Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CRF06-7162
NICHOLSON, J.
Defendant Zachary Tyler Jones was convicted by a jury of second degree burglary (Pen. Code, § 459). Defendant appeals his conviction claiming evidentiary error and ineffective assistance of counsel. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On the morning of September 2, 2006, Jennifer Landrum went to her car and found it had been broken into and several items stolen. A search of the car revealed defendant’s fingerprints on the inside of the driver’s side window. Defendant was subsequently arrested and charged with second degree burglary. Defendant pleaded not guilty and went to trial.
Before trial began, the prosecution filed several motions in limine including a motion seeking to admit evidence of a prior burglary for which defendant was convicted in 2004, in order to prove defendant broke into Landrum’s car with the intent to commit theft. The court considered the prosecution’s moving papers, heard argument from both sides, and granted the prosecution’s motion.
The prosecution also sought to use four prior convictions to impeach defendant, should he testify at trial: (1) attempted vehicle theft, (2) assault with force likely to cause great bodily harm, (3) automobile burglary, and (4) vehicle theft. The defendant objected, requesting in the alternative that the court sanitize the priors.
The court granted the prosecution’s motion as to defendant’s three prior felony convictions for attempted vehicle theft, assault with force likely to cause great bodily harm, and automobile burglary. The court refused, however, to allow the prosecution to impeach defendant with his prior misdemeanor conviction for vehicle theft, ruling that only the underlying facts could be used and not the conviction itself.
At trial, after Landrum testified, the prosecution presented testimony from Saile Inukihaangana, the victim of the burglary for which defendant was convicted in 2004. Inukihaangana testified that on the morning of March 15, 2004, he went outside to his car and found that defendant, along with defendant’s friend, had broken into, and were still inside of, his car.
Testifying in his own defense, defendant admitted entering Inukihaangana’s car with the intention of committing theft. But, he also testified that he was out of town when Landrum’s car was burglarized. Defendant further explained that he regularly “panhandled” on the roadside and in parking lots, he would often put his hands on the inside of someone’s window or car door when asking them for money. This, he argued, may have been how his fingerprints came to be on the inside of Landrum’s car.
The jury was not persuaded by defendant’s testimony and found him guilty as charged. The court sentenced defendant to three years in state prison, ordering him to pay various fees and fines. Defendant appeals his conviction.
DISCUSSION
Defendant raises several claims on appeal: (1) the trial court erred in admitting evidence of a prior bad act in order to prove intent; (2) the trial court erred in allowing the prosecutor to impeach defendant with three prior felony convictions; and (3) he suffered ineffective assistance of counsel. Finding none of defendant’s claim to have merit, we affirm.
A. Evidence of Prior Bad Act
In support of his claim that the trial court erred in admitting evidence of a prior bad act to prove intent pursuant to Evidence Code section 1101, defendant catalogues a list of missteps he contends the court took in reaching its decision. We address each of his claims.
Evidence Code section 1101, subdivision (b) allows admission of “evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, [or] absence of mistake or accident . . .) other than his or her disposition to commit such an act.”
Notwithstanding Evidence Code section 1101, subdivision (b), Evidence Code section 352 permits the court in its discretion to exclude any evidence “if its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice . . . .” “[T]he trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice . . . . [Citation.]” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) A trial court’s “exercise of that discretion ‘must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]’ [Citation.]” (Id. at pp. 1124-1125, italics omitted.)
Defendant first claims evidence of his prior conviction for auto burglary was prejudicial because it was cumulative and thus should not have been admitted. The parties agreed at trial that in order to convict defendant of second degree burglary under these circumstances, the prosecution was required to prove that “1. The Defendant entered a locked vehicle; [¶] AND [¶] 2. When he entered a locked vehicle he intended to commit theft.” (Judicial Council of Cal. Crim. Jury Instns. (2007-2008) CALCRIM No. 1700, as modified at trial.) It is defendant’s position that Landrum’s testimony alone proved he broke into her car with the requisite intent. Thereby making Inukihaangana’s testimony, which was offered to prove intent, cumulative. We are not persuaded.
