Opinion
D072130
06-25-2018
THE PEOPLE, Plaintiff and Respondent, v. ERIC CARTE, Defendant and Appellant.
Denise M. Rudasill, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Seth Friedman and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD264447) APPEAL from a judgment of the Superior Court of San Diego County, Lorna A. Alksne, Judge. Affirmed. Denise M. Rudasill, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Seth Friedman and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant and appellant Eric Carte of two counts of felony vandalism and as to each count, found true allegations that over $400 in damage was inflicted at the site, the historic Marston House that is owned by the City of San Diego. (Pen. Code, § 594, subds. (a), (b)(1).) Allegations were found true that Carte had suffered two 1995 felony prior convictions that made him presumptively ineligible for probation. (Pen. Code, § 1203, subd. (e)(4).) Carte was placed on formal probation, conditioned on his serving 365 days in jail and submitting to specified terms of probation.
On appeal, Carte challenges the admission of certain testimony from the longtime manager of the Marston House, recounting complaints she received from other guests about his behavior during the past 10 years and why she had asked him to leave the property about 20 times. Carte argues the testimony was improper under the trial court's ruling in limine that had prohibited evidence about his prior convictions or arrests. (Evid. Code, §§ 352, 1101, subd. (b).) He claims it unfairly implied his prior misbehavior was equivalent to "other crimes" type of evidence, and it was so prejudicial that this testimony should have been excluded, with or without his objection.
All further statutory references are to the Evidence Code unless noted. Section 1101, subdivision (b) provides that evidence a defendant has committed an offense, although inadmissible to demonstrate a disposition to commit crimes, may be received to establish, e.g., motive, identity, intent, or plan.
As we will explain, the Marston House manager was properly allowed to testify about her 30-some interactions with Carte over the past 10 years, and about how she had authority under a special use permit to ask persons who engaged in illegal conduct or harassment of others to leave the property. She had asked Carte to leave the premises about 20 times, sometimes using the assistance of police for that purpose. This evidence was properly admitted as relevant toward establishing he had a motive for the vandalism incidents, and was not cumulative or unduly prejudicial. (People v. Thompson (2016) 1 Cal.5th 1043, 1114 (Thompson) [prior acts evidence admissible to establish motive where a direct relationship exists between the prior acts and elements of the charged offense]; People v. Lewis (2001) 25 Cal.4th 610, 637 (Lewis) [probative value of uncharged offense evidence must be substantial and not be outweighed by probability of undue prejudice].)
Carte next challenges the imposition of a probation condition requiring him to obtain approval from the probation officer for his residency and employment. He contends it is unconstitutionally overbroad, such that his lack of an objection below does not prevent this appellate claim. (In re Sheena K. (2007) 40 Cal.4th 875, 890 (Sheena K.) [probation condition limiting constitutional rights must be narrowly tailored to promote its purpose, to avoid unconstitutional overbreadth].) Effectively, Carte has only argued that in view of his particular situation, the trial court erroneously exercised its authority. However, he did not create a record to allow us to evaluate whether this otherwise lawful condition was inappropriately imposed, and we therefore apply traditional objection and waiver principles and treat this appellate argument as forfeited. (People v. Welch (1993) 5 Cal.4th 228, 236 (Welch).) We affirm the judgment.
I
BACKGROUND
A. Incidents
Carte has lived in San Diego since 1985, and after leaving the military in 1992, he has been homeless or looked homeless at times. Since then, he visited the Marston House a few times a week to read or meditate, sometimes after going to Alcoholics Anonymous (AA) meetings in nearby Balboa Park.
Since 2010, Robert Veres has been the Marston House caretaker, living at the three-story house located on five acres of land, which are both open to the public during certain hours, such as for tours that begin around 10 a.m. Veres often saw Carte at the site. At some point in March or April 2015, Veres learned from an employee that Carte was visiting an art show, and had been lying on the floor there or sitting on a bench. Veres told him he needed to leave because he was not acting interested in the art show and seemed to be annoying other people there.
A day or two later, Veres was standing by the front door waiting for people who wanted to tour the house and Carte approached or "came at" him, without any obvious reason to do so. Veres told him not to stay by the front door and that unless he was trying to cause problems he could go somewhere else on the property. Veres had about two to four such face-to-face interactions with Carte, prior to the events giving rise to these charges.
