Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. BAF004837. Michele D. Levine, Judge.
Gregory Marshall, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting and Theodore M. Cropley, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MILLER, J.
A jury found defendant Victor Garcia Espinoza guilty of one count of robbery. (Pen. Code, § 211.) The jury found true the allegation that defendant personally used a firearm during the commission of the robbery. (§ 12022.5, subd. (a).) The jury also found true the allegation that the robbery constituted a serious felony. (§ 1192.7, subd. (c)(8).) The trial court found true the allegation that defendant suffered two prior strike convictions. (§§ 667, subd. (c), 1170.12, subd. (c)(2)(A).) The trial court sentenced defendant to state prison for an indeterminate term of 29 years to life. Defendant contends that the trial court erred by admitting evidence of his two prior theft offenses. We affirm the judgment.
All further statutory references will be to the Penal Code, unless indicated.
FACTUAL AND PROCEDURAL HISTORY
We present the facts of defendant’s current offense, followed by the facts of defendant’s prior offenses, and then the facts of the disputed evidentiary ruling.
A. CURRENT OFFENSE
1. PROSECUTION’S CASE
We start with the case presented by the prosecution. On April 19, 2006, at approximately 3:30 p.m., the victim was working in the tow yard of Empire Towing in Beaumont. Defendant walked into the tow yard and approached the victim. Defendant asked to use the victim’s cell phone, in order to call the victim’s boss. The victim did not know defendant, but the victim allowed defendant to use his phone, because he thought defendant knew his boss. The victim walked away while defendant used the phone. Eventually, the victim walked back towards defendant and asked for his phone. At that point, defendant drew a handgun, pointed it at the victim’s face, and instructed the victim to empty his pockets. The victim gave defendant the $20 bill that he had in his pocket; then the victim and defendant walked away from one another.
At one point, the prosecutor referred to the incident occurring in the year 2008; we infer from our review of the record that the prosecutor misspoke when citing the year 2008.
The victim’s boss testified that he knew defendant “all his life” because they grew up in the same neighborhood.
The victim told his coworker that he had just been robbed. As defendant walked out of the tow yard, the victim pointed out defendant to his coworker. The coworker recognized defendant, and knew defendant’s name, because defendant had previously been to the tow yard to buy a vehicle. The coworker called the police. When the police were at the tow yard investigating the robbery, the victim saw defendant walking across the street. The victim told the police “that’s who did it.” After a pursuit, in which defendant jumped over a fence, defendant was arrested. The police found a $20 bill in defendant’s front pants pocket. The victim’s cell phone was later found approximately half a block from the tow yard along a curb.
2. DEFENSE CASE
We now present defendant’s version of the events. Defendant was in a car accident during the week prior to April 19, 2006. The truck, in which defendant had been a passenger, was towed to Empire Towing’s yard. While defendant was drunk, he walked to the tow yard to retrieve his CDs from the truck. Defendant did not find his CDs in the truck. Defendant saw the victim walking by, and he asked to use the victim’s cell phone in order to speak to the victim’s boss. The victim gave defendant his cell phone, and defendant spoke to the victim’s boss.
When the phone conversation was finished, the victim asked defendant if defendant could find amphetamines or methamphetamines for the victim. Defendant said that he could get the drugs for the victim. The victim gave defendant $20 so that defendant could buy the drugs. Defendant left to get the drugs. Defendant did not point a gun at the victim. When defendant returned to the tow yard with the drugs, he saw the police. Defendant was on parole at the time, and had failed to take his required drug tests. Defendant was afraid to be sent to prison for violating the terms of his parole, so he ran from the police.
B. FIRST PRIOR OFFENSE
In March 1998, Susan was in the side yard of her home in Beaumont, working on her pool equipment. Defendant and another man entered Susan’s yard through a hole or loose boards in her wooden fence. One of the men asked Susan, “‘Do you have any yard work?’” Susan responded, “‘No, we don’t have any now. Why don’t you come back next month.’” The men walked towards Susan, and she asked them to leave. At that point, one of the men grabbed Susan from behind and restrained her by holding her neck. One of the men yelled, “‘Give me some money, bitch.’” Susan said, “‘I don’t have any money.’” One of the men instructed Susan to turn out her pockets, and she did, showing the men that she did not have any money. Susan then began to scream. One of the men said, “‘Shut up, bitch.’” Susan continued to scream, and the men ran away. Susan reported the incident to the police.
