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People v. Smith

Court of Appeals of California, Third Appellate District, Placer.
Nov 17, 2003
No. C043106 (Cal. Ct. App. Nov. 17, 2003)

Opinion

C043106.

11-17-2003

THE PEOPLE, Plaintiff and Respondent, v. WILLIAM DALE SMITH, JR., Defendant and Appellant.


A jury convicted defendant William Dale Smith, Jr., of residential burglary (Pen. Code, § 459—count one) and receiving stolen property (Pen. Code, § 496, subd. (a)—count two). The trial court sentenced defendant to the middle term of four years in count one, and suspended imposition of sentence in count two pursuant to Penal Code section 654.

On appeal, defendant argues he is entitled to reversal because the court erred in admitting evidence of a prior uncharged offense, and his attorney provided incompetent representation in failing to object to a probation officers testimony recounting his confession to the prior. Defendant also contends the court should have stayed rather than suspended imposition of the sentence for receiving stolen property in count two. We shall vacate the portion of the judgment that suspended imposition of the sentence in count two, impose and stay a two-year midterm sentence on that count, and affirm the judgment in all other respects.

FACTS AND PROCEDURAL HISTORY

The trial began with the testimony of Melinda Simpson, a resident of Granite Bay. At approximately 3:00 a.m. on April 12, 2001, she heard two car doors shut on the street outside her window. Simpson looked out and saw an older four-door grayish-blue vehicle parked about four houses down the street. She watched the car drive away. It returned a few minutes later and parked across the street from Simpsons house. Simpson saw a man get out of the car and walk through a gate into her neighbors backyard. Knowing her neighbor was at home alone with two children, Simpson called the police.

Two Placer County Sheriffs Department deputies responded to the call. They stopped a gray sedan, driven by defendant, around the corner from where it had been observed by Simpson. The deputies searched the vehicle and found an air compressor under a blanket in the back seat. They also found a gas leaf blower, a cordless drill, a weed eater, and a cash register in the trunk of the car.

The deputies attempted to identify the owner of the tools. After the homeowner across from Simpson found nothing missing, the deputies walked down the street looking for open backyard gates. They found a side gate open at the home belonging to Carol Hamby. She checked her garage and discovered that an air compressor and leaf blower were missing. Hamby identified as hers the air compressor found in defendants car.

Over defense objection, the prosecutor introduced evidence of a prior criminal offense. In arguing for admission of the evidence, the prosecutor represented that defendant had pleaded guilty to misdemeanor receiving stolen property after his fingerprints were found at the scene. At the trial in this case, Pamela Hansen testified that she was awakened early on the morning of March 10, 2000, by lights flashing on her bedroom wall. She went outside and saw a man in her garage. Hansen yelled and her dogs gave chase, but the man escaped over a six-foot chain link fence. When Hansen surveyed her garage, she found that "there were things all over," including a box of antique dishes that had been opened and spread out on the floor.

The prosecutor also questioned David Chandler, a probation officer, about his interview with defendant before his sentencing for the March 2000 offense. Defendant initially told Chandler that he was homeless and entered Hansens garage in hopes of finding some shoes. Chandler questioned defendant further "because [he] personally felt that this wasnt the truth." Defendant "finally admitted to [him] that he purposely entered the victims backyard using a step ladder to burglarize their garage."

The court instructed the jury that evidence of the prior uncharged offense could be considered only for the limited purpose of determining the existence of a characteristic method, plan or scheme, or defendants identity or intent in committing the charged offense.

In closing argument, the prosecutor discussed the evidence that placed defendant at the scene, then stated: "[T]he big thing of what you have here is, you know, is this is his shtick. This is what he does, and you heard that from listening to Ms. Hansen and his probation officer. He did almost an identical crime before. . . . [H]e is engaged in this pattern of ripping off peoples garages and ripping off peoples tools."

DISCUSSION

I

Evidence of the Uncharged Offense

The prosecutor moved to introduce evidence of defendants prior misdemeanor conviction under Evidence Code section 1101, subdivision (b), on the theory it was relevant to prove intent, identity and common plan. He argued that the uncharged offense was "virtually as identical as you can get to the crime here." Defense counsel objected on the ground that the evidence was "nothing more than propensity evidence." The court summarily granted the motion.

Evidence Code section 1101, subdivision (b) provides: "Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as . . . intent, . . . plan, . . . [or] identity, . . . ) other than his or her disposition to commit such an act."

Defendant argues on appeal that the court erred in admitting evidence of the uncharged offense without weighing its probative value against the prejudicial effect as required under section 352. Alternatively, he contends that even if the trial court engaged in the required weighing process, it abused its discretion in admitting the evidence. Citing People v. Falsetta (1999) 21 Cal.4th 903 (Falsetta), defendant also contends that admission of the prior offense violated his due process right to a fair trial.

