Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA329460, Barbara R. Johnson, Judge.
Carey D. Gorden, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Stephanie A. Miyoshi and Russell A. Lehman, Deputy Attorneys General, for Plaintiff and Respondent.
KLEIN, P. J.
Harold E. White appeals from the judgment entered following a jury trial which resulted in his conviction of first degree residential burglary (Pen. Code, § 459) and attempted first degree residential burglary (§§ 664/459), and his admissions that he previously had been convicted of a serious or violent felony within the meaning of the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and section 667, subdivision (a)(1)). The trial court sentenced White to 13 years in prison. We affirm the judgment.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
a. The 2005 burglary.
Mayra Gomez lives in a second floor apartment in a building at 213 North Alexandria Avenue, just north of Wilfredo Oliveras’s house. Gomez’s windows face south and, from approximately 30 feet away, overlook Oliveras’s backyard.
Gomez was home on December 16, 2005 and, at one point during the day, she heard her neighbor’s dogs barking. According to Gomez, “[t]hey were barking pretty bad.... [I]t was not normal....” Gomez went to her window and looked out. She saw two men knock on the front door of Oliveras’s main house and, when they received no response, walk down “the driveway to the back of the house.” Not knowing if the men were Oliveras’s friends or intruders, Gomez kept watching. After they checked the garage, the two men “split” up. One man went to the back of the main house and one went to the guesthouse in the backyard. The man who went to the guesthouse “went around the house” then back to the door. Gomez couldn’t see what he did after that because there was a tree blocking her view. However she saw the man who had gone to the main house take out a screwdriver and attempt to open the back door. At that point, Gomez decided to call 911. One thing that “surprised” Gomez was that, throughout the incident, each of the men was talking on his cell phone.
Approximately two to three minutes after she called the police, Gomez heard a helicopter. As the helicopter hovered overhead, White came out of the guest house and his accomplice, Christopher Gaither, stepped away from the door to the main house. The two men met in the middle of the yard and acted as though nothing had happened. The helicopter then left the area and “they went back, one... to the guesthouse and the other... to the front house. And at that time, [Gaither] was really, really trying to... open that door.” Gomez decided to call 911 again. The 911 operator told Gomez that police officers were arriving at the property and, as she looked out her window, Gomez saw “police coming in” to the backyard. White and Gaither ran, jumped two fences and ran down Mariposa Street.
When, during trial, Gomez was asked whether she remembered White as being one of the two burglars, she responded, “To be honest, I don’t. [It was a] long time ago and he look[s] different.” When she was then shown a photograph of White and asked whether the person depicted “look[ed] like the person that [she had seen] in the backyard of [her] neighbors’ [home] on that day, ” Gomez responded, “It could be, but I’m not sure.” Although she was not 100 percent certain that the photograph was of White, Gomez acknowledged that the man depicted had the same type of braids in his hair and was wearing the same dark jacket with a white stripe which she had seen on the burglar who had gone toward the guesthouse in Oliveras’s backyard.
At approximately 1:35 in the afternoon on December 16, 2005, Los Angeles Police Officer Brian Putnam and his partner, Officer Manuel Huezo, were in uniform and on patrol in a marked car when they received a radio call indicating there was a burglary in progress at 205 North Alexandria Avenue in Los Angeles. The officers drove to the location, parked their car and approached the house on foot. The property, which is surrounded by a fence, has a single family residence in the front and a garage and guesthouse in the back. The gate to the driveway, which runs down the left side of the house, was closed and locked, so the officers had to “scale” it.
As he walked into the backyard, around the back corner of the main house, Putnam saw White “exiting a door from the guesthouse.” The door to the guesthouse was open and White was “stepping away from it [and was]... approximately[] two feet from the threshold[, on the doormat].” He was “mid stride” and within the lattice fence which surrounded the guesthouse. When White saw Putnam, he stopped for a second and stood in the backyard. The officer then saw “another suspect at the back door” to the main house. That man, Christopher Gaither, had a screwdriver and was “attempting to pry open the rear door.”
At the preliminary hearing, Putnam testified that he first saw White from the driveway, before he got to the edge of the house. White was standing in the backyard.