In the instant case, defendant testified that he was drunk when he attempted to rob Susan, and could not remember the incident.
C. SECOND PRIOR OFFENSE
In 2002, Joe was in Rangel Park, in Beaumont, waiting for a ride. Defendant and two other men approached Joe. One of the men asked Joe, “‘What are you doing here, white boy?’” Joe had marijuana, so he asked the men if they would like to smoke marijuana with him. The men said, “‘Yeah. Let’s go in the bathroom.’” Joe agreed.
When Joe, defendant, and the other two men entered the bathroom, defendant removed a gun from his waistband. Another man held a knife. Defendant stepped closer to the victim, and said, “‘Take off your shoes, your watch, empty out your pockets, and we’re taking your weed.’” Joe complied. Defendant and the two other men took Joe’s ring, watch, wallet, shoes, and cash. Defendant and the two men laughed, one of the men put on Joe’s shoes, and all three injected themselves with hypodermic needles. After injecting themselves, defendant and the three men walked to a house across the street and drank beer. Joe reported the incident to the police.
During the instant case, defendant testified that when he arrived at the park, he saw one of his cousins, George, talking to Joe by the bathrooms. Joe and George then entered the bathroom, and defendant stood near the entrance to the bathroom. Defendant saw Joe and George smoking marijuana and injecting methamphetamines. Defendant did not join in the drug use, because he was required to take drug tests as a term of his parole. Defendant did not have a gun, he did not threaten Joe, and he did not take Joe’s property.
D. EVIDENTIARY RULING
During motions in limine the prosecutor moved to present evidence of three of defendant’s prior offenses. (Evid. Code, § 1101, subd. (b).) The offenses involved the two prior crimes described ante, and an incident in which defendant robbed a nine-year-old child of his bicycle. Specifically, in March 1998, the child was riding his bicycle in Beaumont, when he was approached by defendant and another man. Defendant said, “‘Give me your bike.’” The child refused and tried to ride away. Defendant grabbed the child’s arm, punched the child’s head, pulled the child off the bike, and threw him on the ground.
The prosecution argued that the evidence of the three prior offenses was relevant for the purpose of proving defendant’s intent. Specifically, the prosecutor asserted that the prior offense evidence showed that defendant’s intent was to permanently deprive the victim of his cell phone. The prosecutor argued that, because defendant claimed the victim voluntarily gave him the cell phone, the issue of defendant’s intent to permanently deprive was at issue.
Defendant’s trial attorney conceded that the prior offense evidence was probative on the issues of intent, modus operandi, and lack of mistake. However, defendant’s trial attorney asserted that the prior offense evidence was more prejudicial than probative. (Evid. Code, § 352.)
The trial court noted that the attempted robbery incident involving Susan was similar to the instant offense, because defendant demanded that Susan and the victim empty their pockets. The trial court found that the similarity between the two events was highly probative for purposes of proving intent. Further, the court found that the prejudicial value was low, and therefore the probative value was not substantially outweighed by the possible undue prejudice.
The trial court found that the robbery involving Joe was similar to the instant offense, because defendant brandished a firearm during both crimes. Additionally, the court remarked that the robbery of Joe did not present a stronger fact pattern than the current offense, because both incidents involved guns. The court concluded that the probative value of the prior offense evidence was “quite high.” The trial court held that the prejudicial impact of the evidence was “much lower, especially in light of giving the limiting instruction.”
The trial court did not permit evidence of the prior incident involving the nine-year-old child to be presented to the jury because it found that the prejudicial effect of a child victim would substantially outweigh the probative value of the evidence.
DISCUSSION
Defendant contends that the trial court erred by permitting the prosecution to present evidence of defendant’s two prior offenses. We disagree.
Evidence of prior, uncharged, misconduct is not permitted for the purposes of proving a defendant’s character or disposition to commit an offense. (Evid. Code, § 1101, subds. (a) & (b).) However, uncharged misconduct evidence may be presented to the trier of fact “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, fn. omitted (Ewoldt).)
