. Campbell, supra, 25 Cal.App.4th at p. 409.)
Evidence of Uncharged Acts
In ruling on the prosecutor’s in limine motion to admit evidence of defendants’ prior uncharged acts, the court stated: “Initially, the materiality of the facts sought to be proved or disproved in this particular case on this particular issue intent is clearly material and relevant. The tendency that the uncharged – the tendency of the uncharged crime is to prove the disputed issue of intent is clearly material, and the Court feels that the uncharged misconduct has a strong tendency. It proves or disproves that disputed fact which is the intent. And so based on those two principles, it’s material and relevant. [¶] Looking at [Evidence Code section] 352, I have carefully balanced the probative value with the prejudicial impact of allowing that particular evidence. And the Court is going to make a determination that the probative value outweighs the prejudicial effect and allow the People to introduce evidence of the uncharged conduct for the specific purpose of intent.”
Defendants contend that the court erred in admitting the evidence of uncharged acts under Evidence Code section 1101, subdivision (b), to prove criminal intent. Balestreri argues that that the evidence of uncharged acts constituted inadmissible criminal propensity evidence, not evidence of intent. “Although admission of the uncharged acts may have been harmless error as to count 2 – theft – it was not harmless as to the burglary count because it was the only evidence proffered by the prosecution to prove burglarious intent.” Welz argues that because she “denied participating in any way in Balestreri’s fraudulent scheme, therefore, the facts of this case did not the fit the framework for admitting evidence of other crimes to prove intent.” Welz further argues that the evidence was irrelevant because her prior conduct was dissimilar to her conduct in the charged offenses.
Evidence Code section 1101, subdivision (b), permits the introduction of otherwise inadmissible evidence that the defendant committed a crime or other act if it is “relevant to prove some fact (such as motive, opportunity, intent, . . .) other than his or her disposition to commit such an act.” (Ibid.; see People v. Falsetta (1999) 21 Cal.4th 903, 911.) “We have long recognized ‘that if a person acts similarly in similar situations, he probably harbors the same intent in each instance’ [citations], and that such prior conduct may be relevant circumstantial evidence of the actor’s most recent intent. The inference to be drawn is not that the actor is disposed to commit such acts; instead, the inference to be drawn is that, in light of the first event, the actor, at the time of the second event, must have had the intent attributed to him by the prosecution. [Citations.]” (People v. Robbins (1988) 45 Cal.3d 867, 879; People v. Miller (2000) 81 Cal.App.4th 1427, 1448.)
“The least degree of similarity is required to establish relevance on the issue of intent. [Citation.] For this purpose, the uncharged crimes need only be ‘sufficiently similar [to the charged offenses] to support the inference that the defendant “ ‘probably harbor[ed] the same intent in each instance.’ [Citations.]” ’ [Citation.]” (People v. Kipp (1998) 18 Cal.4th 349, 371 (Kipp).) “Because intent is rarely susceptible of direct proof, it may be inferred from all the facts and circumstances disclosed by the evidence. [Citations.]” (Kwok, supra, 63 Cal.App.4th at p. 1245.) Generally, evidence of prior acts is admissible on the issue of intent “if there is no doubt that defendant has committed the [charged] act, but there is some question as to his or her mental state at the time. [Citation.]” (People v. Dellinger (1984) 163 Cal.App.3d 284, 298; People v. Guerrero (1976) 16 Cal.3d 719, 726.)
If relevant, the probative value of evidence of the prior uncharged acts must be weighed against the dangers “of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352.) Admissibility of such evidence is committed to the sound discretion of the trial judge, whose discretionary decision will not be reversed on appeal absent clear abuse of discretion. (People v. DeRango (1981) 115 Cal.App.3d 583, 589-590; Kipp, supra, 18 Cal.4th at p. 369.)
Both defendants contend that their uncharged acts were not sufficiently similar to the charged offenses to permit the introduction of evidence of the uncharged acts on the issue of intent. We disagree. Defendants’ conduct underlying both the uncharged acts and the charged offenses followed a similar pattern. They approached the victims intending to seek cash, goods and/or services. They pretended to be wealthy individuals with temporary cash-flow problems who needed a few dollars to tide them over for a few days. Balestreri would tell the story and Welz would usually stand by silently, but both defendants accepted the loaned cash, as well as the proffered goods and services, and did not repay the victims. On this record, we cannot say that the court’s admission of evidence of the uncharged acts was a clear abuse of discretion.
That Welz denied participating in any way with Balestreri’s fraudulent scheme does not change our analysis. Welz did not deny being present when Balestreri began his fraudulent conduct; rather, she admittedly acted as his companion during the entire time he carried out his scheme. She also accepted the spoils of the fraudulent conduct. Thus, she did not deny the conduct underlying the charged offenses, she only denied that she had the intent to aid and abet Balestreri. Accordingly, the evidence of the prior uncharged acts were admissible on the issue of her intent. (Dellinger, supra, 163 Cal.App.3d at p. 298; Guerrero, supra, 16 Cal.3d at p. 726.) Reversal of her convictions is not warranted.
DISPOSITION
The judgments are affirmed.
WE CONCUR: Mcadams, J., duffy, J.