Opinion
H041301
03-10-2017
THE PEOPLE, Plaintiff and Respondent, v. TIMOTHY RICHARD WOODS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1349781)
Defendant Timothy Richard Woods appeals from a judgment of conviction of first degree burglary (Pen. Code, §§ 459-460, subd. (a)). Following a jury trial, defendant admitted each of the information's allegations concerning his prior convictions—specifically, that he had suffered two prior serious felony convictions (§ 667, subd. (a)) and two prior strike convictions within the meaning of the Three Strikes law (§§ 667, subds. (b)-(i); 1170.12) and that he had served three prior prison terms (§ 667.5, subd. (b)). After granting defendant's Romero motion (see People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 504) as to one of the two strike convictions, the trial court sentenced defendant to a 23-year term.
All further statutory references are to the Penal Code unless otherwise stated.
On appeal, defendant asserts that the trial court violated Evidence Code sections 1101 and 352 and his federal due process rights by admitting evidence of a 2010 burglary to prove his intent to commit theft with respect to the charged first degree burglary. He also contends that his trial counsel rendered ineffective assistance by failing to object to that evidence on the ground that it was not proper rebuttal. We find no error and affirm.
I
Evidence
People's Case-in-Chief
At the time of trial in 2013, Richard B. had been living on Daffodil Way for approximately two and a half years. His partner, James R. (Jim), and his daughter Emily were also living with him. Richard had purchased the house in 1983, and he had rented it out at times. He knew Cindy S. very well because she had lived across the street since 1983.
On January 17, 2013, Richard and Jim were on vacation in Hawaii. They had left on January 11, 2013. Richard had cleaned the house before leaving. Richard had told his neighbors that he was going on vacation. When they left for vacation, the house was relatively neat and organized and the drawers were closed. Richard left his car, a 2007 white Toyota Camry, at home. Jim's car, a 1999 white Honda Accord, was also left at home. During their absence, only Emily had permission to be in the home.
Cindy S. had lived on Daffodil Way in San Jose for 51 years. She had known her neighbors across the street, Richard and Jim, for approximately 30 years.
At about 10:40 p.m. on January 17, 2013, Cindy was in her bedroom, which was on the second story and had a window facing the street. Cindy had a view of her neighbors' home from her bedroom window. She knew that her neighbors were not home; Richard's car was parked in the driveway, as it had been for about a week. At about 10:45 p.m. on January 17, 2013, Cindy saw a U-Haul vehicle drive past her house and park behind Richard's car in his driveway. Cindy did not see any lights on in the house.
Cindy saw the lights of the U-Haul vehicle go off. The driver got out of the vehicle, went to the front door, and knocked. The driver pulled out a phone; he appeared to make a call and talk on the phone. He walked around the garage and over the front lawn to the left side of the house toward a side gate and the side garage door. The passenger got out of the U-Haul vehicle and walked to the right side of the house and through another side gate to the back yard. The driver was wearing a plaid gray and black Pendleton coat with a hoodie. The passenger was dressed in black or dark clothing.
Cindy went downstairs, got her glasses, and went across the street to get the license plate number of the U-Haul vehicle and scurried back. She had seen a flashlight on in the garage while she was getting the license plate number, and she called 911. The U-Haul vehicle had been there less than five minutes when she made the call. She saw flashlights on in the house. She saw the driver come out the front door, go to the driver's side of the vehicle, and go back into the house.
While she was still on the telephone, Cindy saw the police arrive; she saw the police go inside the house. The police eventually brought out the two individuals that Cindy had seen go into the house.
Emily, who was 22 years old at the time of trial, lived with her father, Richard, and his partner, Jim, on Daffodil Way. In January 2013, Emily had a substance abuse problem with drugs. She had subsequently received help, and she was no longer abusing drugs at the time of trial.
Emily had known Megan for a few years and saw her once in a while. They reconnected on about January 7 or 8, 2013, and they began using drugs together. At that time, Emily's drug of choice was opiates such as heroin and Oxycontin.
On January 11, 2013, Emily's car broke down on Highway 580, and she called her father. Her father told her that he could not help her because he was in Hawaii. Emily told Megan, who was with her when her car broke down, that her father and his partner were on vacation. According to Emily, some officers pushed her car off the freeway, and she left her car on the side of the road.
Beginning January 12 or 13, 2013, Emily let Megan stay at her house. Megan asked Emily if she could invite a male nicknamed "Tick-Tack" over to the house, and Emily agreed. At trial, Emily recalled that Megan, David Riley, and Tick-Tack had stayed at her house for a couple of nights. Others, including Joshua Miller—who was known as "Squeeze"—also came to the house. Emily had not met any of them before.
The group hung out and used methamphetamine at Emily's house. On the night of January 14, 2013, Emily went with Miller to get drugs in Livermore. Emily obtained some methadone pills, a heroin substitute.
When Emily and Miller returned to Emily's house, only Megan and Tick-Tack were still there. After they returned to the house, Emily noticed that her father's laptop was missing, but nothing else was out of place or damaged. Emily saw Miller use methamphetamine; she was using an opiate. Megan, Tick-Tack, and Miller spent the night at Emily's house.
On Tuesday, January 15, 2016, Miller and Emily agreed that Miller would buy her car for $300 because Emily did not have the money to tow or repair her car. Miller gave $100 as a down payment to Emily, and Emily gave him a key to her car. The plan was for Miller to go get her car and then pay Emily the balance in exchange for the pink slip and an extra key. Miller left Emily's house, but he left bags of his clothes behind.
