Opinion
A157819
10-10-2022
THE PEOPLE, Plaintiff and Respondent, v. DEMETRIUS BOXLEY, Defendant and Appellant.
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 51902675
TUCHER, P.J.
A Contra Costa jury found Demetrius Boxley guilty of two counts of robbery. (Pen. Code, § 211.) The jury also found that Boxley personally used a firearm to commit the robberies (§ 12022.53), and that he has a prior conviction that qualifies as a strike and a serious felony. (§ 667, subd. (a)(1); 1170.12, subd. (b) &(c).) In a subsequent bench trial, the court found that Boxley has a second prior strike and serious felony conviction.
Statutory references are to the Penal Code unless another statute is specified.
At an initial sentencing hearing, the court struck the prior conviction allegations in the interests of justice and sentenced Boxley to a 13-year prison sentence. In December 2019, Boxley was resentenced due to a conviction he sustained in San Mateo County for felony evasion of a police officer. (Veh. Code, § 2800.2.) The court imposed an aggregate term of 14 years and four months in prison.
On appeal, Boxley contends his Contra Costa convictions must be reversed because the trial court (1) admitted evidence of uncharged misconduct, and (2) denied his request for a jury instruction pinpointing his defense. We reject these contentions, but remand this case pursuant to the parties' stipulation that Boxley is entitled to resentencing under recently enacted ameliorative amendments to section 1170.
BACKGROUND
I. The Prosecution Case A. The "Check n' Go" Robberies
On September 8, 2018, a masked man committed armed robbery at a Check n' Go check-cashing and loan service in Antioch. At trial, the jury viewed surveillance video that partially captured the robberies from three angles. The jury also heard testimony about the crimes from Annmarie B. and Sonya P., customer service representatives who were working at Check n' Go when the robberies occurred.
We use given names when referring to some trial witnesses to protect their privacy.
On September 8, the Check n' Go opened at 10:00 a.m. Annmarie and Sonya sat at counters, where each had her own register. The entrance to Check n' Go was kept locked, so customers had to be admitted. During the first hour of business, a white male was admitted to the store, asked the women if they cashed checks, and then left without conducting business.
At around 11:00 a.m., a black male stood outside the door and waived some envelopes he held in his hand in a manner indicating that he wanted to enter. After Sonya hit a buzzer that let the man in, he placed a mask over his face, and then pulled a gun from his jacket and announced that he was committing a robbery. The man produced a bag and told the women to keep their hands up where he could see them. He approached Annmarie first and pointed a gun at her chest while she placed cash from her register into the bag. Then the man pointed his gun at Sonya's face and chest while she emptied all the cash in her register into the bag. The man took the bag and fled, leaving his envelopes on the counter.
At Boxley's trial, the victims were asked to describe the robber and his weapon. Annmarie did not get a good look at the man's face because he wore a hat and mask. She recalled thinking he was thin and not very tall; she estimated he was five feet, eight inches and weighed 120 pounds. Annmarie had a stronger recollection of the man's clothing than his build; he wore a black leather jacket, a baseball hat, a black mask with camouflage on the side, a white T-shirt, and black athletic pants with stripes down the side. During her direct examination, Annmarie testified that the man's gun did not have an orange tip and appeared to be a real gun. Under cross-examination, Annmarie testified that prior to the robberies, she had seen real guns and imitation firearms, such as air guns and pellet guns, but she acknowledged that she would not be able to tell the difference between them. She also acknowledged that, at the time of the incident, she had a thought that the gun might be a toy or an "air pistol" because she just could not believe what was happening to her.
Sonya testified that when the robber entered the store, she noticed he was an African-American male, but she did not get a clear look at his face before he covered it with a mask. She did see the man pull a semiautomatic pistol out of the pocket of his leather jacket. When the man approached Sonya, a good part of his body was blocked by the counter. But she could see his gun, and did not notice anything about it that made her believe the gun was not real. Under cross-examination, Sonya confirmed that she had previously described the robber as a black male in his 20s who was about five feet 11 inches tall and weighed about 200 pounds. She also acknowledged that, prior to the incident, she had never seen a firearm, except on television. Sonya believed that the robber's gun was not a revolver because it did not have a round barrel. She knew what a BB gun was, but had never handled one or any other imitation gun.
B. The Police Investigation
Antioch Police Sergeant James Stenger testified about the envelopes that the robber left at the crime scene. When Stenger responded to a 9-1-1 call from the Check n' Go, Annemarie directed him to the envelopes, which the robber had placed on a counter. Stenger described how he used gloves to collect this evidence and testified that nobody else at the scene touched it. On one envelope, which was empty, had been recorded a handwritten note about an appointment at an address on Lone Tree Way in Antioch. The second envelope contained a banking document that pertained to a man named Michael Punzal, Jr.
Under cross-examination, Stenger was asked if Annemarie had suggested that the robber's gun may have been a toy. When Stenger responded that he did not recall Annemarie making that suggestion, defense counsel began questioning him about his knowledge of firearms and imitation firearms. The trial court overruled the prosecutor's objection to this line of questioning and then granted a defense request to qualify Stenger as an expert in real and imitation firearms. The defense elicited the following opinions from Stenger: real firearms are more expensive than imitation firearms; and there are no restrictions on purchasing imitation firearms other than that the purchaser must be over the age of 18.