About 8:30 on the morning of July 26, 2015, Veres was upstairs at the house and heard a noise that sounded like someone was "slamming and breaking stuff." He went to the first floor, saw broken glass and rocks coming through four or five windows, and called 911. He could see Carte standing about 15 feet away from the house in front of an oak tree, seeming to wait for someone to come outside, and he described Carte to police. When they responded, Officer Rivera took Veres' statement and collected two of the rocks as evidence. No suspects were found in the area. Veres called Sarai Johnson, the manager of the Marston House, who viewed the damage from the rocks, which were larger than a softball but smaller than a basketball.
Johnson returned to the Marston House property for work the next day, July 27, 2015. While she was at the on-site shop, she saw Carte walking by, saying some taunting words and making insulting gestures. She took a video on her phone and showed it to police, who cautioned her against inflaming the situation when a person was acting aggressively.
Three days later, about 8:30 a.m. on July 30, 2015, Veres heard a loud banging noise and saw Carte walking on the driveway, possibly towards the park entrance. Veres found the dining room window's safety glass had been damaged by a five to six pound rock lying outside, which had not been there before, and he called the police. Johnson was called to the house to view the damage but she did not see Carte on the property that day.
When police responded, they took Veres' description of Carte as a suspect and collected the rock as evidence, later sending it to the laboratory for DNA testing. Officer Theresa Tews found Carte walking along Balboa Drive towards the patrol car and detained him, although he tried to walk away and was uncooperative. She interviewed him, recording the encounter on a body-worn camera, and reviewed the recording to refresh her recollection. Carte told her that Veres was always calling the cops on him, and Carte was willing to settle it with him one to one, such as in a fight. Carte told her he did not know why he had been stopped and he did not commit a crime.
Marston House staff obtained an estimate to repair the damage to the windows, for a total of $1,994 in materials, labor, and tax.
B. Evidence at Trial
Several members of the Marston House staff testified about the window breaking incidents. In addition to Veres giving his description of the events, Johnson testified about coming to the site and viewing the damage. Before her testimony, the trial court ruled on the People's motion in limine seeking to admit percipient witness testimony as to the nature of Carte's prior interactions at the Marston House, as evidence of his motive to commit vandalism. Defense counsel reserved the right to object if the evidence became cumulative. The court allowed the testimony but with the limitation that the prosecutor could not inquire into any prior arrests or convictions, only previous contacts.
Johnson testified that for years, she had been keeping a log of incidents that occurred at the property. She had about 30 negative interactions with Carte over the past 10 years, after she observed him harassing other guests, such as telling them they should leave the property. Sometimes guests complained to her about his conduct and she had to remedy the situation by asking him to leave the premises, or sometimes, she called police if he was acting agitated. Out of those 30 incidents in which he was always unpleasant toward her, she had to ask him to leave 20 times, or get the police to do so. When he left, he would normally make loud, ominous sounding statements to her about having the right to come back again, which she interpreted as threats. Once he told her that he did not like her face and that she would look better if she would smile, or else.
Johnson then explained that one of her duties as the manager is to enforce the special use permit conditions under which the Marston House is open to the public. Its staff is allowed to monitor the activity that happens at the site and to refuse service to any public members that are causing a nuisance. As the manager, Johnson would typically tell someone they are not welcome to stay on the grounds when they are doing illegal activity. Defense counsel objected to the prosecutor's efforts to get the manager to define illegal activity, and instead, Johnson was allowed to explain that she had previously asked Carte to leave the grounds approximately 20-plus times, according to her authority under the permit. Defense counsel objected again but was overruled.
On cross-examination, Johnson repeated that they had an ongoing issue with Carte at the Marston House and that she had told police on July 26 that she thought Carte was responsible for the damage, even though she did not see him that day. She later took a video of him as he was saying taunting words to her and flipping her off. A police officer later told her that doing so with an individual who was acting erratically could have jeopardized her safety.
After Carte was arrested and gave a DNA sample, a police department criminalist tested the rock that was collected from the Marston House on July 30, 2015, and compared it to Carte's DNA. His report concluded that a partial DNA profile from his swab of the surface of the rock included Carte as a possible source of the DNA that was recovered from the rock (sweat). No such DNA evidence was obtained from the rocks collected from the July 26, 2015 incident.
