Opinion
B228298
02-07-2012
THE PEOPLE, Plaintiff and Respondent, v. JEROME JEFFREY BELSER, JR., Defendant and Appellant.
Sunnie L. Daniels, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Idan Ivri, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. KA089451)
APPEAL from a judgment of the Superior Court of Los Angeles County. Bruce F. Marrs, Judge. Affirmed.
Sunnie L. Daniels, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Idan Ivri, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Jerome Jeffrey Belser, Jr., appeals from the judgment entered upon his conviction by jury of first degree residential burglary (Pen. Code, § 459), with findings that he had suffered a prior felony conviction of attempted first degree burglary (§ 664/459) within the meaning of section 667, subdivision (a)(1) and the "Three Strikes" law (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)). The trial court sentenced appellant to 14 years in state prison, consisting of eight years on the burglary charge based on the middle term of four years doubled pursuant to the Three Strikes law, plus a five-year serious felony enhancement (§ 667, subd. (a)), and a one-year enhancement pursuant to section 667.5, subdivision (b).
All further statutory references are to the Penal Code unless otherwise stated.
The information alleged that appellant suffered three prior felonies for the purposes of enhancement under section 667.5, subdivision (b). Two additional one-year enhancements under this section were stricken.
Appellant contends the trial court erred when it admitted evidence of a prior attempted burglary because the offenses lacked sufficient similarities, and also erred by instructing the jury that it could consider appellant's prior criminal conduct for an improper purpose. We affirm.
FACTS
Prosecution Case
A. Starr Middleton's Testimony
On January 26, 2010, Starr Middleton, along with her daughter and her sister, lived with her mother, Dianne Barr, on Dexter Street in the City of Covina. Barr provided day care for children and had left sometime between 6:30 a.m. and 6:45 a.m. to take some children to school in Monrovia. Shortly after 7:00 a.m., Middleton was suddenly awakened by the sound of someone attempting to open her bedroom's sliding door. The sliding glass door opened onto a driveway that led to Dexter Street. There was a screen door on the outside of the glass. The sliding door had two locks and a broom handle in the interior sliding rail of the door which prevented it from being opened more than a few inches.
On hearing the sound of the screen door being moved, Middleton jumped out of bed because the sliding glass door was not used as an entrance or exit from the house. She saw the silhouette of a person through the drawn curtains of the door. She went into the living room to check on her daughter and sister and found them eating breakfast. At the preliminary hearing, Middleton testified that she stayed in bed for 20 minutes after hearing the noises because she assumed it was her mother or her brother. Middleton then called Barr and spent nearly 10 minutes on the phone with her. Barr told Middleton to hang up the phone and she would be home soon.
Middleton called the police and while on the phone with them looked out the living room window facing Dexter Street. Middleton told the 9-1-1 operator that she saw a man walk away from the house, cross Dexter Street, and get on a bicycle. She could not determine his ethnicity because she only saw him from the back. At the preliminary hearing, Middleton testified that she may have told the operator that the man she saw was black. The man was about 5 feet 4 inches tall, wearing a blue and black plaid jacket with a hoodie. He was also wearing a beanie and gloves. Middleton could see an object in the man's hands but could not make out what it was. She then observed him get on a bicycle and ride away on Dexter Street.
Middleton waited approximately 30 minutes for the police to arrive at her house. She told the police officers what happened and showed them the sliding door. The police officers informed Middleton that they had detained a possible suspect and asked if she could make an identification. Middleton testified at trial that she told the police officers that she could identify the suspect's clothes but not his face. A police officer took Middleton to conduct a field identification in a nearby alley. Middleton testified at trial that during the field identification appellant was wearing blue jeans and a white T-shirt and she told the police officers that she did not think he was the man she saw earlier. At the preliminary hearing, Middleton testified that when told by the police officers that appellant had been wearing the clothing she described she told the police officers that appellant "must be the person." At trial, Middleton was not even sure the person at the field identification was appellant.
Middleton testified at the preliminary hearing that strangers attempted to enter her sliding door on three separate occasions, subsequent to the January 26, 2010 burglary. The police were not called to respond to any of the three incidents. She also testified that she did not have her glasses with her during the field identification and her eyesight was so bad she could not see the back of the courtroom. She did not wear glasses during her trial testimony because she lost them.