Antioch Police Detective Adrian Gonzalez testified about his investigation of the Check n' Go robberies. After Gonzalez reviewed the surveillance video, which showed that the robber held a firearm in his right hand and envelopes in his left hand, and that he left the envelopes behind, Gonzalez had the envelopes tested for fingerprints. He did not have the front doorknob of the Check n' Go tested for prints because it had been touched by every patron and would be cross-contaminated. By contrast, the video showed that only the suspect had touched the envelopes. The crime lab found fingerprints from two people on the envelopes, Boxley and Juanita S. Gonzalez eliminated Juanita as a suspect because the robber was a man, and a preliminary investigation into Juanita's background did not uncover information linking her to the crimes.
Gonzalez located a Facebook account for Boxley, which contained pictures of him wearing articles of clothing that appeared to match the robber's clothes. Gonzalez also communicated with Sergeant Matthew Dudley from the San Francisco Police Department's Gang Task Force Unit, who was familiar with Boxley and monitored his Instagram account. Dudley provided Gonzalez with photographs depicting Boxley wearing a hat and jacket that appeared to match the robber's hat and jacket. Subsequently, Gonzalez obtained a search warrant for Boxley's phone records, which he used to conduct "cellular mapping," a process as to which he qualified as an expert. By examining Boxley's "call detail" records, Gonzalez determined that Boxley's cell phone was nearby the Check n' Go approximately an hour before the robberies were committed.
Gonzalez also used Boxley's phone records to gather information for a potential search warrant to look for the gun that was used in the robbery. Gonzalez tracked Boxley's movements by monitoring "pings" from his cell phone, which showed that Boxley was no longer staying in Antioch, and that he was spending time in several locations in Oakland and San Francisco. Before Gonzalez could gather evidence to obtain a warrant for any of those locations, he was notified that Boxley was in jail in San Mateo county.
Gonzalez was cross-examined about whether he investigated other potential suspects. The white male who came into the Check n' Go on the morning of the robberies was a potential suspect because victim reports raised the question whether that man was "casing." Surveillance video from the Check n' Go parking lot showed the man getting into a white Dodge Caliber, and also showed that the robber later got into what appeared to be the same car. However, Gonzalez had no license plate or VIN information for the vehicle, and he was unable to determine the identity of the white male.
Gonzalez also investigated Michael Punzal, whose name was on the banking document left at the crime scene. Gonzalez learned that Punzal was associated with a San Francisco street gang and was on probation for a federal offense. Gonzalez intended to interview Punzal, but by the time Punzal was located the investigation had focused on Boxley as opposed to Punzal as the likely perpetrator of the robberies. For one thing, Punzal did not match the description of the robber depicted in the video. According to his driver's license, Punzal was five feet, nine inches tall and weighed 230 pounds, which seemed much heavier than the robber. And Punzal had a light skin tone and tattoos on both his hands, whereas the surveillance video contains a "reasonably good" shot of the robber's hand, which shows a different skin tone and no tattoos. Furthermore, information provided by Officer Dudley reinforced Gonzalez's belief that Punzal was not the robber.
Officer Dudley also testified at Boxley's trial. Because of his work with the Gang Task Force, Dudley monitored Boxley's social media prior to the robberies. Dudley also knows Michael Punzal, who he has met in person. Dudley described Punzal as short and stocky with tattoos on his hands. Dudley estimated Punzal is about five feet, 10 inches tall and weighs more than 200 pounds, maybe 220 pounds. Dudley located photographs on social media that depict Boxley and Punzal together, which he shared with Detective Gonzalez.
At trial, Gonzalez testified that he also followed up on the information handwritten on the second envelope that the robber left at Check n' Go. A few days before his trial testimony, Gonzalez went to the address for the appointment that had been recorded on the envelope and spoke to a woman who worked there. That woman, Katherina G., testified that, on July 27, 2018, somebody called the doctor's office where she works and made an appointment for Boxley for August 14, 2018, at 2:00 p.m., which was the time of the appointment recorded on the envelope that was left at Check n' Go.
C. Prior Incidents Involving Real Firearms
The prosecution presented evidence about two prior incidents when Boxley was found to have a real firearm.
1. The 2004 Robbery
In July 2005, Boxley was convicted of second degree robbery with a gun. The prosecution presented documentary evidence of the conviction and elicited testimony about the robbery from two witnesses, the victim, Marcus B., and San Francisco Police Officer Chris Wilhem.
Marcus testified that on the evening of December 25, 2004, he had plans to go to a club with a friend. Marcus could not remember who the friend was, but the name Rob Moore sounded familiar. When Marcus went to the friend's house, there were two additional men there who Marcus could not identify. The men pointed a shotgun at Marcus and demanded money. Marcus gave the money he had, but the men demanded more. They had Marcus use his car to drive them to locations where Marcus could obtain more money, including ATM machines, Marcus's grandmother's house, and Marcus's girlfriend's house. The ordeal finally came to an end early the next morning, when police conducted a traffic stop.
Marcus was a reluctant witness who did not remember many details of the robbery. He admitted that he was supposed to testify earlier in the trial, but failed to appear. He also acknowledged that he talked with somebody about his testimony before appearing at trial.
Officer Wilhelm and his partner were on route to the location of a report of a possible carjacking with a gun, when they stopped Marcus's car because it matched the description of the vehicle in question. Marcus, who had been driving, exited the car and began to run. The driverless car started slowly moving forward. The officers walked alongside the vehicle until it had a slow-speed impact with a building. They found three passengers in the car, including Boxley and Rob Moore. A loaded shotgun was on the driver's side floorboard. The firearm was a real shotgun, not a replica or an imitation.
