Opinion
NOT TO BE PUBLISHED
Marin County Super. Ct. No. SC143710
Pollak, J.
Defendants Tina Gutierrez, her husband Jorge Gutierrez and Jorge’s brother Mario Gutierrez were convicted by a jury of, among other things, multiple counts of auto burglary, commercial burglary, and receiving stolen property. They argue on appeal that the trial court erred in failing to suppress evidence seized from their home without a warrant and in allowing the prosecution to present evidence that the three defendants were arrested together in 1997 for an auto burglary. Tina also argues separately that the court violated her right to a fair trial by striking testimony that an allegedly stolen gun was found in codefendant Michael Dowling’s bedroom. Tina and Jorge also argue that the court imposed aggravated sentences in violation of Cunningham v. California (2007) 549 U.S. 270. We conclude that the court properly denied defendants’ motion to suppress and did not err in striking the inadmissible testimony regarding the allegedly stolen gun. We agree that the evidence of the 1997 auto burglary should not have been admitted, but the error in that regard was harmless. The imposition of aggravated sentences on the principal terms for Tina and Jorge was in violation of Cunningham, however, and requires the resentencing of those two defendants. We affirm the judgment in all other respects.
A fourth defendant, Tina’s brother Michael Dowling, was charged with one count of receiving stolen property and tried with appellants. He was acquitted, however, and thus is not a party to this appeal.
Factual and Procedural History
In December 2005, defendants were charged by information as follows:
Tina was charged in counts 1 and 2 with receiving stolen property (Pen. Code, § 496, subd. (a)); in counts 3 through 6, 9, 10 and 12 with commercial burglary (§ 459); in count 7 with forgery (§ 470, subd. (a)); in counts 8 and 13 with fraudulent possession of a completed check (§ 475, subd. (c)); in counts 15 through 20 with burglary of a vehicle (§ 459); in count 21 with possession of burglar tools (§ 466) and in count 22 with possessing a vehicle master key (§ 466.5, subd. (a)).
All statutory references are to the Penal Code unless otherwise noted.
Mario was charged in counts 2 and 14 with receiving stolen property (§ 496, subd. (a)); in counts 5 and 10 with commercial burglary (§ 459); in count 11 with fraudulent possession of a completed check (§ 475, subd. (c)); in counts 15 through 20 with burglary of a vehicle (§ 459); in count 21 with possession of burglar tools (§ 466) and in count 22 with possessing a vehicle master key (§ 466.5, subd. (a)).
Jorge was charged in counts 1 and 2 with receiving stolen property (§ 496, subd. (a)); in counts 4, 5, 9 and 10 with commercial burglary (§ 459); in counts 15 through 20 with burglary of a vehicle (§ 459); in count 21 with possession of burglar tools (§ 466) and in count 22 with possessing a vehicle master key (§ 466.5, subd. (a)).
In February 2006, the court granted Tina’s and Jorge’s motions under section 995 to set aside two of the auto burglary charges, counts 19 and 20. The court also granted Mario’s motion under section 995 to set aside all of the auto burglary charges against him (counts 15 to 20) and one of the commercial burglary charges (count 5). The court denied defendants’ motions under section 1538.5 to suppress evidence.
The following evidence was presented at trial:
For purposes of clarity, the facts are organized by the date of the alleged offenses rather than in the order in which the offenses were charged.
July 23, 2004
On July 23, police officers towed Jorge’s van because it was parked on the street with expired registration. At the officer’s request, Jorge unlocked the van so that its contents could be inventoried before it was towed. Inside, officers found among other things a license plate that had been stolen in April 2004 from a car belonging to Holly Chiesa, a nail gun that had been stolen on March 5, 2004 from Mario Diego’s truck, and a canvas bag and day planner that had been stolen on May 15, 2004 from Charles Utzman’s truck. Tina told officers that she bought some of the items at garage sales and that she got the license plate from a man named Carlito. She was planning on putting the registration tab on her car. Tina and Jorge were charged in count 1 with receiving this stolen property.
March 24, 2005
On March 24, between 5:30 and 8:10 p.m., Lisa Schwab Vernon’s purse, containing her Target credit card, was stolen from her locked car. Later that night, at approximately 9:05 p.m., someone attempted to use the credit card to purchase $243.50 worth of items from a Target store. The charge was rejected but a videotape of the transaction, which like all of the videotapes mentioned below was shown to the jury, shows Tina attempting the transaction. Tina and Jorge were charged in count 15 with the burglary of Vernon’s car, and Tina was charged in count 3 with the burglary of the Target store.