Later on the same day that Middleton testified at the preliminary hearing, she saw appellant's girlfriend Ebony, at a nail salon. Ebony told Middleton that appellant wanted to send her a thank you card. Middleton testified that she moved to Alaska after the preliminary hearing because she was offered a job there. A judge in Alaska ordered Middleton to comply with the subpoena and return to testify in this case or face incarceration. She testified that she was surprised that the case against appellant was proceeding because she was sure that he was not the person who committed the burglary. Middleton stated that her testimony was not influenced by appellant and she denied receiving any money or gifts to change her testimony.
B. Testimony of Covina Police Department Officers
On January 26, 2010, at approximately 7:11 a.m., City of Covina Officer Oswaldo Preciado received a 9-1-1 call regarding a residential burglary and arrived at the Barr residence on Dexter Street at approximately 7:13 a.m. Officer Preciado observed the sliding door was open two or three inches but a broom handle on the bottom railing prevented it from opening any farther. Middleton told Officer Preciado that the sound of the screen door sliding against the railing woke her up. She called out "Mom" thinking her mother may have forgotten her keys, but got no answer. She first approached the sliding glass door but when she saw the silhouette of a person and realized that someone was trying to force the door open, she grabbed her cell phone and immediately dialed 9-1-1 from her bedroom. Middleton told Officer Preciado that after about five seconds she walked to the living room and when she looked out the window she observed a man walking down her driveway and then riding a bicycle westbound on Dexter Street. Her description of the suspect was a black man riding a bicycle, wearing a blue hooded sweatshirt, with a black beanie.
At approximately 7:14 a.m. Officer Stephen Henry was on patrol in the City of Covina when he received a call of a burglary in progress on Dexter Street. Officer Henry drove westbound on Dexter looking for the suspect based on information he received from dispatch. The suspect was described as a male black wearing a blue and white sweatshirt with a black beanie, riding a bicycle. Officer Henry observed appellant entering an alley off Dexter Street a few blocks from where the burglary occurred. Appellant matched the description of the suspect and he detained him. A large pry bar with a flat head was recovered from appellant's pants pocket during a search conducted by Officer Henry.
Officer Preciado informed Middleton that a suspect was detained and asked if she could make an identification. Middleton was confident she could identify the person because she said she had seen his face when she saw him walking down the driveway. At approximately 7:31 a.m., Officer Preciado drove Middleton to where appellant was being detained by Officer Henry. Officer Henry testified that he removed appellant's beanie during the field identification but appellant was wearing the hooded sweatshirt. Appellant could not see Middleton as she sat in the police car, but from approximately 25 to 30 feet away she had a clear and unobstructed view of him. Middleton positively identified appellant as the suspect and said she was sure it was him.
C. Appellant's Prior Crime
On April 29, 2000, at approximately 2:30 p.m., Steve Uhrmann noticed three African-American individuals standing in front of his neighbor's first story window as he returned to his apartment in West Covina. From his window, he observed one of the individuals attempt to remove the screen from the sliding glass window using a screwdriver, while the other two individuals acted as lookouts. Uhrmann reported the incident to the manager of the apartment complex, who called the police.
West Covina Police Officer Curtis McLean received a complaint from a resident in Uhrmann's apartment complex that some individuals had run into his apartment. Three African-American men were detained as a result of that complaint. Uhrmann identified them as the same individuals whom he had seen outside his neighbor's window attempting to remove the screen. Appellant was one of the three individuals arrested.
A pair of knit gloves was found in appellant's possession while the other two individuals each possessed screwdrivers. Appellant admitted that they were attempting to burglarize the apartment. They planned to steal money, jewelry, and small items they could sell for money. Appellant claimed it was his idea to commit the burglary, he developed the plan, and it was his idea to abandon the attempt when he believed they had been seen.
D. Appellant's Jail Phone Calls
When appellant was arrested he provided the telephone number of a female that he identified as his wife, Ebony. Numerous calls were made to Ebony's number from a male inmate. During one call the male inmate provided appellant's correct jail booking number for mail that had been improperly addressed to him. During another call, the woman who answered the phone at the number provided by appellant identified herself as Ebony A. Belser. Detective Antonio Zavala, of the Covina Police Department was the investigating officer in the case and reviewed the recordings and transcripts of the jail phone calls. Based on his experience investigating jail calls and his knowledge of the case he identified the male inmate caller as appellant, and the female recipient of the calls as Ebony Belser.
