Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. INF45862, H. Morgan Doughtery, Judge.
Wallace B. Farrell; and Stephen M. Lathrop, 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, Pamela Ratner Sobeck, Supervising Deputy Attorney General, and Raymond M. DiGuiseppe, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
Gaut J.
Defendant Anthony John Scatchell appeals judgment entered following jury convictions for first degree burglary (Pen. Code, § 459; count 1). In a bifurcated proceeding, the jury also found true allegations that defendant had six serious prior convictions and a prison prior offense. (§§ 667, subds. (a), (c) & (e)(1), 1170.12, subd. (c)(1).) The trial court sentenced defendant to 25 years to life.
Unless otherwise noted, all statutory references are to the Penal Code.
Defendant contends there was insufficient evidence to support his burglary conviction. He also asserts that the trial court erred in allowing evidence of defendant’s prior crimes and erred in excluding exonerating evidence of a prior crime.
In a supplemental appellate brief, defendant withdrew his ineffective assistance of counsel contention but added that there was cumulative error and the trial court violated his constitutional right to a jury by rejecting defendant’s request for a jury determination as to whether defendant was the person who suffered the prior convictions.
We reject defendant’s contentions and affirm the judgment.
1. Facts
Maurice Copeland and Richard Dorisee owned and normally resided at their condominium in Palm Springs for about six months of the year. The remainder of the year, including the summer season, they lived at their home in Idyllwild. Copeland and Dorisee’s Palm Springs home was located on Castellana South, at the Monterey Country Club. When staying at their Idyllwild home, every couple of weeks Copeland and Dorisee would check on their Palm Springs residence.
On August 13, 2003, Copeland and Dorisee checked on their Palm Springs home. When they left to return to Idyllwild, they set the security alarm but did not activate the motion detector. When they left, everything was neat and orderly. No one knew the primary access code required to turn off the alarm other than Copeland, Dorisee, and a good friend, Warren Kussub.
On August 25, 2003, David Weaver, a glass repairman, was working on the roof of the condominium building and noticed that the cover to a skylight above Copeland and Dorisee’s unit had been broken and removed. When he looked down into the opening, it appeared someone had slid down into the unit through the skylight opening. Weaver called 911 and reported the incident.
Sheriff Deputy Mezzie reported to the scene. He did not find any signs of a break-in on the outside perimeter of the building. Upon climbing up on the roof and inspecting the broken skylight, Mezzie noticed that the skylight had been torn completely off its frame. Looking down through the opening, he saw a large, 28-inch tall, ceramic elephant that had been stacked on top of a table directly below the skylight opening. It appeared that this enabled someone to climb in or out of the condominium through the broken skylight.
Mezzie lowered himself through the opening into the unit, using the ceramic elephant. The condominium had been ransacked, with property strewn all over. Someone had sprayed a fire extinguisher throughout the unit. When Mezzie opened a door leading to the garage, the security alarm went off. According to the security company, this was the only time the alarm had been activated since August 3, 2003.
Copeland arrived shortly thereafter. Mezzie escorted Copeland through the condominium. Everything was a mess, with white powder all over. The elephant statue was out of place. It normally was on the floor next to a large table in the den. Copeland found it on top of the table, directly beneath the broken skylight. Copeland had owned the elephant and had kept it in the condominium for the past 12 years. Copeland and Dorisee rarely ever touched the elephant because it was heavy.
Only small items were missing, such as a revolver, packets of syringes for treating a diabetic cat, jewelry, gold teeth fillings, and a silver dollar collection.
A forensic technician collected fingerprint evidence from the scene. James Edmonston, a fingerprint examiner, searched the Automated Identification System for fingerprint matches and determined that the prints found on the elephant statue and a 7-Up can matched defendant’s fingerprints. According to Edmonston, the fingerprint evidence could not establish when defendant touched the items.
Defendant’s sister, Joey Scatchell (Joey), testified that she and her ex-boyfriend, Michael Fox, visited Palm Springs in August 2003. One evening during their visit, they went with defendant to a casino and met someone named “J.D.” or “J.B.” The three went to a party at a Monterey Country Club condominium, where J.D. said he lived. According to Joey, she and Fox left the party after a few minutes but defendant remained.
The parties stipulated Copeland, Dorisee, and Kussub never gave anyone named J.D. or J.B. the alarm access code and did not know such a person.
2. Sufficiency of Evidence Based on Fingerprint Evidence
Defendant contends there was insufficient evidence supporting his burglary conviction because there was no evidence connecting his fingerprints found at the burglary scene with the commission of the burglary. Defendant asserts that only by conjecture could the jury find that the defendant’s prints were left at the scene at the time of the burglary.
