Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. Kevin L. Brown, Judge. Los Angeles County Super. Ct. No. BA281885
Linda Rose Fessler, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Joseph P. Lee and Lisa J. Brault, Deputy Attorneys General, for Plaintiff and Respondent.
BOLAND, J.
INTRODUCTION
Appellant Ronnie Marvin Henning challenges his first degree burglary conviction on the grounds the small number of African-American jurors on the panel of prospective jurors violated his right to a jury drawn from a representative cross-section of the community, the evidence was insufficient to support the verdict, the trial court improperly applied the “Three Strikes” law to him, and the trial court erred by denying his motion for new trial and instructing the jury on motive and flight. We conclude appellant failed to make a prima facie showing of a violation of his right to a jury drawn from a representative cross-section of the community. Substantial evidence supported appellant’s conviction. Application of the Three Strikes law to appellant did not violate his right to a jury trial. The trial court did not err by denying appellant’s motion for a new trial or instruction the jury on flight and motive.
BACKGROUND AND PROCEDURAL HISTORY
Appellant met Rachel Daniels on an Internet dating Web site. On the occasion of their first face-to-face meeting, appellant asked to borrow money from Daniels to purchase an auto part. She realized she had forgotten her wallet, and went home to get it, taking appellant with her. While they were in Daniels’s apartment, appellant admired her laptop computer. After Daniels dropped appellant off, she went to a friend’s home to spend the night. During the night, someone kicked in the door of her apartment and stole the laptop and accessories. Six days later, appellant pawned Daniels’s laptop.
A jury convicted appellant of first degree burglary. The court found appellant had suffered three prior serious or violent felony convictions within the scope of the Three Strikes law and one prior serious felony conviction (Pen. Code, § 667, subd. (a)(1)), and that he had served a prior prison term. The court sentenced appellant to prison for 31 years to life.
DISCUSSION
1. Appellant failed to show a violation of his right to a jury drawn from a representative cross-section of the community.
During jury selection, defense counsel informed the court that appellant was “concerned” because only two African-Americans were on the panel of jurors sent to the courtroom, and one had been excused. Counsel argued that the court should take judicial notice that “the African American community is distinct within Los Angeles,” and the court should “concede” that a single African-American on the jury “in a city the size of Los Angeles, that it’s quite clear that it’s not fair and it’s not a reasonable representation of that community.” Defense counsel acknowledged that he was unable to meet the requirement of showing systematic exclusion of African-Americans from the venire, but asked the court to simply “excuse this panel and start with a new panel.” The court denied the motion, saying it had heard no evidence indicating “African-Americans have been deliberately excluded from this panel.”
Appellant contends the inclusion of just one African-American on his jury panel violated his federal and state constitutional rights to an impartial jury drawn from a representative cross-section of the community.
Under the federal and California Constitutions, a defendant is entitled to a jury drawn from a representative cross-section of the community. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 16; People v. Burgener (2003) 29 Cal.4th 833, 855-856.) The defendant bears the burden of making a prima facie showing “(1) that the group alleged to be excluded is a ‘distinctive’ group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.” (Duren v. Missouri (1979) 439 U.S. 357, 364.) If the defendant makes such a showing, the burden shifts to the People to explain or justify the selection process “by showing attainment of a fair cross section to be incompatible with a significant state interest.” (Id. at p. 368.)
It is undisputed that African-Americans constitute a “distinctive” group in the community. (People v. Bell (1989) 49 Cal.3d 502, 526.)
Appellant’s first analytical flaw is his reliance upon the number of African-Americans left on his jury panel. The pertinent comparison is between the representation of African-Americans in the venire, i.e., “the group of prospective jurors summoned from” the master list of eligible jurors “and made available, after excuses and deferrals have been granted, for assignment to a ‘panel.’ A ‘panel’ is the group of jurors from that venire assigned to a court and from which a jury will be selected to try a particular case.” (People v. Bell, supra, 49 Cal.3d at p. 520, fn. 3.) In other words, appellant was required to show that there was “a constitutionally significant difference between the number of members of the cognizable group appearing for jury duty and the number in the relevant community.” (People v. Ramos (1997) 15 Cal.4th 1133, 1155.)