2. The 2010 Gun Possession
In September 2011, Boxley was convicted of a felony for carrying a nine-millimeter Beretta firearm. (See former § 12020, subd. (a)(1).) The jury was informed about the conviction pursuant to the parties' stipulation. The prosecution also elicited testimony about the incident that resulted in this conviction from San Francisco Police Officer Vincent Masilang. On November 18, 2010, at around 1:43 a.m., Masilang and his partner conducted a traffic stop of a silver Lexus. Boxley was sitting in the front passenger seat of the Lexus. When Masilang searched the car, he found a nine-millimeter semiautomatic Beretta under the front passenger seat where Boxley had been sitting, which contained a magazine clip. The gun was a real firearm, not an imitation or replica or BB gun or Airsoft pistol.
II. Boxley's Defense
Boxley's defense was that the prosecution failed to overcome the presumption of innocence by proving Boxley's guilt beyond a reasonable doubt. The defense argued specifically that the prosecution failed to prove (1) that a real gun was used to commit the Check n' Go robberies, and (2) that Boxley was the perpetrator of those crimes. In addition to evidence elicited on cross-examination, the defense called two witnesses.
Antioch Police Officer Patrick Mayer testified that Sergeant Stanger told him that a white Dodge Caliber was potentially related to the Check n' Go robberies, and that a car matching that description had been seen on "license plate reader cameras" in a specific area of the city. Mayer drove around that residential area, found the vehicle, and reported the address where the car was parked to Sergeant Stanger. Under cross-examination, Mayer confirmed that the investigators in this case did not have a license plate number for the white Dodge Caliber that was seen in the Check n' Go parking lot on the day of the robberies.
Sheila Lacambra, an investigator employed by the Public Defender's Office, testified that she purchased a BB gun at the request of Boxley's trial counsel. Lacambra went to Dicks Sporting Goods in Pleasant Hill, where a salesman showed her three models. She held all three, took photographs and then purchased one. The imitation guns, which cost between $30 and $119, were heavy, seemed to be made of metal, and appeared to be similar in size and coloring to the weapon shown in the video of the Check n' Go robberies. Lacambra testified that the BB gun she purchased cost $80, and that the salesperson only glanced at her identification before selling it to her. The imitation gun was passed around for the jurors to hold.
DISCUSSION
The issues on appeal pertain solely to the evidence of prior incidents involving real firearms. Boxley contends that evidence should have been excluded under Evidence Code section 1101 (section 1101) because it constitutes improper character evidence. Alternatively, Boxley contends that if the prior act evidence was admissible, the trial court erred by denying a defense request to instruct the jury not to consider this evidence for the purpose of identifying the perpetrator of the Check n' Go robberies. As we explain, neither ruling was error.
I. Additional Background
The parties filed pretrial motions addressing the admissibility of evidence that Boxley used or possessed real firearms in the past. The prosecution sought to present evidence of four prior incidents. In addition to the 2004 and 2010 incidents described in our factual summary, the prosecution proposed to offer evidence of a 2002 incident when Boxley was found in a car with a loaded firearm under his seat, and a 2017 incident when Boxley was in a vehicle in which a bullet was found. The People argued that Boxley's continual and ready access to firearms was relevant to prove that the firearm used in the Check n' Go robberies was a real gun. The prosecutor also invoked the "doctrine of chances" in arguing that the fact that Boxley had repeatedly used real firearms to commit his crimes established a pattern, which was relevant to prove Boxley used a real firearm to commit the 2018 offenses.
The defense argued that the prior crimes and acts identified by the prosecution were bad character evidence, inadmissible to prove criminal disposition. (§ 1101, subd (a).) Moreover, the defense argued, the prior incidents were not probative of any material issue because they shared no common features with the charged offenses, other than the fact that a gun was involved.
The trial court excluded evidence of the 2002 incident because of remoteness and undue consumption of time. The court also excluded the 2017 incident as too dissimilar from the charged offenses. However, the court concluded that the 2004 and 2010 incidents were relevant to prove that the gun used to commit the Check n' Go robberies was a real gun. The court rejected defense counsel's argument that this evidence was too dissimilar to be probative, reasoning that the prosecution's theory that it could show a pattern of behavior implicated the issue of intent, which requires only a low degree of similarity to be probative.
Before evidence of the 2010 incident was presented at trial, the court gave the following limiting instruction based on CALCRIM 375:
The People will present evidence that the defendant committed the offense of possession of a firearm in 2010, an offense that is not one of the charges before the jury in this case. You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the 2010 weapon offense. Proof by a preponderance of the evidence is a different burden than proof beyond a reasonable doubt.
A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. If the People have not met this burden, you must disregard this evidence entirely. If you decide that the defendant committed the possession of a firearm, you may, but are not required to, consider that evidence for the limited purpose of deciding whether the defendant acted with the intent to commit a robbery with the use of a firearm in this case, and/or that the defendant had access to firearms.
In evaluating this evidence, consider the similarity or lack of similarity between the uncharged offense and the charged offenses before you. Do not consider this evidence for any other purpose. Do not conclude from this evidence that the defendant has a bad character or is disposed to commit a crime.
If you conclude that the defendant committed the uncharged offense, that conclusion is only one factor to consider, along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of robbery or that the use of a firearm allegation has been proved. The People must still prove each charge and allegation beyond a reasonable doubt.
