Filed 1/19/18 P. v. Alvarez CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT


THE PEOPLE,

Plaintiff and Respondent,

v.

TONY ALVAREZ,

Defendant and Appellant.
H043309
(Santa Clara County
Super. Ct. No. C1511626)

A jury found defendant Tony Alvarez guilty of first degree burglary (Pen. Code, §§ 459, 460, subd. (a)) and found true the allegation that a person, other than an accomplice, was present during the burglary (Pen. Code, § 667.5, subd. (c)(21). The trial court suspended imposition of sentence and placed defendant on probation. Defendant contends that the trial court erred when it admitted evidence of an uncharged offense and gave a jury instruction which was improperly argumentative. We affirm.

I. Statement of Facts
A. Prosecution Case
1. Charged Offense
At about 12:30 a.m. on May 27, 2015, Mattison Harrington and James Hatano were walking near the Alpha Omicron Pi sorority house. The house was completely dark. Harrington heard “a lot of noise” and thought someone was trying to break into the house. They saw two people, who were wearing dark, baggy clothing, near the back door. Hatano heard the sounds of banging on a door and trash bags being “tossed around.” Harrington called 911. She heard the sound of glass breaking, followed by a loud alarm. However, she could not recall whether she heard these sounds before or after she called 911. Hatano heard the sound of glass breaking after the police arrived.
Bridget Watters, the house director of the sorority, was the only person living at the house at that time. Members of the sorority had moved out of the house in mid-May. Watters explained that after the sorority members moved out, she and the housekeepers collected items that the women had left behind. Items that could be donated were given to Goodwill and items that could not be donated were thrown in the “garbage bin.”
Cadet Ian Johnson from the San Jose State University Police Department responded to the scene at about 12:40 a.m. While he was standing about 25 feet from the back door of the house, he saw some movement behind the house and heard “plastic bags rustling.” Cadet Johnson heard the sound of glass breaking and saw the back door swing open, followed by the sound of an alarm. There was a light on inside the house. Shortly after the door opened, he saw two silhouettes move across two small windows in the house. One of the individuals had a black ponytail and the other had dark hair with light streaks. The two individuals “disappeared into the house” for about 20 to 25 seconds, exited the house, and went to the rear parking lot. Cadet Johnson identified defendant as one of the people arrested that night.
San Jose State University Sergeant Michael Silva also responded to the scene and heard rummaging in the backyard. He saw defendant attempting to pry the door open by sticking an object between the door frame and the doorway. Sergeant Silva heard the sound of glass shattering and saw the bottom portion of the glass fall to the ground. Defendant opened the door and triggered the alarm. Defendant went around the corner of the house, returned to the door, and entered the house. After approximately 30 to 45 seconds, defendant exited the house and walked to the dumpsters. Sergeant Silva heard some rummaging, and then saw defendant enter and exit the house a second time. Sergeant Silva also saw a second person come from behind the dumpsters. While defendant was inside the house, Sergeant Silva saw this person approach the open door. However, he was unable to see whether this person entered the house. Sergeant Silva called for assistance.
San Jose State University Police Officer Johnathon Silva heard an alarm coming from the house and saw defendant and a woman exit the house. He also saw numerous, large garbage bags that were lined up against the house and along the fence. The bags contained clothes and “stuff that seemed like no one cared about and threw out.” Officer Silva examined the door of the house and the glass was broken. There was also damage to the frame of the door.
When the San Jose city police arrived, defendant and his companion were arrested in the parking lot behind the house. Officer Silva interviewed defendant, who told him that he had gone to the house the previous day and found money in “some bags with like clothes.” He explained: “Yesterday I was in the same garbage, and then I found, well, I guess, nice things. So I decided to come back today.” Defendant denied that he had entered the house and he did not know why the alarm went off.
Watters never heard the alarm go off, because she had a ruptured eardrum. As far as she knew, nothing was taken from the house that night. However, the door and the fence were damaged. According to Watters, the manner in which the window was broken would have allowed someone to reach in and unlock the door. The alarm on the door was only triggered when the door opened.


