Opinion
A151419
12-14-2018
THE PEOPLE, Plaintiff and Respondent, v. CLAYTON GONZALES, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Francisco County Super. Ct. No. 226029)
Clayton Gonzales was convicted by a jury of three counts of residential burglary, one count of commercial burglary, and three counts of grand theft. At trial, the court allowed the prosecution to admit evidence that appellant committed six uncharged crimes to prove he acted with the intent to commit theft in the charged offenses and to prove whether he reasonably and in good faith believed the victims consented to the taking of their property. The court also allowed the admission of one uncharged crime to establish appellant's identity as the perpetrator of certain of the charged offenses. The trial court imposed a four-year midterm sentence on count one (residential burglary) and imposed concurrent sentences on the other six counts.
On appeal, appellant challenges the admission of the uncharged crimes evidence and contends his grand theft sentences should be stayed pursuant to Penal Code section 654. We conclude the trial court erred in admitting uncharged crimes evidence to establish appellant's state of mind, but the error was harmless. We affirm the judgment but modify appellant's sentence.
BACKGROUND
Many of the facts in this section are from this court's reviewing of surveillance videos shown to the jury and entered into evidence in the trial below.
A second amended information charged appellant with crimes committed at three locations in San Francisco as follows: first degree residential burglary (Pen. Code, § 459; counts one, three, and five); grand theft (Pen. Code, § 487, subd. (a); counts two, four, and seven); and commercial burglary (Pen. Code, § 459; count six).
252 9th Street residential burglary and grand theft (counts 1-4)
On May 5, 2016, surveillance video recorded a white male breaking into a multi-unit condominium building at 252 9th Street. He had chin-level sideburns and wore a large watch on his left wrist, a black backpack with a grey stripe on the upper part of each strap, and black Nike shoes with neon green soles and a white Nike swoosh. The man also had a star tattoo on his inner right bicep and wore gloves. He watched the street and sidewalk in front of the building's entrance prior to breaking in, and, about seven minutes after breaking in, he left with a bicycle. He then returned with an accomplice, opened the building door, and pointed his accomplice into the building. The accomplice stole five bicycles and a bag.
38 Moss Street residential burglary (count 5)
On May 10 or 11, 2016, a white male with chin-level sideburns burglarized a multi-unit residential apartment complex at 38 Moss Street. On May 11, employees at the complex noticed a postal service lock box outside had been forced open and damaged. Surveillance video recorded a white male at the entrance. It also recorded a white male attempting to use an elevator that only worked with a resident's key, searching throughout the building, and leaving through an emergency exit with a bicycle. The man wore a black backpack with a grey stripe on each strap, black Nike shoes with neon green soles and a white Nike swoosh, a large watch on his left wrist, and what appeared to be a metallic bracelet on his right wrist.
690 Folsom Street commercial burglary and grand theft (counts 6-7)
On May 18, 2016, a white male burglarized a company at 690 Folsom Street. Surveillance video showed a man with chin-level sideburns approach an entrance door that was closing, turn right, check his surroundings, and then quickly loop back to catch the door. After entering, the man surveyed the street once more before going upstairs, and he exited minutes later with a laptop concealed in his pants. The man had a tattoo on his left bicep and wore sunglasses bearing initials, a large watch on his left wrist, and a metallic bracelet on his right wrist. He also wore a black backpack with one grey stripe on each strap and black Nike shoes with neon green soles and a white Nike swoosh.
The Uncharged Crimes Evidence
Franklin and Clay Streets auto burglary
On May 26, 2016, at about 2:45 a.m., police officers were on patrol in San Francisco when they spotted a Lexus at Franklin and Clay Streets with its alarm blaring and emergency flashers on. The car's window was broken, and appellant stood about five feet from the vehicle with no one else in the vicinity. He had a crowbar and screwdriver in his hand. The officers searched his backpack and found a battery-operated saw used to grind fences and locks, a screwdriver, and cutting pliers. As the officers investigated, they were approached by Miguel Roelants and Julia Knispel who lived nearby.