Putnam identified himself as a police officer and ordered both men to “stop.” Instead, both White and Gaither ran. Both men ran west, climbed over a gate, ran through a backyard, climbed over another gate, then ran toward Mariposa Street. Putnam and his partner “gave chase.” When White and Gaither reached Beverly Boulevard, the two men split up. White ran to the east and Gaither ran west. Officer Huezo, along with another officer who had responded to the burglary call, Sergeant Heard, followed White. Putnam followed Gaither. Putnam, with the assistance of two other officers, apprehended Gaither while Huezo and Heard took White into custody. The officers booked the property found on White and held it for the detectives. Putnam could not recall whether any of the items were claimed by Elisa Oliveras, who is the daughter of Wilfredo Oliveras and was living in the guesthouse.
Both White and Gaither were brought back to the house on North Alexandria, where a number of police officers were securing the scene until photographs could be taken and fingerprint personnel could check for latent prints. Putnam, himself, observed numerous scratch or pry marks next to the dead bolt on the back door to the main house. There were also pry marks on the door to a storage shed. The door to the guesthouse was open. As Putnam explained, “[T]here was an absence of pry marks. But right below the door handle, there’s a small doggy door that [one] could easily reach [through and] up and just unlock the door” from the inside. One “wouldn’t have to pry that door open.” Putnam went inside the guesthouse and found it to be in “complete disarray.” It had been “ransacked.”
According to Los Angeles Police Officer Manuel Huezo, on December 16, 2005, he and his partner, Officer Putnam, were on patrol when they received a call directing them to 205 North Alexandria Avenue. When Huezo and Putnam arrived at the house, they approached slowly. When they saw no one in front of the house and noted that the gate on the fence surrounding the property was locked, they scaled the fence and entered the yard. Huezo went to the front door of the house and determined that it was locked. He and Putnam then walked down the driveway to the back of the house. Huezo was approximately five feet behind Putnam. As they rounded a corner and entered the backyard, Huezo saw White and Gaither. At the moment Huezo first saw him, White was walking away from the guesthouse, through a gate and “patio area.” Gaither was “using a screwdriver and trying to pry open the back door” to the main house.
Putnam called out, “ ‘Police. Stop.’ ” After he did so, both White and Gaither “took off running westbound.” White was several feet ahead of Gaither, who knocked down a gate before following White as he scaled a fence and headed for Mariposa Street, then turned onto Beverly Boulevard. Huezo followed White as he headed east on Beverly and Putnam pursued Gaither as he ran west.
Huezo and Sergeant Heard, who had joined in the chase, followed White as he ran toward an auto repair shop. As he ran, White took off his black jacket. He then, followed by Heard, ran into the shop’s restroom where Heard took him into custody. Huezo arrived a few seconds later and assisted Heard. In the toilet of the restroom, Huezo found a cellular telephone.
Wilfredo Oliveras owns the property at 205 North Alexandria Avenue in Los Angeles and was living in the front house on December 16, 2005. In the back of the property is a guesthouse, which was occupied by Oliveras’s daughter, Elisa, a storage shed and a garage. When Oliveras returned from work at approximately 3:30 in the afternoon on December 16, he noticed that the gate in the fence between the main house and the guesthouse was broken. When Oliveras then went to the main house, he found a police officer’s business card and a note indicating Oliveras should call the officer. Oliveras telephoned the officer, who told him about the burglary and attempted burglary.
We refer to Elisa by her first name not out of any disrespect, but for the sake of clarity.
At trial, Oliveras viewed photographs of the back door to the main house. On December 16, 2005, he had locked all the doors to the house before going to work. There had been no “pry marks” on the back door. When he returned from work that afternoon, there were pry marks on the back door, next to the dead bolt.
On December 16, 2005, Elisa Oliveras was living in the guesthouse behind the main house at 205 North Alexandria Avenue. That day, while she was at work, Elisa received a call from a police officer who told her that he had gone to her house because someone had broken in. In describing the front door to her guesthouse, Elisa indicated that the rectangle beneath the door knob, which is approximately 14 by 11 inches in size, is a “dog door” with a “mosquito netting” like screen covering it. The door allows Elisa’s dogs to go in and out of the house at will. The top of the dog door is approximately 14 inches from the door knob and about 20 inches from a dead bolt.