In one call, appellant stated to Ebony, "You gotta make sure that girl do not come to court. On the 22nd. She come to court, it's a wrap." Later he stated, ". . . if she tell you that she's not gonna come to court, then I'm coming home. Ain't no ifs ands or buts about it, if she don't come to court, they don't got nothing. Only thing they got is her. You feel me?" Ebony replied, "If I go to talk to Dianne and ask her, if I give her a hundred dollars or something, you think she'll back off," to which appellant responded, "Yes." Detective Zavala interpreted this exchange to be referring to Dianne Barr and Starr Middleton, and appellant acknowledging Middleton's importance as a witness for the prosecution.
In another call, Ebony told appellant that "Dianne and them" "don't even speak no more." Appellant asked, "I'm saying did you give, did you give her her money and stuff?" Ebony responded, "Oh yeah, yeah, yeah, . . . We did all, we handled all that." Detective Zavala understood this reference to Middleton and her mother Barr, to be related to the earlier conversation regarding giving Barr a hundred dollars.
Another reference to Middleton occurred when Ebony stated, "I seen what's her name too the other day." Ebony described her as "[t]the twinkle in the sky" and "[t]he little twinkle in the sky." When appellant still did not understand and asked, "Who is that?" Ebony responded, "Fucking Starr, man."
Appellant stated to Ebony during another call, "It don't make no sense for me to be sitting up here doing all this motherfucking time when I never went up in that motherfucker, you feel me?" Detective Zavala believed that this statement by appellant was consistent with Middleton's testimony that the person attempting to open the sliding glass door never actually entered the room.
A call involved appellant stating that he wanted to send Middleton a thank you card after she made inconsistent statements at the preliminary hearing. Another discussed how Middleton would have to repeat the same story at trial that she told at the preliminary hearing. Detective Zavala believed appellant was given advice to stop making incriminating statements because in a call that took place close to trial, appellant told Ebony that there should be no more letters or phone calls discussing his case.
Defense Case
On January 26, 2010, Ronald Williamson planned to pick up appellant for work between 7:30 and 8:00 a.m. at Covina Park. Williamson had known appellant for approximately 15 years. Appellant was helping him with construction work on his home. The pry bar found on appellant was similar to ones Williamson had in his toolbox. He had seen appellant using it several times at Williamson's home. It could be used to pry open a door. Williamson did not call appellant or go to his house when he failed to show up for work. When Williamson found out that appellant had been arrested he told Ebony he was willing to testify on his behalf.
Dianne Barr left her home between 6:30 and 6:45 a.m. on January 26, 2010. She received a call from her daughter telling her that someone had tried to come into her bedroom through the sliding glass door. Barr told Middleton to look out the window to try and identify the individual and call the police. Barr was familiar with appellant and had seen him around the area walking from his apartment and to the store. Barr had provided daycare for appellant and Ebony's child in October and November of the previous year and not received full payment. Barr gave Ebony a ride to court for the preliminary hearing, and recommended an attorney for appellant. Barr denied that Ebony offered her money to testify.
Procedural Background
Before trial, the People sought to admit evidence of the April 29, 2000, attempted burglary under Evidence Code section 1101, subdivision (b), to establish appellant's intent to commit a burglary in this case. Appellant argued that the evidence should be precluded because the prosecution was trying to get the evidence in to show that appellant was more likely to have committed this crime because he committed a crime 10 years earlier. The People argued that the evidence was being offered to show intent and not a propensity to commit crimes. The People cited the following similarities between the prior attempted burglary, and the instant case: (1) both were residential burglaries; (2) the defendant never set foot inside either one of the premises and nothing was ever actually taken; (3) the points of entry were first-story windows and doors; (4) the manner of entry involved removing or sliding back the screen; (5) appellant had a screwdriver in his possession here while his companions did in the attempted robbery; (6) both times appellant wore gloves; and (7) appellant was identified outside of the premises in both cases. The People also argued that the evidence should not be excluded under Evidence Code section 352, because the probative value outweighed undue prejudice, confusion, or consumption of time.
The trial court ruled that evidence of the prior attempted robbery was admissible. It indicated a pertinent factor was whether the prior bad act was offered "to establish motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, all specifically referenced in [Evidence Code section] 1101, subdivision (b)." The court stated that it understood the People's theory was absence of mistake and intent, and not to prove identity. The court concluded by finding the evidence was relevant and that there were sufficient similarities between the two incidents from which a jury could find intent and absence of mistake.