Emily told Megan and Tick-Tack that they had to leave because her father was returning home. Emily was home alone during January 16, 2013, and on the morning of January 17, 2013. She had continued to use methadone after January 14, 2013; she used the drug through approximately January 16 or 17, 2013.
On January 17, 2013, Miller called Emily and told her to meet him in Castro Valley so that he could pay her and she could give him the pink slip, the car key, and the bags of his clothes that he had left at her house. Emily asked him to bring her I.D. and other belongings that she had left in her car.
Emily drove Jim's car to Castro Valley. When Emily arrived in Castro Valley, she called Miller to find out where he was. Miller changed their meeting place to Livermore—specifically, the location where they had previously gone to get drugs. But when they spoke again, Miller told Emily to go back to the house, and Emily thought he was referring to a Castro Valley location. When Emily tried to reach Miller again, she discovered that his phone had been turned off.
Emily met Megan at a Castro Valley motel while she waited for Miller to call her back. Emily did not return home that night. Emily never talked with or saw Miller again. Emily had not given Miller permission to be at or go into her house on January 17, 2013, and she had not told Miller to meet her at her house on that date.
At about 10:49 p.m. on January 17, 2013, Officers Chris Bielecki, Kevin Enterline, and Carlo Benitez each received a dispatch concerning a residential burglary in progress at an address on Daffodil Lane in San Jose. Officer Bielecki arrived at the house about three to four minutes after the dispatch. Officer Enterline arrived on the scene at 10:53 p.m., and he observed a U-Haul van in the driveway. He pulled up behind Officer Bielecki, blocking the U-Haul van from leaving the driveway. Officer Benitez arrived within approximately three to five minutes after the dispatch.
Officer Bielecki directed Officer Benitez to take a position to the rear of the home, which Officer Benitez did. From across the street, Cindy yelled out something, alerting the officer that the intruders were inside. She was told to go back into her house and the officers would talk to her afterward. Officer Enterline peeked over the fence on the right side of the house, but he did not see anything unusual.
Officers Bielecki approached the front door of the house, and he found the front door closed but unlocked. He noticed some movement inside. Officer Bielecki motioned to Officer Enterline. Officer Bielecki knocked on the door and loudly announced something to the effect, "San Jose Police. Is anyone there?" There was no response, and Officer Bielecki opened the door. Officer Bielecki entered the house, followed by Officer Enterline.
Officer Bieleck took a few steps, believing he had seen a shadow or figure moving to his left toward the kitchen. Officer Enterline saw a pickaxe on the living room couch to his right. In his peripheral vision, Officer Bieleck saw defendant emerging from the hallway, which was across from the front entry. Three bedrooms, one of which was used as an office, were located off the hallway. Defendant was clearly surprised and backed into the hallway. The officers pulled out their firearms. Officer Bielecki commanded defendant to stop. Defendant did not instantly comply, but after repeated commands from Officers Bielecki and Enterline, defendant lay prone on the ground and showed his hands. Officer Bielecki handcuffed defendant's hands behind his back.
Officer Bielecki searched defendant for weapons, and he found "a broken-off door handle" in the pocket of defendant's sweatshirt. The door handle was damaged and appeared to have been sheared off.
Officer Enterline conducted a protective sweep. He entered the master bedroom and then discovered Miller, fully clothed, in the master bathroom shower. The officer ordered Miller to show his hands and get on the ground. Officer Enterline handcuffed Miller and searched him for weapons.
Officer Enterline stayed with the two suspects in the hallway. Officer Bielecki and Officer Fuji, who had arrived at the scene, performed a protective sweep of the rest of the house and the back yard. Nobody aside from defendant and Miller were found in or outside the premises.
Officer Enterline placed Miller in his patrol vehicle. Officer Bielecki conducted a more thorough search of defendant and recovered a flashlight, five to six inches long, from defendant's right front pants pocket. He found an "HP" calculator in a case and several watches in defendant's left front pants pocket. Officer Bielecki also found a glass smoking pipe with white residue on it.
Officer Bielecki turned on the lights in the residence and assessed the condition of the house. The house had been ransacked and was in disarray, especially the bedrooms off the hall. Drawers and closets had been opened and items taken out and thrown around. A door of the armoire in the master bedroom was broken. Safes and other items were on the beds in the master bedroom and another bedroom. The bedroom used as an office had been ransacked.
The door handle found in defendant's pants pocket appeared to belong to the door from the garage into the kitchen, which was missing its handle. That door was damaged, and it appeared that the pickaxe, which had been found on the living room couch, had been used on the door.
Officer Bielecki saw that damage had also been done to the door leading from the side yard into the garage. The door was partially open when he observed it. The lock appeared to have been forced open.
In addition, Officer Bielecki located black gloves inside a trash can that was next to the master bathroom's toilet, near the shower where Miller had been discovered. Officer Bielecki also found a cigarette box and methamphetamine inside the U-Haul van. Miller's brown wallet, which contained Emily's California I.D. card, was discovered in the U-Haul van.
Officer Enterline questioned Miller. The officer obtained Emily's phone number from Miller's phone, and then the officer called Emily to find out whether she was a crime victim. Emily indicated that she knew Miller and that they had a transaction involving her vehicle. Officer Enterline began asking Emily about the U-Haul van, but the call ended abruptly when Emily, who was in a motel room with Megan and others, hung up.