A. Standard of Review
Upon a challenge to the sufficiency of the evidence, we examine the whole record in the light most favorable to the judgment below and determine whether or not the record discloses substantial evidence upon which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578; People v. Ceja (1993) 4 Cal.4th 1134, 1138.) “In making this determination, we ‘“must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.”’” (People v. Rayford (1994) 9 Cal.4th 1, 23.)
We may not reverse defendant’s conviction simply because differing inferences and findings could have been made by the trier of fact. “[A]n appellate court may not substitute its judgment for that of the jury. If the circumstances reasonably justify the jury’s findings, the reviewing court may not reverse the judgment merely because it believes that the circumstances might also support a contrary finding.” (People v. Ceja, supra, 4 Cal.4th at p. 1139.)
B. Analysis
Here, there was substantial evidence supporting defendant’s burglary conviction. Such evidence included defendant’s fingerprints lifted off a 7-Up can found in the condominium and two of his fingerprints found on the elephant statue. Copeland had kept the elephant in the condominium for 12 years. It was thus highly unlikely defendant left his fingerprints on the elephant at some other location prior to that time. The jury could reasonably find that defendant touched the elephant and 7-Up can when committing the charged burglary.
Based on Copeland and Dorisee’s testimony, there was sufficient evidence that defendant had not been in the condominium other than during the burglary. When Copeland and Dorisee last visited the condominium before the burglary, it was clean and orderly, and as they left, they had activated the security alarm. No one else had the security alarm code, other than Kussub. The parties stipulated that Copeland and Dorisee would testify that they never gave authorization to a person named J.D. or J.B. to use their condominium for any purpose. The parties also stipulated that Kussub would testify that he never gave the condominium security alarm to anyone named J.D. or J.B. and never gave such person permission to use the condominium.
Copeland and Dorisee further testified they never gave defendant permission to enter their condominium and did not know him. They were not aware of defendant ever entering their condominium before the burglary and did not know of any reason why his fingerprints were on the elephant and 7-Up can.
Defendant argues that there was evidence indicating he had been at the condominium before the burglary. Defendant’s sister, Joey, testified that within the first two weeks of August 2003, she and her boyfriend, Fox, had travelled to Palm Springs. While there, someone named J.D. invited Joey, Fox, and defendant to a party at a home in the Monterey Country Club. Joey said she and Fox left the party after a few minutes but defendant remained there. Fox testified he, Joey and defendant went to the party on August 5, 2003. The parties stipulated, however, that defendant was not in Coachella Valley on August 5, 2003. Joey and Fox testified they could not recall the address of the condominium where they partied or what it looked like.
Even assuming defendant was at a party at the condominium around the first week or two of August, this would have occurred before Copeland and Dorisee last visited their condominium on August 13, before the burglary. According to Copeland and Dorisee, when they left their condominium on August 13, the bar was fully stocked with 7-Up and the condominium was neat and orderly. In other words, there were no 7-Up cans with defendant’s fingerprints laying around at that time. A reasonable inference could thus be made defendant was at the condominium after August 13 during the burglary.
Defendant’s defense that he was in Copeland and Dorisee’s condominium partying in August 2003 is tenuous at best and is not a sufficient basis for overturning defendant’s burglary conviction since there was substantial evidence supporting the burglary conviction. As noted above, we may not reverse defendant’s conviction simply because differing inferences and findings could have been made by the trier of fact. (People v. Ceja, supra, 4 Cal.4th at p. 1139.)
We conclude the record discloses substantial evidence upon which a reasonable trier of fact could find defendant guilty of burglary beyond a reasonable doubt. (People v. Johnson, supra, 26 Cal.3d at p. 578; People v. Ceja, supra, 4 Cal.4th at p. 1138.)
3. Admissibility of Evidence of Other Crimes
Defendant contends the trial court erred in admitting evidence of two other burglary offenses to which defendant pleaded guilty. Defendant argues the evidence is inadmissible bad character evidence under Evidence Code sections 352 and 1101, subdivision (a), and admission of the evidence violated his federal constitutional due process and jury trial rights. He claims there was substantial risk the jury would convict him based on the improper inference he had a propensity to commit burglaries.
