Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County Super. Ct. No. RIF129147.. Douglas E. Weathers, Judge.
Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Lilia E. Garcia, Supervising Deputy Attorney General, and Elizabeth S. Voorhies, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RAMIREZ P. J.
INTRODUCTION
Defendant Ventura Ortiz (defendant) challenges as prejudicial error the trial court’s decision to admit evidence of his prior bad acts and convictions at his current trial.
FACTS AND PROCEDURAL HISTORY
On March 19, 2006, firefighters were called to a fire at 15860 Emma Lane in Moreno Valley. Upon their arrival at the property, jointly owned by defendant and his sister, the firefighters extinguished a blaze in a 1991 Honda Accord. After they put the fire out, the firefighters noticed that the burned car was on a dolly and that many of its body parts and panels, its wheels and tires, and most of its interior, were all missing. Behind a nearby shed and under a large mattress, the firefighters found large pressurized cylinders of oxygen and acetylene attached to a “cutting rig.” The cylinders were hot and leaking gas, and their regulators and hoses were melted and burned; what appeared to be the head of a cutting torch was lying on the floor of the burned-out car.
The street involved was variously referred to as “Emma Street” and “Emma Lane” in the course of the trial. For clarity, we will use Emma Lane.
Defendant and his 11-year-old son had been trying to put out the fire with buckets of water from the swimming pool when the firefighters arrived at the Emma Lane property. Defendant told Fire Captain Mike Smith that he and the boy found the car burning when they arrived earlier from Riverside. Defendant admitted that he owned the property but said that everything on site belonged to a recently evicted tenant whom he believed had started the fire. The fire captain and a sheriff’s deputy together removed the Vehicle Identification Number (VIN) plate from the burned car; the VIN matched the number of a car reported stolen in Fontana a month earlier. Of the approximately 15-30 vehicles on the property, two were confirmed as having been stolen.
Defendant told Tony Pelato, the sheriff’s detective who interviewed him at the scene, that his sister had dropped him and his son at the property earlier and that he had been inside the house when he saw smoke outside. Defendant also said that he had seen a man he did not know run from the scene in a northerly direction. As Detective Pelato searched the fenced property in the direction defendant indicated the man had run, he found piles of car parts and a number of vehicles in different states of disassembly, but he did not find the individual defendant had described. Defendant told the detective that he did not live at the property.
Detective James Dana of the Riverside Police Department, a former undercover agent assigned to investigate major chop shops and vehicle theft rings, also interviewed defendant at the scene. Initially, defendant told Detective Dana that he had been dropped off at the property that morning by his sister; later he said that he had driven to the property in a red Jeep but had lied at first because he had no driver’s license. The red Jeep had no VIN plate. Detective Dana noticed that defendant’s clothing and shoes had grease and soot marks on them, as well as drip marks and stains that looked like they may have come from a cutting torch. Inside the house, Detective Dana found mail, a mechanic’s work order, and a jacket with defendant’s name on them. Hidden under a floorboard in a closet, Detective Dana found a number of metal-cutting saws. The detective also found mail from the Department of Motor Vehicles addressed to Susana Nino, defendant’s wife, in the house. At one point, defendant told the detective that he had not been to the property in three weeks; later he said he had been there four days earlier. Defendant told Detective Dana that he had seen a former resident of the property, “Frank,” running away from the burning car; that “Frank” had dragged the tanks of oxygen and acetylene away; that all the cars belonged to “Frank,” and so did the tools under the floorboard in the closet inside the house. Despite the fact that the day was cold and wet, neither Detective Dana nor any other investigating officer was able to find footprints or any sign of “Frank” on the property. In Detective Dana’s opinion, the Emma Lane property was being used to dismantle stolen vehicles and remove their VIN plates. In other words, it was a “chop shop.”
