Opinion
A118149
4-22-2008
THE PEOPLE, Plaintiff and Respondent, v. DUANE SCOTT JOACHIM, Defendant and Appellant.
NOT TO BE PUBLISHED
Defendant Duane Scott Joachim appeals his jury-trial convictions for felony receipt of stolen property (Pen. Code, § 496, subd. (a)) and misdemeanor possession of burglars tools (§ 466). Appellant contends that the trial court abused its discretion by admitting evidence of his prior uncharged burglaries. We shall reverse appellants conviction for misdemeanor possession of burglary tools and affirm the judgment as so modified.
Further statutory references are to the Penal Code unless otherwise noted.
FACTUAL BACKGROUND
The following facts are adduced from testimony at trial: Around 10:00 a.m. on the morning of Sunday, September 3, 2006, Napa County Deputy Sheriff David Ackman was on vehicle patrol when he noticed a gold Plymouth Sundance driving towards him without a license plate on the front. Ackman made a U-turn to do a traffic stop. After turning the police car around, Ackman noticed that the Plymouth had pulled over to the curb and saw the passenger throw an object out of the window. Ackman called for back-up.
Appellant was the driver of the Plymouth. He had no identification. The officers recovered the object thrown from the car — a used methamphetamine pipe containing a burnt residue. During a search of the Plymouth, officers found a Skill saw, flood light, an almost full can of gasoline, channel-lock pliers, a hacksaw and an air compressor hose and fitting. Also found in the trunk of the car were two plastic boxes containing Rain Bird sprinkler control mechanisms valued at approximately $1600 each. Additionally, officers found two items associated with theft or burglary—a pair of bolt cutters and a tire iron with one end flattened into a pry bar. These last two items were presented to the jury at trial.
Appellant told Officer Ackman he obtained the property in the vehicle at the local flea market but offered no receipts or any explanation as to why he had purchased such property. Appellant did not respond when Officer Ackman remarked that he did not think someone would sell a gas can almost full of gas at a flea market. On cross-examination, Ackman stated that the local flea market is located on South Kelly Road, Napa County and on a Sunday consists of about one hundred small booths. It is located about three miles from the site of the vehicle stop. Ackman stated he had never arrested or recovered stolen property at the flea market but he is aware that stolen property is sold there.
Ackman evaluated appellant at the scene to see whether he was under the influence of a controlled substance. Beforehand, Ackman advised appellant of his Miranda rights and appellant agreed to talk with the officer. In response to questioning, appellant stated he had no medical problems, did not take any medications, but had hit his head the day before. Ackman observed symptoms indicating that appellant was under the influence of a stimulant, including dilated pupils, rapid speech and dry mouth, but appellant stated he had never used drugs in his life. When asked specifically if he had used methamphetamine recently, appellant said he did not know what meth was and denied using any that day. In field tests, appellant estimated 30 seconds as 14 seconds, his eyelids fluttered uncontrollably, his pupils were dilated to 6.0 millimeters and did not react to light, and his pulse was elevated at 100 beats per minute. Based on field test observations, Ackman concluded appellant was "very obvious[ly]" under the influence of a stimulant, placed appellant under arrest, and transported him to jail.
Miranda v. Arizona (1966) 384 U.S. 436, 444 ["prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination"].)
At approximately 7:30 p.m. on the evening of September 3, 2006, the same day appellant was arrested, police received a report of a burglary at Coast Landscape Management ("Coast"), located on Camino Oruga Drive near the site of the flea market. Joshua Wright, Coasts equipment manager, discovered the burglary when he went to work about 7:00 p.m. that Sunday evening. Wright had also been at work the day before, on Saturday. Police transported Wright to the scene of the vehicle stop, where the Plymouth was still parked. Wright identified two Rain Master, remote-control sprinkler system mechanisms, a Craftsman hacksaw, a tire gauge with air hose attached, two sets of channel locks, a five-gallon gas can, and a Skill saw as equipment stolen from the Coast facility. Police released the stolen equipment to Wright. Wright did not identify the bolt cutters and tire iron as Coast equipment. A subsequent inspection of the scene of the burglary at Coasts yard revealed that one of the service trucks had a broken window. Also, according to Wright, one of the utility boxes on the side of the vehicle "looked like" it had been forced open with a pry bar because it had "new paint chips on it and it looked like it wasnt opened nicely." On the west side of the yard, someone had dug a hole underneath the chain-link fence in order to enter. No shovel or any digging implement was found at the scene and there was no indication that bolt cutters had been used in the burglary. Wright testified that the damage occurred sometime between when he left the facility on Saturday at 7:00 p.m. and Sunday at 7:00 p.m. when he returned.
