Filed 6/8/22 P. v. Burton CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kern County. Charles R. Brehmer, Judge.

Linnéa M. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Christopher J. Rench, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

A jury convicted appellant Trichelle K. Burton and her codefendants, Glen Edward Maynor and Tyquan Maurice Jones, of conspiracy to commit robbery (Pen. Code,^[1] §§ 182, subd. (a)(1), 212.5, subd. (c)), carjacking (§ 215 subd. (a)), assault (§ 243, subd. (a)), attempted kidnapping to commit robbery (§§ 664, 209, subd. (b)), and attempted robbery (§§ 664, 212.5, subd. (c)). Burton was sentenced to an aggregate prison term of six years eight months.

Burton raises the following claims on appeal: (1) As to count 1, she should have been charged with multiple conspiracies instead of a single overarching conspiracy to commit robbery; and (2) the trial court abused its discretion in admitting evidence of a prior uncharged act: the robbery of victim K.A. At our request, the parties submitted supplemental briefing as to whether Assembly Bill No. 518 (2021-2022 Reg. Sess.) (Assembly Bill No. 518), which became effective January 1, 2022, retroactively applies to Burton’s nonfinal judgment of conviction, and requires resentencing. The parties agree that Assembly Bill No. 518 retroactively applies to Burton’s judgment of conviction and that resentencing is required. We agree as well.

We affirm the judgment of conviction and remand the matter to the trial court for a full resentencing.

PROCEDURAL HISTORY

On August 8, 2019, the Kern County District Attorney’s Office filed an amended information charging Burton and her two codefendants, Glen Edward Maynor and Tyquan Maurice Jones, with six counts involving three victims. As to all three victims, Burton and her codefendants were charged with one count of conspiracy to commit robbery (§§ 182, subd. (a)(1), 212.5, subd. (c); count 1). As to victim J.S., they were charged with carjacking (§ 215, subd. (a); count 2) and assault by means likely to cause great bodily injury (§ 245, subd. (a)(4); count 3). And finally, with respect to victim O.E., they were charged with conspiracy to commit kidnapping for robbery (§§ 182, subd. (a)(1), 209, subd. (b); count 4), attempted kidnapping for robbery (§§ 664, 209, subd. (b); count 5), and attempted robbery (§§ 664, 212.5, subd. (c), count 6).

On September 9, 2019, the jury found Burton, Maynor, and Jones guilty on counts 1, 2, 5, and 6, and not guilty on count 4. On count 3, the jury found them guilty of the lesser included offense of simple assault.

On December 17, 2019, the trial court sentenced Burton to state prison for a term of five years on count 5 and a consecutive term of one year eight months on count 2. The court imposed stayed terms of two years on count 1, 16 months on count 6, and 120 days in county jail on count 3. Burton was sentenced to an aggregate prison term of six years eight months.

On December 18, 2019, Jones filed a timely notice of appeal.

STATEMENT OF FACTS

June 6, 2018-Conspiracy to Commit Robbery (Count 1)

On June 6, 2018, K.A. drove to Fresno to pick up “Melody,” whom he had known for a couple of years. K.A. also knew Melody as Trichelle.

At approximately 9:30 p.m., K.A. arrived at an apartment complex, as Melody had directed him. After approximately five or 10 minutes, two men approached K.A. and asked him for a cigarette. K.A. replied that he did not have one and the men began to walk away. They came back a few minutes later.

The men jumped K.A., hitting him repeatedly and tasing him. K.A. yelled out, “I don’t have no money…. What are you trying to do?” K.A. dropped his wallet and phone on the ground and the men stopped hitting him. They picked up K.A.’s wallet and phone and fled. A few hours after the robbery, money was withdrawn from K.A.’s bank account.

K.A. had allowed Melody to use his ATM card on prior occasions, and Melody had K.A.’s personal identification number (PIN) associated with the card.

Fresno Police Officer James Hannah responded to the incident. K.A. told Hannah that he was supposed to meet his girlfriend, Trichelle Burton, at the apartment complex where he had been attacked.

June 13, 2018-Carjacking (Count 2) and Assault (Count 3)

On June 13, 2018, J.S. went to a Motel 6 in Fresno to meet “Leah,” a woman he had met on an online dating website. Leah had contacted J.S. seeking a friend with benefits relationship. Over the course of several hours, they exchanged messages. They arranged to meet at Leah’s motel room for dinner and a movie.