After the suspects were apprehended, Officer Benitez conducted an in-field show-up with Cindy. Cindy identified defendant as the person who had exited the passenger side of the U-haul van. She identified Miller as the person who had exited the driver's side of the U-Haul van.
When Emily had left her house on January 17, 2013, it was not in disarray. When she left, the door from the garage into the kitchen was not "busted open," there was not a pickaxe inside the house, "everything was not thrown everywhere" in the spare bedroom, clothes and papers were not thrown around her bedroom, the armoire in her father's bedroom was not broken, there were no safes out where they could be seen, the floor mat in the master bathroom was not "flipped up," and there were no plastic grocery bags on the floor of the master bathroom. But when Emily returned on the night of January 18, 2013, those were the conditions that she found. Emily confirmed that her dad kept a safe in his room and one or more safes in the garage.
Prior to returning home, Richard learned that his home had been burglarized. Upon his return on January 21, 2013, Richard saw damage to the side door into the garage and to the garage door into the house. The pickaxe had been stored in his garage. The office, the master bedroom, and the master bathroom, which he had left fairly organized and neat, were a mess. The office had been ransacked. The door of an armoire in his bedroom was broken off. A safe that had been in his bedroom closet was on his bed. Richard had never before seen the gloves in the trash can in the master bathroom; they did not belong to him. In a photo showing Emily's room on January 17, 2013, Richard identified the black safe located on Emily's bed as belonging to her.
Richard identified the flashlight seized by police as a flashlight that he had kept in a kitchen drawer. He identified the calculator seized by police as his HP calculator which he kept in a drawer in his office. He identified the watches seized by police as his watches that he kept in the top drawer of his bedroom dresser. Approximately 20 personal items were missing from his house when he returned, including two laptops and jewelry.
After he was home, Richard had a conversation with Emily regarding what had happened. At that point, Emily said that she had invited two males who had helped her with her car to the house. It was Richard's understanding that Emily had a party at the house the night before the burglary. The next day, those men invited Emily to Castro Valley. Emily had told him that when she arrived in Castro Valley, they called her and said they were in Livermore. Emily said she drove to Livermore and could not find them; she felt something was not right, so she drove to her friend's house in Pleasanton and stayed the night. Emily said that when she returned the next day, she discovered the house had been broken into.
The Defense Case
Miller testified on behalf of the defense. At the time of trial, Miller, who was then 34 years of age, had known defendant for three or four years, and Miller considered defendant to be a friend. They had met at the Palace Casino through friends from San Leandro. Miller and defendant had done methamphetamine together. Miller acknowledged that he was known as "Squeeze."
Miller indicated that in January 2013, he had been out of jail since September 2012, and he was "kind of like floating around out there." He was a mechanic, but he did not have a job.
Miller knew Megan and her friends because he frequented a bar where they went. Miller met Emily in January 2013 when he went with friends to a party at Emily's house on Daffodil. Miller had been staying at a hotel in Castro Valley and using methamphetamine, which was his drug of choice; he had been up for a couple of days. According to Miller, he drove his cousin's minivan to Emily's house. Miller and others hung out and used drugs.
The night of the party at Emily's house, Emily was not feeling well, and Miller offered to go with her to "score some drugs," specifically heroin. They drove in a white Honda, which Miller assumed belonged to Emily, to Livermore. Miller gave Emily money for drugs. Emily told Miller that "she would get [him] back," which Miller understood to mean that she would pay him back.
Emily and Miller returned to Emily's house around daylight the next day. Miller heard Emily talking to Megan and Tick-Tack, who were still there, about a missing laptop.
Miller testified that he returned the minivan and that Emily picked him up from the hotel and brought him back to her house. Miller brought four bags of clothes and some papers with him. Miller stayed over at Emily's house for a couple of nights, and Emily provided a blanket and pillows so he could sleep on the couch in the living room. Megan and Tick-Tack were staying in the master bedroom.
At some point, Miller saw Emily going through the telephone book looking for Pick-N-Pull. Emily explained to Miller that her car, a 1994 Acura Legend, had broken down on the side of the road and she planned on selling it to Pick-N-Pull. Miller offered to buy Emily's car for $300, which was the amount she hoped to get from Pick-N-Pull. They agreed that Miller would pay $100 for the car key and then he would give Emily the balance of $200 when she gave him the pink slip and a second key. Miller figured he could do a "Craig's List hustle," which involved cleaning, fixing, and selling the car, and then he would pay Emily.
According to Miller, sometime after buying "some dope" for Emily in Livermore, Emily gave him two silver men's watches as collateral for her debt to him.
On about January 14 or 15, 2013, Miller's friend Monica, whom he had known for about eight years, picked him up from Emily's house. He left his clothes at Emily's house. Miller and Monica used Monica's AAA membership to tow Emily's car to a house in Lathrop.
On about January 15 or 16, 2013, Miller was texting Emily about getting his clothes from her house. On January 16, 2013, Miller and defendant "partied" and "did meth."
On January 17, 2013, Miller and Emily agreed to meet so he could get his clothes and he could pay the money he owed her for the car. Miller also wanted to return the collateral for the "dope" to Emily and "get the money [that] she owed [him]." According to Miller, the plan was to meet at Emily's house. They were texting each other a lot.