March 28, 2005
Janice Critchley testified that at approximately 6:50 p.m. on March 28, she discovered that her car had been broken into and various items had been stolen, including her purse which contained credit cards from Macy’s, Citibank and Target, as well as some medication bottles. Later that evening, between 9:53 p.m. and 10:00 p.m., Critchley’s Citibank credit card was used to make three purchases at a Target Store, including among other things a Virgin Mobile prepaid minutes card. The store’s videotape of the transactions shows Tina and another man shopping for merchandise in the electronics department, with Tina going back and forth to the register. After the final trip to the register, Tina hands two shopping bags to a second man. Records obtained from Virgin Mobile show that the card was activated by Jorge the following day. Critchley’s Citibank credit card was also used to purchase food at a Safeway store. The videotape of the Safeway transaction shows defendants going through the check stand and completing the purchase. Tina and Jorge were charged in count 16 with the burglary of Critchley’s car and in counts 4 and 5 with the burglary of Target and Safeway stores on March 28.
March 31, 2005
On March 31, at approximately 7:00 p.m., Thomas Cooper parked and locked his car on Hill Road in Novato. Sometime before 5:30 a.m. the following morning, his checkbook and daily planner were stolen from his car. At approximately 8:40 p.m. on March 31, someone forged the signature of Cooper’s wife to one of the stolen checks to purchase $173.73 worth of items from a Target store. A videotape of the transaction showed Tina writing the check and handing it to the cashier. Cooper’s planner was subsequently recovered in a search of defendants’ home. Jorge and Tina were charged in count 17 with the burglary of Cooper’s car and Tina was charged in counts, 6, 7, and 8 with the burglary of the Target store, forgery, and fraudulent possession of the Cooper’s check.
April 2, 2005
On April 2, 2005, Thomas Malvino’s briefcase, credit cards and checkbook, among other things, were stolen from his locked truck. At 8:47 p.m. that evening, someone forged the name of Malvino’s wife to one of the stolen checks to purchase a General Electric refrigerator from a Best Buy store. On an unspecified date, a second forged check was also used to make a purchase at a Target store. Officers found Malvino’s checkbook and the refrigerator during the subsequent search of defendants’ home. Tina and Jorge were charged in count 18 with the burglary of Malvino’s car and in count 9 with the burglary of the Best Buy store.
April 11, 2005
On April 11, 2005, Craig Burnett’s checkbooks were stolen from his car. At 10:41 p.m. on the same day, a stolen check with the forged signature of “Mrs. Craig Burnett” was used to purchase $144.19 worth of merchandise from a Safeway store. Safeway’s electronic journal for the transaction indicated that Tina’s Safeway Club card number appeared on the receipt. The videotape of the transaction showed defendants selecting items in the store and proceeding through the check stand. The checker recognized Mario and Tina as regular customers and believed that Mario handed him the check. All three defendants were charged in count 10 with the burglary of the Safeway store and Mario was charged in count 11 with the possession of a forged check.
April 12, 2005
On April 8, 2005, a company checkbook was stolen from Stephanie Sabo’s car. At about 5:30 p.m. on April 12, 2005, Tina attempted to cash one of the stolen checks at the Marin Check Cashing Company. After confirming that the check was stolen, the cashier refused to cash the check. She kept copies of the check and of Tina’s driver’s license and called the police. Tina later told the police that she was trying to cash the check for a friend and did not know it was stolen. Tina was charged in count 12 with the commercial burglary of the Marin Check Cashing Company and in count 13 with fraudulent possession of the stolen check.
April 13, 2005
On April 13, shortly after 7:00 a.m., officers executed a search warrant at defendants’ home. When the officers knocked, Mario opened the door and Tina was nearby. Jorge was found in a locked bedroom. There were no lights on when the officers entered and they soon discovered that there was no electricity in the home. The home was very cluttered. Bags of clothing and garbage were stacked in every room. Throughout the bedroom debris and property were stacked between ankle and knee height.
The testimony established that all of the defendants resided together in the three-bedroom condo. One of the bedrooms was occupied by Tina and Jorge and a second bedroom was occupied by Dowling. The third bedroom was a child’s bedroom. Mario had been sleeping on the couch for a few weeks. Defendants do not dispute their occupancy of the residence so that we do not discuss the substantial indicia of occupancy seized during the search.
Police Sergeant David Jefferies determined that it would be impossible to complete the search inside the home because of its condition. Jefferies placed large pieces of butcher paper in a secured area of the parking lot and labeled a piece of paper for each room in the home. Detective Thomas MacKenzie went through each room and designated items of interest that were then brought outside and placed on the proper paper. Once outside, Detective Dianne La France determined whether each item would be seized or returned to the house.
In addition to the refrigerator, checkbook and day planner mentioned above, officers found Critchley’s credit cards and medication, real estate documents that had been taken from Sabo’s car, and Vernon’s wallet and credit cards. Officers also found property that belonged to numerous other people who testified that the items had been stolen. Officers also found a set of shaved keys, which are used for entering a car when the original key is not available. Finally, officers found a receipt in Mario’s name for a storage unit. Officers later searched the storage unit pursuant to a warrant and recovered various items that were later identified as stolen. Defendants were charged in count 2 with receiving stolen property based on the items recovered from the home and in counts 21 and 22 with possession of burglar tools and a vehicle master key. Mario was charged in count 14 with receiving stolen property based on the items found in the storage unit.
