Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Merced County No. AF47187, Ronald W. Hansen, Judge.
Matthew D. Roberts, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Tia M. Coronado, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Kane, J.
Defendant Miguel Fernandez Rocha was convicted of receiving stolen property and burglarizing four vehicles. On appeal, he contends (1) the trial court erred by admitting evidence of defendant’s prior uncharged acts, (2) insufficient evidence supported one of the burglary convictions, (3) testimony that officers responded to a “suspicious vehicle” call was hearsay and irrelevant, (4) the trial court erred by failing to instruct on unanimity, (5) the trial court erred by failing to instruct on expert testimony, (6) these errors were cumulatively prejudicial and (7) the trial court abused its discretion by denying probation. We will affirm.
PROCEDURAL SUMMARY
On October 23, 2007, the Merced County District Attorney charged defendant with receiving stolen property (Pen. Code, § 496, subd. (a); count 1) and four counts of burglary of a motor vehicle (Pen. Code, § 459; counts 2-5).
Defendant pled not guilty to all counts. A jury found him guilty as charged. The trial court sentenced him to a total of four years in prison, as follows: two years on count 2; three eight-month terms on counts 3 through 5, each to be served consecutively; and a stayed term on count 1.
FACTS
On September 9, 13, 18 and 23 of 2007, five vehicles were broken into, most of them near churches. In each case, the perpetrator broke a window and took a purse or briefcase containing personal items, such as credit cards, identification cards, checkbooks and cell phones.
On September 23, 2007, immediately after one of the burglaries outside the Catholic church, the victims noticed a white Denali or Suburban with a trailer. They thought the vehicle was unusual for people going to church at 7:30 in the morning. Based on further investigation, officers went to a local gas station and obtained surveillance video of an unidentified person.
On October 7, 2007, officers received a call regarding a suspicious white Denali or Suburban parked near the Catholic church. When officers arrived, the vehicle was about 200 feet from the church. The officers parked behind the vehicle and approached. Defendant was in the driver’s seat and a female was in the passenger seat. An officer recognized defendant as the person in the surveillance video.
Defendant consented to a search of his vehicle. Inside, officers found binoculars and a punch tool, often used to break into vehicles, and the stolen credit card and checkbook of the September 18, 2007 burglary victim. They also found a business card for a storage locker. The officers took defendant into custody, read him his rights and took him to their station.
When officers showed defendant the surveillance video, he admitted that he was the person in the video and that he had used a stolen credit card at the ATM at the gas station. He said the credit card had just been stolen by Jesus Perez on September 23, 2007. Defendant explained that he and Perez drove to the area near the Catholic church because Perez said there was a place where they could get items from cars that they could use later. Perez returned to defendant’s vehicle with a woman’s purse. He removed credit cards from the purse, gave them to defendant and they went to the gas station. As for Perez’s current whereabouts, defendant said he might be in Mexico.
Defendant also explained that on September 9, 2007, he had given Perez a ride in his vehicle to the church. Perez went into the parking lot and took a purse from a vehicle while defendant waited. Perez returned and handed defendant credit cards from the purse. Then defendant used the credit cards at a fast food restaurant and a gas station because defendant was hungry and needed gas.
Defendant admitted he had a storage locker. He identified the location and consented to a search of the locker. He told the officers they would find a number of stolen items in the locker that Perez had put there.
When officers searched the storage locker, they found personal items belonging to the five burglary victims. They also found personal items, including checkbooks, credit cards, driver’s licenses and Social Security cards, belonging to 30 to 35 other people.
DISCUSSION
I. Evidence of Prior Uncharged Acts
Defendant contends the trial court erred under Evidence Code section 1101 by admitting evidence that defendant’s storage locker contained the personal belongings of 30 to 35 other people. He argues that the evidence did not prove common plan, identity, knowledge or absence of mistake under section 1101, subdivision (b). He also contends the court erred under section 352.
All statutory references are to the Evidence Code unless otherwise noted.
Defendant explains that although the prosecution argued that the evidence showed absence of mistake, he never claimed that the property was in his storage locker by mistake. He did not dispute that the burglaries occurred; he argued that he did not commit them. “[H]is defense centered on the fact that he had not personally participated in the thefts and lacked the intent to steal.” He further maintains that the evidence lacked foundation showing the items in the storage locker were stolen and thus there was no evidence offered to show similarity to the charged offense.
The People counter that defendant’s not guilty plea put in issue his general intent and absence of mistake as to the stolen property found in his vehicle. The evidence had a tendency to prove defendant was not mistaken about receiving or possessing stolen property.