At approximately 9:45 p.m., J.S. arrived at Leah’s room. He immediately told her he was not interested because she looked too young. The television was on and the volume was blaring. J.S. felt uneasy. He got up to turn down the volume on the television.

Suddenly, a man emerged from the bathroom and knocked J.S. over the bed. As J.S. got up, a second man emerged from the bathroom and began to attack him. J.S. yelled for help. The two men ripped off his clothes and tased J.S. repeatedly.

J.S. made it to the door as Leah yelled, “ ‘get him, don’t let him get away.’ ” The men continued to beat J.S. One of the men held J.S. in a chokehold while the other punched him in the face and tased him. J.S.’s assailants drug J.S., naked, underneath a sink in the room and held a knife to his throat.

Leah took J.S.’s phone, ATM, and car keys, and told him, “ ‘It’s either your car or your life.’ ” Leah instructed one of the men to hold J.S. down and keep the knife to his throat.

With the knife pressed against his throat, J.S. gave Leah the PIN to his ATM card. Leah left for approximately five minutes while the two men continued to detain J.S. When Leah returned, the group left. They told J.S. that if he left, their cousin, who was next door, would tell them and they would return. J.S. remained in the room for another minute, grabbed a towel, and ran into the front office of the motel.

J.S.’s vehicle was stolen. Later, J.S. observed that money had been withdrawn from his bank account.

Several days after the incident, J.S. identified Burton as “Leah,” and Jones and Maynor as the two men who had attacked him, in a photographic lineup. At trial, J.S. identified Burton, Jones, and Maynor as the group that had attacked him.

June 15, 2018-Attempted Kidnapping to Commit Robbery (Count 5) & Attempted Robbery (Count 6)

On June 15, 2018, at approximately 2:00 p.m., O.E. was leaving work for the day when she observed a white car parked next to her car in the parking lot of her place of employment. O.E. was carrying her purse over her shoulder and she had her cell phone in her hand.

Suddenly, Maynor emerged from the back seat of the white car and began hitting her with a closed fist. O.E. began screaming and fell to the ground. Half of her body was against the car, and the other half was on the ground.

As Maynor attempted to lift O.E., he told her to “get in the car.” O.E. could see two other people inside the white car, a male who was seated in the driver’s seat, and a female, seated in the front passenger’s seat.

The male, Jones, and female, Burton, emerged from the white car. Burton told O.E.’s assailant to “get her in the car.”

Several bystanders began to approach and the man attempting to lift O.E. jumped off of her. The bystanders asked the group what was going on. Burton told the bystanders O.E. “was trying to beat her up.”

O.E. walked over to the bystanders. Maynor and his companions fled in the white car, which was subsequently identified as the vehicle belonging to J.S. Neither O.E.’s purse nor her phone were taken during the attack.

Police Questioning

On June 18, 2018, Fresno Police Detective Mikal Clement questioned Burton. Burton admitted that when she contacted K.A., she had planned to jump him and take his ATM card, and that she had withdrawn $200 from his bank account. As to the robbery of J.S., Burton admitted taking his white Camry and using a taser on J.S. Burton also admitted to withdrawing money from J.S.’s bank account using his ATM card.

When Clement questioned Maynor, Maynor admitted that he had “rushed” K.A. when K.A.’s back was turned. Maynor also admitted to taking J.S.’s wallet during the Motel 6 robbery.

ANALYSIS

1. Burton’s Conviction for Conspiracy to Commit Robbery (Count 1)

Burton contends the prosecutor erroneously charged her with one overarching conspiracy to commit robbery on count 1, but there were actually multiple separate conspiracies to commit robbery.[2] According to Burton, she and her accomplices conspired to commit only one robbery, but emboldened by their success, formed a second and then third agreement to commit robbery. The Attorney General responds that the error alleged is a matter of prosecutorial charging discretion, which is not reviewable on appeal. (See People v. Vargas, supra, 91 Cal.App.4th at pp. 552-553.) The Attorney General further contends that there is substantial evidence to support Burton’s conviction on count 1.

We will presume error, and that the error is reviewable. We conclude Burton has failed to show prejudice.