Other Crimes Evidence
The prosecution introduced evidence regarding a 1997 auto burglary involving all three defendants. Deputy Michael Moriarity testified that at about 8:30 p.m. on Friday February 8, 1997, he observed a man and a woman get out of a Buick and approach a parked car. The man apparently opened the car and removed the car stereo while the woman acted as the look-out. After about 10 seconds both returned to the Buick with the car stereo. The Buick was stopped and the three passengers, Tina, Jorge and Mario, were arrested. The police found numerous burglary tools in the Buick. Evidence was also introduced that in 1990, Mario was arrested for driving a stolen truck with a stolen camper shell. Inside the truck, officers found numerous vehicle registration cards, a lock pick set and stolen car parts.
Defendants did not present any evidence.
The jury found Jorge not guilty as to count 9 (burglary of the Best Buy store), deadlocked as to count 22, and found him guilty on the remaining 10 charges. The jury found Mario not guilty of count 21, deadlocked on count 22, and found him guilty on the remaining four charges. As to Tina, the jury deadlocked on counts 1 (receiving stolen property based on the items found in Jorge’s van), 9 and 22, and found her guilty on the remaining 15 charges. The court declared a mistrial as to the deadlocked counts.
The court sentenced Jorge to a total term of eight years four months in prison, Mario to four years four months, and Tina to nine years eight months. Defendants filed timely notices of appeal.
Discussion
1. The trial court properly denied defendants’ motion to suppress.
The April 13 search of defendants’ home was conducted pursuant to a search warrant that authorized the police to search defendants’ home for 20 items, including the property that had been taken from Critchley’s car on March 28, the items that had been purchased from Target and Safeway with Critchley’s credit card, the clothing defendants were wearing as seen on the Target and Safeway videotapes, and indicia of ownership or occupancy of the home. The affidavit submitted in support of the warrant also identified 14 additional auto burglaries that had occurred in the same vicinity and indicated that three of those victims, including Vernon, had reported fraudulent credit card transactions following the burglary. In executing the search warrant, Detective MacKenzie removed approximately 600 items from the home and took them to the parking lot where Detective La France decided whether items not listed in the search warrant would be retained as evidence. MacKenzie explained that he decided to take items outside for further examination if they “were listed on the search warrant or any items that appeared to be contraband or have any evidentiary value or any indicia, such as credit cards or identification belonging to other people than the residents . . . .”
Following a hearing on defendants’ motions to suppress, the court concluded that “the search and seizure of the items both named inside the warrant and outside the warrant at the house were validly and appropriately seized. Probable cause . . . was sufficiently shown for the items that were seized.” The court explained that the residence was an “unusual in the extreme place in which a search warrant was served . . . in that both the testimony as well as the photographs depicting the interior of the home show it to be in spectacular disarray with a very unusual amount of documents, property, clothing, food stuffs, as I recall as well as in the home on the floor. [¶] There was some testimony from I believe it was Detective MacKenzie that in the room where he was he had to -- he was not touching the floor covering. He was about six inches above it and had to undercover [sic] areas simply to stand on the carpet. That’s a very unusual scene in which officers would be serving a search warrant, and I think this case has to be viewed with that in mind. [¶] Added to that is the testimony that appears to be not refuted that there was no electricity, no illumination that would normally be afforded by electricity being in the home by lamps and so forth. And given that significant and unusual disarray, the absence of the light that one normally would have, it seems to me it was appropriate for the serving officers to devise the plan they did. It seems reasonable to me that, as the testimony indicated, they removed property from the home for the purpose of looking at it. To me that really is not any different than holding something up to the light which is analogous to what they were doing so they could see what it was, and not every item of property, of course, as the testimony indicated, was brought outside to be looked at.” The trial court rejected defendants’ argument that an unlawful seizure occurred when the property was removed from the house. The court characterized the police conduct as “a tentative looking at those items so they could determine whether or not they were appropriate to be seized . . . .”
On appeal, defendants do not challenge the validity of the warrant or the seizure of the items listed therein. They contend, however, that the trial court erred in failing to suppress the evidence seized that was not listed in the warrant. They argue that the removal of the property from their home for further examination was an unlawful seizure in violation of the Fourth Amendment to the United States Constitution. They also argue that even if the property was properly removed from the home, “the confiscation of the property still violated the Fourth Amendment because Detective La France’s probable cause determinations in the parking lot were not based on her personal knowledge.” In reviewing the denial of a motion to suppress evidence, “we view the record in the light most favorable to the trial court’s ruling, deferring to those express or implied findings of fact supported by substantial evidence.” (People v. Jenkins (2000) 22 Cal.4th 900, 969.) While we defer to factual determinations supported by substantial evidence, we independently review the trial court’s application of the law to the facts. (Ibid.)