Miller did "some more meth," and the last time he used was shortly before 10:00 p.m. on January 17, 2013. Defendant agreed to drive Miller from San Leandro, where Miller was, to San Jose to pick up Miller's belongings. According to Miller, "all [defendant] was offering [him] was a ride."
When defendant picked up Miller, defendant was driving a U-Haul van. Miller drove the U-Haul van to San Jose because defendant was tired. At approximately 10:00 p.m., Miller spoke with Emily on the phone and said he was on his way, and it was his understanding that Emily was at home. Miller had the two watches and a couple of flashlights, which he placed in the van's cup holder. Miller told defendant that the watches were collateral, and he would give them to defendant for giving him a ride. Miller recalled defendant picking them up and looking at them.
Miller and defendant arrived at Emily's house between 10:30 and 10:45 p.m., and he parked the U-Haul van in her driveway behind the car that was still parked there. At that time, Miller was under the influence of methamphetamine. The other white car, which Emily and he had driven, was gone.
Miller got out of the van, walked to the front door, and knocked, but no one answered. Walking back to the van, he tried to call Emily on the telephone, but she did not pick up. Miller was feeling irritated because Emily was supposed to be home. Defendant said he had "to piss," and Miller told defendant to use the side yard. Defendant got out of the van, and he went into the side yard to the right of the house.
When Miller could not reach Emily, he went to the left side of the house, walked through the gate, and tried the side door to the garage. Miller was "pissed off" and short-tempered. He did not text Emily to find out whether a door had been left unlocked for him or whether there was a hidden key somewhere. Instead, he wrenched the handle to the garage side door, and the door opened.
At trial, Miller believed that the broken door handle was from the side door into the garage. He recalled tucking it into his pocket.
According to Miller, he turned on the garage light and looked for his "stuff," but the bags of clothes were not in the garage. He became angrier, and he grabbed a big pickaxe and used it to break down the door to the kitchen. He "wedged it in between the doorjamb and pried the door open." His gloves were in his back pocket.
Miller set the pickaxe down on the couch and unlocked the front door. Miller saw defendant sitting in front of the van, and he told defendant to come in and tossed the door handle to defendant. Defendant gave him a "[w]hat the fuck" look. According to Miller, defendant asked what they were doing, and Miller said they were getting ready to leave. Miller asked defendant to give him a couple of minutes.
Miller testified that he quickly looked for his bags in Emily's bedroom, the office, and the master bedroom. Miller indicated that he turned on the hallway light, and then turned on and off the lights in Emily's room and the office as he went. According to Miller, Emily's room was "thrashed," meaning everything was thrown around and disordered, "as usual." At trial, Miller claimed that he found the office "really messed up."
According to Miller, defendant remained in the foyer, and defendant did not know what was going on. Miller told him, "[J]ust give me a second and we'll be leaving."
Miller walked down the hall into the master bedroom. He yanked the armoire open and looked through it. At trial, Miller acknowledged that he broke the armoire and "kind of messed it up." Miller looked in the master bedroom's closet and saw a safe on the closet floor. Miller grabbed the safe and threw it on the bed. At trial, Miller admitted that it had been his intention to open the safe and take something. He felt like he was "being played for a fool" by Emily, and that would be "pay-back." At trial, Miller maintained that the master bedroom was "pretty much already thrashed" before he entered.
Miller heard "cops" yelling something like "get down, get down" or "stop or we'll shoot." Miller panicked, and he threw his pair of gloves, which he claimed were in his pocket, into the wastebasket in the master bathroom. Miller was wearing a black T-shirt over a hoodie, black shoes, and black gloves. He "thought [the gloves] would look pretty bad" because they would make him look like he was burglarizing the house, especially given the damage to the house. Miller hid in the master bathroom's shower.
At trial, Miller denied seeing a second safe inside the house and putting it on Emily's bed. He also denied ever seeing a calculator in Emily's house. Miller did not know where defendant had obtained the third watch found in his possession.
Miller was arrested, and he pleaded guilty or no contest to residential burglary. At defendant's trial, he admitted that he was inside Emily's home to burglarize it.
Although Miller acknowledged defendant was also in Emily's house on the night of January 17, 2013, he denied that defendant was with him when he initially broke in and that defendant took the watches from inside the house. Miller indicated that he merely invited defendant to come into the house because it was "better than standing out front." Miller did not see defendant going into the office. As far as Miller knew, defendant remained standing near the front door and did not go beyond the house's foyer.
At the time of defendant's trial, Miller had not yet been sentenced. No promises had been made to Miller in exchange for his testimony, and no threats had been made to get him to testify.
In addition to pleading guilty to first degree burglary, Miller previously had been convicted of multiple offenses, including a 2001 felony conviction of second degree burglary, a 2005 felony conviction of evasion of a police officer, a 2010 felony conviction of unlawful driving or taking of a vehicle, 2012 convictions of unlawful driving or taking of a vehicle and identity theft, and a 2013 conviction of unlawful driving or taking of a vehicle. He admitted that the 2013 conviction of unlawful driving or taking of vehicle involved taking a car, using it to get around, and then selling it to undercover officers.
