Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCE269276, Louis R. Hanoian, Judge.
IRION, J.
A jury convicted Robert Fredrick Vanderford of second degree burglary and grand theft. (Pen. Code, §§ 459, 487, subd. (a).) The jury also found that he had one previous strike under California's "Three Strikes" law. (§§ 667, subds. (b)-(i), 1170.12.) The trial court sentenced Vanderford to two years eight months in prison.
Vanderford appeals, arguing that his convictions must be reversed because the trial court abused its discretion under Evidence Code section 1101 (section 1101) by allowing the prosecution to introduce evidence of uncharged thefts. As discussed below, we conclude that the evidence was admissible for nonpropensity purposes under section 1101, subdivisions (b) and (c) and, consequently, Vanderford's contention lacks merit.
FACTS
On February 16, 2007, Vanderford approached the electronics counter at a Target store in Rancho San Diego. Vanderford used some kind of cutting tool to remove a tether connecting a $699 Canon Rebel display camera to the counter. He placed the camera in a bag in his shopping cart, quickly walked down the aisle and exited the store with the bag in his hand. After being alerted to the theft, store security officer Thomas Price reviewed surveillance footage of the area. (There are approximately 143 surveillance cameras in the Target store.) Price also confirmed that the Canon Rebel camera was not in the store and had not been purchased.
Ten days later, on February 26, Price received a picture message on his cell phone from Cassandra Mori who was working as a security officer at a different Target store in College Grove. Price compared the photograph (which was unavailable at the time of trial) with the surveillance video of the February 16th incident and determined that they both depicted the same individual.
On February 26, Mori observed a person (whom she identified in court as Vanderford) in the College Grove store. Mori had reviewed the surveillance footage of the February 16th incident and noticed that Vanderford's clothing matched the clothing of the suspect from that incident. She took a picture of Vanderford on her cell phone and sent it to Price. Vanderford went into the electronics department and grabbed two memory cards and a USB cord, discarded the packaging from those items and placed the items in his pockets. Mori observed that Vanderford used some type of sharp tool to open the packaging. Mori followed Vanderford as he left the store and saw him get into a car bearing the license plate number 4YYD083. A later records search revealed that the car was registered to Vanderford.
Vanderford discharged his attorney on the first day of trial and represented himself for the duration of the proceedings. In the course of that representation, Vanderford attempted, unsuccessfully, to call the judge, his former attorney and the prosecutor as witnesses. In the end, Vanderford presented solely his own testimony in the defense case. His testimony consisted of his assertion that he had not been present at the Target stores during the thefts, a claim that Target was retaliating against him for a lawsuit he was considering filing against the store, and a series of diatribes against "Jews" who he claimed owned Target.
DISCUSSION
Vanderford argues that the trial court erred in allowing the prosecution to admit evidence of the February 26th incident at the College Grove Target. He contends the evidence constituted inadmissible " 'other crimes' " evidence under section 1101 and should have been excluded. We conclude that the trial court acted within its discretion.
Section 1101 prohibits evidence of past wrongdoing where the evidence is admitted to establish a " 'criminal propensity' " — i.e., that the defendant probably committed the instant crime because he has acted unlawfully on other occasions. (People v. Whisenhunt (2008) 44 Cal.4th 174, 203 [" 'Section 1101 prohibits the admission of other-crimes evidence for the purpose of showing the defendant's bad character or criminal propensity' "]; People v. Demetrulias (2006) 39 Cal.4th 1, 14 ["Evidence of other crimes is admissible only if relevant to prove a material fact at issue, separate from criminal propensity"].) This prohibition does not apply, however, to evidence "relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident,...) other than [the defendant's] disposition to commit such an act." (§ 1101, subd. (b).) The trial court's determination of whether evidence should be excluded under section 1101 is reviewed on appeal for an abuse of discretion. (People v. Memro (1995) 11 Cal.4th 786, 864; People v. Linkenauger (1995) 32 Cal.App.4th 1603, 1609 ["Admission of... section 1101, subdivision (b) evidence is addressed to the sound discretion of the trial court."].)
We conclude that the trial court did not abuse its discretion in the instant case. The evidence of Vanderford's actions on February 26 was not admitted to show a criminal propensity, but rather to establish the identity of the perpetrator of the charged offenses.
As the trial court noted, there were two ways in which the evidence of the February 26 incident could potentially be utilized as (nonpropensity) identity evidence. First, in the traditional sense, "evidence that the defendant had committed uncharged acts of shoplifting in the same unusual and distinctive manner as the charged offense might be admitted to establish that the defendant was the perpetrator of the charged offense." (People v. Ewoldt (1994) 7 Cal.4th 380, 394, fn. 2 (Ewoldt).) Second, the evidence could be used to establish the identity of the suspect in the February 16 offense by connecting that person through circumstantial evidence to the individual (i.e., Vanderford) involved in the incident on the 26th. This second method of proof was the ground actually invoked by the trial court in admitting the evidence.