DISCUSSION
I. Appellant's Contentions and Materiality
Appellant contends his conviction must be reversed because the trial court erred when it admitted evidence of other crimes under Evidence Code section 1101, subdivision (b). Specifically, appellant argues that: (1) the court abused its discretion by admitting the prior attempted burglary to prove intent because it lacked sufficient similarity; and (2) the court improperly instructed the jury that it could use evidence of the prior attempted burglary to find a characteristic method, plan, or scheme between the two incidents.
Burglary is a specific intent crime (People v. Wallace (2008) 44 Cal.4th 1032, 1077), and appellant's not guilty plea put his specific intent in issue. (People v. Williams (1988) 44 Cal.3d 883, 907, fn. 7.) Here, the jury was instructed that to convict appellant of burglary "there must exist a union or joint operation of act or conduct and a certain specific intent in the mind of the perpetrator" (CALJIC No. 3.31) and that "at the time of the entry" appellant "had the specific intent" to commit a felony (CALJIC No. 14.50).
The trial court instructed the jury in the modified language of CALJIC No. 3.31 as follows: "In the crimes and allegations charged in count 1 there must exist a union or joint operation of act or conduct and a certain specific intent in the mind of the perpetrator. Unless the specific intent exists, the crime or allegation to which it relates is not committed or is not true. [¶] The specific intent required is included in the definition of the crimes or allegations set forth elsewhere in these instructions."
The trial court instructed the jury in the modified language of CALJIC No. 14.50 as follows: "The defendant is accused in count 1 of having committed the crime of burglary, a violation of section 459 of the Penal Code. [¶] Every person who enters any building with the specific intent to steal, take, or carry away the personal property of another person of any value, and with the further specific intent to deprive the owner permanently of that property, is guilty of the crime of burglary in violation of Penal Code section 459. [¶] A building is a structure. [¶] A person enters a building if some part of his body or some object under his control penetrates the area inside the building's outer limits. A building's outer limits includes the area inside a window screen. [¶] It does not matter whether the intent with which the entry was made was thereafter carried out. [¶] In order to prove this crime, each of the following elements must be proved: [¶] 1. A person entered a building; and [¶] 2. At the time of the entry that person had the specific intent to steal and carry away someone else's property and intended to deprive the owner permanently of that property."
II. Applicable Principles
Other crimes evidence, as a general proposition, is inadmissible to prove a defendant's disposition. (Evid. Code, § 1101, subd. (a).) Admission of such evidence produces an "overstrong tendency to believe the accused guilty of the charge merely because he is a likely person to do such acts." (1A Wigmore, Evidence (Tillers rev. 1983) § 58.2, p. 1215.) "Any evidence of a defendant's criminal conduct, on other occasions, no matter how relevant to issues legitimately before the court, will have an inevitable tendency to suggest that the defendant has a general criminal propensity or disposition, and thus an inevitable tendency to persuade a trier that the defendant is somewhat more likely to have committed the crime currently charged." (People v. Scott (1980) 113 Cal.App.3d 190, 198.)
Evidence Code section 1101, subdivision (a), provides: "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."
But Evidence Code section 1101, subdivision (b) expressly carves out an exception to this rule. It provides that such evidence is admissible if it is relevant to an issue other than disposition to commit the act, such as intent. Admissibility of other crimes evidence depends upon (1) the materiality of the facts sought to be proved, (2) the tendency of the uncharged crime to prove those facts, and (3) any policy requiring exclusion, such as Evidence Code section 352. (People v. Scott, supra, 113 Cal.App.3d at p. 198; People v. Ewoldt (1994) 7 Cal.4th 380, 404 (Ewoldt) ["[T]o be admissible such evidence 'must not contravene other policies limiting admission, such as those contained in Evidence Code section 352"].)
Evidence Code section 1101, subdivision (b), provides: "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."
Evidence Code section 352, provides: "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."
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"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 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.) "By contrast, a higher degree of similarity is required to prove common design or plan, and the highest degree of similarity is required to prove identity." (People v. Soper (2009) 45 Cal.4th 759, 776, fn. omitted.)