Appellant offered no evidence regarding the composition of the venire from which his jury panel was assigned. Nor did he offer any statistical information to attempt to show a constitutionally significant disparity between the percentage of jury-eligible African-Americans residing in the judicial district and the percentage of African-Americans in the jury venire. On appeal, he cites statistics from a 2002 study that was neither cited nor provided to the trial court and is not part of the appellate record. Appellant claims the study found “undercounting of neighborhood groups ranged from 3.5 percent in Los Angeles county to as high as 18.3 percent.” It is unclear whether this study pertained to undercounting in the census or some other context. The identity and composition of the “undercounted” groups is also uncertain. Appellant then argues, without citation to supporting evidence, that “there were significant numbers of African Americans who were not even on the radar screen to be chosen from established voter or DMV lists.” This assertion is sheer speculation.
Nor did appellant make any effort to show systematic exclusion. In the trial court, he asked the court to overlook this element of the requisite prima facie showing. On appeal, he argues, again without support, that “the undercounting of minorities and in particular African Americans presents a de facto systematic exclusion of this community group.” Presumably appellant refers to the same study regarding undercounting. However, undercounting in some unspecified context does not begin to establish that the jury selection system systematically excluded African-Americans. “A defendant does not discharge the burden of demonstrating that the underrepresentation was due to systematic exclusion merely by offering statistical evidence of a disparity. A defendant must show, in addition, that the disparity is the result of an improper feature of the jury selection process.” (People v. Burgener, supra, 29 Cal.4th at p. 857.)
In sum, appellant failed to make a prima facie showing as to the second and third elements under Duren v. Missouri, supra, 439 U.S. at p. 364.
2. Substantial evidence supports appellant’s conviction.
Appellant contends the trial court erred by applying the Three Strikes law to his conviction because there was “insufficient proof to establish that Appellant committed a first degree burglary offense.”
To the extent that appellant’s contention is based upon a belief that the Three Strikes law could not be applied to him if his conviction were for another offense, such as second degree burglary, appellant is mistaken. Any new felony conviction will trigger application of the Three Strikes law where it has been pled and proved that a defendant has qualifying prior serious or violent felony convictions. (Pen. Code, § 667, subd. (c).)
It appears appellant actually intends to raise a sufficiency of evidence claim and has merely taken an unusual approach in setting forth that claim. Accordingly, we treat the issue as one of sufficiency of evidence.
To resolve this issue, we review the whole record in the light most favorable to the judgment to decide whether substantial evidence supports the conviction, so that a reasonable jury could find guilt beyond a reasonable doubt. (People v. Ceja (1993) 4 Cal.4th 1134, 1138.)
Burglary involves the act of unlawful entry accompanied by the specific intent to commit grand or petit larceny or any felony. (Pen. Code, § 459; People v. Montoya (1994) 7 Cal.4th 1027, 1041.) First degree burglary requires entry into an inhabited dwelling house. (Pen. Code, § 460, subd. (a).)
Rachel Daniels testified she met appellant on a dating Web site. Appellant contacted her and they corresponded. Eventually, they agreed to meet, and Daniels gave appellant her mobile phone number. On February 18, 2005, at about 9:30 p.m., appellant phoned her. He said his car had broken down and he asked Daniels to pick him up. She did so, and appellant pointed at a white truck parked in a driveway and told her it was his. He asked Daniels to drive him to a friend’s house to pick up a part he needed to fix the truck. En route, he said he left his wallet in the truck and asked to borrow $70 from her. Daniels realized she had left her wallet at home. They went to her apartment to get her wallet and, while they were there, appellant commented favorably on the laptop computer that was sitting on the arm of her sofa. Appellant and Daniels went out driving again, and appellant directed her to his mother’s house. From there they went to the friend’s house, and Daniels gave appellant $55. Appellant emerged from the friend’s house with a paper bag. He asked Daniels to drive him to another friend’s house, saying that the first friend did not have the complete auto part. Daniels refused and dropped him at the place she had picked him up at the start of the night.
Daniels returned to her apartment, but felt uneasy being there alone. She therefore locked up the apartment and went to a friend’s home. The next morning Daniels’s landlord telephoned her and informed her that the door to her apartment was broken. She returned home and found that her laptop, modem and phone cord were gone. Nothing else had been taken, and the apartment had not been ransacked. A few weeks later, the police told her they had located her laptop at a pawnshop. She went to the Westside Loan Company and paid $250 to get it back. The administrator’s name on the laptop had been changed to “Baby Come Close,” which was appellant’s user name. All of Daniels’s files had been deleted and new video software had been installed.
