Opinion
C081962
05-01-2017
THE PEOPLE, Plaintiff and Respondent, v. CRAIG JOHN CROW, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CRF157408)
A jury found defendant Craig John Crow guilty of felony vandalism. On appeal he contends the trial court improperly admitted evidence of uncharged acts of vandalism. Defendant further contends the jury instruction regarding the uncharged offenses was improper. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
At 10:00 p.m. on December 17, 2015, Tim Grooms was driving his car under a railroad overpass when, out of the corner of his eye, he saw something hit his car. Someone near the entrance to the raised pedestrian tunnel above had thrown a chair at the passenger side of his car. Grooms's girlfriend, Nomin "Julia" Boldbaatar, was also in the car and saw someone swing something toward the car and then heard a loud thud. Grooms pulled over at the next stoplight and noticed the car's side mirror had been knocked off and the passenger side was dented and scratched. The car received $2,206 in damages.
Grooms saw two men on the underpass, including Adrian Ang, and approached them. Ang told Grooms he had seen the second man holding a chair while standing just outside the pedestrian tunnel under the railroad overpass. Grooms saw the second man coming from where the chair had been thrown and asked him whether he threw it. The man seemed "very, very drunk" and was "rambling about some random things" that "made no sense," including that they were being watched by people with satellites. Ang also heard the man say strange things about being recorded. The man grew angry and shoved Grooms.
After the incident, Boldbaatar remained in the car until she noticed that the man who threw the object at the car was becoming aggressive toward Grooms. She went to check on Grooms and called the police. As she walked over, she saw an object in the middle of the road which she first thought was a rock but then realized was a metal chair. Boldbaatar saw the chair again the next day by the side of the road when she was on her way to school.
When the police arrived about 10 minutes after the incident, Grooms identified defendant as the man who he believed damaged his vehicle. In addition, Boldbaatar and Ang both identified defendant to police as the man they saw holding the chair. Boldbaatar took photos of the man who threw the chair at the car and showed them to the police. Ang, Boldbaatar, and Grooms all identified for police the man in Boldbaatar's photos as defendant. Defendant, who showed signs of being intoxicated, was arrested. Although responding Officer Derek Russell spent 10 to 15 minutes searching the scene after he had returned from transporting defendant to the detention facility, he was unable to find the object that damaged Grooms's car. Russell testified there was a supermarket with chairs outside near where the incident happened.
At trial, neither Ang, Boldbaatar, nor Grooms recognized defendant in the courtroom, but Officer Derek Russell testified that defendant had changed his appearance since the incident, including cutting his hair shorter and being clean-shaven. During trial, Ang, Boldbaatar, and Grooms identified defendant in photos taken the night of the incident by police and Boldbaatar identified the man as the one who threw the chair.
Prior to trial, the prosecutor moved to admit evidence under Evidence Code section 1101, subdivision (b), that defendant had committed two prior uncharged acts of vandalism against vehicles: (1) on February 13, 2014, defendant used a knife to slash tires of parked cars, and (2) on March 26, 2014, defendant threw a garbage can at a parked car. Defendant was convicted of vandalism for the March 26 incident, while the case against defendant for the February 13 incident was dismissed. The prosecutor argued these two acts were admissible to prove intent, common design or plan, and absence of mistake or accident. Defense counsel objected, arguing the incidents were not sufficiently similar to support admission because the mechanism of accomplishing the vandalism was different, with the uncharged acts involving parked cars, a knife, and a trash can, versus a chair and a moving vehicle at issue in this case. The trial court found the evidence admissible, reasoning it was more probative than prejudicial.
At trial, one eyewitness and one police officer briefly testified about each of the two uncharged acts of vandalism. Riley Edwards testified he was outside a bar on February 13, 2014, and saw a man slashing parked cars' tires. The man said strange and nonsensical things to Edwards, and when Edwards confronted him, the man got "too close to [him]" making Edwards retreat to his car for safety. Edwards identified defendant to police as the man he saw slashing tires. Vikki Bailey testified she saw a man on March 26, 2014, screaming at a parked vehicle. He then picked up a garbage can and threw it into the front driver's side door of a parked vehicle. The police arrested defendant, and Bailey confirmed for police that he was the person who threw the garbage can.
After all the evidence had been presented, the trial court discussed jury instructions with the parties, including an instruction regarding defendant's prior acts of vandalism. The trial court agreed with the prosecutor's proposed CALCRIM No. 375 instruction, which instructed the jury it could consider the evidence for the limited purpose of determining identity, intent, and common plan. During the conference, the prosecutor orally identified these proposed purposes and the court responded, "Okay." Defense counsel repeated he did not agree with the court's ruling regarding admitting the evidence and suggested he "might have some comments" on the instruction in the morning, after he had an opportunity to do research. There is no indication defense counsel made any further objections regarding the instruction.
