Opinion
A148582
10-05-2017
THE PEOPLE, Plaintiff and Respondent, v. MIGUEL ANGEL CISNEROS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. SC081029A)
A jury convicted Miguel Angel Cisneros of kidnapping in the commission of a carjacking (Pen. Code, § 209.5, subd. (a)); theft of another vehicle (Veh. Code, § 10851, subd. (a)); resisting arrest (Pen. Code, § 148. subd. (a)(1)); driving recklessly while trying to evade a police officer (Veh. Code, § 2800.3); and "hit and run" driving (Veh. Code, § 20002, subd. (a)). The court found that defendant has a prior serious felony conviction for robbery (Pen. Code, § 667, subds. (a)(1), (d)) and sentenced him to an aggregate prison term of 21 years and 8 months to life. Defendant appeals upon the sole contention that the trial court abused its discretion in admitting evidence of his prior robbery to prove a common plan of robbing motorists at knife point. (Evid. Code, § 1101, subd. (b).) We shall affirm the judgment.
The abstract of judgment incorrectly states the aggregate term to be 20 years and 8 months to life. We shall order it corrected.
Statement of Facts
We provide a short summary of those facts necessary for resolution of the single issue on appeal.
The principal charged offense was kidnapping in the commission of a carjacking perpetrated against Rodel Villanueva. (Pen. Code, § 209.5, subd. (a).) Villanueva testified that he planned to stay overnight at a San Bruno hotel on March 24, 2014 but was called home that afternoon when his mother took ill. Villanueva, who had already checked into the hotel, gathered his belongings and was loading them into his car in the hotel parking lot when he saw defendant walking on the sidewalk. Villanueva testified that defendant appeared homeless and Villanueva, out of kindness, offered defendant his hotel room for the night. Defendant smiled, said "okay," and asked Villanueva to drive him to a friend's house. When Villanueva indicated he did not "want to accommodate him," defendant's demeanor changed. Defendant became agitated and said "Go to the car. Just drive and [do] not say anything." Villanueva was "scared" and complied. Villanueva asked where they were going and defendant said "Just drive, keep going, and don't say anything."
After Villanueva had been driving for about 10 minutes, defendant took a folding knife out of his pocket, opened it to reveal a three- to four-inch blade, and started "playing with it" by rotating the blade in the air. Villanueva asked "Where are we going" and defendant replied "Just keep driving and don't say anything." Villanueva told defendant "I [am] going to stop the vehicle, and if [you] want[], I will give [you] money so I can proceed and go see my mother because she is in critical condition." Defendant replied, "Just keep driving." Villanueva complied, fearing defendant would stab him if he refused. After driving for about another five minutes, the men reached San Mateo and defendant told Villanueva to turn off the main road and stop near a Cal Train station. Defendant told Villanueva, "Give me your wallet, your watch and your necklace." Villanueva refused to give his necklace and defendant pressed the knife against his abdomen, then his throat. Defendant made a downward jabbing gesture with the knife toward Villanueva's neck and said "I'll kill you." Defendant yanked the necklace from his neck. In addition to the necklace, defendant took Villanueva's watch, cell phone and wallet containing Villanueva's driver's license and between $200 and $400 in cash. Defendant told Villanueva, "Get out of the car." Villanueva was afraid defendant would kill him so he exited the car and defendant drove away in it.
Villanueva initially testified that defendant brandished a knife when the men were in the parking lot but later clarified that the knife did not appear until they were in the car. Villanueva testified through a Tagalog interpreter. His testimony was sometimes disjointed and required close questioning to clarify its meaning. --------
The police arrested defendant early the next morning as he came out of the hotel room Villanueva rented. In defendant's possession was the hotel room key and Villanueva's driver's license and cell phone. Defendant was wearing Villanueva's watch and necklace. Villanueva identified defendant from a photographic line-up as the person who kidnapped him and robbed him at knife-point and confirmed the identification in court.
