Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County. Barry L. Plotkin, Judge, Super.Ct. No. FWV033348.
Daniel G. Koryn, under appointment by the Court of Appeal, for Plaintiff and Respondent.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Steve Oetting, Supervising Deputy Attorney General, and Felicity Senoski, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
King, J.
A jury convicted defendant of attempted murder of a police officer (Pen. Code, §§ 664, subds. (e) & (f), 187, subd. (a)), assault upon a peace officer with a firearm (Pen. Code, § 245, subd. (d)(1)), shooting at an occupied motor vehicle (Pen. Code, § 246), and reckless evading of a police officer (Veh. Code, § 2800.2, subd. (a)). On appeal, defendant contends the court erred in permitting testimony regarding an uncharged incident in which defendant eluded and shot at another peace officer two days after the charged events. He maintains the two occasions were too dissimilar to permit testimony regarding the subsequent episode under either the common scheme or intent exceptions to the rule against propensity evidence. (Evid. Code, § 1101, subds. (a) & (b).) He further claims the evidence should have been excluded as unduly prejudicial. (Evid. Code, § 352.) We conclude the testimony regarding the subsequent, uncharged incident was properly admitted and, therefore, affirm the judgment below.
All further statutory references are to the Penal Code unless otherwise indicated.
I. FACTUAL AND PROCEDURAL HISTORY
On March 15, 2003, at 12:24 a.m., Deputy Sheriff Kathleen Oros was patrolling Central Place in Chino in her marked patrol car. She noticed the license plate light was out on a red Toyota Corolla which drove by her. She notified dispatch that she intended to pull the vehicle over. She observed the Toyota turn right on a red light without coming to a complete stop. Deputy Oros activated her overheard lights to initiate the pull over. Defendant stopped the vehicle on the street’s shoulder. Deputy Oros exited her patrol car and approached defendant’s vehicle on the passenger side. She noticed a Hispanic female seated in the front passenger seat. As Deputy Oros approached within five feet of the vehicle, defendant drove off. Deputy Oros returned to her vehicle and informed dispatch that the car was attempting to run; she gave chase.
During the chase, defendant ran several red lights, turned his vehicle lights off, went down a freeway exit ramp in the wrong direction, and approached speeds of up to 75 miles per hour on city streets. The defendant eventually drove onto the westbound 60 freeway with Deputy Oros following.
Detective Brandon Rio, also on patrol in the area, heard the call regarding the pursuit and the request for assistance. He drove towards the area of the chase, eventually crossing over the 60 freeway on the Ramona Street bridge; from this point he could see the pursuit on the freeway below. Defendant began to travel up the Ramona Street off-ramp, but must have seen Detective Rio approaching on the street above, because he crossed the gore point of the exit ramp, rejoining the 60 freeway westbound. Detective Rio entered the on-ramp at Ramona Street and joined the pursuit on the freeway. Defendant approached speeds of 100 miles per hour on the freeway, swerving erratically between lanes. Defendant eventually cut in front of a big rig and exited the freeway on the Reservoir Street off-ramp. Deputy Oros was trailing defendant too closely to get in front of the truck and was unable to make it over in time to follow defendant down the off-ramp. However, Detective Rio, who was tailing defendant farther behind, was able to pursue defendant down the off-ramp.
Defendant made a right turn onto Reservoir Street, slowing his vehicle down to about 20 miles per hour. Defendant made a U-turn, during which Detective Rio got his first look at defendant’s face. Defendant then made a number of turns and U-turns at relatively slow speeds. During the last U-turn, defendant slowed to five miles per hour. Detective Rio was traveling southbound on Reservoir Street, while defendant was traveling northbound. They were approximately 25 feet away from each other. Detective Rio stared at defendant and also noticed another person in the vehicle. Detective Rio then saw two muzzle flashes aimed directly at him. Immediately thereafter, Detective Rio heard bullets hitting his car. He accelerated the patrol car in an effort to evade the bullets. Detective Rio continued to hear bullet fire and then heard a loud “boom.” The “boom” turned out to be his right rear tire being shot out, from which a bullet was later recovered. Defendant was able to get away.
Detective Rio testified that he heard at least five shots fired. Two bullet marks were found on his patrol car. A portion of one bullet was removed from the hood. Two shots hit the wall behind where Detective Rio’s vehicle was located during the shooting.