Vanderford's appellate brief criticizes the trial court's ruling using legal principles (e.g., the evidence of uncharged crimes for proving identity must " ' "be so unusual and distinctive as to be like a signature" ' ") relating solely to the first, more traditional method of establishing identity via uncharged crimes. (See, e.g., People v. Alvarez (1975) 44 Cal.App.3d 375, 383.) As we conclude that the trial court's ruling, which relied on the second method of proof, was not an abuse of discretion, we need not examine the admissibility of the evidence under the more traditional method of proof.
Utilizing this second method of proof, the prosecution established the following: (i) Price and Mori observed the suspect from the charged offenses in a separate Target store on the 26th (Price via the picture message sent to him by Mori, and Mori in person); (ii) Mori identified that person (observed on the 26th) as Vanderford and supported this identification by relating that she had followed him out of the store to a car that was registered to Vanderford. This evidence tended to show circumstantially that Vanderford was the perpetrator on the 16th, and did not rely on any prohibited propensity reasoning to do so.
In fact, Vanderford's counsel essentially conceded the admissibility of the evidence of the February 26th incident on this ground in her argument on a pretrial in limine motion. Counsel emphasized that she was objecting to Mori's testimony "only in part," accepting that Mori would be "allowed to testify to recognizing a person from the video, and identifying that person, and obviously following that person and getting a license plate number." Counsel stated that she "was asking that the alleged theft acts be excluded... under a[n Evidence Code section] 352 analysis."
After taking over his representation, Vanderford objected to "[a]ll aspects of Ms. Mori's... presence" at trial as "out of line" because there had "been no charges leveled against" Vanderford for the February 26th incident. Similarly, Vanderford's claim on appeal does not retain the narrow focus stressed by his trial counsel, but appears to challenge the admission of all of the evidence regarding the February 26th incident under section 1101.
Turning our attention to this narrow objection, we again cannot conclude that the trial court abused its discretion. (People v. Gray (2005) 37 Cal.4th 168, 204 [trial court's determination whether evidence admissible under section 1101 should nevertheless be excluded "under Evidence Code section 352 because it was cumulative and more prejudicial than probative" reviewed for abuse of discretion].) As the trial court stated, Vanderford's specific actions during the February 26th incident (including the uncharged thefts) were relevant for a permissible, nonpropensity purpose, namely, to provide the context for Mori's actions and observations. Mori identified Vanderford in court as the person she observed on February 26, and the credibility of her in court identification and other observations on that date were supported by the context in which she made those observations. (See Evid. Code, § 780, subd. (d) ["the... jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing," including "[t]he extent of his opportunity to perceive any matter about which he testifies"]; § 1101, subd. (c) ["Nothing in this section affects the admissibility of evidence offered to support or attack the credibility of a witness."].) The unusual length ("eight [to] ten minutes") and nature of her observations (following Vanderford around the store and at one point "brush[ing] against him and bump[ing] into him") were explained by her belief that he was engaged in shoplifting. (See generally CALCRIM No. 315 [describing various factors a jury may consider in evaluating credibility of eyewitness identification].) Vanderford's apparent shoplifting also helped to explain why Mori followed him out of the store, took down his license plate number and (ultimately) forwarded it to the police. In addition, Vanderford's activity in appearing to be cutting away packaging explained why Mori did not confront him at the store (one of Vanderford's points of contention in cross-examination); Mori stated that Target policy forbids confronting a shoplifter who may have a weapon. Finally, Mori testified that the items stolen in the February 26th incident (memory cards and a USB cord) could be used with the camera stolen from the Rancho San Diego store, providing another nonpropensity ground for admission of her testimony regarding the uncharged thefts on the 26th. (Ewoldt, supra, 7 Cal.4th at p. 402 [explaining that evidence of uncharged acts may be admissible to "prove the existence of a common design or plan" where " 'the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations' "].)
A sheriffs officer testified that the license plate was issued to a car registered to Vanderford.
We recognize, of course, that the testimony regarding Vanderford's uncharged thefts on February 26 were potentially unduly prejudicial in that it could have been used by the jury to support a prohibited propensity inference. (See People v. Guerrero (1976) 16 Cal.3d 719, 724.) This is always the danger with evidence admitted under section 1101. Here, the trial court recognized the danger and attempted to mitigate any prejudice by instructing the jury, once during Mori's testimony and again at the conclusion of the evidence, that the testimony was only admissible on the question of identity and could not be used for propensity purposes.
In sum, because the evidence of the February 26 incident, including the uncharged thefts on that date, possessed significant probative value for nonpropensity purposes, and the trial court took appropriate steps to minimize the possibility of undue prejudice, we cannot conclude that the court's ruling admitting the evidence constituted an abuse of discretion under either Evidence Code section 352 or section 1101.
DISPOSITION
Affirmed.
WE CONCUR McDONALD Acting P. J., O'ROURKE J.