In reply, defendant seems to concede the point and focuses his argument on the lack of foundation to show the items in the storage locker were stolen, when they were stolen, and from whom—without which he claims the evidence was not probative or relevant.
A. Analysis
Although section 1101 prohibits the admission of evidence of other crimes to prove propensity or bad character, subdivision (b) of section 1101 allows this evidence when relevant to prove some fact such as motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident. However, evidence admissible under section 1101, subdivision (b) may be excluded “if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (§ 352.) We review the court’s evidentiary rulings for an abuse of discretion. (People v. Carter (2005) 36 Cal.4th 1114, 1149.)
When a defendant’s criminal intent is disputed, a sufficiently similar prior act is admissible to show that he acted with the requisite intent. “The least degree of similarity between the crimes is needed to prove intent. [Citation.] [T]he doctrine of chances teaches that the more often one does something, the more likely that something was intended, and even premeditated, rather than accidental or spontaneous.” (People v. Steele (2002) 27 Cal.4th 1230, 1244.) Evidence of prior acts also may be admissible to show guilty knowledge, including a defendant’s knowledge of the stolen character of property to prove a charge of receiving stolen property. (People v. Pic’l (1981) 114 Cal.App.3d 824, 856, disapproved on another ground in People v. Kimble (1988) 44 Cal.3d 480, 496, fn. 12; People v. Harris (1977) 71 Cal.App.3d 959, 964-965.)
Count 1 charged defendant with receiving stolen property—a credit card and checkbook—in violation of Penal Code section 496, subdivision (a). To convict him of that charge, the prosecution was required to prove that he knew the credit card and checkbook were stolen. (Pen. Code, § 496, subd. (a).) “Although receiving stolen property has been characterized as a general intent crime, the second element of the offense is knowledge that the property was stolen, which is a specific mental state.” (People v. Russell (2006) 144 Cal.App.4th 1415, 1425.)
Penal Code section 496, subdivision (a) provides in relevant part: “Every person who buys or receives any property that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling, or withholding any property from the owner, knowing the property to be so stolen or obtained, shall be punished by imprisonment in a state prison, or in a county jail for not more than one year.”
We agree with the People that evidence of the other stolen property in the storage locker was admissible to show that defendant had knowledge of and was not mistaken about receiving or possessing the stolen property found in his vehicle. Furthermore, the probative value of the evidence to show defendant’s intent and knowledge, because he had received and still possessed other stolen property, greatly outweighed the risk of undue time consumption, undue prejudice or misleading the jury. The evidence took minimal time to present and there was no chance the jury misunderstood the issues before it because defendant was charged with only one count of receiving stolen property. As for prejudice, “‘“[t]he prejudice which [section 352] is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence.” [Citations.] “Rather, the statute uses the word in its etymological sense of ‘prejudging’ a person or cause on the basis of extraneous factors.”’ [Citation.] Painting a person faithfully is not, of itself, unfair.” (People v. Harris (1998) 60 Cal.App.4th 727, 737.) We see no undue prejudice here. Defendant admitted that the locker was his and that it contained stolen property.
As for defendant’s remaining complaint that there was no foundational evidence offered to show the items in the storage locker were stolen, we again disagree. As the People point out, defendant admitted to the officer that the property in his storage locker was stolen. In addition, the stolen property of the five victims was found in both defendant’s vehicle and his storage locker, creating an overwhelming inference that the other, similar property in the locker was also stolen, rather than found by or given to defendant, and that defendant was involved in those crimes too.
In a related argument, defendant argues that the court should have sustained his objection to the “mounds of evidence” in bags that were visible to the jurors on the courtroom floor. He points out that many items in the bags were never offered into evidence, but simply remained in full view.
During pretrial motions, the following occurred:
“[THE COURT:] Okay, let’s bring the jury in.
“[DEFENSE COUNSEL]: Before we do that, Judge, there’s these bags of evidence that have all of that information in that you haven’t decided on. Can we just not have that in plain view of the jury?
“[PROSECUTOR]: Well, I’m gonna have to mark it as I go. One of the problems that we have in our office—that you have in your office and the courts have—is that we’re all short-staffed. I don’t have the bags to put these things in. I don’t even have clear evidence bags to put them in. And so it’s going to be laborious and, unfortunately, kind of a disjointed procedure.
“THE COURT: What’s the prejudice of having them all wrapped? You can’t see what they are.
“[DEFENSE COUNSEL]: Your Honor, it’s a mound of evidence.