Later in the trial, before witnesses testified about the 2004 robbery, the court gave another limiting instruction based on CALCRIM 375. This instruction was customized to address the fact that evidence of the 2004 robbery was being admitted for the separate purpose of proving that Boxley had a prior strike conviction, an allegation that was also to be decided by the jury. The limiting instruction for the 2004 robbery stated:
The People will present evidence that the defendant committed the offense of robbery with a firearm in 2004 that is not a charged incident in this case. However, the 2004 robbery with a firearm evidence is also the basis for two of the alleged enhancements in this case, specifically the enhancement pursuant to Penal Code sections 667(d) and (e), and Penal Code sections 1170.12(b), (c), and the enhancement pursuant to Penal Code section 667(a)(1). Your consideration of this evidence for those enhancements alleged will be addressed in a separate instruction with the burden of proof of beyond a reasonable doubt for all charged enhancement allegations.
You may consider this evidence for the two purposes listed below only if the People have proved, by a preponderance of the evidence, that the defendant, in fact, committed the 2004 robbery with a firearm. Proof by a preponderance of the evidence is a different burden of proof than proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. If the People have not met this burden, you must disregard this evidence entirely.
If you decide that the defendant committed the 2004 robbery with a firearm, you may, but are not required to, consider that evidence for the limited purpose of deciding whether: 1, the defendant acted with the intent to commit a robbery with the use of a firearm in this case, and/or 2, the defendant had access to firearms.
In evaluating this evidence for the two limited purposes listed above, consider the similarity, or lack of similarity, between the 2004 robbery with a firearm and the charged offenses. Do not conclude from this evidence that the defendant has a bad character or is disposed to commit crime.
If you conclude that the defendant committed the 2004 robbery with a firearm, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of the charges of robbery with the use of a firearm. The People must still prove each charge and allegation beyond a reasonable doubt.
Your consideration of this evidence for the alleged enhancements in this case, specifically the enhancement pursuant to Penal Code sections 667(d) and (e) and Penal Code sections 1170.12(b) and (c), and the enhancement pursuant to Penal Code section 667(a)(1) will be addressed in a separate instruction with the burden of proof of beyond a reasonable doubt for all of the charged enhancement allegations.
When the trial court delivered each of these limiting instructions, it told the jurors that they would receive written copies of the instructions prior to their deliberations.
After the close of evidence, Boxley requested that the court modify the limiting instructions to "specifically say that [the jurors] are not allowed to consider this evidence to prove identity." Defense counsel argued that language describing the limited purposes for which the evidence was admitted was confusing, and could lead to the jury to conclude that Boxley was the perpetrator of the robberies. Therefore, the defense asked the court to insert the following sentence after language delineating the limited purposes for which the evidence could be considered:" 'You are not allowed to consider this evidence to prove identity, . . . i.e., the charged defendant is the perpetrator here.' "
The trial court denied Boxley's request to modify the limiting instructions, giving several reasons. First, the court and parties had spent significant time crafting instructions to conform to CALCRIM 375 while also addressing the specific issues pertinent to each uncharged incident. Further, the instructions had already been read to the jury "as accurate statements of the law" and the court believed those instructions were accurate and complete. Finally, changing the instructions would be confusing for the jury, since they were told explicitly that they would receive the previously delivered instructions.
II. Admission of the Prior Conduct Evidence A. Issues on Appeal
Section 1101 codifies the general rule that "[e]vidence of a defendant's commission of other crimes, civil wrongs or bad acts is not admissible to show bad character or predisposition to criminality, but may be admitted to prove some material fact at issue such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident." (People v. Cage (2015) 62 Cal.4th 256, 273 (Cage).) Because this type of evidence can be"' "highly inflammatory, its admissibility should be scrutinized with great care." '" (Ibid.) "Specifically, the uncharged act must be relevant to prove a fact at issue (Evid. Code, § 210), and its admission must not be unduly prejudicial, confusing, or time consuming (Evid. Code, § 352)." (People v. Leon (2015) 61 Cal.4th 569, 597-598 (Leon).)
Thus, "the admissibility of uncharged crimes evidence depends upon consideration of three factors: (1) materiality of the facts to be proved; (2) probative value, or the tendency of the uncharged crimes to prove or disprove the material fact; and (3) the existence of any rule or policy requiring the exclusion of relevant evidence such as prejudicial effect or other Evidence Code section 352 concerns." (People v. Winkler (2020) 56 Cal.App.5th 1102, 1143; People v. Clark (2021) 62 Cal.App.5th 939, 957 (Clark).) In the present case, Boxley contends that the trial court misapplied each of these factors. We review rulings the trial court made under section 1101 for abuse of discretion. (People v. Lenart (2004) 32 Cal.4th 1107, 1123.)
B. Materiality of Issues to Be Proved
"The first factor in determining the admissibility of uncharged act evidence is the materiality of the facts sought to be proved. [Citation.] 'In order to satisfy the requirement of materiality, the fact sought to be proved or disproved must be either an ultimate fact or an intermediate fact from which such ultimate fact may be inferred. [Citation.] Elements of the offense and defenses are ultimate facts.' [Citation.] Motive and the absence of mistake are intermediate facts." (Clark, supra, 62 Cal.App.5th at pp. 957-958.)
In this case, the prosecution was permitted to use the prior act evidence to prove two discrete facts: that Boxley had access to real firearms, and that Boxley intended to use a firearm to commit the charged robberies. The record shows that both facts were material.