Investigating officers were able to obtain a photograph of defendant after running the license plate number of the red Toyota Corolla and discovering the car was owned by defendant’s wife and father-in-law. Defendant’s photograph was placed in a “six-pack” with five other similarly featured individuals. Although Detective Rio initially was unable to make a positive identification, after taking a break he identified defendant as the individual responsible for the chase and shooting. At trial, Detective Rio identified defendant, indicating he was “[o]ne hundred percent” positive defendant was the shooter.
Investigating officers acquired defendant’s wife’s cell phone number from a member of her family. They were able to trace calls on the cell phone to Winterhaven, California in Imperial County. After notifying the Imperial County Sheriff’s Department, Detective Van Putnam of the San Bernardino County Sheriff’s Department went to Winterhaven on March 17, 2003. There, in an unmarked vehicle and in plain clothes, Detective Putnam saw the red Toyota Corolla involved in the previous shooting, parked at a residence. At that residence, he saw defendant, whom he recognized from a photograph, come out of the house and get into the backseat of a gold car.
Imperial County Deputy Sheriff Ralph Garcia conducted a traffic stop of the vehicle. Detective Putnam followed in the unmarked truck. The car pulled over. Deputy Garcia approached the vehicle and noticed defendant was in the front passenger seat; Angelina Phillips, defendant’s wife, was in the rear seat; and defendant’s aunt, Carolina Perez, was driving. Deputy Garcia asked and received identification from the driver. He asked defendant for identification as well; defendant told him he had no identification, but identified himself as Sam. Having confirmed defendant’s identity to his satisfaction, Deputy Garcia returned to his patrol vehicle and ordered, over the public address system, for all occupants of the vehicle to exit with their hands up. After five such notifications, none of the occupants complied. Deputy Garcia then ordered only the driver to exit the vehicle. She, likewise, failed to comply. After a third request, the driver exited the vehicle; Angelina Phillips jumped over the seat and got into the driver’s seat, and defendant started the car.
Ms. Phillips drove off with Deputy Garcia pursuing in his patrol vehicle. As the car turned left approximately one and one-half car lengths in front of Deputy Garcia; he saw defendant leaning out the front passenger window with a handgun in his right hand. Detective Putnam conducted a Pursuit Intervention Technique (PIT) maneuver on the gold vehicle. During the maneuver, the left front driver side window of Detective Putnam’s truck shattered from being hit by a bullet. When his truck came to a stop, he also noticed a bullet hole in the windshield and an exit hole through the roof. The gold vehicle went over the berm of the roadway, coming to a stop against an electrical pole. Defendant was arrested and a black nine-millimeter Beretta was recovered from the passenger seat of the gold vehicle.
Criminalist William Matty determined that the bullet recovered from the tire of Detective Rio’s patrol car was fired from the Beretta recovered in Winterhaven. The serial number of the weapon matched that of one reported stolen by defendant’s mother. At the station house in Winterhaven, defendant shouted toward officers, “I did it. I did it all. I’m to blame.”
On April 28, 2004, defendant pled guilty in Imperial County to attempted murder (§§ 664, 187, subd. (a)) with an enhancement of personal use of a firearm (§ 12022.5, subd. (a)(1)) regarding the incident occurring on March 17, 2003. That court sentenced him to 13 years in prison.
By information filed January 28, 2005, the People charged defendant with attempted murder of a police officer (count 1—Pen. Code, §§ 664, subd. (e), 187, subd. (a)), assault upon a peace officer with a firearm (count 2—Pen. Code, § 245, subd. (d)(1)), shooting at an occupied motor vehicle (count 3—Pen. Code, § 246), reckless evading of a police officer (count 4—Veh. Code, § 2800.2, subd. (a)), and grand theft of a firearm (count 5—Pen. Code, § 487, subd. (d)). Additionally, the People alleged defendant had committed counts 1 through 3 while personally and intentionally discharging a firearm (Pen. Code, § 12022.53, subd. (c)) and personally using a firearm (Pen. Code, § 12022.53, subd. (b)). The People filed an amended information on April 14, 2006, which made only one change: it altered the mens rea of the attempted murder of a peace officer charge from one requiring malice aforethought or a specific intent to unlawfully kill (Pen. Code, § 664, subd. (e)) to one requiring willfulness, deliberation, and premeditation (Pen. Code, § 664, subd. (f)). However, on March 16, 2006, during jury voir dire, the court noted that defendant was never arraigned on the later information. Hence, the court found that the operative pleading was the information filed on January 28, 2005.