2. Uncharged Offense
San Jose Police Department Officer Jonathan Cook was on duty on March 31, 2009, at about 2:36 p.m. when he responded to Fry’s Electronics in San Jose. Defendant had taken a DVD valued at $39.99. Defendant was searched and had $50 in his possession. Defendant told Officer Cook that he had gone to the store to take the DVD. Though he knew he had sufficient money to pay for the DVD, “he didn’t think he was going to get caught.”

B. Defense Case
Watters testified that there were metallic blinds on the windows on the side of the house. The blinds on two of these windows were sometimes opened. She normally closed these blinds at night, but she could not state that they were closed on May 27, 2015.
The defense argued that the witnesses’ various inconsistencies provided reasonable doubt as to whether defendant entered the house. The defense also argued that even if defendant entered the house, there was insufficient evidence of an intent to steal.

II. Discussion
A. Admissibility of Evidence of an Uncharged Offense
Defendant contends that the trial court erred when it admitted evidence of the prior theft.
1. Background
The prosecutor filed an in limine motion seeking the admission of evidence of defendant’s 2009 petty theft from Fry’s Electronics and a September 2015 burglary that defendant allegedly committed after the charged offense. The prosecutor asserted the evidence was admissible under Evidence Code section 1101, subdivision (b) to show intent and/or absence of mistake or accident. Defense counsel filed opposition and claimed this evidence was improper character evidence under Evidence Code section 1101, subdivision (a).
At the hearing on the parties’ in limine motions, defense counsel argued that the evidence of the uncharged offenses was propensity evidence and was insufficiently similar to the charged offense to show intent. The prosecutor argued that a “distinctive similarity” was not required.
After reviewing supplemental briefing by the defense, the trial court granted the prosecution motion as to the 2009 incident at Fry’s Electronics, but excluded the evidence of the 2015 burglary.
2. Analysis
“ ‘Subdivision (a) of [Evidence Code] section 1101 prohibits admission of evidence of a person’s character, including evidence of character in the form of specific instances of uncharged misconduct, to prove the conduct of that person on a specified occasion. Subdivision (b) of [Evidence Code] 1101 clarifies, however, that this rule does not prohibit admission of evidence of uncharged misconduct when such evidence is relevant to establish some fact other than the person’s character or disposition.’ [Citation.]” (People v. Fuiava (2012) 53 Cal.4th 622, 667 (Fuiava).) Thus, evidence may be admitted to prove, among other things, intent. (Evid. Code, § 1101, subd. (b).)
“ ‘When reviewing the admission of evidence of other offenses, a court must consider: (1) the materiality of the fact to be proved or disproved, (2) the probative value of the other crime evidence to prove or disprove the fact, and (3) the existence of any rule or policy requiring exclusion even if the evidence is relevant. [Citation.] Because this type of evidence can be so damaging, “[i]f the connection between the uncharged offense and the ultimate fact in dispute is not clear, the evidence should be excluded.” [Citation.]’ ” (Fuiava, supra, 53 Cal.4th at p. 667.) Moreover, the probative value of the uncharged offense must be weighed against the danger of “undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352.)
“ ‘ “We review for abuse of discretion a trial court’s rulings on relevance and admission or exclusion of evidence under Evidence Code sections 1101 and 352.” [Citation.]’ [Citation.]” (Fuiava, supra, 53 Cal.4th at pp. 667-668.) The erroneous admission of evidence constitutes reversible error only if it resulted in a miscarriage of justice. (Cal. Const., art. VI, § 13; Evid. Code, § 353, subd. (b).) A reviewing court should declare a miscarriage of justice when the court concludes it is reasonably probable the defendant would have obtained a more favorable result in the absence of error. (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).)
At issue in the present case is the probative value of the evidence of the 2009 petty theft at Fry’s Electronics to prove defendant’s intent when he entered the house. “To be admissible, there must be some degree of similarity between the charged crime and the other crime, but the degree of similarity depends on the purpose for which the evidence was presented.” (People v. Jones (2011) 51 Cal.4th 346, 371 (Jones).) “The least degree of similarity is required to prove intent or mental state.” (People v. Thomas (2011) 52 Cal.4th 336, 355.) “ ‘[W]hen the other crime evidence is admitted solely for its relevance to the defendant’s intent, a distinctive similarity between the two crimes is often unnecessary for the other crime to be relevant. Rather, if the other crime sheds great light on the defendant’s intent at the time he committed that offense it may lead to a logical inference of his intent at the time he committed the charged offense if the circumstances of the two crimes are substantially similar even though not distinctive.’ [Citation.]” (People v. Demetrulias (2006) 39 Cal.4th 1, 16-17.) Close proximity in time between the two crimes may support the inference that the defendant had the same intent on both occasions. (Id. at p. 16.)
Here, the 2009 uncharged offense involved a petty theft that occurred at a commercial establishment during regular business hours while the 2015 charged offense involved entry late at night into an inhabited house by attempting to pry open a door before breaking a window. The only similarity between the uncharged offense and the charged offense was entry into a building. Thus, the uncharged offense and the charged offense were not sufficiently similar to support the inference that defendant had the same intent when the charged offense was committed. Moreover, the uncharged offense was committed six years before the charged offense. Accordingly, the trial court abused its discretion in admitting evidence of the uncharged offense to prove intent.
The Attorney General’s reliance on Jones, supra, 51 Cal.4th 346 is misplaced. In Jones, the defendant was charged with murdering an elderly couple during a home invasion. (Id. at pp. 350-351.) After stabbing the couple to death, the defendant stole some of their property. (Id. at p. 351.) The California Supreme Court held that the trial court did not abuse its discretion in admitting evidence that the defendant had previously robbed three men of money at gunpoint to show intent. (Id. at pp. 371-372.) The Jones court reasoned: “The Vernon robbery and the Florville home invasion were not particularly similar, but they contained one crucial point of similarity—the intent to steal from victims whom defendant selected. Evidence that defendant intended to rob the Vernon victims tended to show that he intended to rob when he participated in the Florville crimes.” (Id. at p. 371.) The defendant in Jones took money in the prior offense and took property in the charged offense. (Id. at pp. 351, 371.) In contrast to Jones, here, there was no evidence that defendant took anything from the house. Thus, Jones is distinguishable from the present case.
Defendant acknowledges that most evidentiary errors do not rise to the level of a constitutional violation. He claims that the lack of similarity between the prior offense and the charged offense as well as the lack of other evidence to prove his intent rendered the trial “ ‘so infused . . . with unfairness as to deny due process of law.’ ” (Estelle v. McGuire (1991) 502 U.S. 62, 75.) Here, the uncharged offense was significantly less inflammatory than the charged offense. As discussed, infra, we disagree that there was no other evidence to prove intent. Accordingly, there was no constitutional violation.
In our view, the admission of the uncharged offense was harmless under Watson, supra, 46 Cal.2d at p. 836. The evidence of defendant’s guilt was very strong. Several witnesses testified that defendant attempted to pry open a door and then break a window to enter the house. Both the damage to the door and the broken glass corroborated the witnesses’ testimony. Several witnesses also heard an alarm go off, which only occurred after the door was opened. Defendant offered no reasonable explanation for the forcible entry late at night and he admitted to Officer Silva that he came to the premises to look for “nice things.” Based on this record, there is no reasonable probability that the result would have been more favorable to defendant if the uncharged offense had not been admitted.

