Opinion
NOT TO BE PUBLISHED
APPEAL from the judgment of the Superior Court of Los Angeles County. No. BA355882, Michael E. Pastor, Judge.
Gideon Margolis, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Michael R. Johnsen and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
GRIMES, J.
Defendant and appellant Keith Stewart was convicted by jury of one count of residential burglary and sentenced to six years in prison. The sole issue on appeal is whether the trial court abused its discretion in admitting three uncharged crimes pursuant to Evidence Code section 1101, subdivision (b). Defendant contends there was insufficient similarity to warrant admission and that the evidence was unduly prejudicial. Respondent contends the uncharged crimes evidence was properly admitted to prove intent and/or common design or plan. We find no evidentiary error and affirm.
All further statutory references are to the Evidence Code unless indicated otherwise.
FACTS
1. The Charged Offense
Around 4:00 p.m. on April 27, 2009, J. Hwang was attempting to get some sleep in the second floor bedroom of her home. The window in Ms. Hwang’s bedroom overlooked the backyard of her neighbor, T. Moore. From her window, Ms. Hwang noticed a man standing on a patio chair, attempting to pry open one of the windows at the back of Ms. Moore’s house. The man had a backpack with him from which he took various tools to try to open the window. The man was wearing gloves. She watched the man for several minutes and then went into the other room to call 911 to report the apparent burglary at her neighbor’s home.
Los Angeles Police Department (LAPD) Officers Oscar Ordonez, Felipe Rocha and Daryl Edwards responded to the scene. Upon arrival, Officers Ordonez and Rocha saw defendant walking down the driveway of the Moore home. According to LAPD policy, Officer Ordonez ordered defendant to the ground. Defendant complied and was handcuffed while lying on the ground. A pair of gloves was located in the back pockets of his pants, but no wallet. He was wearing pants, a shirt, and sneakers or running shoes.
When Officer Edwards arrived on the scene, he noticed a blue Cadillac parked a few houses down from the Moore home. He saw only a driver in the car, an African-American male. He was not sure if there were any passengers. Officer Edwards heard yelling and, at that point, he saw the Cadillac start to drive slowly away. Officer Edwards then noticed that Officers Ordonez and Rocha had a male suspect “pron[ed]” out on the driveway.
When the police arrived, they phoned Ms. Hwang and asked her to come outside to speak with them. As she stepped outside, she saw the same man who had been prying the window jump over the fence into her backyard and then jump the fence into the yard beyond. She heard a helicopter overhead. When she met the officers in front of her house, she saw defendant lying handcuffed on the ground in Ms. Moore’s driveway. She told the officers that defendant was not the man she had seen in the backyard at the window.
During this same time, LAPD Officer Douglas McCue was en route to the scene in response to the dispatch call when he saw a blue Cadillac matching the description he had been given. He pulled the car over and the driver, who gave the last name Fisher, consented to a search of the car. Inside the car Officer McCue found a baggie of marijuana and a black wallet containing a driver’s license, a medical insurance card and related items, all bearing defendant’s name. Fisher had no identification on him and was detained for driving without a license.
Defendant’s mother owned the Cadillac at the time of trial. She testified that defendant’s aunt owned it in April 2009 and permitted defendant to drive it.
Officer Ordonez placed defendant in the back of his patrol car and then walked the exterior perimeter of the Moore home. He saw a patio chair underneath a window that had pry marks in the frame but was still closed. Another window at the back of the house was open and was determined to be the point of entry. Officer Ordonez also saw a shoeprint in the soft dirt at the back of the house where there appeared to be some white powdery substance in the soil. When Ms. Moore arrived later, she explained she had been planning some new plantings for the yard and the gardener had recently spread a white, powdery soil additive on the dirt. A cast was made of the shoeprint and defendant’s sneakers were collected as evidence. The cast of the shoe print showed a pattern consistent with the pattern on the soles of defendant’s sneakers. Officer Ordonez also noticed a white powdery substance or debris in the grooves of the soles of defendant’s sneakers, as well as similar debris on the back door panel of his patrol car where he had placed defendant.
Defendant was charged with one count of first degree residential burglary with the intent to commit a larceny or any felony arising from the April 27, 2009 incident. (Pen. Code, §§ 459, 460.) Defendant pled not guilty and the case proceeded to trial in November 2009. On respondent’s motion, the court ruled that uncharged crimes evidence was admissible. The jury was ultimately unable to reach a verdict and the court declared a mistrial. Defendant immediately reentered his plea of not guilty.