The jury was instructed per CALCRIM No. 375 that it could only consider the uncharged offense evidence for the limited purpose of determining "whether or not the defendant was the person who committed the offense alleged in this case, or the defendant acted with the intent to maliciously damage or destroy real or personal property in this case, or the defendant had a plan to commit the offense alleged in this case." Further, the trial court instructed the jury that it could only consider the uncharged offenses if it concluded that the People proved defendant committed them by a preponderance of the evidence; that if the jury concluded defendant committed the uncharged offenses, that conclusion is just one factor to consider along with the other evidence; and that that evidence is not sufficient by itself to prove defendant is guilty of the charged offenses.
A jury found defendant guilty of vandalism and found that the amount of the damage was $400 or more. Defendant admitted a prior prison term. The trial court sentenced defendant to two years for the vandalism plus one year for the prison prior, with one year to be served in county jail and the remainder to be under mandatory supervision.
DISCUSSION
I
Evidence Of Prior Acts Of Vandalism
Defendant contends the trial court improperly admitted evidence of his prior acts of vandalism. The trial court admitted the prior acts evidence to prove intent, common plan, and absence of mistake or accident. However, the court instructed the jury that it could use the evidence to prove identity, intent, and common plan. We conclude evidence of defendant's prior acts of vandalism was relevant to prove intent, common plan, and absence of mistake or accident.
Defendant analyzes the similarity of his prior acts for the purposes of intent and absence of mistake or fact the same. We do so as well, and our analysis regarding intent equally applies to absence of mistake or fact.
Evidence Code section 1101, subdivision (a) prohibits the admission of evidence of uncharged offenses to prove propensity or disposition to commit the charged crime. (People v. Ewoldt (1994) 7 Cal.4th 380, 393 (Ewoldt); People v. Hendrix (2013) 214 Cal.App.4th 216, 238.) However, Evidence Code section 1101, subdivision (b) provides that such evidence is admissible "when relevant for a noncharacter purpose--that is, when it is relevant to prove some fact other than the defendant's criminal disposition, such as 'motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake [of fact] or accident.' " (Hendrix, at p. 238.) " '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. Lenart (2004) 32 Cal.4th 1107, 1123.)
" 'On appeal, the trial court's determination of this issue, being essentially a determination of relevance, is reviewed for abuse of discretion.' " (People v. Lenart, supra, 32 Cal.4th at p. 1123.) A trial court's determination " 'must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.' " (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)
Ewoldt provides the framework in which to analyze defendant's claim. Ewoldt stated: "The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent. [Citation.] '[T]he recurrence of a similar result . . . tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such an act. . . .' [Citation.] In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant ' "probably harbor[ed] the same intent in each instance." ' " (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. . . . '[T]he difference between requiring similarity, for acts negativing innocent intent, and requiring common features indicating common design, for acts showing design, is a difference of degree rather than of kind; for to be similar involves having common features, and to have common features is merely to have a high degree of similarity.' " (Ewoldt, supra, 7 Cal.4th at pp. 402-403; see also People v. Thomas (2011) 52 Cal.4th 336, 355.) "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, but the plan thus revealed need not be distinctive or unusual." (Ewoldt, at p. 403.)
According to defendant, the prior acts were different from the charged crime as follows: (1) they involved parked cars rather than a moving car; (2) they involved unoccupied cars rather than an occupied car; (3) they occurred in parking lots versus a road; (4) they involved damage to different parts of the cars; (5) they involved different instruments, i.e., a knife, a trash can, and a chair; and (6) they were not close in time. In addition, defendant contends general acts of vandalism involving cars are not unusual or distinctive.
Although the uncharged and charged offenses were dissimilar in some ways, a reasonable court nevertheless could conclude the totality of the similarities was sufficiently similar to admit the evidence to establish intent and common plan or scheme. Defendant targeted cars in each of his three acts of vandalism, two of which he did by throwing a large object at them. He also targeted vehicles at random, none having any connection to him. During each of the offenses, defendant exhibited abnormal behavior, including screaming at a parked car, making strange utterances, and rambling paranoia. He also acted in an aggressive and impulsive manner, failing to calculate his conduct to avoid detection. These common features tend to show that defendant harbored a common plan to blatantly vandalize random cars and also had a malicious intent when throwing a chair in the direction of a car in this case.