In his defense, Carte testified he normally sat in a gazebo in a garden at the Marston House, but on the day of the art exhibit, he had to sit elsewhere because people were painting in the area. Veres told him to leave that day, even though Carte was just reading on a bench, possibly because Veres did not like homeless people. On July 27, Johnson had berated and belittled him and asked him to leave, even though he was just sitting there reading. Carte said he never threatened or intimidated either Veres or Johnson, and did not have hard feelings toward them. He did not remember going to the Marston House on July 26 and denied throwing any rocks at it. On July 30, he was walking to visit there after his AA meeting, but was intercepted by police when he tried to go read in the garden. He explained that when he told the officer who detained him that Veres was a liar who had pushed him too far, he meant that Veres was going to get bad karma because of his own actions.
At the conclusion of testimony, the jury was given instructions that included CALCRIM No. 370, for evaluating evidence about motive. The jury was told that no proof of motive was required, but in reaching a verdict, it could "consider whether the defendant had a motive. [¶] Having a motive may be a factor tending to show that the defendant is guilty. Not having a motive may be a factor tending to show the defendant is not guilty." It also received CALCRIM No. 375, on how to evaluate the People's evidence of other behavior by the defendant that was not charged in this case, i.e., "Multiple prior interactions where Defendant was asked to leave the property." The jurors were told to decide if the defendant committed the uncharged acts, and if so, whether they clarified any motive he had to commit the alleged offenses. To define the elements of vandalism, the court gave CALCRIM No. 2900, requiring proof that Carte "maliciously damaged or destroyed" property that he did not own, and explaining, "[s]omeone acts maliciously when he or she intentionally does a wrongful act or when he or she acts with the unlawful intent to annoy or injure someone else."
After deliberations, the jury found Carte guilty of both counts of vandalism that each caused over $400 in damage. Imposition of sentence was suspended and he was placed on three years of formal probation subject to certain terms, including staying away from the Marston House. He appeals.
II
PROPENSITY EVIDENCE
Carte first argues it was error for the trial court to allow the prosecutor to obtain evidence, during Johnson's testimony, that she told people to leave the property if they were engaged in "illegal activity" there. Since she also testified she had previously told Carte to leave on 20 different occasions and had the power to do so under the applicable permit, he contends an inference could unfairly be drawn that he had a propensity toward criminal conduct. He argues such an inference would be contrary to the trial court's previous ruling in limine that evidence of prior convictions or arrests was inadmissible. His trial counsel objected to only some of the testimony, but he argues those objections sufficiently preserved his appellate claims, and if not, he should receive relief on grounds of ineffective assistance of counsel. (People v. Torres (1995) 33 Cal.App.4th 37, 48-49 (Torres); Strickland v. Washington (1984) 466 U.S. 668, 688.)
A. Legal Principles
"Subdivision (a) of section 1101 prohibits admission of evidence of a person's character, including evidence of character in the form of specific instances of uncharged misconduct, to prove the conduct of that person on a specified occasion." (People v. Ewoldt (1994) 7 Cal.4th 380, 393 (Ewoldt).) Subdivision (b) of that section "clarifies, however, that this rule does not prohibit admission of evidence of uncharged misconduct when such evidence is relevant to establish some fact other than the person's character or disposition." (Ewoldt, supra, at p. 393.) For example, evidence about 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).)
" ' "When reviewing the admission of evidence of other offenses, a court must consider: (1) the materiality of the fact to be proved or disproved, (2) the probative value of the other crime evidence to prove or disprove the fact, and (3) the existence of any rule or policy requiring exclusion even if the evidence is relevant." ' " (Thompson, supra, 1 Cal.5th at p. 1114.) For admissibility, there must be a clear connection between the uncharged bad conduct and the ultimate fact in dispute. (Ibid.)
In this case, the testimony about Carte's prior bad conduct evidence, as known to Johnson, was offered to show he had a motive to damage the Marston House property. Motive is considered to be " 'an intermediate fact which may be probative of such ultimate issues as intent [citation], identity [citation], or commission of the criminal act itself.' " (Cage, supra, 62 Cal.4th at p. 274.) When such evidence is introduced to show motive, "the other crimes or conduct evidence may be dissimilar to the charged offenses provided there is a direct relationship or nexus between it and the current alleged crimes." (Ibid.; see People v. Roldan (2005) 35 Cal.4th 646, 707 [motive evidence can make the offense understandable and support reasonable inferences regarding defendant's intent].)
Even where section 1101 does not require exclusion of the prior act evidence, a further inquiry under section 352 is required because such evidence " 'is so prejudicial that its admission requires extremely careful analysis.' " (Ewoldt, supra, 7 Cal.4th at p. 404.) "The prejudice which exclusion of evidence under . . . section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. '[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant's case. The stronger the evidence, the more it is "prejudicial." The "prejudice" referred to in . . . section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying . . . section 352, "prejudicial" is not synonymous with "damaging." ' " (People v. Karis (1988) 46 Cal.3d 612, 638.)