The court actually indicates that the operative pleading was the information filed on February 16, 2005; however, no such pleading appears in the record. Defendant’s appellate counsel requested augmentation of the record to include a copy of an information filed on February 16, 2005. However, the superior court clerk filed an affidavit asserting that no information filed on that date appears in the file and that the district attorney’s office has indicated it, likewise, has no record of an information filed on that date. Therefore, it is apparent the trial judge simply misspoke and intended to refer to the information filed January 28, 2005.
The jury ultimately found defendant guilty on all counts and allegations, save an acquittal on count 5. The court deemed defendant’s Imperial County convictions “count 5” and directed that it be the principal term, i.e., 13 years. The court vacated conviction on count 2, finding it a lesser included offense of count 1. On count 3, the court imposed the aggravated seven-year term; however, it stayed imposition of sentence pursuant to section 654. On count 4, the court imposed one-third the midterm of two years, for eight months. On the section 12022.53 enhancements, the court imposed 20 years. On count 1, it imposed a consecutive term of life with the possibility of parole. Therefore, defendant received a determinate aggregate sentence of 33 years 8 months, followed by an indeterminate life sentence.
The People note that although the trial judge deemed the Imperial County convictions “count 5,” all references to those convictions in the clerk’s transcript, i.e., the sentencing minute order dated April 28, 2006, and the abstract of judgment, refer to it as “count 6.” The People request that we direct the superior court clerk to correct those documents to accurately reflect the court’s oral pronouncement that the Imperial County convictions be deemed “count 5.” This we shall do. (People v. Hong (1998) 64 Cal.App.4th 1071, 1075-1076.)
II. DISCUSSION
Prior to trial, the People filed a motion to admit evidence regarding the events of March 17, 2003, in Imperial County. The People contended the evidence should be admitted under the common plan or scheme and intent exceptions to the rule against character evidence. (Evid. Code, § 1101, subds. (a) & (b).) The People also argued that the subsequent incident permissibly demonstrated defendant’s “consciousness of guilt.” (Ibid.) Moreover, the People submitted that the probative value of the evidence substantially outweighed any undue prejudice to defendant. Defendant filed opposition to the motion. After a hearing on the matter, the court determined that there was “a very strong similarity between what occurred [in San Bernardino County] and what occurred in Imperial County” such that it would permit the evidence pursuant to the common plan or scheme exception. The court also concluded that because the count 1 charge required a specific intent to kill and the defendant could attempt to dissuade the jury from concluding that defendant had that requisite intent, the evidence was also admissible for purposes of intent.
On appeal, defendant reiterates his contentions below. He argues that the events were insufficiently similar to permit the evidence to come in under either the common scheme or plan or intent exceptions. He claims intent was not at issue in the case. Moreover, he argues the two events were temporally distinct. Furthermore, he asserts the People had sufficient evidence to convict defendant without the evidence of the subsequent event. Finally, he contends the testimony was unduly cumulative and therefore, substantially prejudicial to him. We disagree.
“On appeal, the trial court’s determination of this issue, being essentially a determination of relevance, is reviewed for abuse of discretion.” (People v. Kipp (1998) 18 Cal.4th 349, 369 (Kipp).) We view the evidence in the light most favorable to the trial court’s ruling. (Id. at p. 370.)
A. Common Design or Plan
“[E]vidence of a defendant’s uncharged misconduct is relevant where the uncharged misconduct and the charged offense are sufficiently similar to support the inference that they are manifestations of a common design or plan.” (People v. Ewoldt (1994) 7 Cal.4th 380, 401-402 (Ewoldt); see also Kipp, supra, 18 Cal.4th at pp. 369-370.) “[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.]” (Ewoldt, supra, at p. 402.) “Unlike evidence of uncharged acts used to prove identity, the plan need not be unusual or distinctive; it need only exist to support the inference that the defendant employed that plan in committing the charged offense.” (Id. at p. 403.)
Here, there were sufficient similarities between the two incidents from which the trial court could rationally conclude they were both part and parcel of a common design or scheme. In both instances, the car defendant occupied initially complied with the officers’ request to pull over. The detaining officer exited the patrol vehicle. The driver of the vehicle then attempted to elude officers by driving off. While the attempted evasions took place, the respective vehicles contained only defendant and a female passenger. Finally, defendant reached his arm out the vehicles’ windows, firing multiple shots with the same weapon at the officers who gave pursuit. Thus, defendant’s plan whenever confronted with law enforcement was to stop; allow them to exit the vehicle, perhaps lowering their expectation of flight; then drive off; and, when apparently unable to lose the pursuing officers, fire a handgun out the window at them. It may not be a particularly sophisticated nor well thought out plan, but it does not need to be. Contrary to defendant’s claim, common design or plan evidence need not be so similar as to equate to a signature crime. (Ewoldt, supra, 7 Cal.4th at p. 403.) Rather, that is the standard when such evidence is admitted to prove identity. (Ibid.) Here, the evidence was not admitted to prove identity. Thus, admission of the Imperial County evidence was properly within the court’s discretion.
