Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F06187
DAVIS, J.
A jury found defendant Clifford James Scott guilty of second degree car burglary (Pen. Code, § 459), the sole charged offense. In a bifurcated proceeding, the trial court found true allegations that defendant had one prior strike conviction (Pen. Code, §§ 667, subds. (b)-(i), 1170.12) and had served six prior prison terms (Pen. Code, § 667.5, subd. (b)), and sentenced him to 10 years in state prison.
Defendant appeals, contending the trial court abused its discretion and deprived him of his rights to a fair trial and due process of law in admitting evidence he had three prior convictions for unlawfully taking or driving a vehicle (Veh. Code, § 10851) to prove his intent with respect to the charged offense. We shall affirm.
Because this appeal deals with the trial court’s pretrial ruling, the following factual information is taken from the People’s offer of proof.
In July 2006, Lucas Bucklin and Natalie Baudendistel went to Mercy San Juan Hospital to visit a friend. They drove there in Bucklin’s car and parked in the hospital parking lot. After they visited their friend, Baudendistel waited outside the hospital for Bucklin. As she waited, she heard a crash, looked up, and saw defendant standing next to Bucklin’s car. Bucklin then exited the hospital and the two of them walked toward his car. When Bucklin saw the driver’s side window was broken, he approached defendant and asked him whether he had broken into Bucklin’s car. Defendant denied breaking into Bucklin’s car, stated that his car had also been broken into, and pointed to a car parked next to Bucklin’s. Items from Bucklin’s car were on the ground next to that car, and defendant attempted to kick them under the car.
Prior to trial, the People moved to admit evidence that defendant had six prior felony convictions for unlawfully taking or driving a vehicle “to show his intent and absence of mistake or accident” when he entered Bucklin’s car. The People argued that such evidence was highly probative because “defendant’s intent [was] the main disputed issue” in the case and proposed to introduce the evidence through certified documents pursuant to Evidence Code section 452.5, subdivision (b). According to the People, the documents would “show [only] the most basic level of the conduct underlying [defendant’s] conviction[s],” and thus, “would be less prejudicial to [d]efendant than presenting the testimony of actual witnesses” who “would inform the jury of the surrounding circumstances of [the] numerous . . . thefts.”
Hereafter, undesignated section references are to the Evidence Code. Section 452.5, subdivision (b) provides: “An official record of conviction certified in accordance with subdivision (a) of Section 1530 is admissible pursuant to Section 1280 to prove the commission . . . of a criminal offense, . . . or other act, condition, or event recorded by the record.”
Defendant conceded “intent [was] certainly an issue,” in particular “whether [he] had the capability of forming [the requisite] intent based on his blood[-]alcohol level.” He objected, however, to the admission of evidence concerning his prior convictions to show his intent on the ground that the prior convictions were not sufficiently similar to the charged offense. He noted that unlike the charged offense, none of the prior convictions, which he described as “actual car thefts,” involved car burglaries or alcohol. He also argued that the “intent to steal [a] vehicle is substantially different than intent to steal what’s in the vehicle . . . . Just because somebody stole a vehicle in the past doesn’t mean that they intend to take items from the vehicle and vice versa.”
The trial court found the prior convictions were probative of defendant’s intent because “his intent or mental state is going to be put specifically at issue by the defense. That is the thrust of the defense argument in this case, and here the theft involved a car. His six prior convictions involved a car. . . . [T]he recurrence of the acts also add [to] the probative value, and I think the jury can reasonably infer from this evidence if they choose that . . . defendant probably harbored [the] same or similar intent in each incidence [sic].” To limit any prejudice to defendant, the court ruled that it would not “admit all six” of the prior convictions, only the three most recent convictions, which occurred in 1992, 1995, and 2002.
At trial, the parties stipulated that defendant was convicted of “auto theft” in 1992, 1995, and 2002.
DISCUSSION
I
Defendant first contends the trial court abused its discretion in admitting evidence of three prior convictions for unlawfully taking or driving a vehicle to show his intent under section 1101, subdivision (b), and the admission of such evidence prejudiced him by permitting the jury to conclude he had a propensity to steal.
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 such as intent, absence of mistake, or accident. (§ 1101, subds. (a) & (b).) “To be relevant, an uncharged offense must tend logically, naturally and by reasonable inference to prove the issue(s) on which it is offered.” (People v. Robbins (1988) 45 Cal.3d 867, 879.) The trial court may admit such evidence in its discretion after weighing its probative value against its prejudicial effect. (People v. Daniels (1991) 52 Cal.3d 815, 856.) Consequently, a trial court’s ruling admitting prior instances of misconduct is reviewed for abuse of discretion. (People v. Cole (2004) 33 Cal.4th 1158, 1195.)