Fingerprint evidence placed defendant inside Landrum’s car. Landrum testified her car was broken into, and, contemporaneous to that break in, certain items were taken from inside the car. Although such evidence is persuasive, it does not lead, inevitably, to the conclusion that defendant broke into the car with the intent to steal -- particularly when, as part of his defense, defendant testified he may have put his hands inside Landrum’s car while he was panhandling.
Faced with defendant’s attempt to provide an excuse for how his fingerprints came to be inside the victim’s car, the prosecution concluded more was necessary to carry its burden of proof. It was not an abuse of discretion by the trial court to admit evidence of defendant’s prior bad act in order to prove defendant entered the victim’s car with the intent to commit theft.
Defendant also asserts the trial court failed to demonstrate affirmatively on the record that it weighed the potential prejudice against the probative value of admitting the prior bad act and that such failure constitutes error. Defendant relies on People v. Farmer (1989) 47 Cal.3d 888, 906, to support his contention. That decision, however, was expressly overruled by the California Supreme Court in People v. Waidla (2000) 22 Cal.4th 690, 724, footnote, 6.
The law in California is now clear that “a trial court, in making a determination whether certain evidence is substantially more prejudicial than probative, ‘need not expressly weigh prejudice against probative value -- or even expressly state that [it] has done so . . . .’” (People v. Waidla, supra, 22 Cal.4th 690, 724, fn. 6.) In any event, the court did include its Evidence Code section 352 analysis on the record. There was no error.
Defendant further contends admitting evidence of his prior conviction for auto burglary confused the jury, “because the jury had to consider whether [defendant] committed a crime in the prior incident as well as consider [defendant’s] guilt or [innocence] in this case.” Defendant’s contention is unfounded.
When defendant testified, he admitted he committed the burglary against Inukihaangana and he was convicted for that crime. Given such testimony, it is unreasonable to assert the jury may have been confused about which crime defendant was being tried.
Finally, defendant argues admission of his prior bad act confused the jury by allowing it to infer improperly that defendant had a criminal disposition. Yet, the jury was specifically instructed evidence of the uncharged crime was to be considered solely for the purpose of deciding motive and intent. And defense counsel discussed that limiting instruction in his closing argument. We presume the jury understood and followed the instruction. (People v. Boyette (2002) 29 Cal.4th 381, 436.) Accordingly, we find no error.
Because we find no error in admitting evidence of defendant’s prior conviction for burglary, we need not address defendant’s claims that his due process rights were violated and the conviction must be reversed as a result of the court’s error in admitting evidence of defendant’s prior bad act.
B. Impeachment with Three Prior Felony Convictions
Defendant also contends the trial court abused its discretion in permitting the prosecutor to use his three prior felony convictions for impeachment. He claims the court failed to perform properly the balancing test under Evidence Code section 352; failed to consider his request that the court sanitize the priors; admission of the convictions was prejudicial by virtue of their sheer number; and the court abused its discretion in finding defendant’s prior conviction for attempted auto theft was not similar to the charged offense.
Subject to the trial court's discretion under Evidence Code section 352, any felony conviction that necessarily involves moral turpitude may be used for impeachment, even if the immoral trait is one other than dishonesty. (People v. Castro (1985) 38 Cal.3d 301, 306.) Its exercise of discretion will not be disturbed unless the court exceeded the bounds of reason such that the resulting harm is sufficiently grave to manifest a miscarriage of justice. (People v. Green (1995) 34 Cal.App.4th 165, 182-183.)
“In exercising its discretion, the trial court must consider four factors identified by our Supreme Court in People v. Beagle (1972) 6 Cal.3d 441, 453 . . .: (1) whether the prior conviction reflects adversely on an individual's honesty or veracity; (2) the nearness or remoteness in time of a prior conviction; (3) whether the prior conviction is for the same or substantially similar conduct to the charged offense; and (4) what the effect will be if the defendant does not testify out of fear of being prejudiced because of the impeachment by prior convictions. [Citation.] These factors need not be rigidly followed. [Citation.]” (People v. Mendoza (2000) 78 Cal.App.4th 918, 925.)