A. Defendant’s Other-Crimes Evidence
During the trial, the prosecution presented evidence defendant committed two burglaries, one in June 1998 and the other in July 1998. Defendant pled guilty to both offenses in 1998. The June burglary involved Mary Warren-Moffett’s vacation home, located at 2283 South Yosemite Drive, in Palm Springs. Moffett spent half the year at her home in Massachusetts and the remainder of the year at her Palm Springs home. On June 16, defendant activated the security alarm while burglarizing the Palm Springs home.
Police Officer Melanson investigated the burglary. He determined that defendant had entered Moffett’s home by kicking through the drywall of the exterior furnace or water-heater closet. Melanson concluded defendant entered in this manner in an attempt to avoid activating the alarm since most security alarms do not have sensors in such areas. The alarm nevertheless was activated at some point after entry. Defendant took various items, including silverware, and caused about $7,000 in damage. Moffett did not know defendant.
The July burglary involved John Piper’s condominium located at 2139 South Ridge Drive in Palm Springs. On July 16, Piper left his Palm Springs home to vacation at the beach. He locked his home and did not give anyone, including defendant, access to it or permission to enter his home. Piper did not have an alarm system.
The following day defendant broke into Piper’s home by breaking a window. Defendant made a mess inside Piper’s home and ate food from the freezer. Various items were missing, including a VCR, television, camcorder, jewelry, clothing, mementos, Christmas ornaments, and personal checks. Piper did not know defendant. Defendant not only admitted committing the burglary but also admitted that during the burglary he smoked marijuana that he found at Piper’s home.
B. Procedural Background
The prosecution moved to admit the other-crimes evidence on the ground the evidence was admissible under Evidence Code section 1101, subdivision (b) to prove identity, intent, and absence of mistake based on the similar nature of the charged offense and the two prior burglaries. All three crimes involved unoccupied vacation homes and the burglar (defendant) lingered in the homes, eating and drinking, and left the homes in disarray.
In opposition, defendant stated that it did not contest the issue of intent or motive. Rather, defendant asserted that he was not in the residence at the time of the burglary. Defendant also argued the burglaries were dissimilar in that defendant attempted to avoid activating the alarm by entering the Yosemite Street burglary through the wall of a water heater closet. Defendant broke into the South Ridge Drive home by breaking and entering through a window, and there was no alarm. And Copeland and Dorisee’s home (the Castellana home) was broken into through a skylight, thus circumventing the alarm. Defendant argued that the uncharged burglaries were not sufficiently similar to the instant crime to admit the evidence for the purpose of establishing identity, common design, plan or scheme.
During the hearings on admissibility of the burglary evidence, the court noted that the charged burglary offense occurred within two weeks after defendant was released on August 7 from custody on the two 1998 burglaries. The three burglaries also all occurred during the summer, when the residents were gone, and defendant stayed in the burglarized homes for some period of time. The court concluded these similarities were sufficient to admit the prior burglary evidence to show intent, particularly since defendant presented evidence that he was inside the Castellana condominium during a party, without intent to steal.
The trial court stated:
“THE COURT: I guess the bottom line . . . is that . . . there’s no question, Mr. Sullivan [defense counsel], if you put on these witnesses that are saying we went into a condo, and we just went in there to have fun and we didn’t take anything, nobody stole anything, there was never any intention to commit theft, then you clearly raise the issue of intent. . . . [¶] . . . [¶]
“MR. SULLIVAN: Yes.
“THE COURT: -- Then that clearly is relevant. I don’t think there’s any ifs, ands or buts about it. [¶] . . . [¶] The question is [is] that evidence excludable under 352 as the prejudicial effect being substantially outweighed.? [¶] . . . [¶]
“MR. SULLIVAN: . . . I think that’s the appropriate analysis.”
The court then concluded that the other-crimes evidence was admissible to show intent and was more probative than prejudicial.
In addition, the trial court instructed the jury concerning use of the evidence of defendant’s two prior burglaries. The court told the jury it could only consider the evidence for the limited purpose of deciding whether defendant acted with intent to commit theft in the instant case. The jury was told it could not conclude from the evidence that defendant had a bad character or was disposed to commit crime. Also, if the jury concluded defendant committed the prior offenses, such conclusion was only one factor to consider along with all the other evidence and was not sufficient alone to support a burglary conviction. (Judicial Council of Cal. Criminal Jury Instructions (2007-2008), CALCRIM No. 375.)
C. Applicable Law
We review the trial court’s evidentiary ruling for an abuse of discretion. (People v. Catlin (2001) 26 Cal.4th 81, 120.) Evidence Code section 1101 prohibits the admission of other-crimes evidence to show a defendant’s bad character or propensity to commit bad acts except when relevant to prove other facts like motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or accident. The list is not exclusive.