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." --------
We review the trial court's rulings under sections 1101 and 352 for an abuse of discretion. (Cage, supra, 62 Cal.4th 256, 274; Lewis, supra, 25 Cal.4th 610, 637; Thompson, supra, 1 Cal.5th 1043, 1114.) "Because evidence of a defendant's commission of other crimes, wrongs, or bad acts ' "may be highly inflammatory, its admissibility should be scrutinized with great care." ' " (Cage, supra, at p. 273.)
B. Analysis
We examine this ruling in light of the trial court's grant of the motion in limine to permit inquiry into Johnson's prior contacts with Carte, to show her familiarity with him, but not to show he had any prior arrests or convictions. We first ask if the prior acts evidence was relevant on issues of motive and if it adequately showed a link between the past acts and present charges. The People's theory of the case was that Carte maliciously damaged the Marston House because he was angry that its staff was attempting to exclude him from the property and had called police on him. His anger was relevant as showing he had a motive to commit the offense and did so with the requisite intent. (CALCRIM No. 2900.)
Johnson testified, without defense objection, that she would typically tell people they are not welcome to stay on the grounds when they are engaged in "illegal activity." The court sustained defense counsel's objection to the prosecutor's efforts to get the manager to define illegal activity, and referenced its prior ruling in limine. Johnson was allowed to explain that she had previously asked Carte to leave the grounds approximately 20-plus times, according to her authority under the permit. Defense counsel brought another objection but it was overruled. During cross-examination, Johnson repeated that they had an ongoing issue with Carte's behavior at the premises.
In Carte's attorney's closing argument, she urged the jury to consider each count separately, and said it was unclear if the same person committed each act of vandalism. Counsel said the prior uncharged conduct instruction could be confusing and the jury was not really there to determine whether the prior interactions happened, and a lower standard of proof applied than would be required for the charged vandalism counts. (CALCRIM No. 375.)
Carte contends that Johnson's references to illegal acts did not apply to any material fact in issue about the current offenses, nor did they tend to prove a material issue of his motive. He claims there is an insufficient connection between the two sets of activities to show he had a motive to retaliate in some way against the Marston House or its staff. He suggests that if the staff had been justified in excluding him, such as if his previous acts had been shown to be illegal, then he would not have had a motive in existence, for objecting to being excluded from the property at the time that the charges arose.
Carte further suggests the evidence was more prejudicial than probative, because neither Veres nor Johnson or other staff members saw him with a rock in his hand on either day the damage occurred. Veres was somewhat equivocal about identifying the perpetrator during his reports to police and during trial, and described him differently at different times.
Respectfully, we disagree that any evidentiary error occurred. There is a clear connection between the uncharged prior instances of removal from the premises and the ultimate facts in dispute, about identity, malicious intent and motive for vandalism. (Thompson, supra, 1 Cal.5th 1043, 1114.) Under the use permit, Johnson had the responsibility for responding to guests' complaints, which were sometimes about Carte causing a nuisance. She made it clear that she did not call the police in every instance, leading to inferences that it was not necessarily criminal behavior by Carte that required her response. The prior incidents of disruptive behavior that led to having Carte removed from the premises provided important evidence about why he might have ultimately decided to damage the building. Although motive was not an ultimate fact put at issue by the charges or the defense in this case, it was probative of the material issues of identity and intent. (Cage, supra, 62 Cal.4th 256, 274.) If the jury believed the evidence Johnson supplied about her log of incidents and that over 10 years, she had around 30 negative interactions with Carte and asked him to leave 20 times, such evidence was relevant to show that Carte had a basis for developing hard feelings toward the staff at the premises, and possibly a motive for vandalism. He had objected to being removed previously and had not been quiet about it, and a logical inference from the evidence of his prior disruptive behavior would be that Carte decided to retaliate in some way for his treatment at the premises, as he perceived it.
Here, as in Cage, "[a] direct relationship or nexus, thus, existed between the prior incidents and the charged crimes." (Cage, supra, 62 Cal.4th 256, 274.) This evidence went squarely to the issues of whether Carte was the individual who committed each act of vandalism and whether, in his own mind, he had reason to do so, based on his history at this particular property. Moreover, this was not unduly prejudicial evidence offered solely to evoke an emotional bias against the defendant as an individual. (Id. at p. 275.) It was similar to the charged offenses and had probative value that the court could reasonably find outweighed any possibility of undue confusion of issues. (People v. Branch (2001) 91 Cal.App.4th 274, 282.) The uncharged conduct evidence was not presented as objectively criminal or very inflammatory in nature, and the evidence and challenges took up a relatively short amount of trial time. (Ibid.) No abuse of discretion under either sections 1101 or 352 is apparent.