In September, 2005, Daniels received a call from a woman who said she was “Ronnie Henning’s girlfriend, you know the guy who stole your laptop.” The woman referred to appellant’s arrest, apologized, and asked if they could talk about the situation.
Los Angeles Police Department Officer Axcel Mannoury testified he responded to Daniels’s apartment on February 19, 2005, and wrote a report about the burglary. He saw that the frame around the entry door was shattered and there was a large footprint on the door itself. Mannoury concluded the door had been kicked in. Daniels gave Mannoury the serial number from her missing computer. He did not attempt to collect fingerprints, as there were no printable surfaces. He also did not photograph the footprint.
Glen Whitney, who was a loan officer as Westside Loan, testified that a man displaying a driver’s license bearing the name Ronnie Marvin Henning pawned a laptop computer for $250 on February 24, 2005. The man provided a thumbprint on the pawnshop documents. Police subsequently placed a hold on the laptop, and it was ultimately released to Rachel Daniels. The parties stipulated that a fingerprint expert would be deemed to have testified that the thumbprint on the pawnshop paperwork matched appellant’s right thumbprint.
Alicia Clark provided evidence of prior uncharged conduct by appellant that the trial court admitted under Evidence Code section 1101, subdivision (b), as evidence of common plan, scheme or design. Clark testified she met appellant on an Internet dating Web site in 2004. Appellant said he was single and had no children. Clark lived in San Jose, but intended to move to Los Angeles. Appellant visited her in San Jose. Appellant told her he had relatives who managed apartment complexes in Los Angeles, and he could help her find an apartment. Appellant subsequently called Clark from Los Angeles and told her he had found her an apartment, but he needed $1,400 to put a deposit on it. He asked her to quickly send him the money. Clark wired appellant $1,400. The next time she spoke to appellant, he said he had rented the apartment. The day after, he told her he had lost her money while he was out drinking. Clark moved to Los Angeles anyway, and appellant went around with her to search for an apartment.
Appellant challenges the admission of this evidence in the context of his claim regarding denial of his motion for new trial.
While they were staying in a hotel, appellant asked to borrow Clark’s car so he could obtain money from his next door neighbor. She did not permit him to borrow her car, but she later handed him the car key when he said he needed to get something out of the car. When appellant returned to the room, he put Clark’s key ring on the nightstand and said he was going to soak in the bathtub while listening to music. Clark fell asleep after hearing water run in the tub. When she awakened, appellant and her car were gone. She called the police, but they would not take a report. Appellant called her a few hours later and said he had gone out gambling, run out of money, and given “them” her car as collateral. Appellant told Clark she would have to pay “them” $500 or they would hurt him. Clark asked to speak to the people who were holding appellant. A man told her she could get her car back and appellant would not be harmed if she paid them $500. Clark told the man she had already reported her car stolen and said the police were looking for appellant and the car. The man began to stutter and said he did not want trouble with the police. He told her to come and get her car at a specific location. When she arrived, she found her car parked outside an apartment building, but the keys were not in it. A man came outside to talk to her. He said he was “Roscoe’s uncle.” He said appellant was inside. Another man, who identified himself as Roscoe, came out. He did not have the key. Clark called the police, who responded to the location. They were unable to find appellant there. Clark’s car had to be towed to a dealership, where they made her a new key.
Lauren Childs testified that she was appellant’s fiancée. Prior to his arrest, they lived together. On February 18, 2005, she drove to the home of appellant’s mother, where she saw appellant talking to a woman who was in a car. The woman handed appellant something, and then drove off. Appellant told Childs that the woman was a friend of his. Childs then saw appellant had a small laptop computer. He said it was his. Childs played games on the computer. Later that night, someone was honking a horn outside the house. Appellant went to investigate and, when he came back inside, he made a phone call in which he told someone to “stop honking your horn in front of my mother’s house.” Appellant told Childs that it was his friend Rachel on the phone. After appellant was arrested in August, he told her his arrest had something to do with Rachel and a laptop. Childs called Rachel and asked to talk to her about appellant to find out what was going on. Appellant did not own a vehicle on February 18, 2005.