At the jail, appellant falsely stated his name as that of his brother, Richard Joachim, and gave a false date of birth. Also, a blood sample was taken from appellant at the jail. Appellants blood sample tested positive for methamphetamine and amphetamine. Specifically, appellants blood measured 150 nanograms per milliliter for methamphetamine, a level which could potentially result in cardiac arrest.
PROCEDURAL BACKGROUND
On September 18, 2006, an Information was filed in case number CR131318, charging appellant in separate counts with (1) felony receipt of stolen property [§ 496, subd. (a)]; (2) misdemeanor under the influence of a controlled substance [Health & Saf. Code, § 11550, subd. (a)]; (3) misdemeanor driving under the influence of a controlled substance [Veh. Code, § 23152, subd. (a)]; and (4) misdemeanor possession of burglars tools [§ 466]. On February 6, 2007, another Information was filed charging appellant in case number CR132981 on a single count of felony false personation [§ 529]. This Information also alleged that appellant had four prior felony convictions in 1988, 1989, 1996 and 2006. The cases were consolidated for trial.
On March 28, 2007, the people filed a motion in limine to introduce evidence of appellants "prior acts involving theft and receiving stolen property" under Evidence Code 1101, subdivision (b) ["section 1101(b)"]. Specifically, the people sought to introduce evidence of five prior acts to prove absence of mistake or accident; to prove common design or plan; and to prove intent. The minute order for April 2, 2007, records that the trial court ruled the People could introduce evidence concerning appellants prior acts on October 17, 2006, November 12, 2004 and November 18, 2004, and disallowed use of the other two incidents. At trial, evidence was presented on two of appellants prior uncharged burglaries—those committed on October 17, 2006, and November 12, 2004.
Before closing argument, appellants counsel moved for a mistrial on the grounds that appellant was prejudiced by the section 1101(b) evidence. The trial court denied the motion. On April 4, 2007, the jury returned verdicts of guilty on all charges. On May 31, 2007, the trial court sentenced appellant in case number CR131318 to the mid-term of two years for receipt of stolen property, with 249 days credit for time served. Also, the trial court sentenced appellant to 90 days in county jail on all other counts in case number CR131318, including the conviction for misdemeanor possession of burglars tools, with credit for time served. In case number CR132981, the trial court sentenced appellant to one-third the mid-term (8 months), on the false personation conviction, to be served consecutive to the sentence imposed in case number CR131318 and with 51 days credit for time served. Appellant filed a timely notice of appeal on June 19, 2007.
DISCUSSION
A. Section 1101(b) Evidence at Trial
1. October 17, 2006 Incident ("The Martinez Incident")
Richard Elliott testified that on October 17, 2006, he was in the garage of his Martinez home doing laundry when he heard a vehicle pull into the driveway. He went outside to investigate and saw a Suburban parked in his driveway. The driver was not in the truck. Elliott thought it odd that a truck was parked in his driveway but no one was there, so he walked out into the street to take a look around. Just then, he saw an individual, whom he identified in court as appellant, about three feet from his neighbors shed. Appellant was carrying a weed-eater and walking back in the direction of the truck. Elliott asked appellant why he had parked in Elliotts driveway. Appellant replied that he "was talking to the guy up there," threw the weed-eater in the back of the truck, and drove off.
Elliott said he was annoyed by the incident, so he talked to a neighbor, who had taken down the license plate number on the Suburban. He then phoned the neighbor whose shed appellant was coming from and asked him if "there should be anyone taking anything out of your shed." After the neighbor said "No," Elliott phoned the Suburbans license number into the police and gave a description of the vehicle. About 20 minutes later the police called to ask him to go to an in-field identification not too far from his house. After police took him to the scene, Elliott identified appellant as the person he had seen walking away from his neighbors house with the weed-eater.
Patrick Morphy testified that he was contacted on October 17, 2006, about an item being taken from his property. Morphy said the item was a weed-eater and it was recovered by a deputy on the same day that it had been taken. He stated he keeps the weed-eater in his shed and that the shed was closed, but not locked.