The case was retried in June 2010. Respondent once again moved to have uncharged crimes evidence deemed admissible. As in the first trial, the court ruled that uncharged crimes evidence was admissible and could be offered by respondent. In addition to the evidence of the two uncharged crimes (September 2008 and May 2009) introduced at the first trial, the court ruled that a third uncharged crime (January 2009), which came to respondent’s attention after the first trial, was likewise admissible.
The court ruled the three incidents of uncharged crimes were admissible to prove both intent and common design or plan. Noting that intent was “dramatically at issue” in the case, particularly in light of the prosecution theory that defendant acted in the capacity of an aider and abettor and may not have actually entered the burglarized home, the court found sufficient similarity “to support an inference that the defendant may have harbored the same intent as to each one of those incidents....” As to the issue of common design or plan, the court found the “requisite concurrence of common features” in the various burglaries to support admissibility, including “the type of entry, the manner of entry, the time of entry, the location of entry, the number of participants, the use of gloves, the manner of flight, and possible concealment.” The court further explained that the potential prejudice did not outweigh the probative value of such evidence and that the court would not allow “full blown trials” on each of the uncharged crimes to avoid undue consumption of time.
2. The Uncharged Crimes
The first incident occurred in Las Vegas, Nevada, in September 2008 at approximately 11:00 a.m. D. Larsen was at home speaking to a friend on the phone. She heard her door bell ringing repeatedly. She looked out the peep hole and saw defendant, whom she did not know, standing on her porch. She decided not to open the door, but he continued ringing the bell. She then heard him say, “What do you think?” Ms. Larsen became concerned and opened the door. She saw there was a second man with defendant. Defendant had on a white t-shirt and both men were wearing backpacks. When she opened the door, defendant hesitated a moment and then said they were looking for their dog. Ms. Larsen said she had not seen a dog and closed the door. The two men walked away. The circumstances made her feel nervous, so Ms. Larsen phoned the police to report the incident.
Police officers responding to Ms. Larsen’s phone call received a radio dispatch of a residential burglary in progress in the same general neighborhood. They arrived on the scene and saw defendant and another individual running from the side of the subject home. Defendant was carrying a backpack. After a brief pursuit, defendant was taken into custody. Officers found a screwdriver in defendant’s backpack, which the police had recovered after defendant discarded it during the pursuit. Defendant’s accomplice was also apprehended and gloves were found in his pocket.
The second incident, also in Las Vegas, occurred around 2:30 p.m. in January 2009. M. Sprenz briefly left home to pick up one of her daughters from school. Mrs. Sprenz had been at home that day because her other daughter was home sick from school and that daughter remained in the house while Mrs. Sprenz picked up the other child. As Mrs. Sprenz drove up her street, she stopped to visit with a neighbor. She remained seated in her car in the road and was able to see her home and driveway. Mrs. Sprenz noticed two African Americans, whom she did not recognize, walking up her driveway. The two individuals were later determined to be defendant and a female accomplice. Mrs. Sprenz assumed the two individuals would knock on her front door, get no response and then leave, but she could not see her front door from inside her car.
When Mrs. Sprenz did not see either of the individuals come back down her driveway, she got worried. Her daughter, who was still in the house, then called on her cell phone, sounding anxious, and said that someone was breaking into the house. Mrs. Sprenz immediately drove up her driveway, entered her home through the front door, called for her daughter, and then ushered her back out to the car and drove toward the end of her street. Mrs. Sprenz then called 911. As she and her children waited in her car at the end of the street for the police to arrive, she noticed the two individuals running away from her home. When she eventually went back into her home, she saw that the sliding glass door leading to their backyard had been broken, drawers and items were thrown about, and a gun registered to her husband was missing.
In response to the radio dispatch generated from Mrs. Sprenz’s call, Officer Steven Pace was driving toward the scene when he saw defendant, who matched the description provided by dispatch, walking a couple of blocks away from the home of the suspected burglary. Officer Pace stopped his patrol car and asked defendant if he could speak with him a moment. Defendant agreed and approached the car to talk with Officer Pace. Defendant provided his name and some general information to Officer Pace, and said he had been dropped off at a neighborhood park by friends and was returning to that park. Officer Pace knew the park defendant mentioned, that it was about a mile away, and that defendant had not been walking in the direction of the park when Officer Pace stopped him. Officer Pace also noticed that defendant appeared to have a “fresh” cut on his arm. Officer Pace detained defendant until additional officers arrived and read him his Miranda rights.
Miranda v. Arizona (1966) 384 U.S. 436.