Appellant testified that he met both Alicia Clark and Rachel Daniels on the same Internet dating Web site. His username on the Web site was “Baby Come Close.” He visited Clark in San Jose, but lost interest in her. A few days after he returned, she wired him money, without him requesting it. She wanted him to find her an apartment. He attempted to do so. After Clark moved to Los Angeles, he stayed with her in a hotel one night so she would not make a scene. Although he felt “trapped,” he helped her look for an apartment. One night at about 11:00 p.m., Clark let him borrow her car, but he went to a friend’s house and did not return right away. He called her at about 5:00 or 6:00 a.m. She was very upset. He told her he had lost money gambling and needed to borrow money to pay his debt. She refused. Appellant called his sister, who came over and paid the debt. He gave Clark’s car key and phone number to his friend, whose nickname was Roscoe, and asked him to call Clark and make sure she got the car and key back. Appellant then went home to sleep. He subsequently apologized to Clark, she ultimately forgave him, and they became friends again.
Appellant testified he and Daniels had been seeing each other for a week by February 18, 2005. She had two laptops in her apartment, one of them still in the box. She gave him the older one and drove him to his mother’s house. Childs arrived around the same time. Daniels called appellant later and asked him who the other woman was. When appellant told Daniels that the other woman was his live-in girlfriend, Daniels became angry. She asked him to give back the laptop, but he refused. He subsequently pawned the laptop. He knew the pawnshop cooperated with the police, and would never have pawned any stolen property there. Appellant admitted he previously had been convicted of two felonies involving moral turpitude.
Based upon the evidence, a reasonable jury could conclude, beyond a reasonable doubt, that appellant was the person who broke through the door into Daniels’s apartment and took her laptop. He had been in the apartment within the hours preceding the burglary, and pawned the laptop less than one week after it was stolen. Collectively, these two facts supported an extremely strong inference that appellant was the person who broke into the apartment and took the computer. (People v. McFarland (1962) 58 Cal.2d 748, 754.) The inference was strengthened by evidence that someone changed the name of the administrator on the laptop to appellant’s user name and by appellant’s false statements to Daniels that his vehicle had broken down and he left his wallet in his vehicle. Childs and Aviva Davis, another of appellant’s girlfriends, testified he did not have a vehicle at that time. Appellant clearly sought to steal money from Daniels, and it is reasonable to infer that when he discovered the laptop, he decided to steal it as well. Although appellant’s testimony provided an explanation for his possession of the laptop, the jury was free to disbelieve appellant and disregard his explanation.
While it was not essential to support the verdict, the evidence of appellant’s conduct with Alicia Clark further strengthened the inference of appellant’s identity as the burglar. Appellant met Clark and Daniels through Internet dating Web sites. Indeed, appellant testified he met them both through the same Web site. He told both of them he had no children, when he in fact had nine children, and did not tell either of them he had a live-in girlfriend. He lied to each woman to obtain money from her. He told Clark he needed money to place a deposit on an apartment for her, while he told Daniels he needed money to purchase a part to repair his truck. He stole Clark’s car while she was asleep, and he took Daniels’s laptop during the night when he could have expected her to be asleep in her apartment. He then used or attempted to use the stolen property to obtain cash. Although there were differences in the way appellant exploited and stole from Clark and Daniels, there are sufficient common features between appellant’s conduct with respect to each woman that a reasonable jury could conclude that appellant operated according to a common design or plan in each case. This added further weight to the already extremely strong inference that appellant was the person who broke into Daniels’s apartment and stole her computer.
Accordingly, substantial evidence supported appellant’s conviction of first degree burglary. Further, appellant’s reliance upon CALJIC No. 2.01 is misplaced, as the principle set forth in that instruction does not apply to appellate review of the sufficiency of evidence. (People v. Towler (1982) 31 Cal.3d 105, 118.)
3. Appellant has not established any violation of his right to a trial by jury.
In his reply brief, appellant attempts to expand upon his claim that it was error to apply the Three Strikes law to him by citing Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856], which held that California’s Determinate Sentencing Law violates Apprendi v. New Jersey (2000) 530 U.S. 466 to the extent it permits a trial court to impose an upper term based on facts found by the court, rather than by a jury, beyond a reasonable doubt. Appellant does not articulate a coherent theory of how or why Cunningham applies to his case.
Cunningham and its predecessors require that any fact, other than a prior conviction, that increases the penalty for a crime beyond the prescribed statutory maximum be charged, must be submitted to a jury and proved beyond a reasonable doubt. (Apprendi v. New Jersey, supra, 530 U.S. at p. 490; Cunningham, supra, 127 S.Ct at pp. 863-864.) Appellant had a right to a jury trial on the prior conviction allegations that triggered application of the Three Strikes law. He waived a jury, and agreed to permit the trial court decide the truth of those allegations. The applicable standard of proof was reasonable doubt. There was therefore no violation of appellant’s rights.