The Fourth Amendment provides, in pertinent part, that the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” (U.S. Const., 4th Amend.) “The right to security in person and property protected by the Fourth Amendment may be invaded in quite different ways by searches and seizures. A search compromises the individual interest in privacy; a seizure deprives the individual of dominion over his or her person or property.” (Horton v. California (1990) 496 U.S. 128, 133.) Thus, whether an individual’s privacy interest has been compromised is a distinct question requiring analysis separate from the issue of whether the individual has been unreasonably deprived of dominion over his or her property.
Here, the seizure of the items not listed in the search warrant did not intrude on defendants’ privacy interests. The search was conducted pursuant to a valid search warrant and the nature of the items listed in the warrant justified a comprehensive search of the home. “With the issuance of this warrant, the judgment had already been made by a judicial officer to permit a serious invasion of [the defendant’s] privacy.” (Skelton v. Superior Court (1969) 1 Cal.3d 144, 158; see also People v. Superior Court (Meyers) (1979) 25 Cal.3d 67, 74 [“The warrant thus clearly authorized the police officer . . . to make an extensive search of the entire house, looking into any places where he might reasonably expect that such small and easily secreted items as a ‘small gold spoon’ or a ‘jade pin’ might be hidden].) Likewise, the seizure of items in plain view does not intrude upon defendants’ privacy rights. (Horton v. California, supra, 496 U.S. at p. 133 [“If an article is already in plain view, neither its observation nor its seizure would involve any invasion of privacy”]; Skelton, supra, at p. 157 [Officers executing a valid search warrant may seize items in plain view “whether they are initially in plain sight or come into plain sight subsequently, as a result of the officers’ efforts”].)
Whether the seizure of the items not listed in the warrant invaded the defendants’ possessory interest is a separate question. (Horton v. California, supra, 496 U.S. at p. 141.) In general, to seize an object in plain view, the incriminating nature of the object must be “immediately apparent.” “The phrase ‘immediately apparent’ means probable cause must exist to believe the object is evidence prior to a Fourth Amendment seizure.” (People v. Clark (1989) 212 Cal.App.3d 1233, 1238, citing Arizona v. Hicks (1987) 480 U.S. 321, 327.) A seizure, however, can be justified on less than probable cause if “the seizure is minimally intrusive and operational necessities render it the only practicable means of detecting certain types of crime.” (Arizona v. Hicks, supra, at p. 327; see also People v. Bennett (1998) 17 Cal.4th 373, 386 [“ ‘When “operational necessities” exist, seizures can be justified on less than probable cause’ ”].)
In People v. Bennett, supra, 17 Cal.4th 385, the court upheld the seizure of a defendant’s motel room based on less than probable cause. In that case, the police seized the room by prohibiting unauthorized entry into the room for 18 hours until they could determine whether to apply for a warrant to search the room. The court explained that the police acted reasonably in seizing defendant’s motel room and that the intrusion on defendant’s Fourth Amendment interests was particularly minimal because he had already been legally arrested at another place, and his possessory rights were impaired only to extent that police prevented other persons from entering room. (Id. at pp. 385-386.) Similarly, in People v. Bradford (1997) 15 Cal.4th 1229, 1294, the court upheld the seizure of items not named in a warrant on less than probable cause where the authorized search was for photographs of two named victims and an examination of a bag of photographs produced photographs of a third, previously unidentified victim. The court explained, “Where an officer has a valid warrant to search for one item but merely a suspicion, not amounting to probable cause, concerning a second item, that second item is not immunized from seizure if found during a lawful search for the first item.” (Ibid.; see also People v. Clark, supra, 212 Cal.App.3d at p. 1238 [officer’s reasonable suspicion that jewelry in plain view in defendant’s jacket pocket was stolen supported his removal of the jewelry for further inspection].)
We agree with the trial court’s observation that the procedure devised by the police and the resultant limited intrusion on defendants’ possessory rights were reasonable and necessary under the unusual circumstances of this search. The seizure of the items was limited in scope and duration and was supported by a reasonable suspicion that the objects were stolen or otherwise evidence of a crime. The intrusion on defendant’s possession of the property caused by the removal of the objects from the home for further examination was extremely limited. The items were removed for a matter of hours and then, if not seized as evidence, returned to the same location within the home. Defendants already had been arrested pursuant to arrest warrants and thus were not deprived of the use of those items for any period of time. Defendants suggest that “if the officers had started their search in the room with the least clutter (the living room), they could have cleared out space in that room, and Detective La France could have made her remaining probable cause determinations at the doorway of each of the remaining rooms. Thus, she could have sent to the parking lot those items for which probable cause existed, and the items for which there was no probable cause could have been sent to the living room for temporary storage until the search of the room in question was completed.” We fail to see a distinction of constitutional magnitude between moving an object to the doorway, the living room or the parking lot for further examination. All involve the same limited level of interference with defendants’ possessory interest in the property.