A. The Weighing Process Under Section 352

The trial court may exclude otherwise relevant evidence proffered under section 1101, subdivision (b), if it determines under section 352 that the probative value is substantially outweighed by the probability it will cause delay, create a substantial danger of undue prejudice, confuse the issues or mislead the jury. (§ 352; People v. Ewoldt (1994) 7 Cal.4th 380, 404.) In this context, "prejudice" refers to "evidence that uniquely tends to evoke an emotional bias against a party as an individual, while having only slight probative value with regard to the issues." (People v. Scheid (1997) 16 Cal.4th 1, 19 (Scheid).) Evidence is "substantially more prejudicial than probative [under section 352] if . . . it poses an intolerable `risk to the fairness of the proceedings or the reliability of the outcome." (People v. Waidla (2000) 22 Cal.4th 690, 724.) We review the trial courts admission of evidence for abuse of discretion and will reverse only where its decision was "`arbitrary, whimsical, or capricious as a matter of law." (People v. Branch (2001) 91 Cal.App.4th 274, 282 (Branch).)

"[A] court need not expressly weigh prejudice against probative value or even expressly state that it has done so, if the record as a whole shows the court was aware of and performed its balancing functions under Evidence Code section 352." (People v. Taylor (2001) 26 Cal.4th 1155, 1169.) Defendant complains there is no indication in the record that the trial court engaged in the required weighing process. The Attorney General disagrees with defendants assessment of the record.

We conclude there was a sufficient showing that the trial court was aware of and performed its duty under section 352. The prosecutor stated in his moving papers and in oral argument that the March 2000 prior was relevant to prove defendants intent, common plan and identity in the current trial for burglary and receiving stolen property. He noted that it was "virtually as identical as you can get to the crime here." Defense counsel joined the section 352 issue by objecting and describing the potential for prejudice, including the likelihood of confusing the jury. She stated that "[t]he prior that they are attempting to introduce as 1101(b) evidence really is nothing more than propensity evidence, trying to prejudice the jury and show that [my] client has a propensity for committing theft crimes. It is distant in time from the current case. It does not show a common motive or plan or scheme. Although there may be some similarities in what actually occurred, they are certainly very separate incidents, and the evidence that is sought to be introduced would unduly prejudice the jury against [my] client and should not be admitted." It was in the context of these arguments of the trial attorneys that the court ruled the evidence could come in.

We also reject defendants alternative argument that the court abused its discretion under section 352 by admitting the prior. A trial court should weigh four potentially prejudicial factors against the probative value of the evidence in making its ruling: "(1) the inflammatory nature of the uncharged conduct; (2) the possibility of confusion of issues; (3) remoteness in time of the uncharged offenses; and (4) the amount of time involved in introducing and refuting the evidence of uncharged offenses." (Branch, supra, 91 Cal.App.4th at p. 282.)

Defendant focuses on the first factor in this appeal. He argues that the evidence of the prior "was more inflammatory [than] the present offense because there was a direct confrontation between the victim and [defendant] and because the evidence showed more planning and sophistication . . . ." He contends that the evidence was also inflammatory because of the way the prosecutor used it in closing argument by stating: "[T]his is his shtick. This is what he does . . . ."

There is no merit in defendants argument. As we explained, evidence is "prejudicial" under section 352 if it has little probative value and evokes an emotional bias against the accused as an individual. (Scheid, supra, 16 Cal.4th at p. 19.) In this case, the similarity between the uncharged and charged offenses speaks to the high probative value of the prior. In terms of planning and sophistication, we discern little meaningful difference between defendant accessing a backyard through an unlocked gate after casing the neighborhood, or entering over a fence with the use of a stepladder. Moreover, defendant cites nothing in the record to suggest that evidence of the close encounter between defendant and Hansens dogs in March 2000 evoked an emotional bias against him in the case before us.

B. Defendants Due Process Right to a Fair Trial

"The admission of relevant evidence will not offend due process unless the evidence is so prejudicial as to render the defendants trial fundamentally unfair." (Falsetta, supra, 21 Cal.4th at p. 913, citing Estelle v. McGuire (1991) 502 U.S. 62, 70 and Spencer v. Texas (1967) 385 U.S. 554, 562-564 .) Defendant contends that "[a] fair view of the prior crime evidence admitted in the present case reveals that it was such compelling `propensity evidence that [defendants] right to a fair trial was violated." He notes that "[t]he tendency of propensity evidence to `overpersuade the jury is beyond dispute" and even after the trial court exercises its discretion under section 352, the presumption of innocence will be overcome. (See People v. James (2000) 81 Cal.App.4th 1343, 1353.)

We conclude evidence of the uncharged offense was not so prejudicial as to render the trial fundamentally unfair. As we explained, defendants claim of prejudice focused on what he characterized as the inflammatory nature of the evidence. However, the record does not support his claim that the uncharged offense was more inflammatory than the charged offense. As we explained, the prior was powerful evidence of identity and intent because it was so similar to the charged offense, but it was not inflammatory by any legal measure. (See Scheid, supra, 16 Cal.4th at p. 19.)