4. The trial court properly denied appellant’s new trial motion.
Appellant filed a motion for a new trial on the grounds the verdict was not supported by sufficient evidence, “there were no African Americans in the panel,” and Alicia Clark and Dr. Kaushal Sharma should not have been allowed to testify. The trial court denied the motion. On appeal, appellant contends the motion should have been granted, but only on the bases of sufficiency of evidence and improper admission of Clark’s testimony.
The determination of a motion for new trial rests so completely within the trial court’s discretion that its ruling will not be disturbed on appeal absent a manifest and unmistakable abuse of discretion. (People v. Delgado (1993) 5 Cal.4th 312, 328.)
Appellant’s sufficiency of evidence ground has been addressed and rejected in part 2 of this opinion.
Appellant argues the Clark testimony was not admissible under Evidence Code section 1101, subdivision (b), as the offenses were insufficiently familiar. Appellant also argues this evidence confused the jury.
Evidence of other offenses or misconduct is inadmissible to prove criminal propensity, but may be admitted to prove matters such as motive, intent, identity, or a common design or plan. (Evid. Code, § 1101, subds. (a) & (b).) In order to prove the existence of a common design or plan, evidence of uncharged misconduct must demonstrate not merely a similarity in the results, but such a concurrence of common features that the various acts are naturally explained as resulting from a general plan of which they are the individual manifestations. (People v. Ewoldt (1994) 7 Cal.4th 380, 402.) The common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan need not be distinctive or unusual. (Id. at p. 403.)
Evidence of other crimes should be received with extreme caution, and any doubts about its admissibility should be resolved in favor of the accused. (People v. Guerrero (1976) 16 Cal.3d 719, 724.) Because evidence of uncharged offenses is highly prejudicial, it must have substantial probative value, and the trial court must carefully analyze the evidence under Evidence Code section 352 to determine if its probative value outweighs its inherent prejudicial effect. (People v. Ewoldt, supra, 7 Cal.4th at p. 404.) We review the trial court’s decision for abuse of discretion. (People v. Hayes (1990) 52 Cal.3d 577, 617.)
As previously addressed, there were numerous common features of appellant’s pattern of conduct with respect to Clark and Daniels: he met them both through Internet dating Web sites, perhaps even the same Web site; he lied to each of them about his relationship status and offspring; he courted each woman; he extracted money from each by means of a false explanation; he stole property from them while they were asleep or absent; and he used or attempted to use the stolen property to obtain additional cash. Although there were some differences in the way appellant exploited and stole from each woman, there were so many common features that it was highly reasonable to infer that appellant operated according to a general plan to meet women on the Internet, induce their trust through lies and romantic overtures, and then steal from them.
It cannot be determined from the record whether the trial court performed the required Evidence Code section 352 analysis. It appears the court discussed the admission of the evidence in an unreported conference with counsel. To the extent the record reflects any discussion of the issue, nothing said by the parties or court establishes or even suggests that the court performed the required analysis. While Clark’s testimony took a great deal of time, the court commented during its ruling on the motion for new trial indicating that the court did not expect Clark’s testimony to take so much time. However, the court could have taken steps to shorten Clark’s testimony when the problem became clear.
The confusion of which appellant complains is based upon a statement by defense counsel at the hearing on the motion for new trial. Counsel told the court he had overheard a postverdict conversation between the prosecutor and two jurors in which the jurors said they thought Roscoe was involved in the burglary of Daniels’s apartment. The prosecutor told the court that defense counsel had mischaracterized the conversation with the jurors. He said that one of the jurors to whom he spoke had been a holdout, and he said he had considered the possibility that Roscoe, the apparent accomplice in the uncharged incident involving Clark’s car, either burglarized Daniels’s apartment or assisted appellant in burglarizing it. The other juror asked the prosecutor if appellant would nonetheless have been guilty as an aider and abettor, and the prosecutor confirmed he would have been. Clearly, any confusion the holdout juror suffered was beneficial, not harmful, to appellant. Moreover, the jury was instructed that the evidence of uncharged misconduct was to be considered only if the People established by a preponderance of the evidence that appellant committed the uncharged offense, and only for the limited purpose of determining whether appellant had a plan or scheme to commit the charged offense.