Because we conclude the testimony was properly admitted on the issue of motive, we need not address Carte's additional contentions that he sufficiently preserved his objections on propensity grounds to each of the challenged instances of testimony, or that if he did not, issues of ineffective assistance of counsel or deprivation of due process became relevant. (Torres, supra, 33 Cal.App.4th 37, 48-49.) It is not reasonably likely that he would have achieved a better result at trial if the testimony in question had been excluded, and we need not address harmless error issues. (Id. at p. 49.)
III
PROBATION CONDITION CLAIMS
A. Contentions
The trial court placed Carte on formal probation, imposing a number of conditions that included condition 10g and related terms. In condition 6j, he was required to report changes in address or employment to the probation officer and to court collections authorities. In 10j, he was prohibited from contacting the two Marston House witnesses, Johnson and Veres. Defense counsel did not object to those conditions, or to one requiring him to stay away from the Marston House. Carte was not foreclosed from leaving California to return to Minnesota, where his wife lives.
On appeal, Carte objects to a condition to which he raised no objection below, 10g, requiring him to obtain the probation officer's approval of his residence and employment. Carte argues it is unconstitutionally overbroad and thus can be reviewed on appeal without any objection appearing in the record. Anticipating the People may raise a forfeiture argument, Carte contends he is asserting constitutional overbreadth grounds that do not require an objection below. (See Sheena K., supra, 40 Cal.4th at p. 889 [traditional objection and waiver principles apply to proposed conditions of probation, unless circumstances present " ' "pure questions of law that can be resolved without reference to the particular sentencing record developed in the trial court." ' "].)
B. Analysis
"If a probation condition serves to rehabilitate and protect public safety, the condition may 'impinge upon a constitutional right otherwise enjoyed by the probationer, who is "not entitled to the same degree of constitutional protection as other citizens." ' " (People v. O'Neil (2008) 165 Cal.App.4th 1351, 1355; People v. Bauer (1989) 211 Cal.App.3d 937, 942 (Bauer) [if otherwise valid condition of probation adversely affects the exercise of constitutional rights, it must be reasonably related to compelling state interest in rehabilitation].)
Effectively, Carte has only argued to this court that in view of his particular residence and employment situation, the trial court exercised its authority erroneously. He likewise claims that the two related conditions imposed, 6j and 10j, should adequately serve the needs of probation supervision, so the disputed condition 10g should be stricken on appeal. However, such a condition requiring approval of a probationer's residence has been upheld on appeal. In People v. Arevalo (2018) 19 Cal.App.5th 652, 657-658, Division Three of this court found a residence restriction to be valid in the face of a challenge it was overbroad. (See People v. Stapleton (2017) 9 Cal.App.5th 989, 996 [probation officer "cannot use the residence condition to arbitrarily disapprove a defendant's place of residence"].)
The record on appeal sheds no light on why defense counsel failed to raise the objection now being argued. This omission has denied this court a proper record on which we could evaluate this challenge. The record does include the probation report, which indicates Carte has a history of a nomadic lifestyle and unemployment, and assesses him as having a risk of recidivism. The report suggests that Carte will benefit from probation supervision, in guidance, monitoring and referrals to community resources. If the requested sanctions were imposed, Carte might arguably become motivated to find a suitable housing arrangement and to secure some form of employment, in an effort to avoid similar situations in the future. On the face of the record, it is reasonable to conclude that the probation department would benefit from an order allowing it the opportunity to evaluate Carte's choice of residence and employment, in order to supervise him and attempt to prevent similar future conduct.
Accordingly, the challenged condition is not facially unconstitutional, and might be so only if the record reflected it was too intrusive into protected conduct. We would need to consider Carte's crimes and criminal history to ascertain whether condition 10g is overbroad. Thus, this argument requires review of the record and forfeiture applies. (Sheena K., supra, 40 Cal.4th at p. 881; Welch, supra, 5 Cal.4th 228 at p. 237.) Carte has not raised an effective challenge here.
DISPOSITION
The judgment is affirmed.
HUFFMAN, Acting P. J. WE CONCUR: AARON, J. IRION, J.