B. Intent
“The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent.” (Ewoldt, supra, 7 Cal.4th at p. 402; see also Kipp, supra, 18 Cal.4th at p. 371.) “In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant ‘“probably harbor[ed] the same intent in each instance.” [Citations.]’ [Citation.]” (Ewoldt, supra, 7 Cal.4th at p. 402; People v. Ramirez (2006) 39 Cal.4th 398, 463.)
Here, without question, defendant “harbor[ed] the same intent in each instance.” (Ewoldt, supra, 7 Cal.4th at p. 402.) That intent was to escape the police by any means necessary, including shooting a pursuing officer. The testimony regarding the latter incident helped establish this intent more fully than that regarding the first because bullet holes were detected mere inches from where the officer’s head had been, on both the car’s window and roof. The rational inference therefrom being that defendant wished to hit the officer with his bullets.
Defendant contends that the court erroneously referred to the mens rea requiring willful, deliberate, and premeditated action on the part of defendant. He submits that the only mental state the prosecution was required to prove was that defendant “knew or reasonably should have known he had attempted to murder a peace officer.” Thus, he concludes, the court erred in permitting the testimony to show defendant’s intent. At the time the court granted the People’s motion to permit the evidence, it believed the operative pleading required proof of willful, deliberate, and premeditated action on the part of defendant. However, thereafter, the court noted that defendant had not been arraigned on the amended information; therefore, the initial information was the operative pleading, subjecting the prosecution to prove “intent to kill.” Thus, despite any error regarding the court’s statement of the mens rea required to be proven at the time it granted the motion, intent, nonetheless, remained at issue. This is so even when a defendant does not challenge the intent element during trial, but bases his defense on mistaken identity. (Ewoldt, supra, 7 Cal.4th at p. 400, fn. 4; see also Kipp, supra, 18 Cal.4th at pp. 371-372.) A defendant’s plea of not guilty puts the elements of the crime in issue for the purpose of deciding the admissibility of evidence of uncharged misconduct, unless the defendant has taken some action to narrow the prosecution’s burden of proof. (Ewoldt, supra, at p. 400, fn. 4.) The prosecution’s burden to prove every element of the crime “‘is not relieved by a defendant’s tactical decision not to contest an essential element of the offense.’” (Ibid.) Here, defendant did not stipulate that, if he had fired the gun, he had done so with the intent to kill; hence, intent remained at issue and it was the People’s burden to prove this at trial.
Moreover, defendant actually did challenge the intent element of the attempted murder charge during trial. On cross-examination of Detective Rio, defense counsel elicited that the detective never actually saw the gun pointed at him. Inferentially, the defense’s question appears aimed at weakening the prosecution’s case that defendant intended to kill Detective Rio. Likewise, during testimony regarding the Imperial County incident, defense counsel educed testimony from Detective Putnam indicating that once the vehicle in which defendant had been riding was stopped, defendant no longer fired any shots at the officers. This, similarly, appears directed at convincing the jury that defendant never intended to kill, but rather simply meant to slow the officers down so that he could make his escape. Finally, during closing argument, the defense repeatedly denied that defendant had the requisite intent to kill. Thus, defendant’s intent was directly at issue in the case and the evidence of the Imperial County events was properly admitted for that purpose.
C. Substantial Prejudice
Despite any apparent relevance the Imperial County incident may have had to the charged incidents, defendant argues that its probative value was substantially outweighed by its unduly prejudicial effect upon him. Hence, he claims the court erred in permitting such testimony.
“Evidence of uncharged offenses ‘is so prejudicial that its admission requires extremely careful analysis. [Citations.]’ [Citations.] ‘Since “substantial prejudicial effect [is] inherent in [such] evidence,” uncharged offenses are admissible only if they have substantial probative value.’ [Citation.] [¶] . . . We thus proceed to examine whether the probative value of the evidence of defendant’s uncharged offenses is ‘substantially outweighed by the probability that its admission [would] . . . create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.’ (Evid. Code, § 352.)” (Ewoldt, supra, 7 Cal.4th at p. 404; see also People v. Balcom (1994) 7 Cal.4th 414, 426-427; Kipp, supra, 18 Cal.4th at p. 371.)
“Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. [Citation.] Where, as here, a discretionary power is statutorily vested in the trial court, its 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.]” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125; see also Kipp, supra, 18 Cal.4th at p. 371.)
“The principal factor affecting the probative value of the evidence of defendant’s uncharged offenses is the tendency of that evidence to demonstrate the existence of a common design or plan.” (Ewoldt, supra, 7 Cal.4th at p. 404; People v. Balcom, supra, 7 Cal.4th at p. 427.) “The probative value of this evidence is decreased, however, by the dissimilarities between the uncharged and the charged offenses.” (People v. Balcom, supra, at p. 427.) As discussed above, we believe the similarities between the charged and uncharged incidents were substantial. Nonetheless, there were some differences. In the charged offense, defendant was the driver of the vehicle, whereas during the uncharged event, defendant’s wife was the driver. The former instance involved only two occupants in the vehicle while the latter, initially, involved three. Likewise, the latter incident did not involve the extreme degree of vehicular evasion present during the former. Nonetheless, we believe these variations were of little consequence for the purpose of constituting substantial prejudice. It is rational to infer that the factual differences in the latter incident were mere happenstance. Likewise, it is evident that all the actions taken during both incidents were at defendant’s direction. Lastly, as in Ewoldt, “[t]he testimony describing defendant’s uncharged acts, however, was no stronger and no more inflammatory than the testimony concerning the charged offenses. This circumstance decreased the potential for prejudice, because it was unlikely that the jury disbelieved [the] testimony regarding the charged offenses but nevertheless convicted defendant on the strength of [the] testimony regarding the uncharged offenses, or that the jury’s passions were inflamed by the evidence of defendant’s uncharged offenses.” (Ewoldt, supra, at p. 405.) Thus, any minor differences between the incidents did not result in substantial prejudice to defendant.
Moreover, “[t]he probative value of evidence of uncharged misconduct also is affected by the extent to which its source is independent of the evidence of the charged offense.” (Ewoldt, supra, 7 Cal.4th at p. 404.) Where evidence of two sets of crimes come from independent sources because they were separately investigated by different law enforcement agencies and proved by the testimony of different witnesses, the probative value of such evidence, for purposes of balancing prejudice, is correspondingly enhanced. (Kipp, supra, 18 Cal.4th at p. 371.) Here, the testimony regarding the current offense was provided by Deputy Oros and Detective Rio from the San Bernardino County Sheriff’s Office, while testimony regarding the uncharged offense was given by Deputy Garcia from the Imperial County Sheriff’s Office. Thus, different officers from different law enforcement agencies gave testimony regarding the separate events, strengthening the latter event’s probative value in relation to the charged offense. We realize that Detective Putnam of the San Bernardino County Sheriff’s Office also testified regarding the uncharged offense; nonetheless, he did not testify regarding the charged offense and any dependency of his testimony on events relayed by fellow officers from his own department was minimized by the separate testimony of Deputy Garcia. Hence, the fact that both events were testified to by separate officers from separate departments fortified the latter’s probative value when balanced against its prejudicial effect.
Defendant further maintains that the fact that the latter event occurred two days after the charged offense negatively affected its probative value. However, as the court noted in People v. Balcolm, supra, 7 Cal.4th 414, “[t]he circumstance that the uncharged offense occurred after the charged offense does not lessen its relevance in demonstrating the existence of a common design or plan.” (Id. at p. 425.) Moreover, in Ewoldt, supra, 7 Cal.4th at page 405, the seminal case on exceptions to the inadmissibility of propensity evidence, testimony regarding an uncharged incident which occurred 12 years prior to trial and a few years prior to the charged offense was found not to be too temporally removed to constitute substantial prejudice. Here, the minimal nature of the two-day time span strengthens, not reduces, its probative value; hence, it even further reduces any prejudice to defendant from its admittance.
In light of these factors, we conclude the probative value of the evidence of defendant’s uncharged offenses, in establishing the existence of a common design or plan and intent, outweighed its prejudicial effect. Accordingly, the trial court did not err in admitting this evidence.
III. DISPOSITION
The trial court is directed to correct the sentencing minute order dated April 28, 2006, and the abstract of judgment to reflect defendant’s Imperial County convictions as “count 5.” In all other respects, the judgment is affirmed.
We concur: McKinster, Acting P.J., Gaut, J.