“THE COURT: A mound of evidence—let’s compromise, put it on the floor.
“[PROSECUTOR]: I could have brought two more boxes, Judge, but I just settled on these.
“THE COURT: Okay. Let’s bring the jury in.
“[DEFENSE COUNSEL]: The prosecutor is acknowledging the weight of the prejudice—the enormity of the un
“THE COURT: Okay.
“[DEFENSE COUNSEL]: —the undetermined items.
“THE COURT: You don’t have to beat it to death.”
As the People point out, the record does not establish that the bag of evidence was within the jurors’ view; indeed the record suggests the bag was moved to the floor and out of the jurors’ view. Nevertheless, the bag was opaque and its contents unseen. Moreover, the jurors heard evidence that defendant’s storage locker contained the stolen items belonging to 30 to 35 victims, which would naturally amount to a lot of physical evidence that the jurors might expect to be present at the trial. Thus, we do not see how defendant could have been prejudiced even if the jurors were able to see the bag.
Defendant also mentions that the prosecution “did not even attempt to argue that the evidence placed on the floor of the courtroom was relevant.” If defendant is contending that the stolen items found in the storage locker were not relevant, we have answered that concern.
II. Sufficiency of Evidence
Defendant contends there was no evidence, apart from his admission, of the corpus delicti that he used the September 9 victim’s credit cards and therefore there was insufficient evidence of that burglary. He claims the evidence was sufficient only to sustain a charge of possession of the stolen property later found in the storage facility.
The People respond that fraudulent use of another’s credit card is not part of the corpus delicti of vehicle burglary and thus no further proof that defendant used the related credit cards was required. Defendant was not charged with the fraudulent use of credit cards.
“In every criminal trial, the prosecution must prove the corpus delicti, or the body of the crime itself—i.e., the fact of injury, loss, or harm, and the existence of a criminal agency as its cause. In California, it has traditionally been held, the prosecution cannot satisfy this burden by relying exclusively upon the extrajudicial statements, confessions, or admissions of the defendant. [Citations.] ... [¶] ... This rule is intended to ensure that one will not be falsely convicted, by his or her untested words alone, of a crime that never happened. [Citations.]” (People v. Alvarez (2002) 27 Cal.4th 1161, 1168-1169, fn. omitted.)
The corpus delicti of vehicle burglary under Penal Code section 459 includes (1) entry into the vehicle, (2) when the vehicle was locked and (3) with the intent to commit theft. (People v. Allen (2001) 86 Cal.App.4th 909, 914.) The People are correct that fraudulent use of a credit card stolen from the vehicle is not included in this list. Accordingly, defendant’s contention has no merit.
III. Hearsay
Defendant argues the officer’s testimony that they approached defendant on October 7, 2007 because they were responding to a “suspicious vehicle” call was hearsay because there was no evidence of the identity or the reliability of the caller. The trial court limited the evidence to show why the officers acted as they did, which defendant also claims was irrelevant.
We need not decide whether admission of this evidence was error because defendant cannot show he was prejudiced by testimony that a citizen reported the presence of a suspicious vehicle. Defendant himself admitted that the vehicle in question was his and that he drove that particular vehicle for the purpose of committing these offenses. In other words, defendant himself produced overwhelming evidence that the vehicle was engaged in suspicious and criminal activity. Any error was therefore harmless. (People v. Watson (1956) 46 Cal.2d 818, 836.)
IV. Unanimity Instruction
Defendant contends the trial court erred by not instructing the jury that it must unanimously agree on the act or acts which constituted the receipt of stolen property in count 1. He notes that the information did not specify the victim, the prosecutor mentioned two victims in argument and the storage locker contained the property of many other people.
The People maintain the prosecutor made an election of a particular victim’s credit card and checkbook recovered from defendant’s vehicle on October 7, 2007 as the act constituting count 1. We agree.
“[W]hen the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act. [Citations.]” (People v. Russo (2001) 25 Cal.4th 1124, 1132.) “This requirement of unanimity as to the criminal act ‘is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed.’ [Citation.] ... ‘The [unanimity] instruction is designed in part to prevent the jury from amalgamating evidence of multiple offenses, no one of which has been proved beyond a reasonable doubt, in order to conclude beyond a reasonable doubt that a defendant must have done something sufficient to convict on one count.’ [Citation.]” (Ibid.)