In People v. Ewoldt (1994) 7 Cal.4th 380 (Ewoldt), the California Supreme Court discussed the amount of similarity required between a charged offense and a prior incident before evidence of the prior incident may be admitted. The court noted that “[t]he least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent.” (Id. at p. 402.) This is because “‘[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.]” (Ibid.)
Relying on Ewoldt, defendant contends “the trial court had no evidentiary basis to” find the prior convictions were sufficiently similar to the charged offense to support the inference that he probably “harbored the same intent” in each instance. In particular, he argues “the mere fact of a prior conviction for unlawfully taking or driving of a vehicle does not show that [he] harbored the same intent in each case” because “[a] conviction for vehicle burglary requires the intent to steal whereas a conviction for unlawful taking or driving of a vehicle does not always require such intent.” “[W]hile the facts of a particular conviction for unlawful taking or driving of a vehicle might show that . . . defendant had the intent to steal in that case, here, the trial court had absolutely no information about the facts of any of the priors it admitted.”
Penal Code section 459 provides in pertinent part: “Every person who enters any . . . vehicle . . ., when the doors are locked, . . . with intent to commit grand or petit larceny or any felony is guilty of burglary.” (Italics added.)
While not raised by the People, we conclude defendant failed to preserve the issue for appeal by not objecting on this ground below. (§ 353, subd. (a) [judgment shall not be reversed on ground of erroneous admission of evidence unless the record shows an objection was made on that specific ground in the trial court]; People v. Boyette (2002) 29 Cal.4th 381, 423-424; People v. Kipp (2001) 26 Cal.4th 1100, 1124.)
At no time did defendant argue the prior convictions were not sufficiently similar to the charged offense because vehicle burglary (the charged offense) requires the intent to steal whereas a conviction for unlawfully taking or driving a vehicle does not always require such intent. Had he done so, the trial court could have resolved the issue by requiring the People to show whether the prior convictions for unlawfully taking or driving a vehicle involved vehicle thefts or something else. Instead, he argued only that the “intent to steal [a] vehicle is substantially different than intent to steal what’s in the vehicle,” which assumes the prior convictions involved vehicle thefts.
Even assuming defendant had preserved the issue for appeal, it fails on the merits. In objecting to the admission of evidence of his prior convictions, defendant conceded the prior convictions were for “actual car thefts,” which would have required an intent to steal. Thus, contrary to defendant’s assertion, there was “information” before the trial court that defendant had the intent to steal when he committed the uncharged crimes. Thus, the trial court did not abuse its discretion in concluding that the defendant’s prior convictions for car theft were sufficiently similar to vehicle burglary (the charged offense).
Nor was the probative value of the evidence of his prior convictions “substantially outweighed by the probability that its admission [would] . . . create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (§ 352.) Evidence that defendant was previously convicted of car theft, which requires an intent to steal, is particularly probative given his defense that he entered Bucklin’s car by mistake or because he was drunk and confused. Evidence that defendant stole cars is not substantially more inflammatory than the charged offense that he entered a locked car intending to steal property from inside the car. Defendant concedes that the prior convictions, which occurred in 1992, 1995, and 2002, are not remote. Finally, presentation of the evidence, which the People proposed to introduce through certified documents, was not likely to consume a significant amount of time.
II
Defendant also claims the admission of evidence of his prior convictions “violated [his] federal constitutional rights to a fair trial and due process of law” under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution.
As the People correctly note, defendant failed to raise a constitutional objection below. Even assuming we can reach this claim in the absence of a constitutional objection (see People v. Partida (2005) 37 Cal.4th 428, 435), it fails on the merits.
“The admission of relevant evidence will not offend due process unless the evidence is so prejudicial as to render the defendant’s trial fundamentally unfair.” (People v. Falsetta (1999) 21 Cal.4th 903, 913.)
Here, defendant’s claim is premised on the assertion that his “prior convictions had no probative value because there was not a hint of similarity between the priors and the current case.” As previously discussed, the evidence of defendant’s prior convictions was relevant to show his intent to steal (ante, pp. 7-8), and the jury was instructed that it could consider the evidence only for that limited purpose. Thus, defendant has failed to show that the admission of such evidence rendered his trial so fundamentally unfair that it violated his due process rights. (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 990, fn. 5 [“rejection on the merits of a claim that the trial court erred . . . necessarily leads to rejection of the newly applied constitutional ‘gloss’ as well. No separate constitutional discussion is required”].)
DISPOSITION
The judgment is affirmed.
We concur SCOTLAND, P.J., BLEASE, J.
Vehicle Code section 10851, subdivision (a) provides in pertinent part: “Any person who drives or takes a vehicle not his or her own, without the consent of the owner thereof, and with intent either to permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle, whether with or without intent to steal the vehicle, . . . is guilty of a public offense . . . .” (Italics added.)