Evidence of a prior robbery was admitted for the limited purpose of deciding whether defendant had a plan or scheme to commit the carjacking and kidnapping of Villanueva. (Evid. Code, § 1101, subd. (b).) Rami Bazouzi testified he was sitting inside his car at a San Bruno gas station on the afternoon of January 20, 2012, when defendant walked up to the driver's side open window, leaned in, made brief conversation and then pointed an unfolded knife blade at him. Defendant grabbed a bag of marijuana from the front passenger seat. Bazouzi put his car in reverse and drove away as defendant ran after him. The police detained defendant and Bazouzi identified him as the robber. The gas station was just one block from the hotel where defendant confronted Villanueva.
Discussion
Evidence of a person's character, including evidence of specific instances of misconduct, is generally "inadmissible when offered to prove his or her conduct on a specific occasion." (Evid. Code, § 1101, subd. (a).) This rule does not bar evidence of prior misconduct "when such evidence is relevant to establish some fact other than the person's character or disposition" (People v. Ewoldt (1994) 7 Cal.4th 380, 393; Evid. Code, § 1101, subd. (b).) " 'Evidence that a defendant committed crimes other than those for which he is on trial is admissible when it is logically, naturally, and by reasonable inference relevant to prove some fact at issue, such as motive, intent, preparation or identity.' " (People v. Fuiava (2012) 53 Cal.4th 622, 667.)
"The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent." (People v. Ewoldt, supra, 7 Cal. 4th at p. 402.) "A greater degree of similarity is required in order to prove the existence of a common design or plan." (Ibid.) "To establish the existence of a common design or plan, the common features must indicate the existence of a plan rather than a series of similar spontaneous acts . . . . [E]vidence that the defendant has committed uncharged criminal acts that are similar to the charged offense may be relevant if these acts demonstrate circumstantially that the defendant committed the charged offense pursuant to the same design or plan he or she used in committing the uncharged acts. . . . [T]he plan need not be unusual or distinctive; it need only exist to support the inference that the defendant employed that plan in committing the charged offense." (Id. at p. 403.)
" 'The trial court judge has the discretion to admit [prior crimes] evidence after weighing the probative value against the prejudicial effect.' " (People v. Fuiava, supra, 53 Cal.4th at p. 667.) A trial court's rulings on relevance and potential prejudicial are reviewed for abuse of discretion. (Ibid.)
The trial court was well within its discretion in finding that evidence of defendant's prior robbery was relevant to prove he planned the carjacking of Villanueva. The incidents are sufficiently similar. The Bazouzi incident occurred on El Camino Real in San Bruno during daylight hours where defendant approached a motorist in a friendly fashion and then threatened him with a folded knife and robbed him of personal property. The current offense occurred during daylight on the same street just one block away. Villanueva was just outside his car when he met defendant who was initially friendly before ordering him into the car where he threatened him with a folded knife and robbed him of personal property. Defendant emphasizes differences between the two incidents, among them the fact that Villanueva initiated the encounter and defendant did not produce the knife at the outset. The common features, however, are sufficient to indicate the existence of a plan to rob Villanueva just as defendant robbed Bazouzi.
Moreover, it is not reasonably probable that a result more favorable to defendant would have been reached had the challenged evidence been excluded. (People v. Watson (1956) 46 Cal.2d 818, 836.) The evidence of the prior robbery was brief and less inflammatory than the circumstances of the current offenses. The court instructed the jury that evidence of the prior robbery could be considered only for the limited purpose of deciding whether defendant had a plan to commit the charged carjacking and kidnapping during a carjacking. (CALCRIM No. 375.) Finally, the evidence supporting the convictions was overwhelming. Defendant was arrested shortly after the incident leaving the hotel room rented by Villanueva with the victim's driver's license and cellphone and wearing his jewelry.
Disposition
The judgment is affirmed. The trial court is directed to amend the abstract of judgment to reflect the correct aggregate prison term of 21 years and 8 months to life, and to forward a certified copy of the corrected abstract to the California Department of Corrections and Rehabilitation.
Pollak, J. We concur: McGuiness, P.J.
Jenkins, J.