In this case, the prosecutor did elect the act as defendant’s possession of a particular victim’s credit card and checkbook that the police found in defendant’s vehicle on October 7, 2007. The information listed this act and date, but not the victim’s name, and then in argument, the prosecutor referred to the victim by name and stated that this act constituted the evidence to support the receipt of stolen property in count 1.
Defendant asserts that the prosecutor’s election during argument was not clear enough. If that was the case, any error was nevertheless harmless beyond a reasonable doubt. (People v. Wolfe (2003) 114 Cal.App.4th 177, 185-188 [failure to give unanimity instruction tested under Chapman v. California (1967) 386 U.S. 18, 24].) The record shows the jury resolved the basic credibility dispute against defendant and therefore would have convicted him of any of the various offenses shown by the evidence, and thus the failure to give the unanimity instruction is harmless. (People v. Thompson (1995) 36 Cal.App.4th 843, 853.) Defendant’s vehicle was observed at the scene of some of the burglaries; he was found in his vehicle at the same location; he admitted being present in his vehicle during some of the burglaries; he admitted using credit cards stolen from two of the victims; his vehicle contained stolen property from another victim; his storage locker contained more stolen property belonging to that victim, the other four victims, plus 30 to 35 other people; and defendant admitted his locker contained stolen property. The evidence against defendant was so strong there is no doubt the jury would have reached the same result had a unanimity instruction been given.
V. Expert Testimony Instruction
Defendant argues that the trial court was required to instruct sua sponte with CALCRIM No. 332 (Judicial Council of Cal. Crim. Jury Instns. (2006-2007)) on expert opinion evidence because two officers testified that the punch tool found in defendant’s vehicle was a vehicle burglary tool. Defendant explains that the testimony created a strong impression that the punch tool in his vehicle was the one used to commit the burglaries, an impression that rendered the punch tool the strongest piece of evidence that he participated in the burglaries. According to defendant, this evidence likely convinced the jury that he aided and abetted Perez, as opposed to simply receiving stolen property.
CALCRIM No. 332 instructs the jury how to evaluate expert witness testimony. It provides in pertinent part: “(A witness was/Witnesses were) allowed to testify as [an] expert[s] and to give [an] opinion[s]. You must consider the opinion[s], but you are not required to accept (it/them) as true or correct. The meaning and importance of any opinion are for you to decide. In evaluating the believability of an expert witness, follow the instructions about the believability of witnesses generally. In addition, consider the expert’s knowledge, skill, experience, training, and education, the reasons the expert gave for any opinion, and the facts or information on which the expert relied in reaching that opinion. You must decide whether information on which the expert relied was true and accurate. You may disregard any opinion that you find unbelievable, unreasonable, or unsupported by the evidence.”
In the alternative, if we conclude the opinions were lay opinions, defendant asserts that defense counsel was ineffective for failing to request CALCRIM No. 333 regarding the opinion testimony of lay witnesses.
The People respond that the officers were not called as experts and did not give opinions and therefore the only limitation on their testimony was that it be within their personal knowledge and perception.
An instruction such as CALCRIM No. 332 must be given sua sponte when expert testimony has been received. (People v. Reeder (1976) 65 Cal.App.3d 235, 241.) However, “‘“the erroneous failure to instruct the jury regarding the weight of expert testimony is not prejudicial unless the reviewing court, upon an examination of the entire cause, determines that the jury might have rendered a different verdict had the omitted instruction been given. [Citations.]”’ [Citations.]” (People v. Williams (1988) 45 Cal.3d 1268, 1320, abrogated on other grounds in People v. Guiuan (1997) 18 Cal.4th 558, 560-561; People v. Reeder, supra, at p. 241.)
Assuming the officers testified as experts and CALCRIM No. 332 should have been given, we conclude any error in failing to so instruct was harmless. Based upon the totality of the evidence presented and the instructions given, we believe the jury would not have rendered a different result had the instruction been given. The evidence overwhelmingly established that defendant at least aided and abetted Perez in the commission of the crimes. Evidence that defendant possessed a tool capable of breaking windows was completely unnecessary to prove he aided and abetted Perez by driving to the burglary locations, waiting in the car during the burglaries and driving away with Perez and the loot, all with the knowledge of the burglaries and the purpose of facilitating the burglaries. (See People v. Beeman (1984) 35 Cal.3d 547, 561[“a person aids and abets the commission of a crime when he or she, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense[;] (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime”]; People v. Morga (1969) 273 Cal.App.2d 200, 208 [“One who drives another to the scene of the crime, serves as a lookout, and drives the getaway car can be an aider and abettor”].) Any error was unquestionably harmless.