III. Standard of Review
We review the trial court's Evidence Code sections 1101, subdivision (b) and 352 rulings under the abuse of discretion standard. (People v. Lewis (2001) 25 Cal.4th 610, 637 [Evid. Code, § 1101]; People v. Carter (2005) 36 Cal.4th 1114, 1147; People v. Rodrigues (1994) 8 Cal.4th 1060, 1124 [Evid. Code, § 352].) Abuse occurs when the trial court "exceeds the bounds of reason, all of the circumstances being considered." (People v. Giminez (1975) 14 Cal.3d 68, 72.) "'[I]n most instances the appellate courts will uphold [the trial court's] exercise [of discretion] whether the [evidence] is admitted or excluded.'" (People v. Kwolek (1995) 40 Cal.App.4th 1521, 1532.)
"We determine whether a jury instruction correctly states the law under the independent or de novo standard of review. [Citation.] Review of the adequacy of instructions is based on whether the trial court 'fully and fairly instructed on the applicable law.' [Citation.] '"In determining whether error has been committed in giving or not giving jury instructions, we must consider the instructions as a whole . . . [and] assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given." [Citation.]' [Citation.]" 'Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation.' [Citation.]" (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.)
IV. Analysis
A. Evidence of Appellant's April 29, 2000, Attempted Burglary Was Properly Admitted to Prove Intent Because It Was Sufficiently Similar to the Charged Offense
Appellant contends that the similarities between the two incidents are commonplace and of little importance, and conversely that the differences are numerous and distinctive. We disagree.
The crimes occurred in neighboring cities, Covina and West Covina. In both instances, entry into residential properties from areas open to the public was attempted during the day. In the uncharged offense the access point was a first floor window and in the present case it was a sliding glass door. In both cases, tools that can be used to unscrew or pry open the barrier to entry were found. In the uncharged offense appellant's companions possessed screwdrivers and in the present case appellant had a pry bar. In both cases, appellant wore gloves. In the uncharged offense, the owner had left and the residence was empty and in the present case, the owner Dianne Barr had recently left to take some daycare children to school. In both cases appellant abandoned his plan when it was apparent to him that he had been discovered.
The differences appellant highlights between the two incidents are not distinctive. That the charged burglary occurred in early morning while the uncharged attempted burglary occurred in the afternoon does not change the fact that both were daytime incidents. Nor is it significant that appellant and his companions appeared to be on foot during the uncharged incident, while appellant made his getaway by riding a bicycle in the present case. Appellant's argument that the pry bar in his possession here was dissimilar to the Phillip's head-screwdriver and flat-head screwdriver found on his companions in the uncharged offense does not take into account the multi-purpose uses of the tools. Rather, it highlights another similarity between the two offenses, in that the pry bar with a flattened head can be used (similar to the screwdrivers) to remove screens or pry open points of entry quietly rather than loudly by breaking doors or glass.
Appellant also argues that a gap of almost 10 years between the prior attempted burglary and the current offense is significant. But there is no bright line test of remoteness and even remote offenses are admissible where as in this case, appellant spent five to six of those 10 years in prison. (People v. Mendoza (2000) 78 Cal.App.4th 918, 925-926.) Here, the prior attempted burglary occurred almost 10 years before the charged incident. Uncharged conduct occurring five years (see People v. Regalado (2000) 78 Cal.App.4th 1056, 1059) and 23 years (see People v. Pierce (2002) 104 Cal.App.4th 893, 900) before the charged offense have been found not to be too remote to permit their admission in evidence. The strong probative value of the earlier attempted robbery, further supports its admission, despite the length of time that had passed.
The least degree of similarity was required to prove intent. (Ewoldt, supra, 7 Cal.4th at p. 402.) Here, there were many similarities between the April 29, 2000, attempted burglary in which appellant admitted it was his intent to steal items, and the present offense.
We cannot say that the trial court abused its discretion under Evidence Code section 352 in admitting evidence of appellant's prior attempted burglary. In considering whether the probative value of uncharged crimes is outweighed by the prejudice, we must evaluate the inflammatory nature of that evidence, the degree of certainty of its commission, the consumption of time, and remoteness, as well as other unique factors presented. (People v. Harris (1998) 60 Cal.App.4th 727, 738-740.) Here, the prejudice did not outweigh its relevance because evidence of a prior attempted burglary was not inflammatory when appellant was charged with burglary; appellant's prior conduct resulted in a conviction; and evidence of the misconduct did not necessitate the undue consumption of time, consuming only 24 pages of an approximately 549-page reporter's transcript.