1. Background

The information alleged one count of conspiracy to commit robbery (count 1), encompassing all three robberies occurring between June 6, 2018, and June 15, 2018. Nine overt acts were alleged in furtherance of the conspiracy, including: (1) on June 6, 2018, Burton contacted K.A. in Fresno; (2) on June 6, 2018, Burton, Jones, and/or Maynor assaulted K.A. in Fresno; (3) on June 6, 2018, Burton, Jones, and/or Maynor robbed K.A. in Fresno; (4) on June 13, 2018, Burton had contact with J.S. in Fresno; (5) on June 13, 2018, Burton, Jones, and/or Maynor assaulted J.S. in Fresno; (6) on June 13, 2018, Burton, Jones, and/or Maynor stole J.S.’s vehicle; (7) on June 15, 2018, Burton, Jones, and/or Maynor were in J.S.’s car in Bakersfield; (8) on June 15, 2018, Maynor assaulted O.E. in Bakersfield; (9) on June 15, 2018, Burton, Jones, and/or Maynor fled in J.S.’s vehicle.

Pursuant to a special verdict form, the jury found true each of the nine alleged overt acts alleged as to count 1.

At a pretrial hearing, the prosecutor explained that count 1 included all three robberies occurring between June 6, 2018, and June 15, 2018, and that overt acts Nos. one, two, and three were specific to the robbery of K.A. The prosecutor added that he did not charge Burton and her accomplices with the robbery of K.A. because the incident occurred in Fresno County, and he did not have jurisdiction as a result.

2. Relevant Legal Principles

“ ‘ “Conspiracy requires two or more persons agreeing to commit a crime, along with the commission of an overt act, by at least one of these parties, in furtherance of the conspiracy.” ’ ” (People v. Dalton (2019) 7 Cal.5th 166, 244.) “ ‘[T]he essence of the crime of conspiracy is the agreement, and thus it is the number of the agreements (not the number of the victims or number of statutes violated) that determine the number of the conspiracies.’ ” (People v. Kopp (2019) 38 Cal.App.5th 47, 84, citing People v. Meneses (2008) 165 Cal.App.4th 1648, 1669.)

“ ‘ “Where two or more persons agree to commit a number of criminal acts, the test of whether a single conspiracy has been formed is whether the acts ‘were tied together as stages in the formation of a larger all-inclusive combination, all directed to achieving a single unlawful end or result.’ ” [Citation.] “Relevant factors to consider in determining this issue include whether the crimes involved the same motives, were to occur in the same time and place and by the same means,” and targeted a single or multiple victims.’ [Citation.] ‘ “The test is whether there was one overall agreement among the various parties to perform various functions in order to carry out the objectives of the conspiracy. If so, there is but a single conspiracy.” [Citation.]’ [Citation.] ‘ “Performance of separate crimes or separate acts in furtherance of a conspiracy is not inconsistent with a ‘single overall agreement.’ [Citation.] The general test also comprehends the existence of subgroups or subagreements.” ’ ” (People v. Kopp, supra, 38 Cal.App.5th at p. 84.)

When a defendant is charged with participation in a single overarching conspiracy, but the evidence adduced at trial supports the existence of multiple separate conspiracies, the variance does not require reversal unless it prejudicially affects the defendant’s substantial rights. (People v. Elliott (1978) 77 Cal.App.3d 673, 685 [“[a] judgment will not be reversed on the ground that two separate conspiracies were charged as one, unless the appellant shows that he was prejudiced thereby”]; Kotteakos v. United States (1946) 328 U.S. 750, 756-757 (Kotteakos), citing Berger v. United States (1935) 295 U.S. 78, 82 [“ ‘[t]he true inquiry,’ … ‘is not whether there has been a variance of proof, but whether there has been such a variance as to ‘affect the substantial rights’ of the accused’ ”].)

3. Analysis

We conclude that any variance between the information and the evidence adduced at trial was immaterial for two reasons. First, there was strong evidence that Burton conspired with Maynor and Jones to commit robbery. Even excluding evidence of the prior uncharged robbery of K.A., and assuming the robberies of J.S. and O.E. had been charged as separate conspiracies, we are persuaded that Burton and her accomplices would stand convicted of at least one count of conspiracy to commit robbery.[3]

Our conclusion that there is strong evidence supporting Burton’s guilt is based upon the following facts:

Burton lured J.S. to a motel room with the promise of a sexual encounter, while Maynor and Jones were lying in wait in the bathroom. When they emerged, Maynor and Jones beat J.S., while Burton took J.S.’s phone, ATM card, and car keys. J.S. was forced to furnish the PIN to his ATM card, and money was subsequently withdrawn from his bank account while he was held at knifepoint. His vehicle was then stolen. From this evidence, the jury could reasonably conclude Burton and her accomplices had formed a conspiracy to commit robbery.

