Filed 3/6/18 P. v. Cruz 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSE LUIS CRUZ, JR.,

Defendant and Appellant.

F072793

(Super. Ct. No. BF160415A)


OPINION

THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. John W. Lua, Judge.
Gideon Margolis, under appointment by the Court of Appeal, Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-


Jose Luis Cruz, Jr., appeals from her convictions on two counts of residential burglary. She argues the trial court prejudicially erred under Evidence Code sections 1101, subdivision (b) and 352, by admitting evidence of her involvement in, and conviction for, a prior residential burglary. We reject her contentions and affirm the judgment.
PROCEDURAL HISTORY
Cruz was charged by an amended information (information) filed in the Kern County Superior Court with two counts of first degree burglary. Specifically, the information alleged that on April 20, 2015, Cruz burgled the inhabited homes of, respectively, Amy Padilla (count 1) and Rhonda Mills (count 2). (Pen. Code, § 460.) In addition, the information alleged, that Cruz had suffered a prior conviction for first degree burglary, which qualified both as a “strike” prior and a serious felony prior. (§§ 667, subs (c)-(j), 1170.12, subds. (a)-(e), 667, subd. (a).)
A jury found Cruz guilty of both burglary counts. In a bifurcated proceeding, the trial court found the prior conviction allegations to be true.
Cruz was sentenced to an aggregate term of 17 years in state prison. She received the upper term of six years on count 1, which was doubled pursuant to her strike prior. This sentence was enhanced by five years on account of her serious felony prior. She was sentenced to an additional, concurrent 12-year term on count 2.
FACTS
Counts 1 and 2 pertained to burglaries of two neighboring houses that occurred during the early morning hours of January 20, 2015, when the occupants of both houses were asleep.
Burglary of Padilla Home
Regarding the burglary of Amy Padilla’s house, the prosecution presented the testimony of Amy Padilla and her roommate, Michael Vieira. Vieira, the last one to go to bed that night, fell asleep around 11 p.m. Later that night, around 4:30 a.m., Padilla woke up. She noticed that the door leading into the house from the garage was propped open and suspected the house was burgled while she and other occupants were sleeping. She woke Vieira up.
Vieira and Padilla discovered that a PlayStation console, a Galaxy tablet, and Padilla’s purse, which contained $400 in cash, were missing from the house. A side door leading from the garage into the backyard was also open. Various items from Padilla’s purse, and from her son’s school backpack, were strewn about the backyard or had been thrown over the fence into a neighbor’s yard. A day or so later, Vieira realized that a non-working television stored in the garage was also missing.
Burglary of Mills Home
Rhonda Mills and her husband, Mark Mills, testified about the burglary of their home the same night; they lived across the street from Padilla and Vieira. Rhonda had left her purse, as well as her husband’s wallet, in her van that night. The van, which was parked in their garage, was unlocked. The next morning, Rhonda noticed that her purse and Mark’s wallet were missing from the van. Rhonda’s purse was found in a trash can on Padilla’s property. Rhonda’s social security card, as well as driver’s licenses, bank cards, and cash belonging to her and Mark, were missing from the purse.
Cruz’s Initial Contact with Police
About two weeks later, during an unrelated search of Cruz’s car, police found numerous identification cards, social security cards, and credit cards. Several of the cards belonged to Amy Padilla, Rhonda Mills, and Mark Mills. Cruz told the police she found the cards during a “block cleanup” in which she had participated. She later changed her story, stating she found the cards in a trash bag that was left outside her grandmother’s house. Finally she stated that a friend named “Miguel” gave her the cards on April 20, 2015, advising her that the cards were stolen; Cruz did not use the cards. Cruz was cited for receiving stolen property.
Detective Nichole Shihrer had been investigating the burglaries at the Padilla and Mills residences. When she received the stack of cards found in Cruz’s car, including cards belonging to Amy Padilla as well as Rhonda and Mark Mills, she was able to connect Cruz to the burglaries. On May 27, 2015, Shihrer and Detective Alex Paiz interrogated Cruz at the Kern County Jail. A recording of the interrogation was played for the jury.
Police Interrogation of Cruz
Shihrer and Paiz interrogated Cruz for over four hours, deploying “ruses” to suggest they had far more evidence against her than they actually did. Cruz repeatedly equivocated and changed her story. However, the detectives were ultimately able to extract incriminating statements from her.
Cruz implicated “Miguel” (her stepbrother, or, more accurately, the son of the girlfriend of Cruz’s mother) and Marco (Cruz’s younger brother) as the perpetrators of the burglaries at the Padilla and Mills residences. Cruz described her own involvement as simply driving Miguel and Marco to a spot near West High School and then picking them up an hour and a half later. She denied knowing that Miguel and Marco were burgling the houses or that she was actively assisting them.
Cruz was more forthcoming later in the interrogation. She said Miguel would case houses to burgle, and, after identifying target houses, would enlist Marco and ask Cruz for a ride. She admitted she knew Miguel and Marco planned to commit the burglaries the detectives were talking about and that she drove them out there. Cruz did not go inside any house herself but waited outside in the car; she waited because she wanted to make sure Marco, her younger brother, was okay. Miguel and Marco came out carrying bags and Cruz drove them away.