B. The Trial Court's Jury Instruction Was Not Prejudicial Error
Appellant contends his conviction should be reversed because the trial court improperly instructed the jury that they could consider the evidence of appellant's prior attempted robbery to show the existence of a larger continuing plan or scheme.
As given, CALJIC No. 2.50 read: "Evidence has been introduced for the purpose of showing that the defendant committed a crime other than that which—for which he is here on trial. [¶] Except as you will be otherwise instructed, this evidence, if believed, may not be considered by you to prove that defendant is a person of bad character or that he has a disposition to commit crimes. It may be considered by you only for the limited purpose of determining if it tends to show: [¶] A characteristic method, plan, or scheme in the commission of criminal acts similar to the method, plan, or scheme used in the commission of the offense in this case, which would further tend to show the existence of the intent which is a necessary element of the crime charged; [¶] The existence of the intent which is a necessary element of the crime charged; [¶] A motive for the commission of the crime charged; [¶] That the defendant had knowledge of the nature of things found in his possession; [¶] That the defendant had knowledge or possessed the means which might have been useful or necessary for the commission of the crime charged; [¶] Or the crime charged is part of a larger continuing plan or scheme. [¶] For the limited purpose for which you may consider such evidence, you must weigh it in the same manner as you do all other evidence in this case. [¶] Except as you will be otherwise instructed, you are not permitted to consider this evidence for any other purpose."
Appellant contends that the prosecution never sought to admit evidence of the prior attempted burglary to show a common scheme or plan and the portion of the instruction that states, "Or the crime charged is part of a larger continuing plan or scheme[,]" implicates the intermediate standard of similarity in Ewoldt. The People argue that the similarities between the prior and current offenses were also substantial enough to make the prior-offense evidence relevant to show that the burglaries were all pursuant to a common scheme or plan.
The People did not seek to show a common scheme or plan, and did not argue to the jury that appellant's two crimes shared a characteristic method, plan, or scheme. Nor did the court admit the evidence for that purpose. But, it is not necessary to determine if the evidence satisfied the intermediate prong of the Ewoldt test because even if the claimed evidentiary error occurred, the ultimate question is whether giving the instruction was prejudicial. We must determine whether there is a reasonable probability that defendant would have obtained a more favorable outcome if the jury had been instructed to consider it only on the issue of intent. (People v. Watson (1956) 46 Cal.2d 818, 836.) We conclude there is not.
There is no real dispute that someone committed first degree burglary of the Barr residence on January 26, 2010. The real issue here is identity. During the hearing on the motion to admit the evidence, counsel for appellant stated, "The issue here is not whether [appellant] had intent, but whether or not he actually did—was the person that committed this crime of trying to go inside—inside the sliding glass door."
Evidence (other than the prior offense) tending to show that appellant was the perpetrator included appellant's jail phone calls; testimony by the police officers; and testimony by the victim, Starr Middleton. This evidence had considerable weight. First, the jail phone calls in which appellant identified himself using his correct booking number, and the female identified herself by name as Ebony A. Belser, contained numerous references to Dianne Barr, and Starr Middleton by name. The majority of the calls related to efforts to get Middleton to provide favorable testimony for appellant.
Second, the police officers testified as to the statements provided by Middleton, who provided an accurate description of appellant both to the 9-1-1 operator and during the investigation at her home. She positively identified him at the field identification in a nearby alley.
Finally, Middleton's reluctance to return from Alaska to testify; her contradictory testimony during the preliminary hearing and at trial in which she was unable to identify appellant as the perpetrator; her version of events which did not match the timeline as provided by the testimony of the police officers and her 9-1-1 call, and the portions of the jail phone calls referencing her changed testimony, undermined her credibility and was damaging to appellant.
Moreover, the court properly instructed the jury that it was not permitted to consider the evidence of the prior attempted burglary to prove appellant had a bad character or was disposed to commit a crime. It is, of course, presumed the jury understood and followed the court's instruction in the absence of any showing to the contrary. (People v. Yeoman (2003) 31 Cal.4th 93, 139.)
In light of the other evidence of identity, the claimed evidentiary error was not prejudicial and there is no reasonable probability that the jury would have reached a different verdict if it had not been instructed to consider the prior offense as part of a continuing plan or scheme. (People v. Watson, supra, 46 Cal.2d at p. 836.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_______________, J.
DOI TODD
We concur:
_______________, P. J.
BOREN
_______________, J.
ASHMANN-GERST