Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, Patrick H. Donahue, Judge. Super. Ct. No. 03CF2244
David L. Bernstein, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Jeffrey J. Koch and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
SILLS, P. J.
Byron Keith Shipp appeals from the judgment sending him to prison for two years after a jury convicted him of second degree burglary and the court found he had a prior prison term. (See Pen. Code, §§ 459, 460, 667.5, subd. (b).) In this appeal, Shipp contends the trial court erred when it admitted evidence of other prior burglaries admittedly committed by him. (Cf. Evid. Code, § 1101, subd. (b).) We affirm.
Originally, Shipp faced an additional charge of being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)) and an additional enhancement allegation of using a firearm in the commission of the burglary. (See Pen. Code, § 12022.5, subd. (a).) However, the jury acquitted him of the possession count and rejected the enhancement allegation. Finally, the court struck the prior-prison-term enhancement for sentencing purposes and ordered this two-year term to be served concurrent with a longer prison term imposed in a separate case. {CT 205, 247}
Evidence Code section 1101, subdivision (b), permits “the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as . . . opportunity, intent, preparation, [or] plan . . .) other than his or her disposition to commit such an act.”
FACTS
One Sunday morning, office janitors spotted a man inside a closed office they were to clean. When two of them went to confront the intruder—who turned out to be Shipp—he waved something in the air and ordered them to stay away, yelling that he had a gun. He then hopped into his white pickup truck and drove away, but not before the janitors jotted down the truck’s license plate number. {RT 85,90-103, 194-200, 226}
Officers were called who noticed an office door had been “forced” as evidenced by the broken door lock and pry marks on the doorjamb. A check on the truck’s registration revealed it belonged to Shipp. With the photograph provided by the Department of Motor Vehicles, the officers showed a photographic display to two of the three janitors. Both of them identified Shipp’s photograph as that of the man they saw that day. {104, 151-157,200, 227-240}
The office belonged to a dentist who testified that no one had permission to be in his office besides the cleaning staff, and that certain items of equipment were missing that had been there the previous week. Specifically, a computer, a monitor and a printer were gone. {78-85}
Shipp denied any involvement in the burglary, telling the detective after his arrest that he was visiting a donut shop in the neighborhood when he spotted a Hispanic man running from the scene. He did not want to be a “snitch” and thus had not volunteered this information. {168-172} Shipp testified consistently with this story, adding that he was in Irvine because he was delivering microphones to the Greater Light Church. {404-411}
More than a year later, a similar burglary was committed at a chiropractor’s office in which some computer equipment was taken. A day after the chiropractor’s burglary, Joseph Monroe, a detective with the Irvine Police Department, was following Shipp as part of an undercover investigation and watched him carry a computer tower from a notary’s office to his truck parked outside. Monroe then checked out the office and found the door had been pried open and exposed computer cables indicated a missing computer. Other officers were called who followed the truck, confronting Shipp as he was unloading his truck. In the truck’s bed, a crowbar and some computer equipment were found, and staff from the notary office identified the equipment as belonging to them. {247-259, 267-280} After his arrest, Shipp admitted he burgled the chiropractor’s office the previous day by using the crowbar found in his truck to pry the door. {279}
DISCUSSION
Shipp contends the trial court erred when it permitted the prosecution to present evidence of the burglaries of the chiropractor’s and notary’s offices to prove a “common plan or design” with the charged burglary. Specifically, he argues the jury may have used this evidence to conclude he harbored a propensity to commit crimes—an impermissible use of such evidence—because he had confessed to one of the two uncharged burglaries. (See Evid. Code, §§ 1101, subds. (a)-(b); see fn. 2, ante.) Thus, under Evidence Code section 352, he argues, all evidence of the pending burglaries should have been excluded, but particularly all reference to the confession.
These two uncharged burglaries were consolidated in a separate case pending at the time of trial on the dentist’s office burglary. Shipp later was convicted of these two other burglaries, and the court sentenced him to an eight-and-a-half-year term on those crimes. He was ordered to serve the terms on all three burglaries concurrently. (See fn. 1, ante.)