In the landmark case, People v. Ewoldt (1994) 7 Cal.4th 380 (Ewoldt), addressing admissibility of evidence of other-crimes evidence, the California Supreme Court explained: “The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent. [Citation.] ‘[T]he recurrence of a similar result . . . tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such an act . . . .’ [Citation.] 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.)
D. Analysis
In the instant case, identity, intent and common scheme or plan were all at issue. The trial court admitted the other-crimes evidence as relevant to show intent. In doing so, the least degree of similarity was required between the charged and uncharged offenses. Defendant argues intent was not at issue and therefore was an invalid basis for admitting the evidence. We disagree.
The elements of burglary are the entry into a building with the specific intent to commit larceny or another felony. (§ 459.)
The trial court did not abuse its discretion in admitting the other-crimes evidence as relevant to prove defendant’s intent, since defendant presented evidence and argued that around the time of the burglary he attended a party at Copeland and Dorisee’s condominium, held without their knowledge. According to defendant, this was why his fingerprints were on the elephant and 7-Up can. He thus arguably entered the condominium without the intent to steal anything.
As to the requirement under section 1101, subdivision (b), that the charged and uncharged burglaries be sufficiently similar, the required degree of similarity need only be sufficiently similar to support the inference that defendant probably harbored the same intent in each instance. (Ewoldt, supra, 7 Cal.4th at p. 402.) Similarities between the uncharged and charged burglaries included the homeowners being out of town at the time of the burglaries, and defendant lingering in the homes, eating, drinking, making a mess of the homes, and smoking cigarettes and marijuana.
There was also evidence indicating that in each instance defendant attempted to avoid activating security alarms either by choosing a home without an alarm or attempting to circumvent the alarm. Defendant also ransacked all three homes in a “seemingly malicious” manner. At the Piper residence, beer cans, belongings and papers were strewn about the house. In the Moffett house, defendant caused $7,000 in damage, and at the Copeland residence, defendant tossed out the contents in the drawers and closets onto the floor and then doused everything in fire retardant.
For purposes of establishing intent, the uncharged misconduct was sufficiently similar to support the inference that defendant harbored the same intent in each instance (Ewoldt, supra, 7 Cal.4th at p. 402), that of breaking into an unoccupied home and stealing property. The trial court thus did not abuse its discretion in admitting evidence of the two 1998 burglaries and there was no violation of defendant’s constitutional due process or jury trial rights.
Even if the trial court abused its discretion in admitting the other-crimes evidence, admission of the evidence was harmless. There was substantial evidence implicating defendant, including very persuasive fingerprint evidence establishing defendant’s presence in the condominium. Defendant’s evidence introduced to refute defendant was present during the burglary, on the other hand, was not credible or believable by any means.
Furthermore, the trial court instructed the jury before the evidence was admitted and at the end of the trial to consider the other-crimes evidence only as to the issue of intent. There is no reason to believe that the jury was unable to follow this instruction. Juries are presumed to follow the instructions given. (People v. Van Winkle (1999) 75 Cal.App.4th 133, 148.)
4. Defendant’s Request for Evidence of an Uncharged Offense
Defendant contends the trial court erred in rejecting his request to present evidence of a burglary he admitted committing. He claims in his supplemental appellate brief that by rejecting this evidence, he was deprived of his federal constitutional right to present a complete defense and due process right to a fair trial. Defendant argues the evidence of the prior burglary was relevant to demonstrate he knew how to disengage a home security alarm and therefore did not commit the charged burglary since the burglar did not disengage the alarm. Rather, the burglar avoided activating it by entering and exiting through a skylight. We do not find this argument convincing.
A. Excluded Defense Testimony
During a hearing outside the presence of the jury, retired Palm Springs Police Officer Joseph Nacinovich testified that in July 1998 he investigated a burglary at 419 Via Ensenada, in Palm Springs. The police were initially called to the residence because the security alarm had been activated. The police left because it was assumed it was a false alarm since there were no external signs of a burglary.
Later, Nacinovich drove by the home and noticed the garage door was open and there was a hole in the wall leading from the garage to the house. It appeared that a burglar had accessed the home by entering the garage, which was left open, punching a hole in the drywall between the garage and residence with a shovel, and climbing through the hole into the residence. Nacinovich found that the wiring in the metal alarm control box had been ripped out. Nacinovich testified that he did not know what activated the alarm. Cutting the wires could have activated the alarm.
