Opinion
B327554
10-29-2024
THE PEOPLE, Plaintiff and Respondent, v. RICHAAD CHRISTOPHER HORTON, Defendant and Appellant.
Debbie Yen, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Idan Ivri and Nikhil Cooper, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. NA118848 Chet L. Taylor, Judge. Affirmed.
Debbie Yen, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Idan Ivri and Nikhil Cooper, Deputy Attorneys General, for Plaintiff and Respondent.
CURREY, P. J.
INTRODUCTION
A jury convicted defendant and appellant Richaad Christopher Horton of second degree residential burglary, and the trial court ordered him to pay victim restitution. On appeal, Horton argues the trial court prejudicially abused its discretion by, over defense counsel's objections under Evidence Code sections 1101 and 352, taking judicial notice of Horton's two prior burglary convictions from 2021. Horton also challenges the victim restitution order. Finding no error, we affirm.
PROCEDURAL BACKGROUND
The Los Angeles County District Attorney filed an amended information charging Horton with one count of second degree residential burglary (Pen. Code, § 459) and alleging Horton sustained one prior strike conviction. (§ 667, subds. (b)-(i); 1170.12, subds (a)-(d).) A jury convicted Horton on the burglary count; then, in a bifurcated proceeding, the trial court found the prior strike true. The court sentenced Horton to a two-year middle term, doubled to four years based on the prior strike. Horton timely appealed.
All further undesignated statutory references are to the Penal Code unless otherwise specified.
FACTUAL BACKGROUND
I. Prosecution evidence
In January 2022, Monte Beard Jr. (Beard) was in the process of renovating a house he recently purchased. He intended to move in once the renovations were finished. To monitor the property, Beard set up two security cameras inside the house. When either camera sensed motion, it recorded two to three seconds of audio and video footage, and immediately sent the footage to Beard's cell phone. The cameras were items of value.
On January 25, 2022, Beard left the house at 6:30 p.m. and locked the door behind him. On the kitchen countertop was a manila envelope containing mounting brackets and an instruction manual for the cameras.
Early the following morning, at 4:46 a.m., both cameras sent Beard notifications, which he viewed when he woke up at 5:30 a.m. The first three-second video, which was played for the jury, showed a man Beard identified as Horton holding the manila envelope and plastic bags. In the second video, which Beard described in his testimony, the footage appeared to be taken from a camera "rattling" around inside a plastic bag. After viewing the footage, Beard called the police and went to the house, where he was met by responding officers at 5:50 a.m. Horton was not there.
Beard or his wife accidentally deleted this footage before it could be shown to officers investigating the burglary.
Beard showed the officers the first video and a screenshot of Horton. Long Beach Police Department Officer Teddy Nguyen noted Horton's dark hooded jacket and white beanie, and began driving around the nearby area looking for someone matching the image. At approximately 7:30 a.m., less than a mile from Beard's house, Officer Nguyen spotted Horton. Horton was walking and wore a white beanie and a hooded jacket. Officer Nguyen detained and searched Horton, but Horton had nothing but his own items with him.
Meanwhile, Beard and police officers went inside the house. A brick lay near a shattered window. Other windows were broken and shattered glass was on the floor. Closet doors had been opened. Both cameras were missing. Outside the house, beneath a shattered window, lay the manila envelope that had contained the camera instruction manual and mounting brackets. The manual was missing.
Over defense counsel's objection, the court took judicial notice of Horton's two prior section 459 convictions, both dated September 16, 2021, for second degree burglary of a vehicle.
II. Defense evidence
Horton testified he had been unhoused since his release from prison in 2017. On the night of January 25, 2022, Horton walked by Beard's house, noticed it was empty, jumped over the fence, and entered through an unlocked back door. Horton's only intention, he said, was to get out of the rain. Horton admitted he was the man seen in the three-second video clip played during Beard's direct testimony, and stated the plastic bags he was holding in the video contained only his own possessions. Horton made sure no one else was in the house, but decided to leave when he noticed the cameras. He testified he did not break or take anything as he left. After leaving, he slept in a nearby Papa John's storefront, and in the morning, he was stopped by officers as he walked to a landscaping job.
Horton admitted the two prior convictions for vehicle burglary, and that further, on October 3, 2018, he was convicted of a felony for escaping a penal institution.
DISCUSSION
I. The trial court did not abuse its discretion by admitting Horton's prior burglary convictions
As noted above, Horton contends the trial court abused its discretion by taking judicial notice of his two burglary convictions from 2021. The Attorney General counters the trial court's admission of the prior convictions was not arbitrary or irrational, as the evidence was highly probative of whether Horton intended to steal from Beard's house - the main disputed issue at trial. We agree with the Attorney General. Because the evidence was relevant to Horton's intent, a central issue disputed at trial, the evidence was admissible under Evidence Code sections 352 and 1101, subdivision (b).