Two days after the robbery of J.S., Maynor beat O.E. and attempted to forcibly place her in the backseat of J.S.’s stolen vehicle. Maynor told O.E. to “get in the car.” Burton exited the vehicle and instructed Maynor to “get [O.E.] into the car.” When bystanders approached, Burton concocted a story about O.E. trying to “beat her up,” to prevent them from intervening. The circumstantial evidence underlying this incident also amply demonstrates that Burton and her accomplices were acting in accordance with a conspiracy to commit robbery.

In light of the strong evidence of her guilt, and the jury’s finding that each overt act had been proven, we are persuaded that Burton suffered no prejudice as a result of the prosecutor’s decision to charge the conspiracy as one rather than multiple counts. It is not reasonably likely that Burton would have received a more favorable outcome if the prosecutor had charged her with multiple conspiracies to commit robbery.

Second, the record does not support a potential for the transference of guilt among the defendants or a conspiracy so complex that it likely resulted in jury confusion. (Compare United States v. Sutherland (5th Cir. 1981) 656 F.2d 1181, 1196 [finding no prejudicial variance between the indictment and evidence at trial where there was overwhelming evidence of the defendant’s guilt, there were a small number of conspiracies and defendants, and the evidence relating to each conspiracy was distinct, rendering juror confusion unlikely]; and United States v. Duran (9th Cir. 1999) 189 F.3d 1071, 1082 [no prejudice where evidence pertaining to each of the two conspiracies was “easily compartmentalized”], to Kotteakos, supra, 328 U.S. at p. 766 [variance deemed prejudicial where the evidence supported the existence of at least eight separate conspiracies involving 32 defendants].)

The conspiracy challenged here was not complex. The roles played by each of the defendants during the commission of the robberies, their intent, and their respective guilt, was clear from the evidence adduced at trial. Moreover, there were only three defendants and three victims. Under the circumstances, any variance between the information, which charged one conspiracy, and the evidence adduced at trial, which Burton alleges showed multiple conspiracies, could not have been prejudicial.

Burton asserts that evidence of the robbery of K.A. was improperly admitted and unduly influenced the jury’s verdict. She suggests that absent evidence of the K.A. robbery—which could not have been charged as a separate conspiracy because of venue—the jury could not find sufficient similarities between the robberies of J.S. and O.E. to support the existence of one overarching conspiracy.

As discussed further in part II, post, evidence of the robbery of K.A. was not improperly admitted. However, assuming the prior uncharged act should not have been admitted as evidence of the conspiracy charged in count 1, and that the robberies involving K.A., J.S., and O.E. were based upon separate conspiracies, we are persuaded that Burton would still stand convicted of at least one count of conspiracy to commit robbery.

Burton claims the prosecutor’s decision to allege conspiracy to commit kidnapping for robbery (count 4), and to include this incident as one of the overt acts in support of the existence of a conspiracy to commit robbery (count 1), caused jury confusion. Burton contends the jury’s confusion is evident from the fact that it acquitted her on count 4. According to Burton, the jury’s verdict on count 1 should have made her guilt on count 4 a forgone conclusion, since the same overt act was used to support the existence of both conspiracies.

We can only speculate as to why the jury acquitted Burton and her accomplices of conspiracy to commit kidnapping for robbery on count 4, particularly in light of the strong evidence adduced at trial supporting her guilt. The jury’s verdict on count 4 could be attributed to jury compromise, lenity, or mistake. As none of these are grounds for reversal of her conviction, we conclude Burton’s assertion of jury confusion fails to support her claim of prejudicial error.

2. Admissibility of Evidence of the Uncharged Robbery of K.A.

Burton contends the trial court abused its discretion and violated her due process rights by ruling evidence of the robbery of K.A. admissible to prove motive, intent, and common plan under Evidence Code section 1101. We conclude Burton’s claim is meritless.

1. Background: In Limine Motion and the Trial Court’s Ruling

The information alleged one count of conspiracy to commit robbery encompassing all three incidents occurring between June 6, 2018, and June 15, 2018. Nine overt acts were alleged to have been performed in furtherance of the conspiracy. The first three acts, which pertained to the robbery of K.A., included the following: (1) on June 6, 2018, Burton contacted K.A. in Fresno; (2) on June 6, 2018, Burton, Jones, and/or Maynor assaulted K.A. in Fresno; (3) on June 6, 2018, Burton, Jones, and/or Maynor robbed K.A. in Fresno.