When determining whether uncharged misconduct evidence should be admitted, a trial court must perform a three-step analysis. (People v. Tapia (1994) 25 Cal.App.4th 984, 1021.) First, the court must determine “‘the materiality of the fact sought to be proved or disproved.’” (Ibid, italics omitted.) Second, the court needs to analyze “‘the tendency of the uncharged crime to prove or disprove the material fact.’” (Ibid.) Third, the court must evaluate whether “the probative value of the evidence... 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.’ (Evid. Code, § 352.)” (Ewoldt, supra, 7 Cal.4th at p. 404.)
We review the trial court’s ruling to determine if the court abused its discretion. (People v. Hovarter (2008) 44 Cal.4th 983, 1003.) “A trial court abuses its discretion when its ruling ‘“fall[s] ‘outside the bounds of reason.’”’ [Citation.]” (People v. Benavides (2005) 35 Cal.4th 69, 88.)
A. MATERIAL FACTS
The trial court found that the uncharged offense evidence was probative for purposes of proving defendant’s intent. The trial court reasoned that defendant’s intent was a material fact because, in a statement to police, defendant claimed that the victim voluntarily gave him the cell phone and he kept it by mistake, i.e., that he had an innocent intent.
The element of intent is crucial when a defendant concedes committing the offensive act, but argues that the act was accomplished with an innocent state of mind. (Ewoldt, supra, 7 Cal.4th at p. 394, fn. 2.)
It was reasonable for the trial court to conclude that intent was a material fact, because defendant claimed that he had an innocent state of mind when taking the victim’s cell phone, and the prosecution was required to prove that defendant harbored the intent to permanently deprive the victim of his phone. (§ 211; People v. Smith (2009) 177 Cal.App.4th 1478, 1489-1490 [describing the element of intent].) In sum, the element of intent was disputed; therefore, defendant’s intent was a material fact.
B. TENDENCY TO PROVE OR DISPROVE CRIMINAL INTENT
Next, the trial court concluded that the uncharged misconduct evidence involving Susan tended to prove that defendant had a criminal intent when committing the instant offense, because defendant told the victim and Susan to empty their pockets. The trial court found that the uncharged misconduct involving Joe tended to prove that defendant had a criminal intent in the instant case, because defendant brandished a gun during both incidents.
In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant “‘“probably harbor[ed] the same intent in each instance.” [Citations.]’ [Citation.]” (Ewoldt, supra, 7 Cal.4th at p. 402.) Uncharged misconduct evidence can demonstrate that a defendant probably harbored the same intent in each instance because “‘[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.]” (Id. at p. 402.)
In the crimes against Susan and the victim, defendant asked for the property in their pockets. Therefore, the evidence of the prior offense involving Susan tended to show that defendant probably harbored the same intent during both offenses, because defendant made nearly identical requests to Susan and the victim, who both accused defendant of trying to permanently deprive them of their possessions, and the recurrence of a similar result tends to negate defendant’s claim that he had an innocent state of mind in the instant case.
In the crimes against Joe and the victim, defendant brandished a firearm and took the property in their pockets. The evidence of the prior offense involving Joe tended to show that defendant probably harbored the same intent during both offenses because defendant took similar actions during both incidents, and both men accused defendant of trying to permanently deprive them of their possessions.
In sum, the trial court’s conclusion that the prior offense evidence tended to prove the element of intent was reasonable, because the prior offenses were sufficiently similar to support the inference that the defendant probably harbored the same intent in each instance.
C. PROBATIVE VALUE AND PREJUDICIAL EFFECT
We now review the trial court’s evaluation of the probative value and prejudicial effect of the evidence.
1. SUSAN
The prior incident involving Susan was an attempted robbery that occurred on a residential property. It is not likely that the jury would have been confused by this uncharged offense evidence because the crime involved a different victim, in a different setting, and the robbery was not completed.
In regard to the jury being misled: prior to Susan’s testimony, the trial court instructed the jury that the prior offense evidence was to be used “for the limited purpose of deciding whether or not the defendant acted with the intent required to prove the [charged offense] of robbery in this case.” Given the clarity of the instruction, and the fact that it was given immediately prior to Susan’s testimony, it is unlikely that the jury was misled by the uncharged offense evidence.
Finally, it is unlikely that the prior offense evidence involving Susan created a substantial risk of undue prejudice, because the robbery was not completed and a firearm was not used; therefore, the crime against Susan appeared to be a lesser offense than the crime in the instant case.