B. Prosecution’s Pinpoint Instruction
Defendant contends that the trial court violated his constitutional rights when it instructed the jury with the prosecution’s requested pinpoint instruction.
1. Background
The prosecutor proposed a pinpoint instruction that read: “Burglarious intent can be reasonably inferred from an unlawful entry alone.” The prosecutor argued that the instruction made explicit an inference that the jury was entitled to make. The prosecutor also pointed out that the instruction was not worded in presumptive terms. Defense counsel objected to the instruction and argued that the CALCRIM instructions on burglary and intent “should be presumed to be sufficient” and that the evidence did not warrant such an instruction. Defense counsel was also concerned that the instruction would violate defendant’s due process rights by lessening the prosecution’s burden and confusing the jury regarding the element of specific intent. Defense counsel further argued that the cases relied upon by the prosecutor were distinguishable from the present case.
The following day, defense counsel suggested several modifications to the proposed instruction. The trial court gave the proposed instruction without modification: “The instruction relating to the burden of proof and the discussion about proof of specific intent are clear, and the Court is going to assume that the jury is going to follow the general rule with regards to instructions, that they are to be taken together, and that no particular instruction is to be given any greater weight. And so I am not going to add to or change the instruction as requested.”
2. Analysis
“A jury instruction is improperly argumentative if ‘it would invite the jury to draw inferences favorable to the defendant [(or the prosecution)] from specified items of evidence on a disputed question of fact, and therefore properly belongs not in instructions, but in the arguments of counsel to the jury.’ [Citations.] ‘In a proper instruction, “[what] is pinpointed is not specific evidence as such, but the theory of the defendant’s [(or the prosecution’s)] case.” ’ [Citation.] We review an argumentative instruction for harmless error under People v. Watson (1956) 46 Cal.2d 818, 836 . . . . [Citation.]” (People v. Santana (2013) 56 Cal.4th 999, 1012 (Santana).)
People v. Wright (1988) 45 Cal.3d 1126 (Wright) is instructive. In Wright, the California Supreme Court considered whether the trial court erred by failing to give pinpoint instructions requested by the defense about eyewitness identifications. (Id. at pp. 1134-1144.) The court disapproved as “argumentative” an instruction that would have advised the jury to “ ‘consider’ ” various items of evidence, such as the fact that all the robbers wore ski masks, in assessing the defendant’s guilt. (Id. at pp. 1135, 1138.) The Wright court explained: “We disapproved of ‘the common practice [of] [selecting] certain material facts, or those which are deemed to be material, and endeavoring to force the court to indicate an opinion favorable to the defendant as to the effect of such facts, by incorporating them into instructions containing a correct principle of law,’ and we explained, ‘An instruction should contain a principle of law applicable to the case, expressed in plain language, indicating no opinion of the court as to any fact in issue.’ ” (Id. at p. 1135, quoting People v. McNamara (1892) 94 Cal. 509, 513.)
The Wright court also held that the trial court erred in failing to give another instruction requested by the defendant. (Wright, supra, 45 Cal.3d at pp. 1138-1139.) This instruction listed relevant factors, such as the length of time the witness had to make an observation, that the jury could consider in evaluating eyewitness identifications. (Id. at pp. 1138-1139, fn. 9.) The court stated that this instruction was not argumentative and “rather than drawing factual inferences favorable to defendant from specific items of testimony, it ‘merely [intones] considerations any jury must make in evaluating any eyewitness identification.’ [Citation.]” (Id. at p. 1144.)
Turning to the case before us, we note that “ ‘ “[w]hile the existence of the specific intent charged at the time of entering a building is necessary to constitute burglary in order to sustain a conviction, this element is rarely susceptible of direct proof and must usually be inferred from all of the facts and circumstances disclosed by the evidence.” [Citation.]’ [Citation.]” (People v. Holt (1997) 15 Cal.4th 619, 669-670, italics added.) But, here, the pinpoint instruction highlighted specific evidence, that is, “an unlawful entry alone.” The instruction did not mention other evidence that was relevant for the jury’s determination of defendant’s intent, such as how and when he entered the house, what he did in the house, and his statements. Thus, the instruction was argumentative, because it invited the jury to draw an inference favorable to the prosecution from a specific item of evidence. (Santana, supra, 56 Cal.4th at p. 1012.)