In a pretrial motion, the prosecutor moved to admit evidence of the robbery of K.A. as prior uncharged conduct under Evidence Code section 1101, subdivision (b).[4] The prosecutor argued evidence of the K.A. robbery was relevant to show a common plan, motive, and intent.

Defense counsel for Burton argued admission of the evidence of the robbery of K.A. would be unduly prejudicial and cumulative of the crimes against J.S. The trial court ruled the prior act evidence admissible, explaining:

“This is always a tricky situation to make an appropriate ruling because there are uncharged offenses except for the conspiracy portion, which does reference overt acts as [the prosecutor] has indicated, which are three of the overt acts set forth in Count 1.

“I don’t believe it is more prejudicial than probative. In fact, I believe it’s the opposite. And in regard to undue consumption of time, in light of the fact that those overt acts are alleged as part of Count 1, that testimony would be necessary for the prosecutor to elicit in order to prove-up those acts even though the actual completion of the crime on June 6th – or alleged crime on June 6th isn’t being charged.

“The record is preserved for each of the defendants for appellate purposes should it be necessary.

“I’ll note that in review of [the prosecutor’s] brief, which is part of the court record, I find the information contained in that brief to be compelling and meet the requirements of appropriate 1101 evidence.”

2. Forfeiture

The Attorney General asserts that Burton has forfeited her challenge to the admission of evidence of the robbery of K.A. under Evidence Code section 1101, subdivision (b), because she objected to the admission of this evidence only under Evidence Code section 352. (See People v. Doolin (2009) 45 Cal.4th 390, 437 [“[b]ecause defendant objected only that the evidence was irrelevant and unduly prejudicial under Evidence Code section 352, he has forfeited his claim that the court admitted the evidence in violation of Evidence Code section[] 1101”].) Burton responds that she lodged a specific and timely objection in her motion in limine.

Because we find no merit to Burton’s claim, we do not address the Attorney General’s assertion of forfeiture.

3. Relevant Legal Principles: Evidence Code Sections 1101, Subdivision (b) and 352

All relevant evidence is admissible, unless a specific statutory or constitutional provision bars its admission. (Evid. Code, §§ 350, 351; Cal. Const., art. I, § 24.) Evidence Code section 1101, subdivision (a) generally prohibits evidence of character to prove conduct. Notwithstanding the exception under Evidence Code section 1109, “evidence of a prior uncharged act may also be admissible to prove a disputed material fact—other than a criminal disposition—such as motive, intent, knowledge, or the absence of mistake or accident.” (People v. Wang (2020) 46 Cal.App.5th 1055, 1075; Evid. Code § 1101.)

To be admissible as “1101(b) evidence,” a court must find the following: (1) the purpose for which the uncharged act is offered is relevant to the pending case (People v. Daniels (1991) 52 Cal.3d 815, 857-858), (2) the uncharged act has the requisite degree of similarity, which ensures that it has a tendency to prove the purpose for which it is offered (People v. Ewoldt[, supra,] 7 Cal.4th [at pp. 402-403]), superseded on other grounds by Evid. Code, § 1108), and (3) the probative value of the evidence is not substantially outweighed by the “substantial danger of undue prejudice, of confusing the issues, or of misleading the jury” (Evid. Code, § 352; People v. Lindberg (2008) 45 Cal.4th 1, 22-23).

Evidence of the uncharged robbery of K.A. was admissible to prove—among other things—Burton’s motive and intent during the commission of the charged crimes, as well as a common plan. (Evid. Code, § 1101.) Evidence of uncharged crimes is normally admissible “ ‘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. Foster (2010) 50 Cal.4th 1301, 1328, quoting People v. Kipp (1998) 18 Cal.4th 349, 369.) “ ‘In this inquiry, the degree of similarity of criminal acts is often a key factor, and “there exists a continuum concerning the degree of similarity required for cross-admissibility, depending upon the purpose for which introduction of the evidence is sought.” ’ ” (People v. Erskine (2019) 7 Cal.5th 279, 295, citing People v. Jackson (2016) 1 Cal.5th 269, 299.)