Defendants’ reliance on Arizona v. Hicks, supra, 480 U.S. 321 is misplaced. In that case, while investigating a shooting, officers saw expensive stereo components which were out of place in the squalid surroundings, and moved them to read and record their serial numbers. The exigent circumstances that justified the officers’ entry into defendant’s apartment were completely unrelated to the search for stolen property. The court held that by moving the parts, instead of merely visually inspecting them, the officer committed an impermissible invasion of privacy rights which was not justified by the initial exigent circumstances. (Id. at p. 325.) As explained above, however, because the officers in this case were searching defendants’ home pursuant to a valid search warrant, defendants’ privacy interests were not implicated by the seizure of property in plain view. Accordingly, the trial court correctly determined that the removal of the items from the home was not an unlawful seizure.
Defendants contend that even if the items were property brought outside for examination, Detective La France’s subsequent probable cause determinations were insufficient because she did not have personal knowledge of the precise location within the house at which each item was found. Defendants’ argument overlooks the importance of the warrant in this case. As discussed above, the nature of the items listed in the warrant authorized the officers to search through essentially everything in the home. If in the course of executing the search warrant officers located evidence they reasonably suspected to be stolen, the officers were justified in seizing that item for further examination. Once outside, the item was examined further and a determination was made as to whether there was probable cause to seize the item. The validity of La France’s probable cause determination is not dependent on where within the home the object was located.
Initially, the Attorney General argues that the property was properly taken to the parking lot for further examination because Detective MacKenzie had probable cause to seize the items. Detective MacKenzie, however, did not articulate an individualized basis for the seizure of any particular piece of evidence and his general statement that he removed items that were not listed on the warrant only if they “appeared to be contraband or have any evidentiary value as indicia, such as credit cards or identification belonging to other people than the residents” is not sufficient to establish probable cause as to any specific item removed from the home.
Finally, contrary to defendants’ argument, an inadmissible document was not received in evidence at the suppression hearing. Prior to the hearing, La France created a graph with a description of each item seized from the home as well as information regarding the victim involved and the room in which the object was found. She compiled the information for the graph from various police reports so that she would not have to continually flip the reports during her testimony. La France repeatedly referred to the document to refresh her memory, primarily as to the evidence number assigned to a particular item. The graph was marked for identification, but contrary to defendants’ suggestion, it was not admitted into evidence. Although the court at one point suggested that the document might be admissible as evidence of a “past memory recorded,” the prosecution did not request admission of the document on that ground and the document was expressly excluded from evidence. Hence, defendants’ argument that the court erred in admitting the document is misplaced, and defendants make no argument that the document was improperly used to refresh La France’s recollection.
2. Admission of evidence of the 1997 auto burglary was harmless error.
Under Evidence Code section 1101, subdivisions (a) and (b), evidence of uncharged criminal conduct is inadmissible to prove a criminal defendant’s conduct on a particular occasion, or disposition to commit a particular act, but is admissible for limited purposes including motive, opportunity, intent, preparation, plan, knowledge, identity, and absence of mistake or accident. A trial court’s decision to admit such evidence is “essentially a determination of relevance” and is therefore “reviewed for abuse of discretion.” (People v. Kipp (1998) 18 Cal.4th 349, 369.)
In response to the prosecution’s in limine motion, the court ruled that the 1997 auto burglary was admissible because it supported a “logical inference of common scheme or plan.” The court explained, “Even though it occurred nine years or so ago, there are some significant similarities, in that there are three people, out of all the people in the world, these three people are together, and they have tools for getting into the vehicle, and they appear to [have been] working together and not just casually present at that location.”
“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. . . . In the same manner, evidence 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.” (People v. Ewoldt (1994) 7 Cal.4th 380, 403.) In contrast, a greater degree of similarity is required for evidence of uncharged misconduct to be relevant to prove identity. “For identity to be established, the uncharged misconduct and the charged offense must share common features that are sufficiently distinctive so as to support the inference that the same person committed both acts. [Citation.] ‘The pattern and characteristics of the crimes must be so unusual and distinctive as to be like a signature.’ ” (Id. at p. 403.)
In Ewoldt, the court observed that the “distinction, between the use of evidence of uncharged acts to establish the existence of a common design or plan as opposed to the use of such evidence to prove . . . identity, is subtle but significant.” (People v. Ewoldt, supra, 7 Cal.4th at p. 394, fn. 2.) The court explained, “Evidence of a common design or plan is admissible to establish that the defendant committed the act alleged. Unlike evidence used to prove intent, where the act is conceded or assumed, “ ‘[i]n proving design, the act is still undetermined . . . .’ ” [Citation.] For example, in a prosecution for shoplifting in which it was conceded or assumed that the defendant was present at the scene of the alleged theft, evidence that the defendant had committed uncharged acts of shoplifting in a markedly similar manner to the charged offense might be admitted to demonstrate that he or she took the merchandise in the manner alleged by the prosecution.” (Ibid.) In contrast, “Evidence of identity is admissible where it is conceded or assumed that the charged offense was committed by someone, in order to prove that the defendant was the perpetrator. For example, in a prosecution for shoplifting in which it was conceded or assumed that a theft was committed by an unidentified person, evidence that the defendant had committed uncharged acts of shoplifting in the same unusual and distinctive manner as the charged offense might be admitted to establish that the defendant was the perpetrator of the charged offense.” (Ibid.; People v. Balcom (1994) 7 Cal.4th 414, 425 [evidence of uncharged crimes is admissible to prove identity only where “[t]he highly unusual and distinctive nature of both the charged and uncharged offenses virtually eliminates the possibility that anyone other than the defendant committed the charged offense”].)