Defendant's reliance on Bowen v. Ryan (2008) 163 Cal.App.4th 916, is misplaced. In Bowen, a civil case, a dentist who had treated as many as 45,000 patients during his 28-year career was accused of choking a patient to give him an injection and then shoving him against a wall. (Id. at pp. 918-919.) The patient sought to admit nine other instances of the dentist acting improperly to show the dentist's intent and common scheme of being violent toward uncooperative patients. (Id. at pp. 921-924.) This court concluded the admission of the nine other acts was error because the justification for their admission -- violence toward uncooperative patients -- was too broad, and the testimony of only nine patients out of 45,000 was highly selective. (Id. at p. 925.) Because the dentist's conduct toward each patient was not the same and did not involve restraint to complete a dental procedure; the acts could not be characterized as similar. (Id. at pp. 924-925.) This court further concluded the prior acts could not be admitted to prove intent because the dentist's intent was not at issue. (Id. at p. 925.)
Here, defendant's common plan was not defined as broadly as that found in Bowen. Instead, the prosecution sought to show defendant committed the blatant aggressive vandalism of a random car, as he did in his two prior acts. The similarities of defendant's prior acts did not end with the fact that he vandalized a car, but included the similarities of his particular conduct and statements. This was not the case in Bowen, and thus the evidence was properly admitted to show defendant's common plan. (Bowen v. Ryan, supra, 163 Cal.App.4th at pp. 924-925.)
Further, the trial court properly admitted defendant's prior acts to show his intent. Unlike Bowen, defendant's intent was an issue before the jury. (Bowen v. Ryan, supra, 163 Cal.App.4th at p. 925.) Defendant argues his intent was not in dispute because he denied committing the act of vandalism and the testimony about the crime was sufficient to establish the intent of the perpetrator if the jury found it credible. However, " 'a fact -- like defendant's intent -- generally becomes "disputed" when it is raised by a plea of not guilty or a denial of an allegation. [Citation.] Such a fact remains "disputed" until it is resolved.' [Citation.] [¶] A defendant may seek to limit the admissibility of . . . evidence by stipulating to certain issues. However, defendant did not do so here." (People v. Scott (2011) 52 Cal.4th 452, 471.) Bowen was a civil case and the plaintiff did not have the burden of proving intent beyond a reasonable doubt. Here, the prosecution had the burden of showing defendant acted maliciously; meaning he acted with the unlawful intent to annoy or injure. (CALCRIM No. 2900; see also People v. Kurtenbach (2012) 204 Cal.App.4th 1264, 1282.) Thus, the jury had to make a finding that defendant acted with an unlawful intent in addition to determining whether his act resulted in vandalism. His prior acts tended to prove that he knew the consequences of his actions, and thus acted with an unlawful intent when committing them. (Ewoldt, supra, 7 Cal.4th at p. 402.)
Additionally, defendant's acts were committed relatively close in time to one another, despite his argument to the contrary. Defendant argues over a year and one-half elapsed following his throwing of a garbage can at a parked car and the current offense. Defendant fails to note that he was sentenced to 16 months in prison in July 2014 for the vandalism involving a garbage can. His current offense occurred in December 2015. Although the record does not show when defendant was released from prison, it cannot be said that a significant amount of time elapsed while defendant was out of custody between his prior acts and present offense, as was the case in Bowen. Thus, defendant's prior acts were properly admitted to show his intent.
Defendant's reliance on People v. Balcom (1994) 7 Cal.4th 414, is similarly misplaced. In Balcom, the prosecution argued that evidence the defendant had committed rape in Michigan several weeks earlier was admissible to establish intent for the charged rape. (Balcom, at p. 421.) The Supreme Court disagreed. It found that the other-crime evidence had "limited probative value" on the issue of intent which was "outweighed by the substantial prejudicial effect of such evidence." (Id. at p. 423.) In so holding, the court acknowledged that the defendant's not guilty plea placed all elements (including intent) of the crimes charged at issue. (Id. at pp. 422-423.) Given the particular facts presented, however -- where the victim testified that she was raped after the defendant had placed a gun to her head, while the defendant conceded that the two had had sex but that it had been consensual and had not involved a gun or was otherwise against the victim's will -- the "wholly divergent accounts create[d] no middle ground from which the jury could [have] conclude[d] that [the] defendant committed the proscribed act of engaging in sexual intercourse with the victim against her will by holding a gun to her head, but lacked criminal intent because, for example, he honestly and reasonably, but mistakenly, believed she voluntarily had consented." (Id. at p. 422.) The court nonetheless concluded the other-crime evidence was admissible to show that the defendant had acted with a common design or plan, and that its probative value on that basis outweighed its prejudicial effect. (Id. at pp. 423-427.)