In sum, the trial court’s evaluation of the probative value and prejudicial effect of the evidence was reasonable, because the evidence was pertinent to the element of intent, and did not tend to evoke confusion or an emotional bias against defendant. (See People v. Barnett (1998) 17 Cal.4th 1044, 1118-1119 [reaching a similar conclusion].)
2. JOE
Next, we review the court’s weighing of the probative value and possible prejudicial effect as it relates to defendant’s prior offense against Joe.
It is unlikely that the jury would confuse the issues of the charged and uncharged offenses, because the crimes involved different victims, in different places—a park versus a tow yard—and defendant took different items from the victim than he took from Joe.
Further, immediately prior to Joe’s testimony, the trial court reminded the jury that prior offense evidence was to be used for the limited purpose of deciding whether defendant acted with the intent required to prove the charged offense in the instant case. Therefore, given the first limiting instruction, and the reminder limiting instruction, it is unlikely that the jury was misled by the prior offense evidence.
Finally, it is unlikely that the prior offense evidence involving Joe created a substantial risk of undue prejudice, because in the instant case defendant pointed the gun at the victim’s face, while in the prior case, defendant showed Joe the gun in his waistband or removed a gun from his waistband, but there was no evidence that defendant pointed the gun at Joe. Further, in both cases, defendant took almost everything of value that the men had. For example, in the instant case, defendant took the victim’s phone and cash; in Joe’s case, defendant took Joe’s wallet, ring, watch, and shoes. Therefore, the crime against Joe was not more inflammatory or serious than the crime charged. Accordingly, it was reasonable for the trial court to conclude that probative value of the uncharged offense evidence substantially outweighed the possibility of prejudice, because the evidence was pertinent to the element of intent, and did not tend to evoke confusion or an emotional bias against defendant. (See People v. Barnett, supra,17 Cal.4th at pp. 1118-1119 [reaching a similar conclusion].)
D. CONCLUSION
In conclusion, the trial court’s rulings on the uncharged offense evidence displayed a thorough understanding of the charged and uncharged offenses, as well as the prosecution’s and the defense’s theories of the evidence. The trial court cited the correct factors for analyzing whether uncharged offense evidence should be admitted, and the trial court relied on those factors and its understanding of the evidence when making its rulings. Accordingly, the trial court’s decisions were rational and within the bounds of reason; therefore, we conclude that the trial court did not err.
E. DEFENDANT’S ARGUMENT
Defendant contends that the trial court erred by admitting evidence of his prior offenses because the property at issue in the robbery was the $20 bill, not the cell phone, and since the prior offense was admitted to show defendant’s intent to permanently deprive the victim of his cell phone, the evidence should have been excluded.
Defendant’s argument is not persuasive for two reasons. First, during motions in limine, defendant conceded that the prior offense evidence was probative on the issues of intent, modus operandi, and lack of mistake. Accordingly, defendant’s argument that the evidence is not probative on the issue of intent appears specious.
Second, during closing arguments, the prosecutor repeatedly referred to defendant’s actions of taking the $20 bill and the cell phone. When arguing the elements of “personal property in the possession of another” (§ 211), the prosecutor said, “Now, obviously, when we’re talking here, we’re talking about the possession of the $20 bill and the possession of the cell phone.” When arguing the element of “taking” (§ 211), the prosecutor said, “obviously when this defendant left the tow yard with both the cell phone and the $20 bill, he took that property from the victim.” Next, when presenting the element of “force or fear” (§ 211), the prosecutor argued that “defendant used force or fear in order to get that $20 bill or that cell phone.”
Finally, when arguing about the element of intent to permanently deprive, the prosecutor said, “It doesn’t matter that we’re only talking about $20. It doesn’t matter that we’re only talking about a cell phone.... [¶] The defendant left the tow yard with the phone. At no time did he attempt to return the cell phone to the victim, and this property value is more than just, you know, the minimal value of the cell phone. It’s also a business employee’s responsibility to take care of the—of the property for the business owner. So by taking the cell phone, he’s not only taking it from [the victim], but he’s also removing the ability for Empire Towing to conduct business.”
In sum, the prosecutor’s arguments repeatedly referred to defendant’s taking of the cell phone. Therefore, we are not persuaded by defendant’s argument that his taking of the cell phone was inconsequential to the trial. Accordingly, we conclude that the trial court did not err by admitting the prior offense evidence.
DISPOSITION
The judgment is affirmed.
We concur: McKINSTER Acting P. J., RICHLI J.