Prosecution's Rebuttal
A witness testified regarding a prior burglary of which defendant had been convicted. At about 10:12 a.m. on October 13, 2010, Van K. was feeding breakfast to her daughter in the kitchen of her Piedmont home. She went to wash her hands at the kitchen sink. Out of the kitchen window, she had a clear view of the two-story house right across the street. Van saw an unknown woman knocking on that neighbor's door, but nobody answered. The neighbors were not home. Van wrote down the license plate number of the car parked there. When she looked out five minutes later, the woman and the car were gone.
About 15 minutes later, Van observed that the car was back in the neighbor's driveway and the front door was open. Van thought the home was being broken into, and she called 911. She told the 911 operator that there was a burglary in progress in her neighbor's home and two people were running through the house. A male in the master bedroom was rifling through drawers, opening doors, lifting up items. She could see both persons rummaging. They exited the house carrying some electronics. The male drove the car, and the woman was the passenger. Van described the male as being about six feet tall and wearing a black T-shirt. Van identified the male during an in-field show-up as one of the persons who had been inside her neighbor's house and taking things.
II
Discussion
A. Admission of Evidence of Prior Residential Burglary to Prove Intent
On rebuttal, over defense objection, the prosecution was allowed to introduce testimony regarding a prior burglary committed by defendant in 2010 on the issue of defendant's intent with respect to the charged offense. The parties subsequently stipulated that defendant had pleaded no contest or guilty to, and was convicted of, a first degree residential burglary that occurred on October 13, 2010. Defendant maintains that the admission of the evidence regarding the prior burglary violated Evidence Code sections 1101, subdivision (b), and 352.
1. Ruling Under Evidence Code 1101 and Standard of Review
"Character evidence is not admissible to show conduct on a specific occasion. (Evid.Code, § 1101, subd. (a).) This type of evidence sometimes is referred to as evidence of criminal disposition or propensity. [Citation.] The rule excluding such evidence, however, is qualified by Evidence Code section 1101, subdivision (b) . . . ." (People v. Carter (2005) 36 Cal.4th 1114, 1147 (Carter).) Evidence Code section 1101, subdivision (b), provides: "Nothing in this section prohibits the admission of evidence that a person committed a crime . . . when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, [or] absence of mistake or accident . . .) other than his or her disposition to commit such an act."
"Evidence of uncharged crimes is admissible to prove identity, common design or plan, or intent only if the charged and uncharged crimes are sufficiently similar to support a rational inference of identity, common design or plan, or intent. (People v. Ewoldt (1994) 7 Cal.4th 380, 402-403.)" (Carter, supra, 36 Cal.4th at p. 1147; but see Evid. Code, §§ 1108, subd. (a); 1109, subd. (a).) "The greatest degree of similarity [between the charged and uncharged offenses] is required for evidence of uncharged misconduct to be relevant to prove identity. For identity to be established, the uncharged misconduct and the charged offense must share common features that are sufficiently distinctive so as to support the inference that the same person committed both acts. [Citation.] 'The pattern and characteristics of the crimes must be so unusual and distinctive as to be like a signature.' [Citation.]" (People v. Ewoldt, supra, at p. 403 (Ewoldt).)
In contrast, "[t]he least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent. [Citation.]" (Ewoldt, supra, 7 Cal.4th at p. 402.) " 'For this purpose, the uncharged crimes need only be "sufficiently similar [to the charged offenses] to support the inference that the defendant ' "probably harbor[ed] the same intent in each instance." [Citations.]' " [Citation.]' (People v. Kipp [(1998)] 18 Cal.4th 349, 371.)" (Carter, supra, 36 Cal.4th at p. 1149.)
"On appeal, the trial court's determination of this issue [of admissibility under Evidence Code section 1101], being essentially a determination of relevance, is reviewed for abuse of discretion. [Citations.]" (Carter, supra, 36 Cal.4th at pp. 1147-1148.) We are bound by the Supreme Court's decision regarding the standard of review. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Accordingly, we must reject defendant's assertion that the trial court's ruling under Evidence Code section 1101 is subject to de novo review and adhere to the abuse of discretion standard established by the Supreme Court.
2. Evidence of Prior Burglary Admissible under Evidence Code Section 1101
The trial court concluded that, even though there was not "signature similarity" between the 2010 residential burglary and the charged offense, there was "substantial similarity" sufficient to "shed great light on the defendant's intent" and permit "a logical inference" to "be drawn concerning the defendant's intent in the current case."
Defendant maintains that "[w]hen, as here, there are significant dissimilarities between the current and the prior incident, the fact that the two incidents may share superficial commonalities is not sufficient to justify admission under [Evidence Code] section 1101, subdivision (b)." He seeks to differentiate the 2010 burglary from the present crime.
Defendant asserts that the 2010 burglary occurred in the morning, whereas the present incident took place at night. He points out that, in the prior burglary, one of the perpetrators knocked on the front door, drove away and then returned to burglarize the home. In the present case, Miller and defendant went to the house and remained there. He argues that the evidence of the 2010 burglary did not suggest that either perpetrator knew a homeowner, whereas Miller knew that Emily lived at the house on Daffodil Way. In addition, in this case, unlike the prior burglary, there was evidence from which it could be inferred that defendant entered the house without intent to steal.
Although there were certain differences between the burglaries, those dissimilarities went to the weight of the evidence, not its admissibility. "The question . . . is not the number of points of similarity but their logical relevance to establish the mental element of the charged offense." (People v. Rocha (2013) 221 Cal.App.4th 1385, 1394.) There were sufficient shared features to support the trial court's determination that the charged burglary and the 2010 burglary were sufficiently similar to support an inference that defendant harbored the same intent—to steal—in both instances.