As a preliminary matter, Boxley acknowledges expressly that there was a material factual dispute as to whether the gun used in the Check n' Go robberies was a real firearm as opposed to a toy or a pellet or BB gun. Because the robbery charges incorporated allegations that the robber personally used a firearm, the prosecutor had the burden of proving beyond a reasonable doubt that the gun used to commit the Check n' Go robberies was a real firearm. (People v. Law (2011) 195 Cal.App.4th 976, 983.) And one of Boxley's defenses was that the gun, which was never recovered, could have been a toy or a BB gun. Thus, establishing that a real gun was used to commit the robberies was not only material but an ultimate fact the prosecution was required to prove.
By the same reasoning, Boxley's access to real firearms was also a material fact. Under the prosecution's theory of the case, access to real firearms was an intermediate fact offered to prove the ultimate fact that the gun used in the Check n' Go robberies was real. An intermediate fact satisfies the materiality test if it" 'tends logically and reasonably to prove an ultimate fact.'" (Clark, supra, 62 Cal.App.5th at p. 960, italics omitted.) The requirement was satisfied here; establishing that Boxley had access to weapons would tend to prove that he used a real weapon to commit the charged offenses. On appeal, Boxley does not contend otherwise.
However, Boxley does challenge the materiality of the second purpose for which the uncharged conduct was admitted. He contends the trial court erred by permitting the jury to consider this evidence for the additional purpose of evaluating his intent. According to this argument, there was no material dispute that the person who committed the Check n' Go robberies intended permanently to deprive his victims of money by means of force or fear. (See § 211.)
A defendant's plea of not guilty puts "in issue all of the elements of the offenses, including his intent." (People v. Balcom (1994) 7 Cal.4th 414, 422423.) Moreover, the" '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. Jones (2011) 51 Cal.4th 346, 372.) However, when the evidence otherwise establishes a crime was committed with the requisite intent, such that there is no dispute about the matter, uncharged act evidence probative of intent should not be admitted for that purpose because the issue itself is not subject to a material dispute. (Balcom, at p. 423; see also People v. Malone (1988) 47 Cal.3d 1, 17-18.)
Here, the prior acts evidence was admitted for the purpose of proving the intent element of "robbery with the use of a firearm." (Italics added.) The robbery charges incorporated allegations that Boxley personally used a handgun to commit his crimes. Thus, the prosecution had the burden of proving that Boxley" 'intentionally'" used a firearm in the commission of the charged crimes. (People v. Wardell (2008) 162 Cal.App.4th 1484, 1494-1495 (Wardell).) The jury was instructed with CALCRIM No. 3146 that a defendant personally uses a firearm by "intentionally" displaying it in a menacing manner, hitting someone with it, or firing it. Thus, there was a material question as to whether Boxley intended to use a firearm to commit the robberies, that is, whether he "intentionally" wielded a real gun "in a menacing manner."
These personal gun use allegations were disputed at trial. Indeed, a central component of the defense was that the prosecution failed to prove that the gun used at Check n' Go was real. This was not a novel defense; it is not unusual for a robbery victim to be unable to testify definitively as to whether the weapon used by his or her assailant was "a real firearm or an imitation." (People. v. Monjaras (2008) 164 Cal.App.4th 1432, 1436.) On the other hand, the law is settled that "[c]ircumstantial evidence alone is sufficient to support a finding that an object used by a robber was a firearm." (Ibid.) Thus, the trial court could admit evidence of the prior acts as circumstantial evidence that in this case Boxley intended to use a firearm, rather than an imitation, to commit the robberies.
Boxley contends otherwise only by focusing on a different issue of intent. He insists that the robber's intent permanently to deprive his victims of money by use of force or fear "was obvious," such that prior acts evidence of this intent was cumulative and therefore not relevant to a "disputed" issue. (See People v. Hendrix (2013) 214 Cal.App.4th 216, 244-245.) The argument might be persuasive were we to focus strictly on the issue of the robber's intent to steal, but the argument entirely misses the pertinent question of intent in this case-whether the robber intended to use a firearm in committing these robberies. Boxley replies that the trial court's explanation to the jury of the limited purpose for which it could consider this evidence allowed it only for the issue of intent to commit robbery, not for use of a firearm. We think Boxley parses the instruction too finely. The trial court told the jury it could consider evidence of the prior acts in deciding whether "the defendant acted with the intent to commit a robbery with the use of a firearm." This formulation encompasses an intent both "to commit a robbery" and to do so "with the use of a firearm." If the evidence was cumulative as to the first of these intents, it was not cumulative as to the second.
With regard to intent to use a firearm, Boxley makes two additional arguments. He points out that the gun enhancement for personal use is a general intent crime, for which no specific intent need be established. (See Wardell, supra, 162 Cal.App.4th at pp. 1495-1496 [discussing Pen. Code, § 12022.5, subd. (a)].) This is true, but irrelevant. Even a general intent crime requires proof that the defendant committed the proscribed act-use of a real firearm-" 'intentionally or on purpose.'" (Wardell, at pp. 1493-1494, italics omitted [quoting CALCRIM 252].) Boxley also argues that the intent required by the firearm enhancement is an intent to "use" the firearm, as opposed to simply having it in one's possession. (Citing People v. Bland (1995) 10 Cal.4th 991, 996-997, italics omitted.) Thus, he posits, this intent requirement has nothing to do with whether the firearm was real. This argument construes the intent issue too narrowly. To prove the enhancements, the prosecutor had to establish that Boxley intentionally used an actual firearm to commit the robberies. It could not have carried that burden by proving, for example, that Boxley intentionally used a toy gun to commit the robberies.