Elisa reviewed a group of photographs. One depicted the living room, looking into the bathroom and closet. It appeared that “all the stuff in the closets and the bookshelves and the drawers [had been]... pulled out.” Piles of laundry had been “kicked all over the floor” and magazines had been strewn on the seat of the couch. A photograph of the bathroom indicated that everything that had been in the vanity had been pulled out and tossed onto the floor. That was not the way Elisa had left the house when she had gone to work that morning and she had not given anyone, including White, permission to enter her house that day.
b. The uncharged 2008 burglary.
In September of 2008, Mark Anthony Miller, his wife and niece were living in a house located at 3018 West 74th Street in Los Angeles. On the morning of September 10, while Miller, his wife and niece were at work, “someone broke into [his] niece’s bedroom window.” Miller found out about the break-in when his landlord telephoned him and informed him that a neighbor, Jerome, had noticed someone in his backyard. After speaking with his landlord, Miller called the police, then drove home. Approximately 15 minutes later, Miller arrived at his home to find police officers already there, conducting a “walk-thru of the house.” Miller noted that the window in his niece’s bedroom, which is in the back of the house, was open. It had been closed when Miller left for work. The window screen, which had been on the window, was off and on the ground. Inside his niece’s bedroom, Miller found “a few pillowcases” on the floor, the bed in “disarray, ” and “[a]ll her movies, [and] DVD’s... kind of on the floor in a scattered pattern. And last but not least, the alarm system inside of her closet [had been] ripped off the wall.”
Miller does not know White and did not give White permission to go inside his house.
Gerald Plummer, also known as “ ‘Jerome, ’ ” lived next door to Miller. At approximately 8:00 or 9:00 a.m. on September 10, 2008, Plummer saw an orange truck, “something like a Dodge Ram, ” pull up in front of Miller’s house. A young African-American man wearing a white T-shirt, a pair of dark Levis and a dark baseball cap with a New York emblem on it got out of the car, “proceeded to the front door, ... knocked and proceeded to the back[, then] came out the back, hopped the fence, [and] went down the driveway.” Plummer noted that the young man was “on [his] cell phone” and was carrying a yellow or green cloth. The orange truck was no longer in front of the house.
Plummer went to his back window. From there he could see that Miller’s back window was open and the screen was on the ground.
Plummer got into his car and drove around the block. When he saw the orange truck parked around the corner, Plummer concluded that Miller’s house had been burglarized and he called 911.
Police officers showed to Plummer some photographs and asked him if any of them depicted the man he had seen in Miller’s driveway. Plummer, however, could not identify any of them. When, at the trial for the 2005 burglary of Oliveras’s guesthouse Plummer was asked if he recognized White, he responded, “No.”
On September 10, 2008, Los Angeles Police Officer Ruben Cardenas and his partner, Officer De Larkin, were on patrol when they received a call indicating that a burglary was in progress at 3018 West 74th Street. The officers went to the address then went from door to door to determine who had made the 911 call. After discovering that it had been Plummer, who lived next door to Miller, Cardenas and his partner returned to the house at 3018 West 74th Street and climbed in through the open bedroom window. Once inside, the officers saw that the house had been ransacked.
Los Angeles Police Officer Guy Juneau and his partner, Officer Orozco, participated in the investigation of the September 10, 2008 burglary of Miller’s home. In the call informing the officers of the burglary, the dispatcher had given a description of the vehicle used. According to Juneau, the dispatcher indicated that the burglars were driving “an orange Ford S.U.V.”
On their way to Miller’s house, Juneau and Orozco were driving south on Seventh Avenue when they saw the orange vehicle traveling North. The officers made a U-turn, followed the sport utility vehicle (S.U.V.) as it turned onto Florence, then made a traffic stop. There were two individuals in the S.U.V., one of whom was White. White had been driving the vehicle and, as he was being pulled over, was talking on a cell phone.
Juneau and his partner had White and the passenger get out of the S.U.V. White was wearing a white T-shirt and “medium color[ed]” jeans. When they inspected the vehicle, the officers found in the rear seat three baseball caps, all of which had New York emblems on them, and a green pillow case.
The green pillow case found in the back of the vehicle was later shown to Miller who immediately recognized it as one belonging to a set used by his niece.