Deputy Van Zeff of the Contra Costa County Sheriffs Office testified that on October 17, 2006, he was dispatched to investigate a report of a burglary. Van Zeff spotted the Suburban driving in tandem with an older dump truck. When Van Zeff conducted the stop, both vehicles pulled over. The person driving the Suburban did not match the description of the person who committed the burglary, but the driver of the dump truck did match the description. Van Zeff looked through the rear passenger window of the Suburban and saw a weed-eater matching the one reported as stolen. The weed-eater was returned to the owner.
2. November 12, 2004 Incident ("The Sonoma Incident")
David Neff testified that on November 12, 2004, he called police in Sonoma County because he had happened to see a person driving a truck and he recognized the person from a burglary that occurred next door to his house a month earlier. Neff saw the person drive the truck into a mobile home park. Asked if that person was in court, Neff replied he was not "100 percent certain" but he believed appellant was the person he saw in the truck. Neff said that on November 12, 2004, he was certain he recognized the driver of the truck.
Sonoma County Deputy Sheriff Mark Provost testified that in response to a call at about 7:45 a.m. on November 12, 2004, he went to the mobile home park to investigate the identification of a possible burglary suspect on a prior case. Provost talked to Neff about his sighting of the burglary suspect driving a truck. Neff then physically pointed out the driver of the truck to Provost. In court, Provost identified appellant as the person Neff pointed out to him that day. Provost contacted appellant when appellant approached the suspect truck. Initially appellant said he wasnt driving the truck, but was working on the carburetor. Then appellant acknowledged he was driving the truck. In the back of the truck, Provost noticed several cases containing various power tools. On all the cases, "Swint" was written in white paint. Appellant said the tool cases belonged to a friend of his but he didnt know the friends name. The officers seized the tool cases. Subsequently Daniel Swint of Glen Ellen identified all the items seized from the back of appellants truck as items stolen from his property.
Daniel Swint testified that his home was burglarized in mid-November 2004. Swint said that about 12 to 14 different construction tools were stolen. The majority of these were power hand tools in individual cases. Swint stated that it has been his habit for years to mark his tool cases with the word "Swint" in white paint. Swint was not at home when the tools were stolen. He was out of town when he received a phone message from his younger brother telling him the Sheriffs department had been trying to contact him to determine if he had rented his tools out or been burglarized. The tools were stolen from a garage and from another building under construction on his property. Subsequently, police returned a jigsaw, an angle grind, a cordless dry impact drill, a trim saw, a hand plane and a Hilty fastener to Swint, all of which had been taken from his property without his permission.
Regarding the above evidence of other uncharged offenses, the trial court instructed the jury under CALCRIM 375, modified as follows: "The People presented evidence that the defendant committed the offenses of Theft and Receiving Stolen Property that were not charged in this case. [¶] You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the offenses. Proof by a preponderance of the evidence is a different burden of proof than proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. [¶] If the People have not met this burden, you must disregard this evidence entirely. [¶] If you decide that the defendant committed the offenses, you may, but are not required to, consider that evidence for the limited purpose of deciding whether or not:
The defendant possessed burglars tools with the intent to break and enter into any building or vehicle; or
The defendant knew when he bought or received the property that the property was stolen, when he allegedly acted in this case; or
The absence of mistake or accident in defendants alleged actions of buying or receiving stolen property or possession of burglars tools; or
The defendant had a plan or scheme to commit the offenses alleged in this case. Do not consider this evidence for any other purpose. [¶] If you conclude that the defendant committed the uncharged offenses, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of PC496(a)—Receiving Stolen Property and PC466—Possession of Burglars Tools. The People must still prove each element of every charge beyond a reasonable doubt."
B. Analysis
Appellant contends the trial court abused its discretion by admitting evidence of his uncharged burglaries. First, with respect to the felony receipt of stolen property charge (§ 496, subd. (a)), appellant asserts that "[w]hile evidence connecting appellant to this burglary was certainly relevant . . . on the ultimate question of whether he had requisite `knowledge that this particular property was stolen, evidence that he stole property during the commission of other burglaries established nothing more than his propensity to commit similar crimes." Second, with respect to the misdemeanor possession of burglars tools (§ 466), appellant asserts that the uncharged burglaries were inadmissible to establish that he possessed a pry bar and bolt cutters with the specific intent to commit a similar crime. As explained below, we agree in part with appellants first contention and agree in full with his second contention.