C. Relevancy
"Evidence of other crimes is admissible only if relevant to prove a material fact at issue, separate from criminal propensity." (People v. Demetrulias (2006) 39 Cal.4th 1, 14.)" '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. Foster (2010) 50 Cal.4th 1301, 1328.) However, section 1101 does not limit the use of uncharged conduct to these discrete issues, and the degree of similarity required to prove other material facts is not so clear. For example, "the probativeness of other-crimes evidence on the issue of motive does not necessarily depend on similarities between the charged and uncharged crimes, so long as the offenses have a direct logical nexus." (Demetrulias, at p. 15.)
In the present case, the record supports a finding that the prior incidents involving actual firearms were probative of the intent element of the personal gun use allegations." 'The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent.'" (People v. McCurdy (2014) 59 Cal.4th 1063, 1096 (McCurdy).)" '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.'" '" (Id. at pp. 1096-1097.)" '" '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.'" '" (People v. Chhoun (2021) 11 Cal.5th 1, 27.) Here, evidence that Boxley used real firearms to commit his prior offenses could support a reasonable inference that he intentionally used a real firearm to commit the charged robberies.
This same factual nexus supports the trial court's finding that the prior incidents are probative of Boxley's access to real firearms. Evidence that these prior incidents involved real guns as opposed to toy or imitation weapons could support a reasonable inference that the gun used to commit the Check n' Go robberies was real. Boxley disputes this conclusion, contending that his prior offenses are "not probative to show" that he had access to firearms for several reasons. (Boldface omitted.)
First, Boxley argues that his prior offenses share no common features with the charged crimes that would support an inference that they are all manifestations of the same common plan. (Citing People v. Jackson (2016) 1 Cal.5th 269, 303.) As Jackson explains, uncharged conduct that is similar to a charged offense may be relevant if it supports an inference that the current charge is part of a broader criminal plan as opposed to a series of spontaneous criminal acts. (Id. at pp. 302-303.) In the present case, the prosecution referred to a common plan theory in its pretrial motion, but the trial court did not find that the prior incidents are probative of a common plan, nor did it instruct the jury that uncharged conduct evidence was being admitted for that purpose. Thus, Boxley's contention that his prior crimes are not evidence of a common plan or scheme misses the mark.
The parties debate whether the uncharged conduct was admissible under the doctrine of chances, "which holds that the more often one does something, the more likely that doing was so intended." (People v. Winkler, supra, 56 Cal.App.5th at p. 1135.) The doctrine has been described as a "probability-based calculation that arises from a history of prior similar acts." (People v. Spector (2011) 194 Cal.App.4th 1335, 1379.) Although the prosecution invoked the doctrine, the trial court did not rely on it as an independent basis for admitting the uncharged evidence, or instruct the jury about it. Accordingly, we need not decide whether this doctrine separately justifies the challenged ruling.
Next, Boxley contends that any finding that the uncharged conduct was probative of a material issue rests on an impermissible "assumption" that Boxley was the perpetrator of the Check n' Go robberies. Such an assumption is fundamentally unfair, Boxley argues, because identity "was one of the two main issues at trial." Our Supreme Court has repeatedly rejected similar claims that identity must be conceded or that the trial court must be able to assume the defendant was the perpetrator of the charged crime before admitting uncharged act evidence for an otherwise proper purpose. (Leon, supra, 61 Cal.4th at p. 599; see e.g., McCurdy, supra, 59 Cal.4th at p. 1097 ["The admission of evidence of the perpetrator's intent requires neither the defendant to concede identity nor the trial court to assume that the defendant committed both sets of acts"].)
Citing People v. Ewoldt (1994) 7 Cal.4th 380, Boxley contends that the trial court erred by admitting the uncharged act evidence "ostensibly [to] prove the gun enhancements" when the evidence would not have been admissible to prove identity, which was the primary disputed issue in this case. This argument rests on the premise that the evidence was not admissible for the limited purposes articulated by the trial court, a premise that Boxley fails to prove. Boxley misapplies language in Ewoldt, which addresses a problem that arises when the uncharged act evidence is admitted to prove an issue that is not in dispute. (Ewoldt, at p. 406.) For example, when there is no dispute that a crime occurred and the primary dispute is whether the defendant was the perpetrator, admitting uncharged conduct evidence of a common plan or scheme would be cumulative and could be highly prejudicial if the uncharged acts are not sufficiently similar to the charged offense to be probative of identity. (Ibid.) Here, the uncharged conduct was not admitted as common plan evidence but as probative of the disputed issue whether the gun used in the robberies was a real firearm.
Boxley also contends that the only "connection" to firearms in the prior offenses was his "constructive possession," by virtue of the fact that he was found in a car with a firearm. We disagree. The 2004 incident involved an armed robbery, not mere constructive possession of a firearm. Moreover, although testimony about the 2010 traffic stop focused on the discovery of a gun under the seat of a car, the jury was also told that the incident resulted in Boxley's felony conviction for carrying that firearm. In any event, the pertinent connections in the uncharged conduct evidence are that firearms were real, and that Boxley had access to them, facts that do not turn on whether Boxley actually held the firearms or simply had them in his possession.