Relying on People v. Fitch (1946) 73 Cal.App.2d 825, 827, People v. Jordan (1962) 204 Cal.App.2d 782, 786, People v. Wolfe (1967) 257 Cal.App.2d 420, 425, and People v. Martin (1969) 275 Cal.App.2d 334, 339, the Attorney General contends that the instruction correctly stated the law. The cases upon which he relies included the same or very similar language to that in the pinpoint instruction. At issue in each of these cases was whether there was sufficient evidence to sustain the defendant’s burglary conviction. However, as defendant points out, none of these cases considered whether such language could form the basis for a jury instruction.
The Attorney General’s reliance on People v. Carter (1993) 19 Cal.App.4th 1236 is also not persuasive. In Carter, the trial court responded to jury request for further instruction on the duration of a robbery. (Id. at p. 1252.) The trial court instructed the jury that it “should consider all the evidence, including the evidence of the perpetrator’s control over the victim, and reminded the jury to consider its earlier instruction on the duration of robbery.” (Ibid.) It further instructed the jury that “ ‘[a] perpetrator of a robbery has not reached a place of temporary safety if the continued control over the victim places the perpetrator’s safety in jeopardy.’ ” (Ibid.) The Carter court rejected the defendant’s contention that the last instruction was argumentative. (Ibid.) Unlike in the present case, the trial court in Carter reminded the jury to consider all the evidence relevant to its determination of the issue.
Defendant contends that the error violated his Sixth Amendment right to a jury trial and his Fourteenth Amendment right to due process, and thus the Attorney General must show that the error was “harmless beyond a reasonable doubt.” (Chapman v. California (1967) 386 U.S. 18, 24.) He asserts that the instruction “provided the jury with an improper presumption – that unlawful entry alone could show a burglarious intent” and thus “diminished the prosecution’s burden of proof.”
“In assessing a claim of instructional error, ‘we must view a challenged portion “in the context of the instructions as a whole and the trial record” to determine “ ‘whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way’ that violates the Constitution.” ’ [Citations.]” (People v. Jablonski (2006) 37 Cal.4th 774, 831 (Jablonski).)
As the United States Supreme Court explained in Ulster County Court v. Allen (1979) 442 U.S. 140 (Ulster County): “Inferences and presumptions are a staple of our adversary system of factfinding. It is often necessary for the trier of fact to determine the existence of an element of the crime—that is, an ‘ultimate’ or ‘elemental’ fact—from the existence of one or more ‘evidentiary’ or ‘basic’ facts.” (Id. at p. 156.) An inference or presumption “must not undermine the factfinder’s responsibility at trial, based on evidence adduced by the State, to find the ultimate facts beyond a reasonable doubt. [Citations.]” (Ibid.) The Ulster County court distinguished between “the entirely permissive inference or presumption, which allows—but does not require—the trier of fact to infer the elemental fact from proof by the prosecutor of the basic one and which places no burden of any kind on the defendant” from “[a] mandatory presumption . . . [that] tells the trier [of fact] that he or they must find the elemental fact upon proof of the basic fact, at least unless the defendant has come forward with some evidence to rebut the presumed connection between the two facts.” (Id. at p. 157.)
In the present case, the instruction told the jury that “[b]urglarious intent can be reasonably inferred from an unlawful entry alone.” Thus, the instruction allows, but does not require, the jury to infer intent from proof of unlawful entry. It also did not place any burden on defendant to rebut a presumption. Instead, the instruction “suggests to the jury a possible conclusion to be drawn if the State proves predicate facts, but does not require the jury to draw that conclusion.” (Francis v. Franklin (1985) 471 U.S. 307, 314.)