Like the crime charged, the 2010 burglary involved burglary of a residence, rather than burglary of a vehicle or a commercial building. Both crimes involved a vehicle being driven to the targeted home and being parked in the home's driveway and the driver knocking on the front door before entering the home. In both incidents, a pair of individuals entered an unoccupied home, and rooms were quickly ransacked. During the 2010 burglary, defendant was wearing a black T-shirt. In the instant offense, defendant was wearing black or dark clothing.
"The test of relevance is whether the evidence tends ' "logically, naturally, and by reasonable inference" to establish material facts such as identity, intent, or motive. [Citations.]' (People v. Garceau [(1993)] 6 Cal.4th [140,] 177.)" (Carter, supra, 36 Cal.4th at p. 1166.) "We have long recognized 'that if a person acts similarly in similar situations, he probably harbors the same intent in each instance' [citations], and that such prior conduct may be relevant circumstantial evidence of the actor's most recent intent. The inference to be drawn is not that the actor is disposed to commit such acts; instead, the inference to be drawn is that, in light of the first event, the actor, at the time of the second event, must have had the intent attributed to him by the prosecution. [Citations.]" (People v. Robbins (1988) 45 Cal.3d 867, 879, superseded by statute on another ground as recognized in People v. Jennings (1991) 53 Cal.3d 334, 387, fn. 13.)
The trial court did not abuse its discretion in finding the evidence of the 2010 burglary admissible under Evidence Code section 1101, subdivision (b).
3. Evidence Code Section 352
The trial court found that the prejudicial effect of the evidence of the 2010 residential burglary committed by defendant did not substantially outweigh its probative value.
Under Evidence Code section 352, a court "in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will" "create substantial danger of undue prejudice." "We apply the deferential abuse of discretion standard when reviewing a trial court's ruling under Evidence Code section 352. [Citation.]" (People v. Kipp, supra, 26 Cal.4th at p. 1121 (Kipp).) "We will not disturb a trial court's exercise of discretion under Evidence Code section 352 ' "except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice." ' (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.)" (People v. Jones (1998) 17 Cal.4th 279, 304.)
" ' " '[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant's case.' " ' (People v. Gionis (1995) 9 Cal.4th 1196, 1214.)" (People v. Cage (2015) 62 Cal.4th 256, 275.) The term "prejudice" in Evidence Code section 352 "is not synonymous with 'damaging,' but refers instead to evidence that ' "uniquely tends to evoke an emotional bias against defendant" ' without regard to its relevance on material issues. [Citations.]" (Kipp, supra, 26 Cal.4th at p. 1121.)
" 'The prejudice which exclusion of evidence under Evidence Code 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.]" (People v. Zapien (1993) 4 Cal.4th 929, 958.) " '[E]vidence 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.]" (People v. Doolin (2009) 45 Cal.4th 390, 439.)
Here, the evidence of the prior burglary committed by defendant was circumstantially very relevant to the critical issue of his intent in entering the house on Daffodil Way. That evidence tended to refute Miller's testimony indicating that defendant happened to be in the house merely because he had given Miller a ride there. The evidence regarding the 2010 residential burglary was not particularly inflammatory, and it certainly was no more inflammatory than the evidence of the charged offense. The circumstances of the prior crime were not so egregious as to inflame the jury's passions. In addition, the jury was clearly instructed that it could consider the evidence of the prior residential burglary, if proved by a preponderance of the evidence, for the limited purpose of evaluating defendant's intent, but that it could "not conclude from this evidence that the defendant has a bad character or is disposed to commit crime."
The trial court acted within its discretion in concluding that the evidence of the 2010 residential burglary should not be excluded under Evidence Code section 352.
4. Federal Due Process
Defendant argues that admission of the evidence of the 2010 burglary rendered his trial "fundamentally unfair" and violated his federal due process rights because the jury could not draw any permissible inference from that evidence and it presented a "high danger" that the jury would improperly use it to find that he had a propensity to commit burglaries. He asserts that the court's limiting instruction was insufficient to protect his federal due process rights.
"As applied to a criminal trial, denial of due process is the failure to observe that fundamental fairness essential to the very concept of justice. In order to declare a denial of it we must find that the absence of that fairness fatally infected the trial; the acts complained of must be of such quality as necessarily prevents a fair trial." (Lisenba v. California (1941) 314 U.S. 219, 236.) "The admission of relevant evidence will not offend due process unless the evidence is so prejudicial as to render the defendant's trial fundamentally unfair." (People v. Falsetta (1999) 21 Cal.4th 903, 913.) "[T]he admission of evidence, even if erroneous under state law, results in a due process violation only if it makes the trial fundamentally unfair. [Citations.]" (People v. Partida (2005) 37 Cal.4th 428, 439.)
The admission of the evidence of the 2010 burglary did not render the trial fundamentally unfair. First, as we have found, the admission of the evidence was not erroneous under state law. Second, as indicated, the trial court gave an instruction limiting the jury's use of the evidence of the 2010 burglary.