A. Background
Horton sustained two prior convictions for second degree burglaries of vehicles in 2021. The prosecution filed a pretrial brief seeking to admit these prior burglary convictions "as Evidence Code Section 1101(b) evidence of the defendant's 'intent' in the current case." The prosecution stated it intended to ask the trial court to take judicial notice of these convictions based on the court file or certified records of conviction. The defense did not file a responsive brief. At a pretrial hearing, the trial court tentatively indicated it would admit the prior burglary convictions pending additional defense argument.
At a later pretrial hearing, defense counsel characterized the charged residential burglary as a trespass without a theft, and contended the prior burglary convictions should be excluded as insufficiently similar to the charged crime under Evidence Code section1101, subdivision (b), and as more prejudicial than probative under Evidence Code section 352, because at least one of the priors was a vehicle burglary. The prosecution conceded both prior burglaries were of vehicles, but argued because the central disputed issue was Horton's intent to commit theft, and because Horton's recent prior burglary convictions were highly probative regarding his intent to steal, the priors should be admitted. Regarding the fact that the prior burglaries were of vehicles and not a residence, the prosecution explained: "Every burglary, whether it's of a building, structure, house, or automobile, requires either an intent to commit theft therein or an intent to commit a felony therein." The court stated its tentative decision to admit the prior burglaries would stand, but allowed the defense another opportunity to argue the issue at trial.
In its opening statement to the jury, the prosecution mentioned the prior burglaries, stating: "You are also going to hear that approximately four months prior to this incident, Mr. Horton was convicted of two separate cases of the exact same charge, burglary."
At the end of the prosecution's case-in-chief, the prosecutor asked the court to take judicial notice of the prior burglaries, and defense counsel objected. The court heard extensive argument from the parties, including about whether the prior vehicle burglaries were sufficiently similar to the currently alleged residential burglary offense to warrant admission. The trial court ruled the prior convictions would be admitted, but the jury would be informed they involved vehicle burglaries, so the distinction between the priors and currently alleged crime would be clear. In support of its ruling, the court expressed its view that the priors were relevant and should be admitted to prove Horton's intent to steal.
Over defense counsel's continuing objection, the court took judicial notice of the date and case numbers for Horton's two prior burglary convictions, and that each conviction was for second degree burglary of a vehicle. During closing, the prosecution argued to the jury that Horton was convicted of two other burglaries four months before the alleged crime in this case, and this suggested he had the intent to steal and commit burglary again here.
B. Applicable Law
Character evidence is generally inadmissible to prove a defendant's conduct on a specific occasion. (Evid. Code, § 1101, subd. (a).) But specific acts of prior misconduct may be offered for a noncharacter purpose, including to show intent. (Evid. Code, § 1101, subd. (b).)
Prior acts that are admissible under Evidence Code section 1101, subdivision (b) may nevertheless be inadmissible under Evidence Code section 352. Under Evidence Code section 352, trial courts have the discretion to exclude relevant evidence "if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." Evidence Code section 352 guards against the admission of "evidence which uniquely tends to evoke an emotional bias against defendant as an individual and which has very little effect on the issues." (People v. Rucker (2005) 126 Cal.App.4th 1107, 1119.)
We review for abuse of discretion a trial court's determination that evidence is admissible under Evidence Code sections 1101 and 352. (People v. Doolin (2009) 45 Cal.4th 390, 437.) "Under the abuse of discretion standard, 'a trial court's ruling will not be disturbed, and reversal of the judgment is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.'" (People v. Hovarter (2008) 44 Cal.4th 983, 1004 (Hovarter).)
C. Analysis
The trial court did not abuse its discretion by admitting Horton's recent prior burglary convictions. As the trial court correctly explained, the evidence of Horton's prior burglary convictions was relevant to Horton's intent to steal in the current case. Intent was the central issue disputed at trial. As defense counsel stated: "[I]ntent is everything. I agree; that is everything."
To be admissible, uncharged acts must be sufficiently similar to the charged offense to support the inference that the defendant "probably harbored" the same intent in each case. (People v. Soper (2009) 45 Cal.4th 759, 776.) As noted above, the prior uncharged burglaries were not identical to the charged burglary, in that the priors were burglaries of vehicles and the current offense was a residential burglary. But this is a distinction without a difference. "The question . . . is not the number of points of similarity but their logical relevance to establish the mental element of the charged offense." (People v. Rocha (2013) 221 Cal.App.4th 1385, 1394.)
As the trial court correctly explained, although the prior burglaries were of vehicles, they nonetheless involved the same mental state as the current offense (Horton's intent to steal). Because the prior conviction evidence was relevant to the central issue of Horton's intent, it was not arbitrary or irrational for the trial court to conclude it was admissible under Evidence Code sections 1101 and 352. (See Hovarter, supra, 44 Cal.4th at p. 1004.) And by informing the jury that the prior convictions were for vehicle (not residential) burglaries, the court allowed the jury to assign to that distinction whatever weight it deemed appropriate.