Franklin Street residential burglary
On May 26, 2016, at about 2:30 a.m., a break-in occurred at the apartment building at on Franklin Street where Roelants and Knispel lived. Knispel heard the garage door opening and trying to close. She stepped onto the fire escape and forced the garage door shut using her remote control. At that time, she looked down and saw a man with dark clothing and a black backpack running out of the garage. She and Roelants went downstairs and discovered the boiler room window was broken, their bicycles were missing, and their bike locks were broken on the floor. They reported the matter to two police officers on patrol in the area.
Appellant was arrested and taken into custody for the residential burglary and the Lexus burglary that night. He wore Nike shoes with neon green soles and a white Nike swoosh, and he had a black backpack with a grey stripe on each strap. He also had sunglasses bearing initials, a large watch, and a chain link metal bracelet.
175 Turk Street burglary
On January 5, 2016, at about 2:00 a.m., appellant walked into a parking structure in San Francisco at 175 Turk Street and started looking into vehicles with a flashlight. He found an unlocked car and started taking items out. The parking attendant called the police, who arrived and searched appellant. Appellant had a glass cutter, glass breaker, and a seat belt cutter in his pocket. He also had three bags of stolen property from the unlocked car.
Cyril Magnin Street auto burglary and commercial burglary
On August 26, 2015, Brian Wisniewski's car was burglarized while parked on the street in San Francisco, and a backpack, laptop, iPad, checkbook, and passport were stolen. Two checks Wisniewski did not write were later cashed, and one of these was made out to appellant. On August 29, police arrested appellant at a Chase Bank when he attempted to cash a check from Wisniewski's account.
Hyatt Regency burglary and theft
On August 29, 2013, surveillance video recorded a burglary at the Hyatt Regency in San Francisco. DVD players and a server were taken. The police lifted finger and palm prints from some of the areas of the hotel where the intruder had been seen on video. The prints were a positive match for appellant. Evidentiary Rulings, Verdict, and Sentence
Over appellant's objection, the trial court allowed admission of the Franklin Street incident to establish the perpetrator's identity for the crimes committed at 252 9th Street and 38 Moss Street. Further, the court admitted this incident and the five others to show appellant acted with the requisite intent in all the charged offenses. The judge instructed the jury it could consider the uncharged offenses only for those limited purposes.
The jury found appellant guilty as charged. The court imposed a four-year midterm sentence on count one and concurrent sentences on the other six counts. This appeal followed.
The court also imposed a concurrent six-year sentence resulting from appellant's guilty plea in a separate case. This part of his sentence is not at issue on appeal.
DISCUSSION
Appellant argues the trial court's admission of evidence of uncharged crimes under Evidence Code sections 1101, subdivision (b) (§ 1101(b)) and 352 was prejudicial error. Evidence that a defendant has committed crimes other than those charged is not admissible to prove the defendant is a person of bad character or has a criminal disposition. (§ 1101, subd. (a).) However, under section 1101(b), uncharged crimes evidence is admissible to prove, among other things, a perpetrator's identity and the intent with which he or she committed the charged crimes if the charged and uncharged crimes are sufficiently similar to support a rational inference of identity or intent, and admission of the evidence does not contravene section 352. (People v. Foster (2010) 50 Cal.4th 1301, 1328.)
All undesignated statutory references are to the Evidence Code.
We review rulings made under sections 1101(b) and 352 for abuse of discretion. (People v. Lewis (2001) 25 Cal.4th 610, 637.) We will not overturn the trial court's ruling in the absence of a showing "the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
I. Admission of the Uncharged Crime on Franklin Street to Show Identity
Appellant argues the uncharged crime on Franklin Street did not share sufficiently distinctive features with the charged offenses at 252 9th Street and 38 Moss Street to prove identity. Viewing the evidence in the light most favorable to the trial court's ruling (see People v. Carter (2005) 36 Cal.4th 1114, 1148 (Carter)), the court did not abuse its discretion by admitting the evidence to prove identity.