Defendant was charged by amended information with owning/operating a chop shop (Veh. Code, § 10801, count 1, a felony); receiving a stolen vehicle (Pen. Code, § 496d, subd. (a), count 2, a felony); and vandalism resulting in over $400 in damage (Pen. Code, § 594, subd. (b)(1), count 3, a felony.) In connection with count 2, the amended information alleged that in 2004, defendant had been convicted of the crime of receiving a stolen vehicle (Pen. Code, § 496d, subd. (a)) within the meaning of Penal Code section 666.5, subdivision (a). The amended information also alleged that in 2003, defendant had served a prison term for possession of a controlled substance for sale (Health & Saf. Code, § 11378) and had not subsequently remained free of prison for five years. (Pen. Code, § 667.5, subd. (b).)
Prior to trial, the prosecution moved for permission to introduce evidence of defendant’s 2002 activities at the property as a proper exception under Evidence Code section 1101, subdivision (b). The prior offense, the district attorney argued, was so similar to the charged crime as to constitute evidence of knowledge, common plan or scheme, and identity. Defense counsel opposed introduction of this evidence, arguing both that it was not so similar to the present offense as to establish a common plan or scheme and that in any case it was far more prejudicial than probative.
Before announcing its decision, the trial court observed that “it would be a striking coincidence that a defendant would unintentionally or accidentally rent out the same four- to five-acre parcel of land to another individual, who would on his or her own create what is alleged to be a chop shop, particularly when the defendant, as recent as four years ago, has pled guilty for using the same identical property for precisely that same purpose.” Defense counsel reminded the court that the 2002 conviction was for receiving stolen vehicle parts, not for running a chop shop. The court found the evidence of the earlier offense more probative than prejudicial and ruled it admissible for the purpose of establishing that defendant had knowledge and a common plan or scheme. Defendant admitted his 2003 and 2004 convictions and prison priors.
At trial, Deputy Scott Van Gorder testified that in November 2002, he had responded to a report of a landlord/tenant dispute at the Emma Lane address. Deputy Van Gorder had contacted defendant inside the house and, in the course of a lawful search, had found a stolen motorcycle in a bedroom and a stolen car parked outside in front of the garage. There were about 15 vehicles on the property at that time and defendant told the deputy that all of them, including the stolen ones, were his.
Before instructing the jury, the court informed jurors that in May 2003, defendant had been convicted of felony possession of a controlled substance for sale and that in March 2004 he had been convicted of receiving a stolen vehicle, and that these convictions were to be used only “for the limited purpose of determining the credibility of any statements offered by the defendant.” After the jury retired to deliberate, and with the consent of counsel, the court composed a brief statement for jurors again emphasizing that the convictions were to be used only for impeachment.
The jury convicted defendant of owning/operating a chop shop. (Veh. Code, § 10801, a felony.) Immediately thereafter, the court ordered his prison prior stricken in the interests of justice and sentenced defendant to the middle term of three years in state prison.
DISCUSSION
Defendant makes the same two arguments on appeal that he made below: (1) that the circumstances of his 2002 actions and the related 2004 conviction for receiving stolen vehicle parts were not so similar to the present charges as to demonstrate common plan or knowledge; but (2) that the evidence of his past misdeeds was so prejudicial that it should have been excluded under Evidence Code section 352.
Standards of Review
We review a trial court’s decision to admit evidence under Evidence Code section 1101 for abuse of discretion. (People v. Memro (1995) 11 Cal.4th 786, 864.) We use the same standard to review a decision to admit or exclude evidence pursuant to the provisions of Evidence Code section 352. (People v. Jordan (1986) 42 Cal.3d 308.)
Evidence Code Section 1101Subdivision (a) of Evidence Code section 1101 forbids the introduction of character evidence to prove a defendant’s conduct on a specified occasion. However, subdivision (b) creates an exception to the inadmissibility rule of subdivision (a) to allow the admission of a prior conviction or bad act if necessary to prove some fact—such as knowledge, absence of mistake or accident, or a plan—other than the defendant’s disposition to commit the charged act. Subdivision (c) creates another exception for the admission of evidence offered to attack the credibility of a witness. (Evid. Code, § 1101, subds. (a), (b), (c).)
“[I]n establishing 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 to be explained as caused by a general plan of which they are the individual manifestations.’ [Citation.] [¶] To establish the existence of a common design or plan, the common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual.” (People v. Ewoldt (1994) 7 Cal.4th 380, 402-403.)