We note that the jury was instructed with CALCRIM No. 226, the general instruction on evaluating witnesses. Like CALCRIM No. 332, CALCRIM No. 226 instructed the jurors they must decide the credibility of the witness and informed the jurors that they had to decide if the witness’s testimony was true and accurate. It also stated they were free to believe all, part, or none of the witness’s testimony. The instruction explained that in evaluating the witness’s testimony, they could consider anything that reasonably tended to prove or disprove the truth or accuracy of his testimony, including how reasonable the testimony was when all the other evidence was considered and did other evidence prove or disprove any fact about which the witness testified. We look to the entire instructions given to the jury to determine prejudice. (People v. Williams, supra, 45 Cal.3d at p. 1313.)
VI. Cumulative Error
Defendant asserts that even if the foregoing claims of error do not amount to reversible error individually, their cumulative effect does. Because we have found either no error or harmless error in each instance, defendant’s contention that he prejudicially suffered from the cumulative effect of errors must fail.
VII. Denial of Probation
Lastly, defendant contends the trial court abused its discretion in denying him probation.
At the sentencing hearing, the prosecutor argued that defendant was on probation at the time of the crimes, his prior performance on probation was not good, he never took responsibility for the crimes in the face of overwhelming evidence, and he occupied a position of leadership in the commission of the crimes. The probation report also noted the five charged felonies were serious; defendant purposely targeted church parking lots; he utterly failed to respect the property of others; he carried out the crimes with planning, sophistication or professionalism; he refused to take responsibility for the crimes; and his prior convictions were numerous or of increasing seriousness.
Defense counsel conceded it was “very tough to argue for probation when [defendant did] not accept responsibility even though his statements include[d] a host of incriminating facts, included within his denial of accepting responsibility.” Defense counsel did point out that defendant was not a sociopath and his statements had shown some remorse and empathy for his victims. Finally, he had no prior felonies. For these reasons, defense counsel requested that the court grant defendant probation.
The court found defendant eligible for probation, but believed probation should be denied because the multiple felonies indicated a pattern of behavior. The court noted there were multiple victims and also questioned whether defendant acknowledged responsibility for his conduct. Defendant pleaded with the court, saying he would pay any amount, he had a family and needed to work to pay for his house.
Probation is an act of clemency, not a matter of right. (People v. Wardlow (1991) 227 Cal.App.3d 360, 365.) Probation is usually reserved for convicted criminals whose conditional release into society poses minimal risk to public safety and promotes rehabilitation. (Pen. Code, § 1203.1; People v. Carbajal (1995) 10 Cal.4th 1114, 1120 (Carbajal).) Sentencing courts have broad discretion to determine whether an eligible defendant is suitable for probation and, if so, under what conditions. (Carbajal, supra, at p. 1120.) The primary goal of probation is to ensure public safety by enforcing conditions of probation as ordered by the court. (Pen. Code, § 1202.7; Carbajal, supra, at p. 1120.) The Legislature has declared the primary considerations in the granting of probation: “the nature of the offense; the interests of justice, including punishment, reintegration of the offender into the community, and enforcement of conditions of probation; the loss to the victim; and the needs of the defendant.” (Pen. Code, § 1202.7; Carbajal, supra, at p. 1120.)
A trial court abuses its discretion when its order granting or denying probation exceeds the bounds of reason under all of the circumstances or it exercised its discretion in an arbitrary or capricious manner. (See People v. Warner (1978) 20 Cal.3d 678, 683; People v. Edwards (1976) 18 Cal.3d 796, 807.) Appellate courts will not interfere with the trial court’s exercise of discretion when the trial court has considered all facts surrounding the offense and the defendant to be sentenced. (People v. Downey (2000) 82 Cal.App.4th 899, 910.) This is especially so where the court has not abandoned its role as an independent and unbiased judicial officer and has carefully considered the arguments of counsel and the reports submitted for sentencing. (Ibid.)
We see no abuse of discretion here. The court carefully considered all of the factors bearing on the decision whether to grant or deny defendant probation. In light of the multiplicity of the crimes and victims, the seriousness of the crimes, the planning involved in their commission, defendant’s refusal to take responsibility in the face of the evidence, and his poor history, we find nothing capricious or arbitrary about the court’s sentencing decision. A defendant bears a heavy burden in attempting to show an abuse of discretion in denying probation (People v. Aubrey (1998) 65 Cal.App.4th 279, 282), and defendant has not come close to shouldering the burden.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Cornell, Acting P.J., Dawson, J.