For evidence of uncharged crimes to be admitted to prove identity, the pattern and characteristics of the uncharged misconduct and the charged offense " 'must be so unusual and distinctive as to be like a signature' " (People v. Ewoldt (1994) 7 Cal.4th 380, 403, quoting 1 McCormick on Evidence (4th ed. 1992) § 190, pp. 801-803.) The inference "need not depend on one or more unique or nearly unique common features; features of substantial but lesser distinctiveness may yield a distinctive combination when considered together." (People v. Scott (2011) 52 Cal.4th 452, 473.) To be highly distinctive, the charged and uncharged crimes also need not be mirror images. (Carter, supra, 36 Cal.4th at p. 1148.) "Differences in highly distinctive crimes go to the weight of the evidence not its admissibility." (Ibid.)
The offense on Franklin Street shares a sufficiently distinctive combination of features with the charged crimes at 252 9th Street and 38 Moss Street to support an inference the same person committed each. All three incidents involved forced entry into secure areas of multi-unit residential buildings after dark where the perpetrator took only bicycles. The perpetrator of the charged offenses had chin-level sideburns and wore a black backpack with a grey stripe on each strap, black Nike shoes with neon green soles and a white Nike swoosh, and a large watch on his left wrist. Appellant shares the same race, build and chin-level sideburns. He was arrested for the crime Franklin Street with a black backpack with grey stripes on each strap, black Nike shoes with neon green soles and a white Nike swoosh, and a large watch. Each offense occurred in San Francisco in May 2016. The perpetrator at 252 9th Street also had a star tattoo on his inner right bicep like appellant. Though dissimilarities exist, such as the precise method used to force entry into each building, the charged and uncharged offenses, when considered together, yield a sufficiently distinctive combination of features to allow an inference of identity.
Appellant argues the only probative value of the clothing and accessories worn by the perpetrator of the charged offenses lies in their connection to him, not their connection to the Franklin Street burglary. But the fact that the perpetrator in each instance wore similar apparel consisting of certain articles of clothing and accessories that assisted his commission of nighttime burglaries and bike thefts in San Francisco in May 2016 is suggestive of a criminal signature and probative of identity.
We find no error in the trial court's decision not to exclude the offense on Franklin Street under section 352. The evidence had substantial probative value to show identity due to the shared distinctive combination of common features and temporal proximity to the charged offenses, and because its sources of evidence were independent of the sources of evidence for the charged offenses. (See Ewoldt, supra, 7 Cal.4th at p. 404.) Although the lack of a conviction on the uncharged offense increases the potential for prejudice or juror confusion as the jury may have been inclined to punish appellant for it, the uncharged offense was no more inflammatory than the charged conduct. (See id. at p. 405; People v. Sullivan (2007) 151 Cal.App.4th 524, 559.) The court also instructed the jury as to the proper purpose for which the evidence could be considered, and we presume the jury followed the instructions. (People v. Lindberg (2008) 45 Cal.4th 1, 25-26.) Under these circumstances, the trial court reasonably could have concluded the danger of undue prejudice did not substantially outweigh the probative value of the evidence. We reach a contrary conclusion, however, regarding admission of uncharged crimes to prove appellant's intent to commit theft.
II. Admission of Uncharged Crimes to Prove Intent
Evidence of uncharged crimes may be admitted under section 1101(b) to prove intent. (Ewoldt, supra, 7 Cal.4th at p. 406.) This is 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 . . . the presence of the normal, i.e., criminal, intent accompanying such an act . . . .' " (Id. at p. 402.) When offered to prove intent, the uncharged and charged offenses need only be sufficiently similar to support an inference the defendant probably acted with the same intent in each instance. (Lindberg, supra, 45 Cal.4th at p. 23.) Appellant does not challenge the similarity of the charged and uncharged crimes, but instead argues the evidence should have been excluded under section 352. We agree.