The circumstances in Balcom were different from those present here. Unlike Balcom, where the "wholly divergent accounts create[d] no middle ground" for the jury between a finding of rape (with the requisite intent) and a finding of not guilty on the charge (People v. Balcom, supra, 7 Cal.4th at p. 422), the evidence of defendant's intent was not so unambiguous that the court could conclude that the prosecution, in essence, was relieved of the obligation of proving the element of defendant's unlawful intent to annoy or injure. Ang saw defendant holding a chair right before something hit Grooms's car, and then Grooms and Boldbaatar saw a chair in the street. Whether defendant intentionally threw a chair or whether it fell out of his grasp while walking across the pedestrian bridge was in dispute considering nobody saw defendant throw the chair. Thus, the prosecution was entitled to introduce the prior acts evidence as part of its case that defendant had the intent to throw the chair to effectuate a vandalism.
Neither was the admission of defendant's prior acts unduly prejudicial. "Although a prior criminal act may be relevant for a noncharacter purpose to prove some fact other than the defendant's criminal disposition, the probative value of that evidence may nevertheless be counterbalanced by a [Evidence Code] section 352 concern. Evidence may be excluded under [Evidence Code] section 352 if its probative value is 'substantially outweighed by the probability that its admission [would] . . . create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.' " (People v. Hendrix, supra, 214 Cal.App.4th at p. 238.)
Despite defendant's contentions, the trial court's finding that the probative value of the evidence of the uncharged offenses outweighed any prejudicial effects was within the bounds of reason. The uncharged and charged vandalism shared common characteristics, meaning the evidence of the prior vandalisms were probative in establishing defendant's intent and common plan. Although one of the uncharged acts of vandalism did not result in a conviction, the uncharged acts were no stronger or more inflammatory than the charged vandalism. (People v. Tran (2011) 51 Cal.4th 1040, 1047.) In addition, even though there were four witnesses regarding the uncharged offenses, the testimony was brief and took up relatively little time at trial. Accordingly, the trial court properly admitted evidence of defendant's prior acts for the purpose of showing his intent and common plan or scheme.
II
Ineffective Assistance Of Counsel
Defendant contends the trial court committed instructional error when it instructed the jury that it could use evidence of his prior acts to prove identity of the perpetrator because evidence of his prior acts was never admitted to prove identity. To forestall disposition of the issue on forfeiture grounds, defendant also argues that his counsel was ineffective for failing to object to the jury instruction. We conclude defendant was not prejudiced by his counsel's failure to object to a jury instruction that allowed the jury to use evidence in a way it was never admitted.
To establish ineffective assistance of counsel, a defendant must show counsel's performance was "deficient, in that it fell below an objective standard of reasonableness under prevailing professional norms." (People v. Mai (2013) 57 Cal.4th 986, 1009.) A defendant must also show "resulting prejudice, i.e., a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different." (Ibid.) Further, " 'a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.' " (People v. Carrasco (2014) 59 Cal.4th 924, 982.)
Although, the prosecutor argued during closing argument the jury could use defendant's prior acts to prove he was the person who committed the vandalism, her statements were brief and she also argued eyewitness testimony proved defendant's identity. To be sure, ample evidence apart from defendant's prior acts proved he was the person who threw a chair at Grooms's car. Ang saw defendant holding a chair outside the pedestrian tunnel before Grooms's car was hit with a chair. Boldbaatar saw someone throw something outside the pedestrian tunnel shortly before Grooms's car was hit with a chair. Grooms saw someone throw something from outside the pedestrian tunnel -- the same location where Ang saw defendant with the chair. Grooms also saw defendant without a chair right after something hit his car and Boldbaatar saw a chair in the street. Given that defendant was seen with a chair in his possession in the location something was thrown, and then a chair was seen in the street and not in defendant's possession after something hit Grooms's car, evidence outside defendant's prior acts proved defendant was the person who threw a chair at Groom's car.
Moreover, had trial counsel objected to the jury instruction, the jury would still have heard evidence about defendant's prior acts. As explained, evidence of defendant's prior acts was admissible to show he harbored the requisite intent required by the vandalism statute and he acted with a common scheme or plan to blatantly and aggressively vandalize cars at random. It is not reasonably probable that had the jury been instructed it could only use evidence of defendant's prior acts to prove his intent and common plan it would have found defendant did not throw the chair at Grooms's car. Eyewitness testimony proved defendant's identity. His prior acts were much more relevant to prove his intent and the willfulness of his acts. Accordingly, defendant was not harmed by his counsel's failure to object to the jury instruction.
DISPOSITION
The judgment is affirmed.
/s/_________
Robie, Acting P. J. We concur: /s/_________
Murray, J. /s/_________
Hoch, J.