Boxley relies on Clark, supra, 62 Cal.App.5th 939. That case arose out of a series of robberies at a construction work site, that were committed with a gun that was never found. (Id. at pp. 945-946, 948.) A jury convicted two defendants of robbery charges with firearm enhancements and of being felons in possession of a firearm. On appeal, defendants argued the trial court erred by admitting evidence of one defendant's prior juvenile adjudication for being a prohibited person in possession of a firearm. (Id. at p. 944.) During the uncharged incident, gang enforcement officers stopped a car in which the defendant was a passenger, and found a loaded handgun underneath the driver's seat. (Id. at p. 951.) The trial court admitted this evidence as probative of knowledge and motive, accepting the prosecution's theories that (1) the defendants had a motive to get rid of the firearm used in the robberies because they knew the consequences of possessing a firearm, given the fact that they were felons, and (2) the defendants knew they were using a real gun, not a fake gun. (Id. at pp. 953-955.)
The Clark court reversed the defendants' convictions for being felons in possession of a handgun and other firearm enhancements, finding that the admission of the uncharged prior gun possession under section 1101, subdivision (b) was prejudicial error. (Clark, supra, 62 Cal.App.5th at p. 944.) Pertinent here, the court found that knowledge was a material disputed issue; the knowledge element of possession of a firearm by a felon required the prosecutor to prove that the defendants knew that the object pointed at the victims was a firearm. (Id. at pp. 958-959.) However, the uncharged prior gun possession was not probative of knowledge because, among other things, it was based on constructive possession, and there was no direct connection linking the prior incident to the prosecutor's theory that the defendants must have known the gun they used in the current offenses was real. (Id. at p. 964.) The prosecution's motive theory was even more problematic. The prosecutor argued that the prior incident explained why defendants would dispose of a real gun, but that issue was not material since the defendants were not charged with disposing of a gun. Moreover, the prosecutor's theory of relevance was circular since it assumed the very fact it purported to prove, i.e., that the gun was real. (Ibid.)
In contrast to Clark, Boxley's prior acts were not admitted for the purpose of proving that Boxley previously learned the difference between a real and an imitation firearm, or that Boxley had a motive for disposing of the gun. Instead, the evidence was admitted to prove that Boxley had access to real weapons, and that he intended to use a firearm, not a toy, to commit the robberies at Check n' Go. Moreover, Boxley made access to real firearms a component of his defense, when he presented expert, percipient, and demonstrative evidence regarding the ready availability of imitation weapons. As a counterweight to this showing, the uncharged act evidence enabled the prosecution to show that Boxley had access to real firearms.
Finally, Boxley characterizes his prior crimes as too remote. Although remoteness is "a relevant factor for the court to consider in exercising its discretion [citation], the time gap alone does not compel exclusion" of uncharged conduct evidence. (People v. Cordova (2015) 62 Cal.4th 104, 133; see People v. Branch (2001) 91 Cal.App.4th 274, 284 ["No specific time limits have been established for determining when an uncharged offense is so remote as to be inadmissible"].) Here, Boxley relies on the fact that years had passed since his prior convictions, but he fails to explain how the passage of time diminishes the significance of evidence that guns he used to commit offenses in the past were actual firearms as opposed to toys or imitation guns.
D. Undue Prejudice
"The third factor to consider in determining the admissibility of uncharged act evidence is the existence of any rule or policy requiring the exclusion of relevant evidence, i.e., prejudicial effect or other Evidence Code section 352 concerns." (Clark, supra, 62 Cal.App.5th at p. 966.)
The trial court did not abuse its discretion by concluding that the probative value of the two prior incidents was not outweighed by other concerns. The prior acts evidence was neither time-consuming nor confusing. Nor was there an overriding danger of unfair prejudice."' "In applying section 352, 'prejudicial' is not synonymous with 'damaging.'"' [Citation.] '" '[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant's case.'"' [Citation.] The 'prejudice' which section 352 seeks to avoid is that which '" 'uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues.'" '" (Cage, supra, 62 Cal.4th at p. 275, italics omitted.) Here, the 2004 and 2010 incidents were damaging to the extent they undermined the defense theory that an imitation gun was used to commit the Check n' Go robberies, but nothing about this evidence tended to evoke an unfair emotional bias against Boxley. Boxley's participation in the prior crimes was no more egregious or offensive than the crimes for which Boxley was on trial; indeed one of the prior offenses involved no victim at all.
Boxley contends that the uncharged conduct evidence was unduly prejudicial because it was likely used by the jury to resolve the disputed issue of identity. Notably, Boxley does not point to anything in the record suggesting that the evidence was used for this improper purpose. Instead, he intimates that the very fact that he disputed identity makes it likely that the jury used the uncharged act evidence to decide that he was the perpetrator of the robberies. We disagree with this logic. First, the jury was instructed repeatedly about the limited purpose of the uncharged conduct evidence, and we find nothing in the record to indicate the jury violated that directive. (See e.g. People v. Estrada (2022) 77 Cal.App.5th 941, 948 [assumption on appeal is that" 'the jury followed the instructions rather than disregarding them' "].)
Moreover, the record shows that the prosecution presented strong evidence regarding the identity of the perpetrator that was not related in any way to the uncharged conduct, including surveillance video, fingerprint evidence, a handwritten note detailing a medical appointment made in his name, a banking document in his friend's name, and cellphone mapping. That the jury deliberated for two days before completing its task does not establish that the identity of the robber (as opposed to the nature of the weapon he brandished) was difficult to determine.
III. The Jury Instructions
Boxley contends the trial court committed a separate error by denying his request to add a sentence to the limiting instructions regarding the prior acts evidence in order to instruct the jury that it could not consider this evidence as probative of identity.