Detective Anthony Archer arrived while defendant was being detained by Officer Pace and other patrolmen. Detective Archer questioned defendant, who admitted he had been with a female, driving through the neighborhood, when she said, “We need to hit this street.” Detective Archer understood defendant to be referring to burglarizing a home on that street. Defendant admitted to standing as a “look-out” while the female went to the backyard, broke a sliding glass door to enter the house and burglarized the home. Defendant also said that when they realized someone was in the house, they took off running and that his female accomplice took the car and he remained on foot.
The third uncharged crime took place in May 2009 in Monterey Park, California, a month after the charged offense. T. Lee left his home for a brief period of time around 11:00 a.m. He returned around noon to find police officers at his house. His security alarm had been activated. A French door at the back of his house had been kicked in and the screen door cut. Mr. Lee had not given anyone permission to be in his home that day, for repairs or otherwise.
Officer Peter Palomino was on patrol and responded to the radio dispatch reporting a possible residential burglary. As he approached the area of the Lee home, he saw a white Nissan that matched the description of the vehicle the suspects might have been driving. He at first believed there was only a driver, but after he made a U-turn to follow the vehicle, he noticed the outline of a head “pop up” from the front passenger seat and another from the back seat of the car. According to department policy, Officer Palomino continued to follow the car until a backup unit could join him before pulling over the vehicle. Defendant was the driver of the Nissan and there were two passengers in the car with him.
Numerous items were located in the Nissan, including three pairs of gloves, three backpacks, a long metal tool with a pointed tip, a small gray box with women’s jewelry inside, and two Egg McMuffins, still wrapped, with a receipt from a McDonald’s restaurant but no take-out bag. On a street in the vicinity of the Lee home, another officer recovered a McDonald’s take-out bag, lying in the road, which contained more women’s jewelry.
In connection with each of the 10 witnesses who testified as to the three uncharged crimes, the court read an instruction to the jury indicating the limited bases for which the testimony could be considered. The court also instructed the jury at the conclusion of the case on this issue.
The jury found defendant guilty. The court sentenced defendant to the upper term of six years, awarding 124 days of custody credits and imposing victim restitution, along with various other fines and penalties. This appeal followed.
DISCUSSION
Defendant contends the trial court abused its discretion in admitting the uncharged crimes evidence on the issue of intent and/or common design or plan pursuant to section 1101, subdivision (b) (hereafter section 1101(b)). Defendant also argues that even if the evidence had been admissible under section 1101(b), the court abused its discretion in finding the probative value of the uncharged crimes evidence outweighed its prejudicial value pursuant to section 352. We review evidentiary rulings under sections 1101(b) and 352 for an abuse of discretion. (People v. Foster (2010) 50 Cal.4th 1301, 1328 (Foster); People v. Cole (2004) 33 Cal.4th 1158, 1195 (Cole).) Under this standard, “‘“a trial court’s ruling will not be disturbed, and reversal... is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.” [Citation.]’ [Citation.]” (Foster, supra, at pp. 1328-1329.) We find no such abuse here.
1. Admissibility Pursuant to Section 1101(b)
The general rule is that evidence of prior crimes is inadmissible to prove the defendant’s conduct on a specific occasion. However, it is well established that such evidence may be admissible if relevant to prove a material fact in issue and not simply to establish the defendant’s general criminal disposition or “bad character.” (People v. Hovarter (2008) 44 Cal.4th 983, 1002.) Section 1101 provides in pertinent part: “(a) Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion. [¶] (b) 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 motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, ...) other than his or her disposition to commit such an act.” (Italics added.)
a. Intent
Defendant argues he raised no intent-related defense, there was little or no evidence of any act by defendant beyond simply being at the scene, and such evidence is insufficient to support the admissibility of any uncharged crimes evidence under section 1101(b). Defendant contends that to allow the introduction of such prejudicial evidence under any attenuated aiding and abetting theory would represent far too expansive an interpretation of the proper use of uncharged crimes evidence.
By pleading not guilty, defendant placed all elements of the charged offense at issue, including the requisite intent. (People v. Lindberg (2008) 45 Cal.4th 1, 23). Whether defendant intended to aid and abet the residential burglary was therefore a material fact in dispute. (Ibid.; People v. Brandon (1995) 32 Cal.App.4th 1033, 1049, fn. 12 [defendant’s plea of not guilty and failure to take action to narrow prosecution’s burden of proof places all elements of charged crime in issue for purposes of ruling on admissibility of evidence under section 1101(b)].) Regardless of whether defendant raised an intent-related defense, respondent was required to establish, as part of its case in chief, the requisite intent for burglary by a direct perpetrator and/or intent to support an aiding and abetting liability theory. (See People v. Beeman (1984) 35 Cal.3d 547, 560 [for aider and abettor liability to attach, the defendant must act with knowledge of perpetrator’s criminal purpose and with the intent of committing, encouraging or facilitating commission of the offense].)