II

Ineffective Assistance of Counsel

Defendant contends that acknowledgment of the details of the March 2000 offense in a presentence interview with probation officer David Chandler was an involuntary confession obtained in violation of his Fifth Amendment right against self-incrimination. He contends defense counsels failure to object to the admission of Chandlers testimony violated his Sixth Amendment right to effective assistance of counsel.

"`Every person accused of a criminal offense is entitled to constitutionally adequate legal assistance. [Citations.] To establish a claim of inadequate assistance, a defendant must show counsels representation was `deficient in that it `fell below an objective standard of reasonableness. . . . [¶] . . . under prevailing professional norms. [Citations.] In addition, a defendant is required to show he or she was prejudiced by counsels deficient representation. [Citations.] In determining prejudice, we inquire whether there is a reasonable probability that, but for counsels deficiencies, the result would have been more favorable to the defendant. [Citations.]" (People v. Frye (1998) 18 Cal.4th 894, 979 (Frye).) We are reluctant to second-guess counsels trial strategy in assessing a claim of ineffective assistance. Instead, we apply a strong presumption that counsel rendered adequate assistance and exercised reasonable professional judgment. (Strickland v. Washington (1984) 466 U.S. 668, 689-690 ; Frye, supra, 18 Cal.4th at pp. 979-980.)

Defendants claim of ineffective assistance focuses on defense counsels alleged failure to recognize the coercive nature of the probation officers postconviction interview with defendant and to object to its admission to prove the prior at trial. We conclude that even if we were to decide defense counsels performance was deficient, defendant suffered no prejudice. It is not reasonably probable that, but for the alleged deficiencies, the result would have been more favorable to defendant. (Frye, supra, 18 Cal.4th at p. 979.)

The record reveals strong circumstantial evidence that defendant committed the charged offenses. Simpson saw a car similar to the one driven by defendant in her neighborhood around 3:00 a.m. The man driving the car entered her neighbors backyard. Simpson called 911. The sheriffs deputies stopped defendant around the corner in a car Simpson identified as the one she had seen outside her window. Inside the car, they found property belonging to another resident on Simpsons street. Even without Chandlers testimony regarding the March 2000 prior, it is not reasonably probable that the jury would have concluded anything other than that defendant came half a block and a few minutes short of being caught red-handed.

III

The Sentence in Count Two

The parties agree that the trial court erred in imposing and suspending defendants sentence for receiving stolen property. They ask that we modify the sentence to reflect that execution of the sentence in count two is stayed.

The parties are correct on the law. "When a defendant suffers multiple convictions, sentencing for some of which is precluded by operation of [Penal Code] section 654, an acceptable procedure is to sentence defendant for each count and stay execution of sentence on certain of the convictions to which section 654 is applicable." (People v. Miller (1977) 18 Cal.3d 873, 886; People v. Dominguez (1995) 38 Cal.App.4th 410, 420.) "[A] court acts in excess of its jurisdiction and imposes an unauthorized sentence when it fails to stay execution of a sentence under section 654." (People v. Hester (2000) 22 Cal.4th 290, 295, citing People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17.)

Here, the trial court ruled that "imposition of sentence [in count two] is suspended," but it did not impose a specific prison term for that conviction. Although we could remand to permit the trial court to impose and stay sentence in accordance with the foregoing authorities, we conclude that procedure is unnecessary in the circumstances of this case. The court imposed the middle term of four years in count one. Penal Code section 654 requires the court to impose and execute the "longest potential term of imprisonment," and stay execution of the shorter. (Pen. Code, § 654, subd. (a); People v. Kramer (2002) 29 Cal.4th 720, 722.) In doing so, the trial court identified the sentencing factors and concluded that the factors in aggravation were at least equal to those in mitigation. We shall therefore modify the sentence to impose a two-year midterm sentence for count two and stay execution of that sentence pursuant to section 654.

DISPOSITION

The sentence is modified to impose a two-year midterm sentence on count two. The execution of that sentence is stayed pursuant to Penal Code section 654. As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and to send a copy to the Department of Corrections.

We concur: SIMS, Acting P.J., RAYE, J.

Undesignated section references are to the Evidence Code.


Summaries of

People v. Smith

Court of Appeals of California, Third Appellate District, Placer.
Nov 17, 2003
No. C043106 (Cal. Ct. App. Nov. 17, 2003)
Case details for

People v. Smith

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. WILLIAM DALE SMITH, JR.…

Court:Court of Appeals of California, Third Appellate District, Placer.

Date published: Nov 17, 2003

Citations

No. C043106 (Cal. Ct. App. Nov. 17, 2003)