Defendants argue that the court erred in admitting this evidence because “the law does not allow the admission of evidence of a prior burglary as ‘common plan’ evidence when the occurrence of the charged burglary is not disputed and the only issue is whether the defendant was the perpetrator.” They argue that because there was no dispute that the burglaries had taken place, the admission of their prior arrest was subject to the more stringent test applicable to the admission of identity evidence. We agree.
In Ewoldt, the court clarified that common scheme or plan evidence is generally inadmissible in cases involving crimes such as burglary, where the primary issue is whether the defendant was present at a particular location: “[I]n most prosecutions for crimes such as burglary and robbery, it is beyond dispute that the charged offense was committed by someone; the primary issue to be determined is whether the defendant was the perpetrator of that crime. Thus, in such circumstances, evidence that the defendant committed uncharged offenses that were sufficiently similar to the charged offense to demonstrate a common design or plan (but not sufficiently distinctive to establish identity) ordinarily would be inadmissible. Although such evidence is relevant to demonstrate that, assuming the defendant was present at the scene of the crime, the defendant engaged in the conduct alleged to constitute the charged offense, if it is beyond dispute that the alleged crime occurred, such evidence would be merely cumulative and the prejudicial effect of the evidence of uncharged acts would outweigh its probative value.” (People v. Ewoldt, supra, 7 Cal.4th at p. 406.)
In this case, it was undisputed that the burglaries had taken place and the prior auto burglary was offered improperly to prove that defendants committed the crimes. The prosecutor argued, “The question here isn’t about whether or not [the auto burglaries] happened because we had a lot of testimony that the cars were broken into and how and so forth. The question is who done it.” The trial court did not consider whether the manner in which the defendants committed the prior auto burglary was sufficiently distinctive and similar to the method by which the burglaries in this case were committed to justify admission as identity evidence. The court’s observation that the three defendants were working in concert and were using burglary tools is insufficient to justify admission for the purpose of proving identity. (See People v. Felix (1993) 14 Cal.App.4th 997, 1005 [“The fact that both crimes were committed by two men is grossly insufficient as a criminal signature”].) Nonetheless, any error in the admission of the prior burglary evidence was harmless.
“Erroneous admission of other crimes evidence is prejudicial if it appears reasonably probable that, absent the error, a result more favorable to the defendant would have been reached.” (People v. Felix, supra, 14 Cal.App.4th at pp. 1007-1008, People v. Watson (1956) 46 Cal.2d 818, 836.) The evidence that Tina and Jorge committed the auto burglaries in counts 15 through 18 was overwhelming. First, as the prosecutor noted during closing arguments, there was substantial evidence that they possessed the items stolen from the cars and that they used those items to commit additional crimes shortly thereafter. The prosecution argued, “If we don’t have anybody there watching to see somebody break in a car, and we don’t have fingerprints, then how do we prove it? . . . [Y]ou prove the auto burglary by the inference with some of these other things, such as, well, we see this person on videotape using that credit card shortly after the car was broken into, and then it ends up at the condominium, or we see these people on videotape using those checks, and then the property ends up in their condominium during the search . . . . Pretty good evidence that they’re the ones that broke into the car.” The prosecution also emphasized that many of the stolen items recovered from defendants’ possession, such as medication, an insurance card and someone’s day planner “are not items that people buy at a flea market or a garage sale.” The conclusion that defendants burglarized the cars themselves, rather than simply receiving the stolen property, was corroborated further by the fact that burglary tools were found in defendants’ home.
Defendants contend that the Chapman v. California (1967) 386 U.S. 18, 24, standard of prejudice applies in this instance because the admission of the other crimes evidence rendered the trial fundamentally unfair, in violation of the due process clause. Nothing in the admission of the other crimes evidence in this case, however, rendered the trial so different from other cases in which other crimes evidence has been improperly admitted that the resulting prejudice should be analyzed under the stricter standard. In general, such errors do not implicate the defendant’s due process rights and we see no basis to deviate from this well established rule in this case.
Admission of the prior burglary evidence was also harmless as to Mario. Mario was convicted in count 2 of receiving stolen property based on evidence seized from his admitted residence and in count 14 based on the evidence seized from the rental unit. The evidence in support of both convictions is overwhelming. He was convicted in count 10 of the commercial burglary of a Safeway store based on the videotape of the transaction, which showed him selecting items throughout the store and proceeding through the checkout line, and the checker’s testimony that he recognized Mario as a regular customer. Finally, he was convicted in count 11 with passing the forged check at the Safeway store based on the checker’s testimony that it was Mario who handed him the check to pay for the groceries. It is highly doubtful that the admission of the prior burglary evidence had a prejudicial effect on any of these convictions.