Here, defendant does not challenge the court’s ruling that the priors were crimes of moral turpitude. Rather, he argues the court “failed to properly exercise its discretion and to specifically weigh and balance under Evidence Code section 352 the probative value of impeachment by each individual conviction (and all three convictions in the aggregate) against the dangers of undue prejudice.”
In making his argument, defendant neglects to note the trial court and counsel discussed the motions, in limine, and off the record prior to trial. The court then went “on the record” to announce its ruling, making it impossible for this court to consider defendant’s claim. Additionally, as discussed above, and contrary to defendant’s assertion, the court is not obligated to perform its Evidence Code section 352 balancing on the record. (People v. Waidla, supra, 22 Cal.4th at p. 724, fn. 6.)
In any event, there was some discussion, on the record, memorializing the court balancing the probative value of using defendant’s prior convictions to impeach him against any prejudicial value. In fact, that consideration led the trial court to conclude defendant’s prior conviction for attempted auto theft was not “so similar to the charged offense that it raises the kind of 352 issues that you’ve mentioned.”
Defendant also argues this finding was an abuse of the trial court’s discretion, saying only that “both charges were theft-related convictions involving motor vehicles.” Raised in such a perfunctory fashion, this claim is buried within another argument, and defendant provides no legal authority or analysis to support his claim. Hence we deem the argument forfeited. (People v. Harper (2000) 82 Cal.App.4th 1413, 1419, fn. 4.)
Defendant also claims the trial court failed to address counsel’s claim of “cumulativeness,” and counsel’s request that the trial court “sanitize” the prior convictions. Again, because the court and counsel discussed these motions off the record, it is impossible for this court to assess exactly what the trial court did and did not consider in reaching its decision. In any event, if defendant was concerned whether the court failed to rule on his objections at trial, it was defendant’s obligation to raise those objections in the trial court. (People v. Scott (1994) 9 Cal.4th 331, 348.) He did not; thus, he forfeits those claims on appeal. (Ibid.)
C. Ineffective Assistance of Counsel
Defendant also contends he suffered ineffective assistance of counsel. To establish ineffective assistance of counsel, defendant must demonstrate that counsel’s performance was deficient and defendant suffered prejudice as a result. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692 [80 L.Ed.2d 674, 693, 696].) Defendant demonstrates neither.
As part of the trial, the court permitted the jurors to ask questions in writing. The bailiff collected the questions, the court reviewed them, and “as to those questions [the court] [found] to be pertinent, [the court] let the attorneys actually ask the questions.” As part of this process, a juror submitted the following question, which was then asked by defendant’s counsel:
“Q What technique do you use to get inside cars?” Defendant answered:
“A What I used to do, I don’t do it no more, but what I used to do when I was trying to survive and make money, I would break a window to get into a car.”
Counsel then pursued that line of questioning, eliciting further detail about how defendant broke windows to get into a car.
Defendant now claims counsel was ineffective for asking these questions. On the contrary, there appears to be a plausible tactical reason for trial counsel’s decision not only to ask the initial question but to follow up with further, specific questions about how defendant broke into cars.
Evidence at trial established whoever broke into Landrum’s car did so, not by breaking her car window, but by grabbing the window and prying it open. Defendant’s detailed explanation for how he illegally entered cars by breaking a back window showed his method for breaking into cars was, therefore, different than the method used here. Showing a different modus operandi for breaking into cars could have created reasonable doubt as to defendant’s guilt. Should such a tactical decision be unsuccessful, ultimately it does not amount to ineffective assistance of counsel. (Strickland v. Washington, supra, 466 U.S. at pp. 688-690 [eviewing courts do not second guess reasonable tactical decisions.].)
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND, P. J., CANTIL-SAKAUYE, J.