The jurors were twice told not to conclude from the evidence of the 2010 burglary that defendant had a bad character or was disposed to commit crime. The jurors were twice instructed that they may, but were not required to, consider the evidence for the limited purpose of deciding whether or not defendant acted with the intent to commit theft in this case, but only if the People had proved by a preponderance of the evidence that defendant in fact committed that burglary. The jurors were twice directed to disregard entirely the evidence of the prior burglary if the People did not meet that standard of proof. The court twice told the jurors to consider the similarity or lack of similarity between the uncharged offense and the charged offense when evaluating the evidence of the 2010 burglary. We presume, absent contrary evidence, that the jurors faithfully followed the limiting instruction and did not use the evidence of the 2010 burglary as character or propensity evidence. (See People v. Lindberg (2008) 45 Cal.4th 1, 26; People v. Mendoza (2007) 42 Cal.4th 686, 699.)
The second reading of the instruction regarding the evidence of the 2010 burglary followed a jury question, "Can you please reread the law Judge McCracken stated on how to find Mr. Woods not guilty?" The court stated that it would send the jury back to its deliberations with an entire set of jury instructions.
The admission of the evidence of the 2010 burglary of which defendant was convicted did not result in a fundamentally unfair trial that contravened defendant's federal due process rights. B. Ineffective Assistance of Counsel Claim
1. Background and Contention on Appeal
On October 9, 2013, the prosecutor filed a memorandum of points and authorities in support of its request for a ruling that evidence of the 2010 residential burglary was admissible under Evidence Code section 1101, subdivision (b), in the prosecution's case in chief. The People rested their case in chief without securing a ruling or calling any witness concerning that prior burglary.
After Miller testified on behalf of the defense, the prosecutor sought to obtain a ruling that evidence of the 2010 residential burglary was admissible under Evidence Code section 1101, subdivision (b). The prosecutor asserted that the evidence should be admitted to prove intent in response to the defense case, and she indicated that the People would call one witness and direct examination of the witness was anticipated to take only 15 minutes. As indicated, the trial court concluded that the evidence was admissible and allowed the prosecution to present such evidence in rebuttal.
Defendant asserts that his trial counsel rendered ineffective assistance of counsel by not objecting to the evidence of the 2010 burglary on the ground that it constituted improper rebuttal. Defendant admits that the evidence was "very significant and relevant to the material issue in dispute—whether [he] had the intent to steal when he entered the house." Defendant nevertheless maintains that the evidence should have been presented only in the prosecution's case in chief.
2. Analysis
To prevail on his claim of ineffective assistance of counsel, defendant must establish that his counsel's performance was deficient and resulted in prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) "Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim." (Id. at p. 700.)
"The proper measure of attorney performance remains simply reasonableness under prevailing professional norms." (Strickland, supra, 466 U.S. at p. 688.) "Judicial scrutiny of counsel's performance must be highly deferential" (id. at p. 689), and counsel's performance must be evaluated "from counsel's perspective at the time," rather than with the "distorting effects of hindsight." (Ibid.) "[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." (Ibid.)
"It is particularly difficult to prevail on an appellate claim of ineffective assistance. On direct appeal, a conviction will be reversed for ineffective assistance only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation. All other claims of ineffective assistance are more appropriately resolved in a habeas corpus proceeding. [Citations.]" (People v. Mai (2013) 57 Cal.4th 986, 1009.)
As to prejudice, a defendant must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland, supra, 466 U.S. at p. 694.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Ibid.)
Defendant contends that his trial counsel could not have had a rational tactical reason for not objecting to the prosecution's rebuttal evidence. In making this argument, he relies upon People v. Carter (1957) 48 Cal.2d 737, in which the California Supreme Court "disapproved of the prosecutorial tactic of intentionally withholding crucial evidence properly belonging in the case-in-chief to take unfair advantage of the defendant. [Citation.]" (People v. Friend (2009) 47 Cal.4th 1, 44.) People v. Carter, supra, at p. 737, stated: "[P]roper rebuttal evidence does not include a material part of the case in the prosecution's possession that tends to establish the defendant's commission of the crime. . . . A defendant's reiterated denial of guilt and the principal facts that purportedly establish it does not justify the prosecution's introduction of new evidence to establish that which defendant would clearly have denied from the start." (Id. at pp. 753-754.)
The People counter that defense counsel could have reasonably decided not to make an "improper rebuttal" objection "because (1) the prosecutor would have in turn simply moved to reopen her case-in-chief and (2) the trial court would have granted that motion." Section 1093 establishes the standard order of trial. The presentation of the prosecution's case is ordinarily followed by presentation of the defense case. (§ 1093, subd. (c).) "The parties may then respectively offer rebutting testimony only, unless the court, for good reason, in furtherance of justice, permit them to offer evidence upon their original case." (§ 1093, subd. (d).) "Changes in the order of proof called for by section 1093 can be made within the sound discretion of the trial court. [Citation.]" (People v. Carter, supra, 48 Cal.2d at p. 754.) "[F]or good reasons, and in the sound discretion of the court, the order prescribed in Section 1093 may be departed from." (§ 1094.)