Shipp does not question but that the three offenses were substantially similar and were admissible under the guidelines of Evidence Code section 1101, subdivision (b). (Cf. Fn. 2, ante.) He attacks their admission, however, as being more prejudicial than probative under Evidence Code section 352. He fears the jury could have convicted him because he was not facing charges on those two burglaries; and, because the methods used to commit all three burglaries were “virtually identical,” {AOB 12} the jury indubitably concluded he had a criminal propensity. The limiting instruction given by the trial court (see CALJIC 2.50, as given){CT 128}was “inadequate to protect the accused,” he concludes. However, the jury’s verdict reflected otherwise: It acquitted him of the second count and rejected the gun-use enhancement, thus showing the jury did not conclude he was generally inclined to commit crimes.
Evidence Code section 352 provides that the trial court has discretion to “exclude evidence 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.”
The court informed the jury that the evidence of other crimes “if believed [by you], may not be considered by you to prove that defendant is a person of bad character or that he has a disposition to commit crimes. It may be considered by you only for the limited purpose of determining if it tends to show: [¶]A characteristic method, plan or scheme in the commission of criminal acts similar to the method, plan or scheme used in the commission of the offense in this case which would further tend to show a clear connection between the other offense and the one of which the defendant is accused so that it may be inferred that if defendant committed the other offenses defendant also committed the crimes charged in this case.” {RT 531; CT 128}
Evidence admitted under the guidelines of Evidence Code section 1101, subdivision (b), must also be more probative than prejudicial, as required by Evidence Code section 352. (People v. Cole (2004) 33 Cal.4th 1158, 1194-1195.) These determinations are reviewed for abuse of discretion. (Id. at p. 1195.) To constitute an abuse, it must be shown that the court’s ruling was “‘arbitrary, capricious or patently absurd . . . result[ing] in a manifest miscarriage of justice. [Citations.]’ [Citation.]” (People v Rodrigues (1994) 8 Cal.4th 1060, 1125.)
The trial court properly determined that the two burglaries, although occurring after the charged burglary, were nearly identical to that charged burglary and thus met the admission boundaries of Evidence Code section 1101, subdivision (b). Shipp does not dispute this part of the analysis. He focuses on the court’s balancing of the probative value versus prejudicial effect under Evidence Code section 352 and concludes the court erred.
The fact the uncharged crimes occurred after the charged crime is irrelevant in determining their relevance under Evidence Code section 1101, subdivision (b). (See People v. Balcom (1994) 7 Cal.4th 414, 425.)
The evidence of the uncharged burglaries was essential to show the common method and plan used to commit all three burglaries. Shipp’s confession to the chiropractor’s office burglary was the pivotal piece of evidence to establish that common plan and method: his use of a crowbar to force his entry into closed small businesses to steal easily sold office equipment. Without that statement, the chiropractor’s office burglary could not be proven. And without both the chiropractor’s office burglary and the notary’s office burglary, a pattern of burglaries could not be shown.
On the other hand, evidence of uncharged crimes carries the potential prejudice that a jury might choose to punish an accused—not for the charged crime—but for the uncharged crimes for which he or she will not be sentenced. But the prejudicial effect for which Evidence Code section 352 intends to protect is that “‘“which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, ‘prejudicial’ is not synonymous with ‘damaging.’” [Citation.]’ [Citation.]” (People v. Branch (2001) 91 Cal.App.4th 274, 286.)
Specifically, “‘evidence should be excluded as unduly prejudicial when it is of such nature as to inflame the motions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors’ emotional reaction. In such a circumstance, the evidence is unduly prejudicial because of the substantial likelihood the jury will use it for an illegitimate purpose.’ [Citation.]” (People v. Branch, supra, 91 Cal.App.4th at p. 286.)
The evidence of the two uncharged burglaries was not of the nature that the jury would misuse it. The court cautioned the jury as to its proper use of that evidence: Did it establish a pattern of method and commission of which the charged burglary was also a part? The evidence of both uncharged burglaries—including Shipp’s admission to the use of the crowbar to commit the chiropractor’s office burglary—was not of the sort that would “inflame the emotions of the jury” such that the jurors would misuse that evidence. And the verdict reflected that they were not so motivated: They acquitted him of the gun possession and the enhancement, thus showing they followed the court’s limiting instruction.
No error has been shown in the court’s decisions. The judgment is affirmed.
WE CONCUR: ARONSON, J., FYBEL, J.
All further statutory references are to the Penal Code unless otherwise stated.