“To be admissible to show a common scheme or plan, a greater degree of similarity is required than to show intent, and ‘the common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual.’ ” (People v. Davis (2009) 46 Cal.4th 539, 602, citing Ewoldt, supra, 7 Cal.4th at p. 403.)

By contrast, “[t]he least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent.… In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant ‘ “probably harbor[ed] the same intent in each instance.” ’ ” (Ewoldt, supra, 7 Cal.4th at p. 402.) As our Supreme Court has explained, “the recurrence of a similar result tends to negate an innocent mental state and tends to establish the presence of the normal criminal intent.” (People v. Jones (2011) 51 Cal.4th 346, 371; see Ewoldt, at p. 402.) “[T]he similarities between the two events must be substantial enough to have probative value.” (People v. Winkler (2020) 56 Cal.App.5th 1102, 1145.)

Finally, no similarity between an uncharged act and a charged offense is required before the act is admissible to prove motive; instead, there need only be a “nexus” between the prior offense and the current one. (People v. Thompson (2016) 1 Cal.5th 1043, 1115.) “ ‘As long as there is a direct relationship between the prior offense and an element of the charged offense, introduction of that evidence is proper.’ ” (Id. at p. 1114, citing People v. Daniels (1991) 52 Cal.3d 815, 857.)

Even assuming the uncharged act possesses the requisite degree of similarity to the charged offense, “[t]he court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352.) “Trial courts enjoy ‘ “broad discretion” ’ in deciding whether the probability of a substantial danger of prejudice substantially outweighs probative value. [Citations.] A trial court’s exercise of discretion ‘will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.’ ” (People v. Holford (2012) 203 Cal.App.4th 155, 167-168.)

We review a challenge to a trial court’s decision to admit evidence for abuse of discretion. (People v. Johnson (2010) 185 Cal.App.4th 520, 531.) “A trial court’s exercise of its discretion … ‘ “must not be disturbed on appeal 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. Brown (2000) 77 Cal.App.4th 1324, 1337.)

4. Analysis

The trial court acted within its discretion in concluding that evidence of the robbery of K.A. was admissible under Evidence Code section 1101, subdivision (b). Applying the three-prong test above, we conclude evidence of the uncharged prior act was admissible to prove intent for the following reasons:

First, evidence of the prior uncharged robbery was relevant to the charged crimes. The fact that Burton and her accomplices had recently robbed K.A. would clearly be relevant to their intent underlying the crimes perpetrated against J.S. and O.E. Not only did the prosecutor allege that the robbery of K.A. supported the existence of an overarching conspiracy to commit robbery, evidence of the prior uncharged act was relevant to Burton’s intent as to the robbery of J.S. and attempted robbery of O.E. (See, e.g., People v. Page (1980) 104 Cal.App.3d 569, 575 [“[t]he crime of robbery requires a specific intent to permanently deprive the owner of the property”].)

Second, contrary to Burton’s assertions, all three crimes were sufficiently similar to support the inference that Burton and her accomplices had acted with the same intent. In reaching this conclusion, we emphasize that the “[t]he least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent” (Ewoldt, supra, 7 Cal.4th at p. 402.) While the robberies of K.A. and J.S. were accomplished in a manner that differed from the attempted robbery of O.E., the defendants plainly acted with the same intent during all three crimes: to benefit themselves financially by committing robbery.

The defendants played similar roles during all three of the robberies: Burton either lured the victims to a preselected location or interacted with bystanders to prevent them from interceding, while Maynor and/or Jones physically assaulted the victims to subdue them into compliance. Moreover, the robberies all occurred within a time span of two weeks, suggesting an ongoing pattern. The crimes were not so similar “ ‘as to be like a signature.’ ” (Ewoldt, supra, 7 Cal.4th at p. 403, citing 1 McCormick on Evidence (4th ed. 1992) § 190, p. 805.) However, they were sufficiently similar to support the inference that Burton and her accomplices “ ‘ “probably harbor[ed] the same intent in each instance.” ’ ” (Ewoldt, at p. 402.)

As to the third factor, we conclude the trial court did not abuse its discretion by concluding evidence of the prior uncharged robbery was admissible under Evidence Code section 352. Nothing upon this record demonstrates the probative value of the prior uncharged robbery was “substantially outweighed by the probability that its admission [would] (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352.)

