Opinion
A153675
09-30-2019
THE PEOPLE, Plaintiff and Respondent, v. KEVIN LEMARR KEYES, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Marin County Super. Ct. No. SC190946A)
Kevin Lemarr Keyes appeals after a jury found him guilty of residential burglary (Pen. Code, § 459) and indecent exposure (en. Code, § 314.1). Defendant argues the trial court abused its discretion when it admitted evidence of an uncharged offense for the purpose of proving defendant's identity as the perpetrator of the charged offenses. We find no prejudicial error and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On the evening of October 29, 2014, "Megan Doe" went to a bar in Mill Valley where she met her boyfriend, Darius Ogloza. They left the bar at around midnight and went to Doe's apartment a block away, where they eventually fell asleep. Ogloza woke up around 2:00 a.m. and left the apartment. He left the front door unlocked, however, because it could only be locked from the inside and he did not want to disturb Doe.
When Doe woke up a few hours later, she saw a man masturbating at the corner of her bed. Doe did not have any clothes on. The intruder wore a black hoodie, and one of his hands was on his penis, while the other hand was holding a camera in Doe's direction. Doe yelled at the intruder to leave, and he apologized but kept recording her for a while before he eventually left. Doe had a glass of wine and called the police.
Mill Valley Police Detective Kyle Maxwell responded to Doe's call. Doe reported that the intruder was "Hispanic" and around 35 years of age. Doe showed signs of intoxication, and the parties stipulated at trial that Doe's blood alcohol level on October 30, 2014, was 0.19 percent.
Mill Valley Police Officer Joseph Jordan was dispatched at 3:51 a.m. to the area near Doe's apartment to look for a suspect described as a Hispanic male, about 35 years old, wearing a dark sweatshirt. Jordan saw defendant and detained him. Jordan testified that defendant (who is black) matched the suspect's description because, from where Jordan first saw him, defendant looked like a 40-year old Hispanic male wearing a black sweatshirt. Jordan further testified that he recognized defendant because Mill Valley is a small town, and he often saw defendant wearing a black sweater or dark colored jacket.
As Officer Jordan detained defendant, Detective Maxwell drove Doe to the scene for an in-field show-up. Doe identified defendant as the intruder with "approximately 75 percent" certainty. She later testified that defendant "seemed just like the guy that was in my room" because she recognized his chin, which was visible under the hood covering his head, his build, the color of his skin, which Doe described as "swarthy" and neither white nor black, and the sweatshirt he was wearing. Doe also cited the fact that the police "found [defendant] there at 4:00 a.m." as supporting her identification of defendant as the intruder. After the identification, defendant was arrested.
Later, Mill Valley Police Sergeant Steven Heisinger went to defendant's residence and spoke with defendant's wife, Jennifer Ritter-Keyes, who consented to a search of a vehicle parked in front of the residence. Inside the vehicle, Heisinger found a cell phone that Ritter-Keyes identified as belonging to defendant. Heisinger then went to Doe's apartment to look for fingerprints but found none that matched defendant's. The parties stipulated at trial that 14 latent fingerprints were collected from Doe's residence, but none belonged to defendant.
The contents and browsing history of defendant's phone were downloaded using a forensic tool called Cellebrite. A number of media files were downloaded from defendant's phone and introduced into evidence, including photographs and a video of Doe taken from the exterior of her residence through the window and blinds. Most of the photographs were taken in the early morning hours of October 29, 2014, around 4:00 and 5:00 a.m. Doe acknowledged that the photographs were of her naked body and that she had not given anyone permission to take them.
The Cellebrite report also showed that several videos were accessed from defendant's phone shortly before and after the incident in Doe's apartment. One video, entitled " 'Skinny Girlfriend Surprised While Sleeping,' " was accessed from defendant's phone on October 28, 2014, at 9:45 p.m. In the video, a female is sleeping in bed when the person taking the video enters and pulls back the covers, revealing that she is naked, and the two then engage in sexual intercourse. Another video accessed from defendant's phone was entitled "Skinny and sleepy redhead slut is having anal interaction in doggy style."
About a year later, in October 2015, "Susan Doe" went to sleep in her apartment and woke up around 3:40 a.m. to find a figure standing over the side of her bed dressed in black with a hood over his head. She recognized the intruder as defendant because she had lived in the apartment above him for several years and was familiar with his height, weight, shape, and black hooded sweatshirt. Susan Doe yelled profanities at defendant, and he ran out of her apartment. After Susan Doe called the police, Officer Jordan was dispatched to her apartment, and she told the officer where defendant lived. Jordan went to defendant's apartment and found him completely nude, with a pile of dark clothing on a chair and on the floor.
Defendant was charged in October 2016 with residential burglary (Pen. Code, § 459; count 1) and indecent exposure (Pen. Code, § 314.1; count 2) in connection with the October 30, 2014, incident in Megan Doe's apartment.