Appellant's plea of not guilty placed his intent to commit theft at issue (People v. Daniels (1991) 52 Cal.3d 815, 857-858), but that did not give the trial court free rein to admit evidence of any uncharged offense the prosecution sought to introduce. Instead, a court must carefully evaluate the uncharged crime evidence to ensure its prejudicial effect does not substantially outweigh its probative value. This evaluation must be particularly careful when assessing cumulative evidence of intent. "[E]vidence of uncharged acts cannot be used to prove something that other evidence showed was beyond dispute; the prejudicial effect of the evidence of the uncharged acts outweighs its probative value . . . as it is cumulative regarding that issue." (People v. Lopez (2011) 198 Cal.App.4th 698, 715 (Lopez).) " '[A]dmission of other crimes evidence cannot be justified merely by asserting an admissible purpose. Such evidence may only be admitted if it "(a) 'tends logically, naturally and by reasonable inference' to prove the issue upon which it is offered; (b) is offered upon an issue which will ultimately prove to be material to the People's case; and (c) is not merely cumulative with respect to other evidence which the People may use to prove the same issue." ' " (Id. at p. 716.)
Lopez is instructive. There, a perpetrator entered a house through an open garage in the early morning and took two purses from the kitchen. (Lopez, supra, 198 Cal.App.4th at pp. 703-704.) The trial court allowed the prosecution to introduce evidence of the defendant's prior car burglary and theft to establish his intent to commit the charged burglary and theft, and the court of appeal reversed. (Id. at pp. 713, 715.) Although the defendant's not guilty plea put his intent at issue, the court of appeal found the facts were such that the defendant's intent could not reasonably be contested. "Assuming appellant committed the alleged conduct, his intent in so doing could not reasonably be disputed—there could be no innocent explanation for that act." (Id. at p. 715.) There, the probative value of the uncharged crimes evidence was minimal and outweighed by its potential prejudicial effect. (Id. at pp. 715-716.)
People v. Jones (2011) 51 Cal.4th 346 (Jones), relied on by the People, is distinguishable. In Jones, the defendant and another person entered a residence, hog-tied the occupants, stabbed them to death, and stole their property. (Id. at p. 351.) The defendant was charged with murder and the special circumstances of burglary-murder and robbery-murder were alleged. (Id. at p. 350.) The trial court admitted evidence the defendant committed a prior robbery to show he entered the victims' home with the intent to steal, and the defendant claimed error because he did not dispute his intent at trial. The Supreme Court rejected the defendant's argument, noting the prosecution still had to prove intent beyond a reasonable doubt and the prior robbery had probative value on the issue. (Id. at p. 372.) It then concluded the uncharged crime evidence was not particularly prejudicial under section 352 because the prosecutor introduced it quickly and did not dwell on it; the robbery was not inflammatory when compared to the charged crimes; the jury knew the defendant had been convicted (reducing the possibility it would want to punish him for the uncharged offense); and the trial court gave a limiting instruction. (Id. at pp. 371-372.)
This case is more like Lopez than Jones. At 252 9th Street, surveillance video recorded a man wearing gloves watching the street in front of a residential building at night. He broke in, stole a bicycle, left, returned with an accomplice, let his accomplice in, and pointed him towards an area in the building. The accomplice then stole five bikes and a bag. At 38 Moss Street, a man broke in to a residential complex at night and left with a bike. He was recorded attempting to use an elevator that did not operate without a resident's key and searching through the complex. At 690 Folsom Street, the perpetrator checked his surroundings before and after entering a start-up company, and he exited quickly, hiding a stolen laptop in his pants. On these facts, a jury could not reasonably infer the perpetrator of each crime had any intent other than to commit theft. "[T]here could be no innocent explanation for th[ese] act[s]." (Lopez, supra, 198 Cal.App.4th at p. 715.) Thus, unlike in Jones, the uncharged crimes evidence had little probative value on the issue of intent.
On the other hand, the admission of the uncharged crimes evidence posed a substantial danger of undue prejudice and consumption of time. Evidence is prejudicial under section 352 if it uniquely tends to evoke an emotional bias against the defendant or would cause the jury to prejudge the defendant based on extraneous factors. (Foster, supra, 50 Cal.4th at p. 1331.) Admission of uncharged crimes evidence produces an " ' "over-strong tendency to believe the defendant guilty of the charge merely because he is a likely person to do such acts." [Citation.] It breeds a "tendency to condemn, not because he is believed guilty of the present charge, but because he has escaped unpunished from other offences . . . ." [Citation.] Moreover, "the jury might be unable to identify with a defendant of offensive character, and hence tend to disbelieve the evidence in his favor." ' " (Ibid.)