"Evidence of uncharged offenses `is so prejudicial that its admission requires extremely careful analysis. [Citations.] " (People v. Ewoldt (1994) 7 Cal.4th 380, 404. Nevertheless, "[t]he rules governing the admissibility of evidence of other crimes are well settled. ` "Evidence of the defendants commission of a crime other than one for which the defendant is then being tried is not admissible to show bad character or predisposition to criminality but it may be admitted to prove some material fact at issue, such as motive or identity. (Evid. Code, § 1101.) Because evidence of other crimes may be highly inflammatory, its admissibility should be scrutinized with great care. [Citation.]" [Citation.] In cases in which the prosecution seeks to prove the defendants identity as the perpetrator of the charged offense by evidence he had committed uncharged offenses, admissibility "depends upon proof that the charged and uncharged offenses share distinctive common marks sufficient to raise an inference of identity." (Citation.) A somewhat lesser degree of similarity is required to show a common plan or scheme and still less similarity is required to show intent. (Citation.) On appeal, we review a trial courts ruling under Evidence Code section 1101 for abuse of discretion. (Citation.)" (People v. Roldan (2005) 35 Cal.4th 646, 705.)
(a) Receipt of Stolen Property
Regarding the section 496 felony receipt of stolen property charge, the trial court allowed the jury to consider evidence of the Martinez and Sonoma incidents "for the limited purpose" of deciding whether or not appellant had a common scheme or plan and the requisite intent to commit the offense, i.e., he possessed the property knowing it was stolen. (See CALCRIM 1750 [defining intent element of crime of receiving stolen property].)
The jury was also permitted to consider the evidence for "absence of mistake or accident in defendants alleged actions of buying or receiving stolen property." As noted above, the cases articulate three-tiers of similarity for section 1101(b) evidence—the least degree of similarity between the uncharged act and the charged offense is required to prove intent; the greatest degree of similarity is required to prove identity, and somewhere in between falls evidence of a common plan or design. (See, e.g., Ewoldt, supra, 7 Cal.4th at pp. 402-403.) In this evidentiary hierarchy, absence of mistake is synonymous with intent (Ewoldt, supra, 7 Cal.4th at p. 394, fn. 2.), and therefore, like intent, requires the least degree of similarity, id. at p. 402.)
To be admissible under section 1101(b) as a common scheme or plan, the Martinez incident "must demonstrate `not merely a similarity in the results, but such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations. " (Ewoldt, supra, 7 Cal.4th at p. 402.) The Martinez incident, however, was essentially a theft-in-progress, in which Richard Elliott saw appellant leaving the scene of the crime with the loot in his hands, the loot being a weed-eater taken from Richard Elliotts neighbors shed. Appellants section 496 felony receipt of stolen property offense, on the other hand, involved the discovery of stolen goods in appellants vehicle during the course of a traffic stop.
In our view, the Martinez incident is too dissimilar to the circumstances of appellants receipt of stolen property offense to warrant its admissibility under section 1101(b). There is no similarity of result and there are no common features that would permit an inference that the two incidents were part of a common plan. To the contrary, the facts suggest that the two incidents were unrelated occurrences, in which appellant stole goods in the one case and possessed stolen goods in the other. Moreover, the Martinez incident is not even sufficiently similar to the receipt of stolen property offense to be admissible under the least degree of similarity to show intent. (See Ewoldt, supra, 7 Cal.4th at p. 402 ["to be admissible to prove intent, the uncharged conduct must be sufficiently similar to support the inference that the defendant `probably harbored the same intent in each instance " [italics added]; cf. People v. Lewis (2001) 25 Cal.4th 610, 637 [where "defendant overcame the victim by force, then reached into the victims back pocket to obtain his wallet" in both the charged and uncharged crimes, the incidents were "sufficiently similar to support an inference that defendant harbored the same intent in both instances . . . to forcibly obtain cash from the victim"] [italics added].) In sum, we conclude that the trial court abused its discretion in admitting evidence of the Martinez incident in regard to the receipt of stolen property charge.
In regard to the Sonoma incident, however, we conclude that the trial court did not abuse its discretion by admitting that evidence to show intent. As already noted, when prior crimes are used to show intent, "the uncharged crimes need only be sufficiently similar [to the charged offenses] to support the inference that the defendant probably harbored the same intent in each instance." (People v. Lewis, supra, 25 Cal.4th at p. 637 [internal citations and quotation marks omitted].) Stated otherwise, "if a person acts similarly in similar situations, he probably harbors the same intent in each instance and . . . such prior conduct may be relevant circumstantial evidence of the actors most recent intent. The inference to be drawn is not that the actor is disposed to commit such acts; instead, the inference to be drawn is that, in light of the first event, the actor, at the time of the second event, must have had the intent attributed to him by the prosecution." (People v. Miller (2000) 81 Cal.App.4th 1427, 1448 [citation and quotation marks omitted].)