Here, the common features of defendant’s misconduct in 2002 and the current charges are most naturally explained as individual manifestations of an ongoing general business plan to dismantle and conceal stolen vehicles and vehicle parts; in other words, to knowledgeably own and operate a “chop shop.” In 2006, as in 2002, defendant was carrying on this enterprise at the same location—the large parcel of land he owned at 15860 Emma Lane in Moreno Valley. When he was caught in 2006, as when he was caught in 2002, there were at least two stolen vehicles, confirmed by VIN checks, among the 15 or more found on the property. As the trial court said, it would be a “striking coincidence” if the same piece of property just happened to be used, independently, by two different parties, for the same type of business.
Defendant asserts as significant differences the fact that in 2002 he admitted ownership of the stolen vehicles found on his property but in 2006 denied it, and that in 2002 he lived on the Emma Lane property but by 2006 had rented it to a tenant. We are not persuaded by either argument. After serving prison time for a conviction based on an admission that he owned the stolen vehicles and vehicle parts found in his possession, it is not surprising that defendant decided to deny ownership the next time he was caught on the same spot with stolen goods of exactly the same type. Moreover, defendant’s claims that he lived elsewhere and that the elusive “Frank” owned everything on the property were weak at best. No “Frank”—and no tenant for that matter—ever materialized, while clothing with defendant’s name on it and mail addressed to him and his wife at the Emma Lane address were found in the house.
Assuming for the sake of argument that he was in fact living elsewhere, the location of defendant’s personal residence is irrelevant to his conviction; he continued to own and control property that was being used as a chop shop in both 2002 and 2006. As the People point out, the Vehicle Code defines the crime with which defendant was charged as knowingly or intentionally owning or operating a chop shop: which is “any . . . premises where any person has been engaged in altering . . . disassembling . . . or storing any motor vehicle or motor vehicle part known to be illegally obtained.” (Veh. Code, § 250.) Moreover, when defendant finally admitted to having arrived at the property some time before the vehicle fire, the Jeep he claimed to have driven there was missing its VIN plate too. It strains credulity to think defendant did not know that stolen vehicles were being disassembled and stored on his property.
Evidence Code Section 352Section 351 of the Evidence Code makes “all relevant evidence . . . admissible,” while section 352 provides that, “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice.” A trial court’s determination that the probative value of evidence outweighs its prejudicial effect “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.” (People v. Jordan, supra, 42 Cal.3d at p. 316.) A miscarriage of justice occurs when it is reasonably probable that the defendant would have obtained a more favorable outcome absent the erroneously admitted evidence. (People v. Watson (1956) 46 Cal.2d 818, 836.)
Defendant’s earlier convictions for receipt of stolen vehicles and vehicle parts at the same location were not only relevant, but highly probative to impeach his disclaimers of present ownership of the same type of property. (Evid. Code, §§ 351, 352, 1101, subd. (c).) Nor was the evidence more prejudicial than probative. The court was sensitive to this issue and not once, but twice admonished jurors that the convictions were to be used only to impeach defendant’s credibility. There is no indication that they did not obey these admonitions. The court’s decision to admit evidence regarding defendant’s prior crimes and the circumstances surrounding them was neither erroneous nor an abuse of discretion.
Even assuming that the evidence should been excluded, its admission did not result in undue prejudice or a manifest miscarriage of justice to defendant. This is because there was abundant other evidence that defendant was knowingly operating a chop shop on his property. When the firemen arrived at the Emma Lane property, defendant was wearing clothing that had drips and marks consistent with the use of a torch used to disassemble vehicles; he gave varying stories about how and when he had arrived at the property and discovered the fire; he denied living at the property, but had clothing in the house, a mechanic’s work order with his name on it was found in the house, and mail addressed to him and his wife at that address were also found in the house; the VIN plate on his own Jeep had been removed; and he knew about the hidden compartment under the floorboards in the closet and the tools concealed there. In sum, there is no reasonable probability that defendant would have obtained a more favorable outcome absent the evidence of his prior convictions.
DISPOSITION
The judgment is affirmed.
We concur: HOLLENHORST, J., GAUT J.