2. Procedural history.
On September 2, 2009, a jury found White guilty of first degree residential burglary of a building occupied by Elisa Oliveras (§ 459) and attempted first degree residential burglary of a building occupied by Wilfredo Oliveras (§ 664/459). White then admitted previously having been convicted of a serious or violent felony, a 2001 first degree residential burglary, within the meaning of the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and section 667, subdivision (a)(1). At the same proceedings, the trial court sentenced White to an aggregate term of 13 years in state prison. On September 30, 2009, White filed a timely notice of appeal.
CONTENTIONS
White contends: (1) “The erroneous admission of [the 2008] uncharged burglary was an abuse of discretion and denied [him] his right to a fair trial under the Fourteenth Amendment to the United States Constitution[;]” and (2) “The evidence presented was insufficient to find [him] guilty of [the 2005] residential burglary.”
DISCUSSION
1. Evidence of the 2008 uncharged burglary was properly admitted pursuant to Evidence Code section 1101, subdivision (b).
Prior to trial, the prosecutor requested that evidence of the uncharged 2008 burglary be allowed pursuant to Evidence Code section 1101, subdivision (b). The prosecutor argued that the modus operandi was similar to that of the 2005 burglary and evidence of the 2008 incident was relevant to show White committed that charged offense.
Defense counsel asserted the evidence was inadmissible. Counsel first indicated that “these kind of knock, nobody is home, I’m going to enter the house [burglaries are not] unique to Mr. White. It’s something that sadly is a method that’s employed throughout Los Angeles County and probably throughout the country.” After indicating that the two crimes were not, in any other respect, similar, defense counsel stated that, because White had not yet been tried in the matter, “he’s presumed innocent on the 2008 case.” Counsel continued: “His trial will be his first opportunity to try to establish his innocence, and for the jury hearing a matter that happened in 2005 to hear all the evidence that will come up in the [trial] of [the] 2008 [matter] that he hasn’t had a chance to defend [against]..., I think, is unfair.”
The prosecutor, in turn, asserted that “[a]ccording to Evidence Code section 1101[, ] [subdivision] (b), there doesn’t need to be a conviction. In fact, [the conduct] doesn’t need to be charged. It’s just a prior bad act that we’re proving up that is factually similar to show an M.O. or common scheme or plan.”
The trial court ruled that evidence of the 2008 burglary would be allowed pursuant to Evidence Code section 1101, subdivision (b). White contends the trial court erred.
Evidence Code section 1101, subdivision (b) provides in relevant part: “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.”
We recognize that evidence of uncharged misconduct can be “ ‘ “so prejudicial that its admission requires extremely careful analysis” ’ and to be admissible, such evidence ‘ “must not contravene other policies limiting admission, such as those contained in Evidence Code section 352.” ’ ” (People v. Lewis (2001) 25 Cal.4th 610, 637, quoting People v. Ewoldt (1994) 7 Cal.4th 380, 404.) “Thus, ‘[t]he probative value of the uncharged offense evidence must be substantial and must not be largely outweighed by the probability that its admission would create a serious danger of undue prejudice, of confusing the issues, or of misleading the jury.’ ” (People v. Lewis, supra, 25 Cal.4th at p. 637, quoting People v. Kipp (1998) 18 Cal.4th 349, 371.)
Evidence of a defendant’s uncharged misconduct is more probative than prejudicial where the “misconduct and the charged offense are sufficiently similar to support the inference that they are manifestations of a common design or plan.” (People v. Ewoldt, supra, 7 Cal.4th at pp. 401-402.) “To establish the existence of a common design or plan, the common features must indicate the existence of a plan rather than a series of similar spontaneous acts....” (Id. at p. 403.) However, “the plan need not be unusual or distinctive; it need only exist to support the inference that the defendant employed that plan in committing the charged offense.” (Ibid.; People v. Kipp, supra, 18 Cal.4th at p. 371.)
Here, evidence of the 2008 incident, when considered with that of the charged 2005 burglary, showed that White employed a particular plan when burglarizing Oliveras’s guesthouse. Both incidents occurred during normal working hours, in the late morning and early afternoon. During both incidents, White was talking on a cell phone. Both incidents involved an accomplice. The accomplice’s role ranged from driving, then accompanying him in the getaway vehicle, to assisting with the actual breaking and entering of the residence. White, either alone or with his accomplice, knocked on the front door of the residence. It was only after determining that no one was at home that he proceeded to the back of the house, discerned the easiest point of entry and entered the residence. After entering a house, White ransacked it, leaving the rooms in which he had been in disarray. In both instances, he climbed over a fence to gain entry to, then leave the property.