Defendant relies on Carella v. California (1989) 491 U.S. 263 (Carella) and Yates v. Evatt (1991) 500 U.S. 391 (Yates). Neither case applies.
In Carella, the jury was instructed that “a person ‘shall be presumed to have embezzled’ a vehicle if it is not returned within 5 days of the expiration of the rental agreement; and . . . that ‘intent to commit theft by fraud is presumed’ from failure to return rented property within 20 days of demand.” (Carella, supra, 491 U.S. at p. 265.) The United States Supreme Court explained: “These mandatory directions directly foreclosed independent jury consideration of whether the facts proved established certain elements of the offenses with which [the defendant] was charged. The instructions also relieved the State of its burden of proof articulated in Winship, namely, proving by evidence every essential element of [the defendant’s] crime beyond a reasonable doubt.” (Id. at p. 266.) Thus, the court held that the instructions violated the defendant’s due process rights. (Ibid.) In contrast to Carella, here, the instruction did not direct the jury to presume an element of the offense and thus did not relieve the prosecution of its burden of proving each element beyond a reasonable doubt.
In Yates, the trial court instructed the jury that that “ ‘malice is implied or presumed’ from the ‘willful, deliberate, and intentional doing of an unlawful act’ and from the ‘use of a deadly weapon.’ [Citation.]” (Yates, supra, 500 U.S. at p. 401.) The jury was also instructed that “the ‘presumption is rebuttable, that is, it is not conclusive on you, but it is rebuttable by the rest of the evidence.’ [Citation.]” (Ibid.) As to the deadly weapon presumption, the jury was further instructed that “it was their responsibility ‘under all the evidence to make a determination as to whether malice existed in the mind and heart of the killer.’ ” (Ibid.) The Yates court explained that “[a]lthough the presumptions were rebuttable . . . , the mandate to apply them remained, as did their tendency to shift the burden of proof on malice from the prosecution to the petitioner.” (Id. at p. 402.) Thus, the court concluded that the instructions violated the defendant’s due process rights. (Ibid.) Unlike in Yates, the instruction in the present case did not shift the burden of proof to defendant.
Moreover, the jury was not reasonably likely to apply the instruction in an unconstitutional manner. (Jablonski, supra, 37 Cal.4th at p. 831.) The trial court properly instructed the jury on circumstantial evidence, specific intent, and reasonable doubt. The jury was also instructed to consider the instructions together and that “[w]ords and phrases not specifically defined in these instructions are to be applied using their ordinary, every day meanings.” Thus, the jury was instructed that it must consider all the evidence and that the prosecutor had the burden to prove each element of burglary beyond a reasonable doubt. In addition, both counsel emphasized that the challenged instruction described a permissive inference, not a mandatory presumption. The prosecutor argued that the jury could reasonably infer intent from unlawful entry alone, but also noted, “[you] don’t have to do it. It’s not a must or a shall; it’s up to you.” Defense counsel argued: “Nothing in that instruction says you should, you must. You can make an inference if you so choose. You do not have to. [¶] An inference is not a presumption.” Both counsel also emphasized the prosecution’s burden of proof. Based on this record, there is no reasonable likelihood that the jury would have understood the instruction to suggest that it must presume defendant intended to commit theft when he entered the house or that the prosecutor was not required to prove specific intent beyond a reasonable doubt.
Having found that the argumentative instruction did not violate defendant’s Sixth and Fourteenth Amendment rights, we assess the error under the Watson standard. As previously discussed, the evidence of defendant’s guilt was very strong. Several witnesses testified that defendant unlawfully entered the house and their testimony was corroborated by damage to the door and the window. Defendant also told the officer that he came to the premises to search for items to take. Thus, the only reasonable conclusion was that he entered the house to commit a theft. Given the evidence of guilt, the trial court’s instructions, and counsels’ arguments, there is no reasonable probability that the result would have been more favorable to defendant absent the pinpoint instruction.