Defendant moved to exclude evidence of the uncharged Susan Doe incident under Evidence Code sections 1101, subdivision (b), and 352. The People moved to admit this evidence under section 1101, subdivision (b), to prove identity, absence of mistake, motive, and a common plan or scheme. The trial court granted the People's motion.
Further statutory references are to this code unless otherwise stated.
In August 2017, the trial court declared a mistrial after the jury was unable to reach a verdict. In late 2017, a new jury was sworn, and defendant was retried on the same counts. Defendant again moved to exclude evidence of the Susan Doe incident, but the trial court ruled the same as before and admitted the evidence under section 1101, subdivision (b), for the purposes of proving identity, intent, and lack of mistake.
The jury found defendant guilty on both counts, and defendant was sentenced to four years in prison. Defendant appealed.
DISCUSSION
Defendant argues the trial court abused its discretion in allowing the evidence of the uncharged Susan Doe offense because it was too dissimilar to the charged offenses to be relevant in proving defendant's identity as the perpetrator. We conclude that any perceived error was not prejudicial.
Evidence of an uncharged offense is generally inadmissible to prove criminal disposition. (§ 1101, subd. (a).) However, section 1101, subdivision (b), permits evidence of an uncharged offense to prove, among other things, the identity of the perpetrator of the charged crimes, common design or plan, the absence of mistake, or the intent with which the perpetrator acted in the commission of the charged crimes. (People v. Kipp (1998) 18 Cal.4th 349, 369 (Kipp).) The admissibility of evidence for these purposes is subject to section 352, which allows the court to exclude the evidence if its probative value is substantially outweighed by the probability that its admission will necessitate undue consumption of time or create substantial danger of undue prejudice, confusion of issues, or misleading of the jury. (People v. Ewoldt (1994) 7 Cal.4th 380, 404 (Ewoldt).) On appeal, the trial court's decision is reviewed for abuse of discretion. (Kipp, supra, at p. 369.)
Different degrees of similarity are required to establish identity, common design or plan, lack of mistake, and intent under section 1101, subdivision (b). To be relevant on the issue of identity, the uncharged crimes must be highly similar to the charged offenses. That is, the pattern and characteristics of the crimes must be so unusual and distinctive as to be like a "signature." (Kipp, supra, 18 Cal.4th at pp. 369-370.) A lesser degree of similarity is required to establish relevance on the issue of common design or plan, and the least degree of similarity is required to establish relevance on the issues of intent and absence of mistake. (Ewoldt, supra, 7 Cal.4th at p. 402; People v. Whisenhunt (2008) 44 Cal.4th 174, 204.) For intent and absence of mistake, the uncharged crime need only be sufficiently similar to the charged offense to support the inference that the defendant probably harbored the same intent in each instance. (Kipp, at pp. 369-370.)
In the instant matter, the charged and uncharged offenses both occurred in Mill Valley during the early morning hours, in apartments where the sole female occupant was asleep, and the intruder wore a black hood over his head. Although there are similarities, we cannot say the shared characteristics are so distinctive as to be like a "signature" for purposes of proving defendant's identity as the perpetrator of the charged offenses (Kipp, supra, 18 Cal.4th at pp. 369-370), inasmuch as many burglars, robbers, or other criminals may wear similar clothing and intrude upon residences at a similar time of night.
Nonetheless, any error was harmless. Error in admitting evidence of a defendant's prior acts under section 1101 is subject to the standard of prejudice set forth in People v. Watson (1956) 46 Cal.2d 818. (People v. Welch (1999) 20 Cal.4th 701, 750.) Under the Watson test, an erroneous ruling may be overturned on appeal only if the defendant shows "it is reasonably probable that a result more favorable to the [defendant] would have been reached in the absence of the error." (Watson, at p. 836.)
Here, it is not reasonably probable that defendant would have obtained a more favorable result had the trial court refused to admit the Susan Doe evidence to prove his identity as the perpetrator of the charged offenses. Defendant's identity as the intruder was supported by other evidence, including Doe's identification of him based on her recognition of his chin, build, skin color, and clothing, and the fact that he was apprehended shortly after the incident in close proximity to her apartment. Although Doe was heavily intoxicated at the time she identified defendant, his guilt was further corroborated by other evidence, including the photographs of Doe's naked body found on his phone that were taken from outside Doe's apartment window a day before the incident. There was also evidence that defendant watched pornographic videos involving sleeping women both before and immediately after he intruded upon Doe in her apartment. Defendant does not claim the trial court erred in admitting any of this additional evidence. Considering the record as a whole and the strength of the evidence against defendant, we conclude it is not reasonably probable that exclusion of the Susan Doe evidence on the issue of identity would have produced a different outcome.
Defendant does not challenge the portion of the trial court's ruling allowing the Susan Doe evidence for the purposes of proving intent and absence of mistake. --------
DISPOSITION
The judgment is affirmed.
/s/_________
Fujisaki, J. WE CONCUR: /s/_________
Siggins, P.J. /s/_________
Petrou, J.