Where there is unassailable evidence of defendant’s criminal intent such that the element of intent is not reasonably in dispute, then there is no predicate for admitting uncharged crimes evidence. (See, e.g., People v. Balcom (1994) 7 Cal.4th 414, 423 (Balcom); People v. Earle (2009) 172 Cal.App.4th 372, 391 [“before potentially prejudicial evidence can be admitted to show an element of the offense there must be some concrete basis to suppose that the jury might fail to find that element beyond a reasonable doubt”].) However, in contrast, where, as here, there is evidence establishing the physical act but the evidence as to the accompanying intent is disputed, uncharged crimes evidence may properly be offered. “Evidence of intent is admissible to prove that, if the defendant committed the act alleged, he or she did so with the intent that comprises an element of the charged offense. ‘In proving intent, the act is conceded or assumed; what is sought is the state of mind that accompanied it.’ [Citation.]” (People v. Ewoldt (1994) 7 Cal.4th 380, 394, fn. 2 (Ewoldt), first italics in original, superseded by statute on other grounds as stated in People v. Britt (2002) 104 Cal.App.4th 500, 505.)
The fact that a burglary had occurred at the Moore home was essentially conceded, as was the fact that defendant was present at the scene. Defendant’s intent was, as the trial court aptly described, therefore “dramatically” in issue. Respondent had the burden to prove beyond a reasonable doubt defendant’s state of mind that accompanied his physical presence, with gloves, at the front of a home that had been burglarized. Lacking direct evidence of defendant’s mental state, it was proper for respondent to offer circumstantial uncharged crimes evidence to demonstrate the requisite criminal intent. (Ewoldt, supra, 7 Cal.4th at p. 394, fn. 2.)
Of all the potential grounds upon which section 1101(b) admissibility may rest, the least amount of similarity between the charged offense and the uncharged crimes is required to support a finding of admissibility on the grounds of intent. “To be admissible to show intent, ‘the prior conduct and the charged offense need only be sufficiently similar to support the inference that defendant probably harbored the same intent in each instance.’ [Citations.]” (Cole, supra, 33 Cal.4th at p. 1194, italics added.) Moreover, the fact that one of the uncharged crimes occurred after the charged offense does not lessen its relevance or potential admissibility. (Balcom, supra, 7 Cal.4th at p. 425.)
Here, the three uncharged incidents had multiple similar features in common with the charged offense. All of the incidents were attempts to burglarize a residence during daylight hours during the work week while the residents were away from the home. All of the incidents involved defendant working in tandem with at least one accomplice. Each burglary or attempted burglary was accomplished by attempting to enter the home through a backyard door or window, being pried open or broken with the use of a tool. Defendant and his accomplice(s) carried backpacks to hide such items as screwdrivers and gloves to be used during the burglaries. The incidents usually involved the use of a getaway vehicle parked a few houses away from the target homes.
The combination of these same features in the various offenses is sufficient to support a finding of admissibility to inferentially establish the requisite intent. (Cole, supra, 33 Cal.4th at p. 1194; see also People v. Rodriguez (1970) 10 Cal.App.3d 18, 34, fn. 8 [admission proper where both charged offense and uncharged crimes were committed at “approximately the same time of day, ” in “same general locale, ” with “same general sequence” of events, and “the taking of the same general type of item”].) Defendant seems to suggest that uncharged crimes evidence is never proper to establish the intent of an aider and abettor as opposed to a direct perpetrator because it would lead to an improper expansion of the use of uncharged crimes evidence. However, defendant offers no legal authority to support such position and we do not find the argument persuasive. We conclude the three uncharged crimes were properly ruled admissible under section 1101(b) on the issue of intent.
b. Common design or plan
Defendant argues there were insufficient common features between the uncharged crimes and the charged offense to warrant admission because the burglaries involved general features common to most burglaries, like the use of gloves to avoid leaving fingerprints. The level of similarity required to establish a common design or plan is somewhat more demanding than that required to establish intent, but does not require a showing of a special or distinctive signature. (Ewoldt, supra, 7 Cal.4th at p. 403.) “To be admissible to show a common scheme or plan, a greater degree of similarity is required than to show intent, and ‘the common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual.’ [Citation.]” (People v. Davis (2009) 46 Cal.4th 539, 602, italics added.)