Defendant argued the evidence was admissible to show that the burglar disengaged the alarm and took large items out the front door, whereas the burglar who committed the charged offense did not know how to disengage a burglar alarm, since he entered and left the condo through the skylight and took only small items.
The court responded that it was unknown why the burglar chose the method of entering and exiting the Via Ensenada home or what activated the alarm. The trial court therefore excluded Nacinovich’s testimony under Evidence Code section 1101, subdivision (b) since it was unknown what activated the alarm, and the evidence reinforced that defendant was a burglar. The court concluded the evidence’s probative value was “so slim, it proves nothing.” The court therefore excluded the evidence because it was more prejudicial than probative.
B. Analysis
The trial court did not abuse its discretion in excluding Nacinovich’s testimony because it did not establish that defendant knew how to disengage a security alarm based on the manner in which he committed the Via Ensenada burglary. First, it was unknown what caused the alarm to be activated, defendant breaking into the home or defendant ripping out the alarm wires.
Second, and more importantly, the security alarm at Via Ensenada was in fact activated, which indicated defendant did not know how to avoid activating the alarm. He may have decided to avoid the possibility of activating the security alarm at the Castellana home by entering and leaving the premises through the skylight.
Third, there was no evidence the alarms at the Via Ensenada and Castellana homes were the same. Thus, the Via Ensenada burglar would not necessarily know how to disengage the Castellana alarm, even though he did so by pulling out all the wires at the Via Ensenada home.
Furthermore, evidence that defendant ripped out the alarm wires from the control box does not show that defendant had any expertise or ability skillfully to disarm an alarm. The trial court thus did not abuse its discretion in excluding Nacinovich’s testimony. The trial court could reasonably conclude the prejudicial nature of the evidence outweighed any probative value it might have. We therefore further conclude exclusion of evidence of the Via Ensenada burglary did not violate defendant’s federal constitutional rights to present a complete defense and due process right to a fair trial.
5. Denial of a Jury Trial on the Identity of the Perpetrator of Prior Convictions
Defendant contends the trial court violated his constitutional right to a jury trial on the issue of whether he committed the prior conviction offenses. Defendant acknowledges that under People v. Epps (2001) 25 Cal.4th 19 (Epps), he is not entitled to a jury trial on the issue of the identity of the perpetrator of the prior convictions offenses. Nevertheless, defendant claims the California Supreme Court decision was wrongly decided.
A. Procedural Background
In a bifurcated proceeding, the jury decided the prior conviction allegations. Before the proceeding began, the trial court noted that it had reviewed defendant’s section 969b prison packet and had found defendant was the perpetrator of the charged offenses. Defense counsel agreed the trial court could make the finding under current law but objected, arguing the finding should be made by the jury.
During the trial on the prior conviction allegations, the prosecution introduced into evidence the prison packet. Defendant did not present any defense evidence. At the end of the bifurcated trial on the prior conviction allegations, the court instructed the jury that defendant was the person named in the prison packet as the defendant. The jury was told it was to decide whether the evidence proved defendant pled guilty to and was convicted of the six alleged prior burglary offenses. The jury found true that defendant has been convicted of the six alleged prior burglary offenses.
B. Analysis
In Epps, supra, 25 Cal.4th 19, the California Supreme Court held that a defendant faced with a prior conviction allegation has a statutory right to a jury trial. However, a 1997 amendment to section 1025 limited the jury’s role to determining as a matter of historical fact whether the alleged conviction actually occurred. Other questions, such as the defendant’s identity as the person who suffered the conviction, exactly what the offense was, whether the offense is a serious or violent felony for purposes of the Three Strikes law and whether the defendant served a prison term for the prior offense, are reserved to the trial court. (Epps, supra, at pp. 23-28.)
The Epps court went on to hold that where the trial court has deprived the defendant of his right to have the jury determine whether the prior conviction or convictions actually occurred, the error involves a violation solely of state statutory law and is therefore reviewed under the standard of People v. Watson (1956) 46 Cal.2d 818, 836, i.e., whether it is reasonably probable that a result more favorable to the defendant would have been reached if the jury rather than the court had determined whether the defendant had suffered the prior convictions. (Epps, supra, 25 Cal.4th at p. 29.)
Epps is the controlling authority in California. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455-456.) Therefore, based on the holding in Epps, we reject defendant’s contention he was entitled to a jury trial on the issue of identity. Furthermore, even if there was error in the jury not deciding the matter, it was harmless. (Epps, supra, 25 Cal.4th at p. 29.)
6. Disposition
The judgment is affirmed.
We concur, Ramirez P. J., McKinster J.