3. The court did not err in excluding the evidence that a gun was found in Dowling’s bedroom.
On cross-examination, Tina’s attorney elicited testimony from the officers that 10 guns were found in Dowling’s bedroom and that one of them was “reported stolen out of Petaluma.” Dowling objected to this testimony on the ground that it was irrelevant because he was not charged with possession of a stolen weapon and because the detective’s testimony that one of the guns was stolen lacked foundation. The trial court overruled the objection. However, after the parties rested and the jury was instructed, but before closing arguments, the prosecutor moved to strike the evidence that an allegedly stolen gun had been found in Dowling’s bedroom. She explained that she was concerned that the allegedly stolen gun “was now put into the case when [she] did not have enough evidence” to pursue a criminal charge based on the gun. She relied in part on the court’s prior ruling that none of the property seized from the home would be admitted unless its admission had been discussed at the preliminary hearing or in the suppression hearing. The prosecutor was also concerned that the defendants would argue that the fact that Dowling was not charged with a crime related to the gun was evidence that the prosecution was unfairly targeting the defendants with Hispanic last names. Dowling’s attorney argued that the prior objection should have been sustained and that the evidence should be stricken. Tina’s attorney argued, however, “[I]f there’s evidence of -- that was out there that could have been used against a defendant and the police chose not to use it, then we should be able to argue that the investigation is less than satisfactory.” The court struck the testimony, explaining, “knowing what I know now and probably should have known at the moment, I should have sustained [Dowling’s] objection. And perhaps it was my lack of understanding about what that referred to, but it really was not relevant in my opinion and is detrimental to Mr. Dowling specifically, but I can see why the People would also object.” Later the court added, “The question not only called for hearsay, it was an uncharged offense. No articulation has been made by anybody as to why it was not hearsay. I did allow it in momentarily and overruled the objection. Upon reflection, clearly, that was erroneous.” The jury was instructed, “During the examination of Detective Dianne La France, a question was asked of her concerning, and an answer was given, concerning an allegedly stolen firearm that was allegedly found by the police in bedroom C, which was referred to as that of Mr. Dowling. [¶] An objection to that question was made, and the objection was overruled by me, and an answer was given. That objection should have been sustained, and the answer should have been stricken at that time. The jury is admonished to disregard that testimony as to that subject and not to discuss that answer or that subject in any way during deliberations.”
Tina does not argue that the court abused its discretion in deeming the evidence inadmissible. She argues that the court’s belated evidentiary ruling violated her constitutional rights because it deprived “her of a critical defense that the police’s investigation and collection of evidence was faulty and that there had been improper selectivity by the prosecution as to which defendant would be charged with possessing which stolen items.” Relying on People v. Martin (1954) 128 Cal.App.2d 724 and People v. Armstead (2002) 102 Cal.App.4th 784, she argues that “due process, fair trial and right-to-counsel guarantees of the Constitution are violated when a trial court admits evidence and then, after the parties have rested and the jury has been instructed, bars the jury from considering the evidence.”
In People v. Martin, supra, 128 Cal.App.2d 724, the defendant was charged with driving while intoxicated. His defense was that nose drops he had been taking for a sinus infection adversely affected his performance on sobriety tests. At trial, without objection, defense counsel read into the record the label of the nose drop bottle, which stated that the medicine could cause nervousness, restlessness, or sleeplessness. (Id. at p. 726.) During closing argument, when defense counsel argued that the nose drop label substantiated the defendant’s story the trial court interrupted the argument, querying whether the record contained any evidence regarding the potential effects of the nose drops. After a colloquy, it was agreed that the label had been read into the record without objection. Nonetheless, the trial court instructed the jury that the evidence should be disregarded. (Id. at pp. 728-729.) The court stated, “ ‘If it wasn't objected to, I am going to object to it right now on my own motion, and anything about and everything that is on that label is stricken out of the record and the jury are instructed to disregard it. It is improper testimony. . . . That is the ruling of the Court that what is on that label is stricken out of the record now and the jury are instructed to disregard it.’ ” (Ibid.) Defense counsel objected that he could have produced an expert had he known the trial court would exclude the evidence. On appeal, it was held that the trial court erred in excluding the evidence. The appellate court explained, “ ‘Judges are not justified by the law in admitting evidence before the jury under objection and exception, and then, after the case has been argued by counsel, instruct[ing] the jury that such evidence should not be considered by them in making up their verdict.’ ” (Id. at p. 729.) In People v. Armstead, supra, 102 Cal.App.4th at page 794, the court reiterated that a “substantial change in the scope of the evidence” after the case had been submitted to the jury deprives a defendant “of the opportunity to meaningfully challenge the evidence in its new character.” In that case, the jury was instructed during deliberations that it could consider “other crimes” evidence for a purpose other than that for which it was admitted. The court concluded that “the trial court’s ad hoc shift in the scope of the evidence after the case had been submitted to the jury was fundamentally unfair and denied [the defendant] due process.” (Ibid.)