Because evidence of the Sonoma incident was properly admitted to show intent, we need not address whether it was error to admit the evidence to show common scheme or plan. " `"[A] ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for a wrong reason. If right upon any theory of the law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion." [Citation.] " (People v. Zapien (1993) 4 Cal.4th 929, 976, quoting DAmico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 19.)
In both the Sonoma incident and the charged offense, appellant was confronted by police after driving a vehicle containing stolen goods. In both cases, the goods were found in appellants possession close to the time of the burglary of the property where the goods were stolen. In both cases, the goods involved were construction tools and equipment. And in both cases, appellant fabricated a story about how he came to be in possession of the goods. In the Sonoma incident, he told police the tools belonged to a friend whose name he could not remember, and in the charged offense he told the police that he had obtained the goods at a flea market. We conclude that these similarities permit an inference to be drawn that, in light of the Sonoma incident, appellant, at the time of the traffic stop in this case, "must have had the intent attributed to him by the prosecution"—i.e., that he possessed the tools in his vehicle knowing they were stolen. (People v. Miller, supra, 81 Cal.App.4th at p. 1448.) Accordingly, the trial court did not abuse its discretion in admitting evidence of the Sonoma incident to show that appellant possessed the goods in his car knowing that they were stolen.
We acknowledge that even if the Sonoma incident is admissible under section 1101(b) to show intent, it must still satisfy the admissibility requirements of Evidence Code section 352; that is, its "probative value [must not be] `substantially outweighed by the probability that its admission [will] . . . create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. " (Ewoldt, supra, 7 Cal.4th at p. 404, quoting Evid. Code, § 352.) Factors increasing probative value include the tendency of the evidence to prove one of the specified facts and the independence of the source of the evidence of uncharged misconduct from the source of the charged offense. Factors increasing prejudice include the absence of a conviction for the uncharged act and the strength and inflammatory nature of the testimony describing that act. (Id. at p. 404-405.) Here, the prejudicial effect of admitting evidence of the Sonoma incident did not substantially outweigh the probative value of that evidence. The Sonoma incident was no more inflammatory than the evidence of the charged offense, was entirely independent of the charged offense, and was highly probative on the issue of intent because it showed that on another occasion appellant lied to the police about the source of stolen goods found in his possession.
(b) Possession of Burglars Tools
Regarding the misdemeanor possession of burglars tools charge, the trial court allowed the jury to consider evidence of the Martinez and Sonoma incidents "for the limited purpose" of: (1) deciding whether appellant possessed burglars tools with the intent to break and enter into any building or vehicle; (2) showing the absence of mistake or accident in appellants possession of burglars tools; (3) showing appellant had a plan or scheme to possess burglars tools.
We need not rehash the analysis above at any great length. Suffice to say that in neither the Martinez nor the Sonoma incident was appellant shown to possess burglars tools, nor was there even any evidence that burglars tools had been used in those incidents. Thus, we are at a complete loss to see how the Sonoma and Martinez incidents could be viewed as manifestations of a general plan to possess burglars tools. (Ewoldt, supra, 7 Cal.4th at p. 402 [to be admissible under section 1101(b) as a common scheme or plan, evidence "must demonstrate `not merely a similarity in the results, but such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations "].)
Similarly, neither the Martinez nor Sonoma incident displays a sufficient degree of similarity to the charged offense to be admissible to show intent. Although stolen goods were found in appellants truck in the Sonoma incident, no burglars tools were discovered with them. And in the Martinez incident, appellant was observed walking back to the Suburban carrying a weed-eater from Richard Elliotts neighbors shed, which was closed but not locked. And Elliott did not see appellant with burglars tools. There is simply no similarity between the charged offense and either the Martinez or Sonoma incidents. In sum, with respect to the offense of misdemeanor possession of burglars tools, evidence of the Martinez and Sonoma incidents was irrelevant to prove the fact of either a common plan or of whether appellant possessed burglars tools with the intent to break and enter into any building or vehicle. The only purpose it served with respect to that charge was to show appellants propensity to commit criminal acts. Accordingly, the trial court abused its discretion in allowing evidence of the Martinez and Sonoma incidents in relation to the misdemeanor possession of burglars tools.