C. Cumulative Prejudice
Defendant contends that the cumulative effect of the trial court’s errors violated his Fifth, Sixth, and Fourteenth Amendment rights and requires reversal.
“[A] series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error.” (People v. Hill (1998) 17 Cal.4th 800, 844, overruled on another ground in Price v. Superior Court (2001) 25 Cal.4th 1046.) “ ‘The “litmus test” for cumulative error “is whether defendant received due process and a fair trial.” ’ [Citation.]” (People v. Rivas (2013) 214 Cal.App.4th 1410, 1436.)
In this case, we have found that the trial court erred when it admitted evidence of an uncharged offense and gave an argumentative instruction. Each of these errors was individually harmless. Based on our review of the record, we conclude that defendant received a fair trial. Thus, reversal is not required even considering the cumulative effect of these errors.
Defendant argues that, absent these errors, the only evidence of his intent was his post-arrest statement. Defendant denied entering the house. However, as previously discussed, the evidence was overwhelming that defendant entered the house by attempting to pry open the door and then breaking the window. He provided no reasonable explanation for entering the house and admitted that he came to the premises to take “nice things.” Accordingly, we reject his argument.

III. Disposition
The order is affirmed.







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Mihara, J.



WE CONCUR:






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Elia, Acting P. J.






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Bamattre-Manoukian, J.