We reject Horton's argument that reversal is warranted under People v. Lopez (2011) 198 Cal.App.4th 698 (Lopez). It is true that Lopez concluded the admission of the defendant's prior vehicle burglary and car theft was erroneous in a trial for a residential burglary because the prior offenses "did not have substantial probative value that outweighed its inherent prejudice." (Id. at p. 715, italics omitted.) Crucially, however, unlike Horton's case, the only disputed issue in Lopez was identity, not intent. (Id. at pp. 713-715.) Consequently, the prior crimes evidence admitted in Lopez had no probative value on whether Lopez committed the charged offense, and had the highly prejudicial effect of suggesting to the jury that he was the actual burglar, a point on which the prosecution's other evidence was "minimal and conflicting." (Id. at pp. 713-716.) Lopez is thus different from and inapplicable to Horton's case.
II. The victim restitution award was not improper
Horton argues the trial court's direct victim restitution award of half the cost of a fence topper (i.e., something mounted on top of an existing fence to increase its height) must be stricken because the fence topper was a cosmetic improvement. He further argues even if the fence topper is a security improvement, payment of a portion of its cost may not be imposed as restitution under section 1202.4, subdivision (f)(3)(J) and 667.5, subdivision (c) for his nonviolent felony of residential burglary. "Ordinarily, the standard of review of a restitution order is abuse of discretion." (People v. Williams (2010) 184 Cal.App.4th 142, 146.) "However, when the propriety of a restitution order turns on the interpretation of a statute, a question of law is raised, which is subject to de novo review on appeal." (Ibid.) As discussed in greater detail below, applying these standards of review to Horton's two challenges to the restitution order, we reject his contentions that the order warrants reversal.
A. Relevant proceedings
At a contested restitution hearing, Beard testified and provided receipts for various items, including lost wages, purchase of new security cameras identical to the stolen ones, and hardware to repair the vandalism and damage to the residence. He also testified to purchasing and installing an 18-inch high vinyl fence topper to increase the height of the fence Horton had climbed "[f]or added security to the property to prevent individuals from climbing over the fence." Beard sought restitution for the amount he paid: $1,755.18.
Over defense counsel's objection, the court ordered Horton to pay as restitution to Beard $877.59 (half the cost of the fence topper), explaining: "I think that is more than fair. That is an improvement. I do think he's entitled to some of it, but I'm not going to award the whole amount."
B. Applicable law
Direct victim restitution is mandated by the state Constitution and implemented by Penal Code section 1202.4, subdivision (f). (People v. Rowland (1997) 51 Cal.App.4th 1745, 1750-1751 (Rowland).) "[A]ll persons who suffer losses as a result of criminal activity shall have the right to seek and secure restitution from the persons convicted of the crimes causing the losses they suffer." (Cal. Const., art. I, § 28, subd. (b)(13)(A).) "The only discretion retained by the trial court in this regard is in fixing the amount of the award." (Rowland, supra, 51 Cal.App.4th at pp. 1751.)
C. Analysis
We conclude the trial court's restitution order was proper under section 1202.4, subdivision (f)(3). Subdivision (f)(3)(J) provides victim restitution should be imposed "for every determined economic loss incurred as the result of the defendant's criminal conduct, including, but not limited to, all of the following: [¶] . . . [¶] Expenses to install or increase residential security incurred related to a violation of Section 273.5, or a violent felony as defined in subdivision (c) of Section 667.5, including, but not limited to, a home security device or system, or replacing or increasing the number of locks." (Italics added.) Horton argues the restitution award was improper under subdivision (f)(3)(J) because he was not convicted of a violation of section 273.5 or a violent felony. Although it is true that subdivision (f)(3)(J) only mentions section 273.5 and violent felonies, and while it is true that Horton's residential burglary conviction does not fall within either of these categories, we reject Horton's contention that the restitution award in his case therefore was improper. As noted above, an award of victim restitution is a constitutional imperative. And as its language indicates, subdivision (f)(3) provides a non-exhaustive list of circumstances in which it is proper for trial courts to impose victim restitution. (See, e.g., People v. Henderson (2018) 20 Cal.App.5th 467, 473 ["[T]o interpret the disputed provision as limiting restitution for home security systems to victims of violent felonies would require us to read the words 'including, but not limited to' out of section 1202.4, subdivision (f)(3)"] (Italics in original).) Given that the list is non-exhaustive, and based on the principle that victim restitution rights are to be "'"'broadly and liberally construed'"'" (People v. Sy (2014) 223 Cal.App.4th 44, 63), we conclude the restitution order was within the trial court's broad authority provided by section 1202.4, subdivision (f)(3).
DISPOSITION
The judgment is affirmed.
We concur: MORI, J., ZUKIN, J.