(c) Harmless Error Analysis
We have concluded that the trial court abused its discretion: (1) by admitting evidence of the Martinez incident with respect to the charge of felony receipt of stolen property; and, (2) by admitting evidence of both the Martinez and Sonoma incidents with respect to the charge of misdemeanor possession of burglars tools. We evaluate the prejudice caused by the erroneous admission of this evidence of other misconduct under the Watson standard. Under that standard, reversal is not compelled unless a result more favorable to the defendant would have been reasonably probable if such evidence were excluded. (See, e.g., People v. Scheer (1998) 68 Cal.App.4th 1009, 1018-1019.)
People v. Watson (1956) 46 Cal.2d 818, 836.
Appellant was found in the possession of property stolen from the Coast facility within about 15 hours of the burglary. He told the police that he bought the equipment at a flea market. As the prosecutor pointed out in closing argument, it is inherently implausible that appellant happened to purchase, not one or two, but every single piece of equipment that happened to have been stolen from the Coast facility. Appellant could produce no receipts and had no reply to Officer Ackmans observation that it was unlikely anyone would sell at a flea market a gas can that was almost full of gas. Additionally, appellant was shown to have lied to the police about two other matters: He denied using drugs that day and even said he did not know what methamphetamine was, yet his blood sample contained high levels of methamphetamine; and he lied about his identity and his date of birth. The jury was entitled to infer that appellants lies showed a consciousness of his guilt. Furthermore, the Sonoma incident showed that on another occasion appellant had stolen property in his possession and lied to the police about how he came to possess that stolen property. The jury was entitled to consider the Sonoma incident in deciding whether appellant knew the goods in his possession were stolen. In sum, the admission of the Martinez incident with respect to the charge of felony receipt of stolen property was harmless in light of other overwhelming evidence of guilt.
The same cannot be said regarding the charge of misdemeanor possession of burglars tools. Without the improper propensity evidence of the Martinez and Sonoma incidents, the jurys verdict, that beyond a reasonable doubt appellant possessed burglars tools with the intent to break and enter into any building or vehicle, rests solely on the fact that the tools were found in the same vehicle as the stolen goods. However, at the scene of the vehicle stop, Officer Ackman did not ask appellant specifically about the bolt cutters or tire iron as he did about the stolen goods. Rather, the bolt cutters and tire iron were seized by a different officer, Officer Steven Coultrup, after appellant had been transported to jail. Coultrup identified the bolt cutters and tire iron as burglary tools after Joshua Wright failed to identify them as Coast property. Unlike the stolen property, therefore, there are no statements that can be attributed to appellant as consciousness of his guilt. Moreover, at best there was very weak evidence that such tools had been used in the burglary of the Coast facility. Indeed, there was no evidence whatsoever that bolt cutters were used: Rather, the evidence was that the burglar[s] did not cut through the perimeter fence at the Coast facility, but dug their way underneath it. There was evidence that one of utility boxes "looked like" it had been pried open.
And in the face of this weak evidence, there is the fact that the jury was allowed to consider the improper propensity evidence of the Martinez and Sonoma incidents. And the prosecutor relied heavily on this evidence in arguing this charge to the jury. The prosecutor stated: "Possession of burglars tools. Defendant had upon him or in his possession burglars tools. . . . Well, we heard testimony about what this defendant has been up to in Martinez and Contra Costa County. That hes in possession of all the stolen property form the Coast Landscaping case. . . . [¶] . . . [¶] Yeah, I guess there are bolt cutters that people . . . need to use in the course of their work. We havent heard any evidence of that in this case. What we have heard the evidence. The course of this defendants work is stealing things." There is no evidence the prosecutor could be referring to other than the improper propensity evidence of the Sonoma and Martinez incidents. In sum, and especially because the prosecutor urged impermissible inferences based on improper propensity evidence (People v. Minifie (1996) 13 Cal.4th 1055, 1071 [holding that the prosecutors closing argument "tips the scale in favor of finding prejudice"]), we cannot say that a result more favorable to the appellant on the misdemeanor possession of burglary tools charge would not have been reasonably probable if evidence of the Martinez and Sonoma incidents had been excluded.
DISPOSITION
The conviction for misdemeanor possession of burglars tools is reversed. As modified, the judgment is affirmed.
We concur:
McGuiness, P. J.
Pollak, J.