A trial court’s determination that evidence of uncharged acts is admissible under Evidence Code sections 1101, subdivision (b) and 352 is reviewed for abuse of discretion. (People v. Memro (1995) 11 Cal.4th 786, 864; see People v. Kipp, supra, 18 Cal.4th at p. 369.) Here, there was “no abuse of discretion and no federal constitutional violation in the admission of the... evidence” of the uncharged conduct. (People v. Lewis, supra, 25 Cal.4th at p. 637; see People v. Hawkins (1995) 10 Cal.4th 920, 952, overruled in part on other grounds in People v. Blakeley (2000) 23 Cal.4th 82, 89.) “ ‘The presence of a design or plan to do or not to do a given act has probative value to show that the act was in fact done or not done.’ [Citation.]” (People v. Ewoldt, supra, 7 Cal.4th at p. 393.) In the present matter, the similarity in significant respects between the uncharged conduct, which occurred in 2008, and the charged 2005 offense indicate White had a common scheme or plan on which he relied when committing a residential burglary. (See Id. at pp. 396-397.)
Finally, any prejudice which might have occurred from admission of evidence of the 2008 incident was eliminated when the trial court instructed the jury with CALCRIM No. 375, that evidence of behavior by the defendant which was not charged in this case could be considered “only if the People... proved by a preponderance of the evidence that the defendant, in fact, committed the acts” and, if the People so proved the conduct, it could only be considered “for the limited purpose of deciding whether or not: [¶] The defendant acted with the intent to commit theft or other felony when he entered or attempted to enter an inhabited house or part of a building; or [¶] The defendant’s alleged actions were not the result of mistake or accident; or [¶] The defendant had a plan or scheme to commit the offenses alleged in this case[.]” We may assume the jury followed these instructions. (See People v. Cruz (2001) 93 Cal.App.4th 69, 73.)
2. Substantial evidence supports White’s conviction of first degree residential burglary.
Section 459 provides in relevant part: “Every person who enters any house, room, [or] apartment... with [the] intent to commit grand or petit larceny or any felony is guilty of burglary.” White contends the evidence presented at trial “was insufficient to prove that he entered [Elisa Oliveras’s] residence with the intent to commit theft.”
To assess the sufficiency of the evidence, “we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime... beyond a reasonable doubt. [Citation.] The record must disclose substantial evidence to support the verdict—i.e., evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence.” (People v. Zamudio (2008) 43 Cal.4th 327, 357, italics in original; People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) “A reversal for insufficient evidence ‘is unwarranted unless it appears “that [under] no hypothesis whatever is there sufficient substantial evidence to support” ’ the jury’s verdict.” (People v. Zamudio, supra, at p. 357.)
“The standard of review is the same in cases in which the People rely mainly on circumstantial evidence. [Citation.] ‘Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant’s guilt beyond a reasonable doubt.’ ” (People v. Stanley (1995) 10 Cal.4th 764, 792.) “ ‘ “Circumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt.” ’ ” (Id. at p. 793.)
Here, White was seen stepping away from the open door to Elisa Oliveras’s guesthouse. He was approximately two feet from the threshold, on the doormat. When he saw Officer Putnam, he fled, running out from behind the lattice fence surrounding the guesthouse, through the backyard, over the fence, across another yard and out onto Mariposa Street. (See People v. Williams (1997) 55 Cal.App.4th 648, 652 [“Flight is by its nature an active, conscious activity which readily and logically tends to support the inference of consciousness of guilt...”].) When Officer Putnam later returned to the guesthouse, he went inside and found it to be in “complete disarray.” From this evidence it can be reasonably inferred that White entered the guesthouse and “ransacked” it intending to find something of value to take. (People v. Cain (1995) 10 Cal.4th 1, 47 [“ ‘ “Although the People must show that a defendant charged with burglary entered the premises with felonious intent, such intent must usually be inferred from all of the facts and circumstances disclosed by the evidence, rarely being directly provable” ’ ”].)
DISPOSITION
The judgment is affirmed.
We concur: CROSKEY, J., KITCHING, J.