In this case the excluded evidence did not result in a substantial shift in the scope of the evidence. The evidence of the allegedly stolen gun was not relevant to any of the charges against Tina and its exclusion did not deprive her of the opportunity to rebut the substantial evidence of her guilt. To the extent that she may have been deprived of a potential argument, we must observe the remarkable weakness of the argument. Tina asserts that had the evidence not been excluded, she would have argued that she was the victim of an incompetent and discriminatory police investigation because Dowling was not charged with an additional count of receiving stolen property based on his possession of the allegedly stolen gun. In count 2, Dowling was charged collectively with his codefendants of receiving the following stolen property: “credit cards, driver’s licenses, checks, checkbooks, passports, business documents, personal papers, marriage license, wallets, car stereos, day planners, briefcases, law enforcement badges and clothing, medical equipment, firearms, medication, vehicle papers, surgical glasses [and a] refrigerator.” The prosecutor argued to the jury that each defendant could be found guilty if the jury found that he or she possessed just one of the listed items. None of the defendants was charged with multiple counts of receiving stolen property based on the different items recovered from the home. Thus, the fact that Dowling was not charged with an additional count specifically related to the gun could hardly have led the jury to find Tina not guilty of the charges against her. While Tina suggests that there was other evidence to support her defense that she was the victim of a careless police investigation, she did not challenge the police investigation in her closing argument. Finally, Tina argues that the belated ruling deprived her of the opportunity to obtain additional testimony or to substitute new evidence for the stricken testimony. She did not, however, request to reopen the evidence or seek a continuance to determine what other evidence might exist to establish that the gun was indeed stolen. There was no error in the belated exclusion of this evidence.
We likewise reject defendants’ claim of cumulative error.
4. The case must be remanded for resentencing.
The trial court imposed the upper term on the principal offense (receiving stolen property) for Tina and Jorge based on the following aggravating circumstances: The offenses involved planning and professionalism (Cal. Rules of Court, rule 4.421(a)(8)) and there was a great monetary loss to the victims (id., subd. (a)(9)). Tina and Jorge did not admit the aggravating circumstances, they were not found true by the jury, and they did not involve defendants’ prior criminal history. Thus, Tina and Jorge’s sentences were imposed in violation of Cunningham v. California, supra, 549 U.S. 270.
The Attorney General concedes as much, but argues that the error was harmless beyond a reasonable doubt. (Washington v. Recuenco (2006) 548 U.S. 212 [erroneous imposition of an aggravated term based on facts not found by the jury is subject to the harmless error test in Chapman v. California, supra, 386 U.S. 18]; People v. Sandoval (2007) 41 Cal.4th 825, 838.) In Sandoval the court explained that Cunningham error required the court to determine “whether, if the question of the existence of an aggravating circumstance or circumstances had been submitted to the jury, the jury’s verdict would have authorized the upper term sentence.” (People v. Sandoval, supra, 41 Cal.4th at p. 838.) If the answer was “yes,” then denial of a right to a jury trial was harmless. In other words, “if a reviewing court concludes, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury, the Sixth Amendment error properly may be found harmless.” (Id. at p. 839.)
Here, we cannot conclude that the jury unquestionably would have found either aggravating factor true. As the court in Sandoval recognized, “to the extent a potential aggravating circumstance at issue in a particular case rests on a somewhat vague or subjective standard, it may be difficult for a reviewing court to conclude with confidence that, had the issue been submitted to the jury, the jury would have assessed the facts in the same manner as did the trial court.” (People v. Sandoval, supra, 41 Cal.4th at p. 840.) For example, the court noted that determination as to whether the crime “ ‘involved . . . a taking or damage of great monetary value’ ” requires an imprecise quantitative or comparative evaluation of the facts. (Ibid.) In this case, the prosecutor told the jury that it was not required to find that each defendant possessed all of the stolen items, only that each defendant possessed one item from one victim. We cannot determine whether the verdicts were based on any particular defendant’s possession of one item or of several items. More importantly, the value of the stolen property was not at issue in the trial and no evidence was presented regarding the value of many of the items stolen.
Likewise, we cannot conclude that the jury necessarily would have found that the crimes were committed with planning and professionalism. Although the evidence establishes that defendants committed many crimes and engaged in a pattern of committing an auto burglary followed by a commercial burglary, those facts do not necessarily compel a finding that the crimes were committed with any degree of “professionalism,” in this context a vague term in any event. Accordingly, the matter must be remanded for resentencing.
Tina also argues that the imposition of consecutive prison terms on facts not found by a jury violated her Sixth Amendment rights. Tina concedes, however, that this argument was rejected in People v. Black (2007) 41 Cal.4th 799, 820-823. In addition, to the extent that the abstract of judgment must be corrected to reflect imposition of the midterm on the subordinate counts, that matter can be addressed on remand.
Disposition
The case is remanded for resentencing of Jorge and Tina. The judgment is affirmed in all other respects.
We concur: McGuiness, P. J., Siggins, J.