Assuming, arguendo, that the trial court erred by admitting Clark’s testimony, the error was harmless. The appropriate standard is whether appellant has shown a reasonable probability he would have obtained a more favorable result had the evidence been excluded. (People v. Malone (1988) 47 Cal.3d 1, 22.) The only real issue with respect to the burglary charge was identity, and appellant’s possession of Daniels’ laptop within a relatively short period after the burglary was shown by his conduct in pawning it. In addition, he had been in the apartment within the hours preceding the burglary, he apparently changed the name of the administrator on the laptop to his own user name, and he demonstrated an intent to steal from Daniels by lying to her about his broken-down vehicle and forgotten wallet. Given this evidence, there is no reasonable probability appellant would have obtained a more favorable verdict if Clark’s testimony had been excluded. Accordingly, the trial court did not err by denying appellant’s motion for a new trial.
5. The trial court did not err by instructing upon motive and flight.
Over defense objections, the jury was instructed on flight with CALCRIM No. 372 and on motive with CALCRIM No. 370. Appellant contends that giving these instructions was error. His argument, however, appears to pertain to the claim that the Clark testimony was improperly admitted. We nonetheless briefly address the propriety of the two instructions.
As given at appellant’s trial, these instructions provided as follows:
A flight instruction is required where the evidence shows that appellant departed the crime scene under circumstances suggesting that his movement was motivated by a consciousness of guilt. (Pen. Code, § 1127c; People v. Bradford (1997) 14 Cal.4th 1005, 1055.) Flight requires neither running nor distance. It simply requires an apparent purpose to avoid observation or arrest. Although merely leaving the crime scene does not alone support an inference of consciousness of guilt, the circumstances of the departure may do so. (Ibid.)
Clark testified that she responded to appellant’s attempt to get her to pay his “captors” $500 for his release and her car’s return by demanding to speak to his “captors.” She told the person to whom she spoke that she had called the police, who were looking for the car and appellant. The person to whom she was speaking apparently became flustered and told her where to find her car. When she and the police arrived, appellant was no longer there. Appellant testified he left the location before Clark arrived. It reasonably could be inferred that appellant left there to avoid arrest, as Clark had been given the address and could be expected to provide it to the police who were purportedly looking for her car and appellant. This evidence supported a flight instruction. Although the charged offense was not based upon appellant’s behavior with respect to Clark, the introduction of that evidence required the jury to determine whether appellant had actually engaged in the uncharged offenses against Clark, and his flight from the scene would be a relevant factor in making this determination.
Moreover, the instruction left it up to the jury to determine whether appellant’s conduct constituted flight and, if so, what the “meaning and importance of that conduct” was. In addition, the instruction provided some protection to appellant by informing the jury it could not infer guilt from flight alone. The court also instructed the jury that some instructions may not apply, and it should not assume that the inclusion of an instruction suggested anything about the facts. (CALCRIM No. 200.)
The trial court did not err by instructing the jury upon flight. Moreover, appellant has not attempted to demonstrate any prejudice resulting from the claimed error. Instructional error is not a basis for reversal unless there is a reasonable probability that a properly instructed jury would have returned a verdict more favorable to appellant. (People v. Watson (1956) 46 Cal.2d 818, 836.)
With respect to the motive instruction, appellant has not provided any coherent argument as to why the instruction was improper or how it might have prejudiced him. Evidence of motive is always relevant (People v. Perez (1974) 42 Cal.App.3d 760, 767), and where there is evidence of motive, an instruction to the jury is appropriate. The evidence of appellant’s admiration for Daniels’ laptop computer reasonably could be deemed to establish a motive for the burglary. CALCRIM 370 was an appropriate instruction to the jury to guide their consideration of this evidence.
DISPOSITION
The judgment is affirmed.
We concur:
COOPER, P. J., RUBIN, J.
“If the defendant fled immediately after the crime was committed or after he was accused of committing the crime, that conduct may show that he was aware of his guilt. [¶] If you conclude that the defendant fled, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled cannot prove guilt.”
“The People are not required to prove that the defendant had a motive to commit (the crime) charged. In reaching your verdict you may, however, consider whether the defendant had a motive.
“Having a motive may be a factor tending to show that the defendant is guilty. Not having a motive may be a factor tending to show the defendant is not guilty.”