Although the trial court excluded four uncharged crimes, it still allowed the jury to hear evidence of six uncharged offenses to establish the requisite intent. Almost half of the prosecution's witnesses—twelve of twenty-five—testified about the uncharged crimes. The prosecutor also thoroughly discussed the uncharged crimes in her closing argument and played surveillance video from one of them. This was not a situation where the evidence "was presented quickly, and the parties did not dwell on it." (Jones, supra, 51 Cal.4th at p. 371.) And, although the judge gave the jury a limiting instruction, the instruction was insufficient to address the risk of undue prejudice in light of the cumulative and voluminous nature of the uncharged crimes evidence. The trial court abused its discretion in admitting the uncharged crimes evidence to prove intent.
III. The Error Was Not Prejudicial
"Simply establishing the court erred is not enough." (People v. Jefferson (2015) 238 Cal.App.4th 494, 508.) "[T]he erroneous admission of other crimes evidence is harmless if it does not appear reasonably probable that without the error a result more favorable to the defendant would have been reached." (Lopez, supra, 198 Cal.App.4th at p. 716.) As discussed above, the other evidence of appellant's intent was overwhelming. Further, the evidence connecting appellant to the charged crimes was sufficiently strong that it is not reasonably probable the trial court's error affected the verdict.
For each charged offense, surveillance video recorded a white male with chin-level sideburns matching appellant's race, build, and facial features. Each perpetrator wore a black backpack with grey stripes on the straps and black Nike shoes with neon green soles and a white Nike swoosh matching those appellant wore when arrested. At 690 Folsom Street, the perpetrator wore sunglasses with initials, a large watch, and a metal bracelet similar to those appellant wore when arrested. The perpetrator at 690 Folsom Street had a tattoo on his left bicep like appellant, and the perpetrator at 252 9th Street had a star tattoo on his inner right bicep like appellant. The jury also properly considered appellant's burglary on Franklin Street on the issue of identity. Because it is not reasonably probable the jury would have reached a more favorable verdict if the uncharged crimes evidence had been excluded, no reversible error occurred.
At trial, the prosecution introduced a jail call wherein appellant told his mother he "hit a garage for some bikes and that was it." The parties stipulated this call occurred on May 30, 2016, but the investigation in this case began on June 7. This timing casts doubt on the prosecution's characterization of the call as an admission of guilt for the charged crimes, and we do not rely on the jail call to find harmless the error in admitting the five uncharged offenses.
Appellant also challenges admission of the uncharged crimes evidence to prove whether he reasonably and in good faith believed his victims consented to the taking of their property. He states he did not assert that defense, and the People do not establish otherwise. We need not decide whether the court committed an additional error in admitting the evidence for that purpose because our conclusion admission of the evidence did not result in prejudicial error is dispositive.
IV. Penal Code Section 654
Penal Code section 654 prohibits multiple punishments for a single act even if the act violates more than one statute and constitutes more than one crime. (People v. Mesa (2012) 54 Cal.4th 191, 195.) It states, in relevant part, "[a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision . . . ." (Penal Code, § 654, subd. (a).) Appellant argues, and the People concede, the trial court's imposition of concurrent sentences on counts two, four, and seven (grand theft) violated Penal Code section 654 because appellant's burglary convictions were based on entries with the intent to commit theft. We agree and stay the sentences for grand theft. (See People v. Alford (2010) 180 Cal.App.4th 1463, 1468.)
DISPOSITION
Appellant's sentence is modified to stay the terms imposed on counts 2, 4, and 7. The clerk of the San Francisco County Superior Court is directed to prepare an amended abstract of judgment reflecting this modification and to send a copy of the amended abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
/s/_________
SIMONS, Acting P.J. We concur. /s/_________
NEEDHAM, J. /s/_________
BRUINIERS, J.
Retired Associate Justice of the Court of Appeal, First Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.