We conclude that the evidence of the 2010 burglary was properly admitted in the prosecution's rebuttal. "Restrictions are imposed on rebuttal evidence (1) to ensure the presentation of evidence is orderly and avoids confusion of the jury; (2) to prevent the prosecution from unduly emphasizing the importance of certain evidence by introducing it at the end of the trial; and (3) to avoid 'unfair surprise' to the defendant from confrontation with crucial evidence late in the trial. [Citations.]" (People v. Young (2005) 34 Cal.4th 1149, 1199 (Young).) "It is improper for the prosecution to deliberately withhold evidence that is appropriately part of its case-in-chief, in order to offer it after the defense rests its case and thus perhaps surprise the defense or unduly magnify the importance of the evidence." (People v. Coffman (2004) 34 Cal.4th 1, 68.) But the mere fact that "the evidence in question might have tended to support the prosecution's case-in-chief does not make it improper rebuttal. [Citations.]" (Ibid.; see People v. Pike (1962) 58 Cal.2d 70, 92 (Pike) [immaterial that impeachment evidence also tends to support prosecution's case-in-chief].)
Rebuttal evidence is generally "restricted to evidence made necessary by the defendant's case in the sense that he has introduced new evidence or made assertions that were not implicit in his denial of guilt. [Citations.]" (People v. Carter, supra, 48 Cal.2d at pp. 753-754.) Evidence is proper rebuttal evidence if it "tend[s] to disprove a fact of consequence on which the defendant has introduced evidence. [Citation.]" (People v. Wallace (2008) 44 Cal.4th 1032, 1088 (Wallace).) Testimony that "fortifies a part of the prosecution's case that has been impeached by defense evidence may properly be admitted in rebuttal. [Citations.]" (Young, supra, 34 Cal.4th at p. 1199.)
"The scope of rebuttal evidence is within the trial court's discretion, and on appeal its ruling will not be disturbed absent ' "palpable abuse." ' [Citation.]" (Wallace, supra, 44 Cal.4th at p. 1088.) Thus, "[t]he decision to admit rebuttal evidence rests largely within the discretion of the trial court and will not be disturbed on appeal in the absence of demonstrated abuse of that discretion. [Citations.]" (Young, supra, 34 Cal.4th at p. 1199.)
Proper rebuttal evidence may include other-crimes evidence that becomes highly relevant only after the defense evidence, such as where a defendant testifies in his own defense that he lacks the requisite intent or any motive to commit the charged crime. (See People v. Gallego (1990) 52 Cal.3d 115, 149, 191 (Gallego) [in murder prosecution, trial court properly allowed rebuttal evidence of the defendant's involvement in similar killings to rebut his claims of diminished capacity and lack of intent to rape or kill].) Here, the evidence of the prior burglary was not "directly probative of the crimes charged" (People v. Thompson (1980) 27 Cal.3d 303, 330, disapproved on another ground in People v. Rowland (1992) 4 Cal.4th 238, 260). Rather, the rebuttal evidence concerning the 2010 burglary became particularly relevant after defense testimony provided an innocent explanation for defendant's presence at the house being burglarized and for his possession of certain incriminating items in his pockets.
Defendant acknowledges that "Miller's testimony provided a plausible explanation for [defendant] ending up inside the house without [harboring] the intent to steal prior to the entry." Defendant states that Miller's testimony indicated that Miller "just asked Woods for a ride to pick up his clothing, and that [Miller] broke into the house alone because he was angry with Emily for standing him up and not returning his clothing." He notes that Miller testified he was the one who used the pickaxe to get inside the house.
Defendant has failed to show that his counsel's performance was deficient because he did not object to the evidence of the prior residential robbery on the ground that it constituted improper rebuttal. His counsel may have reasonably concluded that an "improper rebuttal" objection lacked merit and was likely to be overruled. "Counsel's failure to make a meritless objection does not constitute deficient performance." (People v. Mitcham (1992) 1 Cal.4th 1027, 1080; see People v. Anderson (2001) 25 Cal.4th 543, 587 ["Counsel is not required to proffer futile objections."].)
In addition, defendant has failed to demonstrate that there is a reasonable probability that the result of the proceeding would have been more favorable if defense counsel had interposed an "improper rebuttal" objection. (See Strickland, supra, 466 U.S. at p. 694.) In making its ruling under Evidence Code section 1101, the trial court noted that the defense had presented evidence that, after entering Richard's house, defendant had given a "what the fuck" look to Miller and queried what they were doing there, which suggested an innocent entry into the house. The court observed that the defense had also provided an innocent explanation for defendant having the door handle and watches in his pockets when the police apprehended him inside the house. Thus, Miller's testimony furnished new evidence that was not implicit in defendant's not-guilty plea. If defense counsel had raised an "improper rebuttal" objection, it was well within the trial court's discretion to overrule it. (Cf. e.g., People v. Gallego, supra, 52 Cal.3d at p. 191 [evidence of other killings properly admitted in prosecution's rebuttal where defendant had testified that he lacked intent or motive to kill]; Pike, supra, 58 Cal.2d at pp. 91-92 [victim testimony regarding other robberies admissible in rebuttal since the evidence was not crucial or directly probative of the crimes charged and served to impeach defendants' testimony that they had not agreed to commit any robberies].)
Defendant has established neither prong of an ineffective assistance of counsel claim, and we reject such claim.
In light of our conclusion, we find it unnecessary to resolve the People's contention that the prosecutor would have successfully moved to reopen the prosecution's case in chief if the trial court had sustained an "improper rebuttal" objection.
DISPOSITION
The judgment is affirmed.
/s/_________
ELIA, ACTING P.J. WE CONCUR: /s/_________
BAMATTRE-MANOUKIAN, J. /s/_________
MIHARA, J.