We find no error in the admission of the uncharged crimes evidence to establish a common design or plan and, certainly, the evidence was highly relevant since defendant’s conduct on April 27, 2009 at the Moore home was in dispute. Respondent had to persuade the jury that defendant was not “merely present” at the Moore home, but that he intended to aid and abet his accomplice, i.e., that defendant “engaged in the conduct alleged to constitute the charged offense.” (Ewoldt, supra, 7 Cal.4th at p. 394.) “For example, in a prosecution for shoplifting in which it was conceded or assumed that the defendant was present at the scene of the alleged theft, evidence that the defendant had committed uncharged acts of shoplifting in a markedly similar manner to the charged offense might be admitted to demonstrate that he or she took the merchandise in the manner alleged by the prosecution.” (Id. at p. 394, fn. 2.)
Even if we were to accept defendant’s argument and assume, for purposes of our discussion, it was error for the court to admit the uncharged crimes evidence on the grounds of common design or plan because of the higher threshold of similarity required, we would conclude any such error was harmless because, as explained above, the evidence was properly admitted to prove intent. (People v. Gray (2005) 37 Cal.4th 168, 204 [assuming it was error to admit uncharged crimes to prove intent to rape and sodomize, error was harmless under any standard as uncharged crimes evidence was properly admitted to prove identity and intent to kill].) We therefore need not discuss this separate ground for admission further.
2. Admissibility Pursuant to Section 352
When uncharged crimes evidence is deemed admissible under section 1101(b), the court must next determine if the evidence should be excluded as unduly prejudicial under section 352. (Balcom, supra, 7 Cal.4th at p. 426.) Section 352 states: “The court in its discretion may 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.”
Because uncharged crimes evidence is inherently prejudicial, such evidence must have “‘substantial probative value’” to be admissible. (Ewoldt, supra, 7 Cal.4th at p. 404, italics omitted.) Ewoldt identified various factors affecting the probative value versus the prejudicial value of uncharged crimes evidence, including the tendency to demonstrate the fact in issue (such as intent), the independence of the source of the uncharged crime, whether the uncharged crime resulted in conviction, whether the facts of the uncharged crime are more inflammatory than the facts of the charged offense, the remoteness in time to the charged offense, and whether there is other evidence to substantiate the fact in issue. (Id. at pp. 404-406; see also People v. Branch (2001) 91 Cal.App.4th 274, 282 (Branch).)
Here, the record reflects the substantial probative value of the uncharged crimes evidence on the issue of defendant’s intent to aid and abet the residential burglary on April 27, 2009. The probative value of the evidence was heightened by the fact that each arose from independent sources. It was further heightened because the facts of the uncharged crimes were not more inflammatory than the facts surrounding the burglary of the Moore home. Nor were any of the uncharged crimes remote in time. All four incidents occurred in a span of less than nine months, and with increasing frequency. Moreover, the evidence was not cumulative as there was little other material evidence tending to establish defendant’s state of mind at the time of the April 27, 2009 incident.
There was the potential for prejudice here because, while the first uncharged crime resulted in a conviction, the charges as to the other two remained unresolved at the time of trial. Where there has been no disposition on an uncharged crime, there is a risk the jury will desire to punish the defendant for that offense, rather than consider the evidence solely for the limited purpose for which it is admissible on the current charge. But that risk of prejudice could not have materialized here because the jury was not told of the dispositions of any of the uncharged crimes. In fact, the jury was specifically instructed not to speculate about the disposition of any of the uncharged crimes.
A significant amount of time was devoted to the testimony of witnesses addressing the uncharged crimes evidence; roughly the same amount of witness testimony was presented by respondent as on the charged offense. However, the testimony regarding the uncharged crimes was simple and straightforward and consisted of the homeowner and a responding law enforcement officer or two briefly attesting to the basic facts of each incident. In contrast, the witnesses who testified with respect to the charged offense provided more factually detailed testimony, including testimony regarding the preparation of a cast of the shoeprint found at the scene and related testimony. Such evidence was clearly the focus of the trial, a fact which would not have been lost on the jury.
“‘The prejudice that 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.]’ [Citation.]”... In other words, evidence should be excluded as unduly prejudicial when it is of such nature as to inflame the emotions 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.]” (Branch, supra, 91 Cal.App.4th at p. 286.) There is nothing in the record warranting a finding that the uncharged crimes evidence admitted at trial presented a substantial danger of unfair prejudice. (§ 352.) Defendant has not shown the court abused its discretion in finding that the probative value of the uncharged crimes evidence outweighed any prejudice.
DISPOSITION
The judgment is affirmed.
WE CONCUR: RUBIN, Acting P. J., FLIER, J.