Evidence of the uncharged robbery was presented through the testimony of K.A., the victim, Officer Hannah, who responded to the incident, and Detective Clement, who questioned Burton and Maynor. By Burton’s own admission, this testimony comprised approximately 14 percent of the evidentiary portion of her trial. Even assuming Burton’s estimate is understated, evidence of the prior act did not constitute an undue consumption of time. (See People v. Frazier (2001) 89 Cal.App.4th 30, 42 [finding no danger of undue consumption of time where uncharged incident comprised less than a third of the total trial time].)

Further, while evidence of the prior act was damaging, it was not more inflammatory than either of the two charged incidents. (People v. Poplar (1999) 70 Cal.App.4th 1129, 1138 [the “ ‘prejudice’ ” contemplated by Evid. Code § 352 refers to evidence that “uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues”].) Burton and her accomplices were acquitted of conspiracy to commit kidnapping for robbery (count 4), despite ample evidence of their guilt. This suggests that evidence of the prior uncharged act did not interfere with the jury’s fair and dispassionate assessment of the evidence.

Burton contends the admission of evidence of the prior uncharged robbery “appealed to the implicit bias of the jurors.” For example, based upon the fact that she was a teenager and K.A. was 51 years old when the robbery occurred, Burton posits that the jury could reasonably infer that she was a prostitute. The jury did not hear any evidence concerning prostitution activity and there is simply no evidence the jury was biased or prejudiced against Burton—implicitly or otherwise.

In a claim related to her challenge raised in part I, ante, Burton contends evidence of the prior uncharged robbery caused jury confusion. She asserts the evidence adduced at trial supported the existence of multiple separate conspiracies rather than the one overarching conspiracy to commit robbery charged in the information. According to Burton, this likely engendered confusion among the jurors, who would not know how to evaluate evidence of the prior uncharged robbery under Evidence Code section 1011, subdivision (b).

Burton’s claim of jury confusion is not supported by the record. The trial court provided clear instructions concerning how evidence of the prior uncharged robbery should be considered, including CALCRIM No. 375. Even assuming the conspiracy charged in count 1 should have been alleged as multiple conspiracies, that does not mean that the jury could not appropriately evaluate evidence of the prior uncharged robbery, nor does it mean the trial court erred in ruling admissible evidence of the prior uncharged act. As discussed, the uncharged act was probative to the charged crimes apart from the conspiracy charged in count 1.

Burton further contends the trial court’s ruling was based upon incorrect facts presented by the prosecutor, and that the court applied an incorrect test under Evidence Code section 352. She specifically contends: (1) the trial court’s ruling was based upon the prosecutor’s mistaken representation that the robberies of K.A. and J.S. had both occurred in hotel rooms, and (2) the trial court’s ruling finding evidence of the robbery of K.A. was not “more prejudicial than probative,” failed to acknowledge that the correct test is whether the evidence is more probative than unduly prejudicial. Neither of her contentions support the conclusion that the court committed reversible error.

As to her first claim, we review the court’s ruling, not the court’s reasoning and, if the ruling is correct on any ground, we affirm. (People v. Letner and Tobin (2010) 50 Cal.4th 99, 145.) Based upon our independent review of the record, the trial court’s ruling finding evidence of the robbery of K.A. admissible was correct.

With respect to Burton’s second claim, the fact that the trial court did not state the admission of the prior uncharged robbery was not “unduly” prejudicial does not mean that the court applied the wrong legal standard. No talismanic incantation is required when ruling on the admissibility of evidence under Evidence Code section 352. Rather, the record must affirmatively demonstrate the court weighed prejudice against probative value. (People v. Wash (1993) 6 Cal.4th 215, 246, fn. 14.) That is precisely what the trial court did. Burton’s reliance upon Costco Wholesale Corp. V. Superior Court (2009) 47 Cal.4th 725 at page 733—which addressed a motion to compel discovery—does not support her argument.

Finally, Burton asserts that even assuming the trial court did not err in denying her Evidence Code section 352 objection, that does not mean that a constitutional due process violation did not occur. Burton does not direct this court to legal authority which would support such a proposition. In any event, we conclude she

has failed to demonstrate that a constitutional violation occurred.

3. Assembly Bill No. 518

On December 19, 2019, Burton was sentenced to the lower term of five years on count 5 (attempted kidnapping for robbery) and a consecutive term of one year eight months on count 2 (carjacking). Pursuant to section 654, the trial court imposed stayed terms of two years on count 1 (conspiracy to commit robbery), 16 months on count 6 (attempted robbery), and 120 days in county jail on count 3 (misdemeanor assault).