"A trial court must instruct the jury, even without a request, on all general principles of law that are' "closely and openly connected to the facts and that are necessary for the jury's understanding of the case." '" (People v. Hovarter (2008) 44 Cal.4th 983, 1021 (Hovarter).) "We determine whether a jury instruction correctly states the law under the independent or de novo standard of review." (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.)"' "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.'" (Ibid.)
The limiting instructions at issue here were versions of CALCRIM 375. Boxley does not challenge the accuracy or completeness of this standard instruction. Indeed, Boxley does not object to any specific language in either instruction. Instead, he argues that rejecting his proposed addendum deprived him of his right to a pinpoint instruction regarding his defense.
A pinpoint instruction "relate[s] particular facts to a legal issue in the case or 'pinpoint[s]' the crux of a defendant's case." (People v. Saille (1991) 54 Cal.3d 1103, 1119.) Generally, the defendant is entitled to an instruction pinpointing the theory of the defense. (Hovarter, supra, 44 Cal.4th at p. 1021.) But Boxley did not propose an instruction that pinpointed his defense. He sought instead to modify a standard CALCRIM jury instruction that already stated the jury was to consider the prior acts evidence only for certain limited purposes. That is how CALCRIM 375 is designed-to specify the limited purposes for which the evidence is admitted, not to specify purposes that may not be considered. Boxley was free to point out some purpose for which this evidence should not be considered during his closing arguments, but he cites no authority requiring the court to incorporate that argument into a standard jury instruction.
Even if we were to treat Boxley's request as a pinpoint instruction, the trial court is not required to give an instruction offered by the defendant if it is duplicative of an instruction that is already being given, such as when the pertinent legal principle is addressed in a general way in a pattern instruction. (See e.g. People v. Moon (2005) 37 Cal.4th 1, 30-31.) Here, Boxley's proposed modification was duplicative because the jury received explicit instruction regarding the limited purposes for which they could (but were not required) to consider the uncharged conduct evidence. This implicitly told them not to consider the evidence in deciding other issues.
Moreover, the jury was also instructed with CALCRIM 303 that "[d]uring the trial, certain evidence was admitted for a limited purpose. You may consider that evidence only for that purpose and for no other." This directive was repeated in the limiting instruction pertaining to the 2010 incident; after listing the limited purposes for which that evidence could potentially be considered, the instruction states: "Do not consider this evidence for any other purpose." Moreover, both limiting instructions state that the uncharged incidents may not be used to conclude that Boxley "has a bad character or is disposed to commit crime."
This directive was not included in the limiting instruction pertaining to the 2004 incident because evidence of the 2004 incident was being admitted for another purpose-to prove the allegation of a strike conviction- that was addressed in a separate instruction.
Citing People v. Fudge (1994) 7 Cal.4th 1075, 1110, Boxley intimates that the trial court violated an obligation to modify the proposed instruction to tailor it to the facts of this case. No such violation occurred here, where the single sentence insert that Boxley requested was duplicative. As the trial court explained, making that change to the limiting instructions that had already been delivered would have been confusing because the previously delivered instructions were accurate statements of the law, covered adequately the pertinent legal principles, and had already been promised in written form to the jury.
Finally, we conclude that any error in refusing to make the proposed modification to the limiting instructions was harmless because it is not reasonably probable that the outcome of this case would have been different if the proposed modification had been made. (See People v. Pearson (2012) 53 Cal.4th 306, 325 [applying state law prejudice test to court's refusal to give legally correct pinpoint instruction].) As Boxley concedes, during closing argument, defense counsel emphasized language in the limiting instructions that restricted the jury's use of the prior acts evidence, and she also made her point that the jury could not use the uncharged conduct to find that Boxley had access to firearms unless it first concluded that Boxley was the perpetrator of the robbery. There was strong evidence that Boxley committed the charged robberies, evidence that had nothing to do with the uncharged conduct. Instructing the jury not to consider the uncharged conduct as probative of identity would not have changed the state of the evidence. Nor in our view would it have altered the outcome of this case.
IV. Resentencing
In a supplemental brief, Boxley contends he is entitled to resentencing due to amendments to section 1170 that went into effect on January 1, 2022. (See Sen. Bill No. 567 (2021-2022 Reg. Sess.); Stats. 2021, ch. 731, § 1.3; Assem. Bill No. 124 (2021-2022 Reg. Sess.); Stats. 2021, ch. 695, § 5.)
Specifically, section 1170, subdivision (b)(6), has been amended to make the lower term the presumptive term for a prison sentence when specific circumstances exist. Under this provision, "unless the court finds that the aggravating circumstances outweigh the mitigating circumstances [such] that imposition of the lower term would be contrary to the interests of justice, the court shall order imposition of the lower term if any of the following was a contributing factor in the commission of the offense: [¶] (A) The person has experienced psychological, physical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence." (§ 1170, subd. (b)(6)(A).) Boxley contends that he is entitled to a determination by the trial court as to whether these factors contributed to the commission of his offenses.
As the People concede, amended section 1170 applies retroactively to cases that are on appeal and, therefore, the matter should be remanded for the trial court to resentence Boxley under the new law. (Citing e.g. In re Estrada (1965) 63 Cal.2d 740; In re Sheena K. (2007) 40 Cal.4th 875, 885.) Therefore, we will remand the matter for the trial court to apply this new provision in the first instance.
DISPOSITION
This case is remanded for the trial court to resentence Boxley under the amended statute. In all other respects, the judgment is affirmed.
WE CONCUR: PETROU, J. RODRÍGUEZ, J.