Pursuant to section 654, if a single action or course of conduct by a defendant violates multiple laws, “the distinct crimes may be charged in separate counts and may result in multiple verdicts of guilt, [but] the trial court may impose sentence for only one offense.” (People v. Liu (1996) 46 Cal.App.4th 1119, 1135.) At the time of Burton’s sentencing hearing, the law required the court to impose the sentence “under the provision that provide[d] for the longest potential term of imprisonment.” (Former § 654.) Effective January 1, 2022, however, the Legislature vested trial courts with new discretion, where “[a]n act or omission that is punishable in different ways by different provisions,” to impose punishment under any of those provisions. (§ 654, subd. (a), as amended by Stats. 2021, ch. 441, § 1.)

Following the submission of supplemental briefs, the parties agree that Assembly Bill No. 518 applies retroactively to Burton’s case, which is not yet final, and that resentencing is required. We agree as well.

Under In re Estrada (1965) 63 Cal.2d 740, “[w]hen the Legislature has amended a statute to reduce the punishment for a particular criminal offense, we will assume, absent evidence to the contrary, that the Legislature intended the amended statute to apply to all defendants whose judgments are not yet final on the statute’s operative date.” (People v. Brown (2012) 54 Cal.4th 314, 323, fn. omitted.) This presumption has been applied to amendments providing trial courts discretion to impose lesser punishment at sentencing and amendments reducing the possible punishment for classes of persons. (See, e.g., People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 303-304 [Proposition 57, the Public Safety and Rehabilitation Act of 2016 (enacted Nov. 8, 2016]; People v. Garcia (2018) 28 Cal.App.5th 961, 971-972 [Senate Bill No. 1393 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1013, §§ 1-2)]; People v. Valenzuela (2018) 23 Cal.App.5th 83, 87-88 [Senate Bill No. 620 (2017-2018 Reg. Sess.) (Stats. 2017, ch. 682, §§ 1-2)].)

Nothing in Assembly Bill No. 518 suggests that the Legislature intended for the changes made to section 654 to apply prospectively only. We therefore accept the People’s concession that Assembly Bill No. 518 retroactively applies to all nonfinal judgments, including Burton’s nonfinal judgment of conviction.

“ ‘Defendants are entitled to sentencing decisions made in the exercise of the “informed discretion” of the sentencing court. [Citations.] A court which is unaware of the scope of its discretionary powers can no more exercise that “informed discretion” than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant’s record.’ [Citation.] In such circumstances, [our Supreme Court has] held that the appropriate remedy is to remand for resentencing unless the record ‘clearly indicate[s]’ that the trial court would have reached the same conclusion ‘even if it had been aware that it had such discretion.’ ” (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.)

Upon the instant record, there is no clear indication regarding what sentencing decisions the trial court would have made if it had possessed the sentencing discretion vested by Assembly Bill No. 518. We therefore agree with the parties that remand is appropriate so the trial court may fully resentence Burton anew, incorporating the new legislative changes. We express no view as to how the trial court should exercise its discretion at resentencing.

DISPOSITION

The sentence is vacated and the case is remanded back to the trial court for resentencing in light of Assembly Bill No. 518. The judgment of conviction is otherwise affirmed.

SMITH, J.

WE CONCUR:

DETJEN, Acting P. J.

SNAUFFER, J.

[1] All further undefined statutory citations are to the Penal Code unless otherwise indicated.

[2] Burton does not raise a claim of instructional error. (See People v. Vargas (2001) 91 Cal.App.4th 506, 549.)

[3] Section 184 provides that venue to prosecute the crime of conspiracy is proper in any county in which an overt act was committed. Burton observes that she could not have been separately charged with conspiracy to commit robbery as to K.A. because each of the overt acts pertaining to that conspiracy occurred in Fresno County. Her assertion however does not support reversal of her conviction. Even assuming the robbery of K.A. could not have been charged as a separate conspiracy, evidence of the incident would still have been admissible under Evidence Code section 1101, subdivision (b). Our analysis regarding the admissibility of the prior uncharged robbery is fully detailed in part II, post.

[4] Burton and her accomplices were not charged with the robbery of K.A. because the incident occurred in Fresno County, and not Kern County, where the trial was held.