Miguel and Marco had promised to repay Cruz by buying her gas, which they did with a stolen credit card. Cruz also admitted she unsuccessfully tried to purchase clothing worth approximately $150 to $200 at a Walmart and withdraw money from an ATM, using some of the stolen cards.
Cruz’s Trial Testimony
Cruz testified in her own defense. She said that around 1:00 a.m. on April 20, 2015, she gave Miguel and Marco a ride to a friend’s house near West High School. Thereafter, she returned home and went to sleep. When she woke up the next morning, Miguel and Marco were back home too. Cruz testified she found the miscellaneous credit cards in a bag in her front yard; she stashed them in her car as she was worried that Miguel and Marco might misuse them.
Regarding her police interrogation, Cruz said she wanted it over with so she told the detectives what they wanted to hear. She said she was “coming down” from a methamphetamine high, had a dry mouth, and did not have access to water. She tried to eat an orange from her lunch sack in lieu of drinking water, but the detectives told her to put it away.
During her testimony, Cruz admitted she had pleaded guilty to a charge of residential burglary in 2014, but insisted she took the deal without understanding its full implications because she wanted to go home.
Evidence of Uncharged Offense
The prosecution introduced, pursuant to Evidence Code section 1101, subdivision (b), evidence of the prior burglary that Cruz pleaded to in 2014. The evidence showed that a residence was broken into around midnight on January 4, 2014, and expensive jewelry was stolen. A subsequent police investigation revealed that a number of boards had been removed from the fence on one side of the burgled house, and a window on the same side of the house was broken. In the area between the broken window and the damaged fence, several pieces of jewelry were lying on the ground. The jury was told that Cruz was charged with committing this particular burglary and pled guilty to the charge.
DISCUSSION
I. Admission of Evidence of the Prior Burglary
At trial, the prosecution’s theory was that Cruz was guilty of both charged counts of residential burglary as an aider and abettor. The prosecution’s theory relied on evidence of Cruz’s admission to police that she drove Miguel and Marco to and from the targeted houses and was aware of their plan to burgle the houses.
The prosecutor sought to admit evidence of Cruz’s involvement in, and conviction for, the prior residential burglary from 2014. Although Cruz was the direct perpetrator of the prior burglary, rather than an aider and abettor, the prior burglary like the instant ones, occurred in the late night or early morning hours, at a residence, and resulted in the theft of the homeowner’s valuables. In light of the basic similarity of the prior offense and the charged offenses, the prosecutor argued evidence of the prior burglary was admissible “to show the defendant’s intent as far as why he was driving [Miguel] and [Marco] to [the burgled] locations.”
The trial court admitted, under Evidence Code section 1101, subdivision (b), evidence of Cruz’s involvement in the prior residential burglary, for the limited purpose of proving Cruz’s intent in driving Miguel and Marco to the Padilla and Mills homes on the night in question. In making its ruling, the court observed that, under Evidence Code section 1101, subdivision (b), “the least degree of similarity” is required for admission of prior acts to show intent. The court further reasoned, “the issue for this jury is whether the … past act can show circumstantially the intent required in the immediate offense.” The court considered the fact that Cruz “arguably was alone in the prior incident” but, in contrast, was alleged to be “the getaway driver” or “an aider and abettor” in the instant case. The court ultimately concluded the evidence was admissible given “the probative value of the past incident … to prove circumstantially that the defendant harbored the specific intent necessary for the jury to find [him] guilty of the [current] allegations.”
Thereafter, during the actual presentation of evidence related to the prior burglary at trial, the court repeatedly cautioned the jury regarding the limited purpose of the evidence. Specifically, the court instructed the jury it could not consider the evidence to infer a “propensity” to commit burglary; rather it could “only consider” the evidence for purposes of evaluating whether Cruz had the “intent necessary to substantiate the allegations that have been filed.”
Cruz now argues the trial court’s admission of evidence related to the prior residential burglary was prejudicial error. We review the trial court’s admission of evidence of uncharged acts or crimes, essentially a determination of relevance, for abuse of discretion. (People v. Harris (2013) 57 Cal.4th 804, 841; People v. Carter (2005) 36 Cal.4th 1114, 1147 (Carter).) We reject Cruz’s contentions.
II. Applicable Law
Evidence Code section 1101 bars admission of evidence of prior bad acts if “‘offered to prove … criminal disposition’” but not if “‘offered to prove a material disputed issue such as motive or intent.’” (People v. King (2010) 183 Cal.App.4th 1281, 1300 (King); see People v. Thompson (1980) 27 Cal.3d 303, 315 (Thompson) [a fact is “material” if it is “actually in dispute”].) More specifically, prior act evidence is admissible when it is logically, naturally, and by reasonable inference, relevant to prove some fact at issue, such as motive, intent, preparation, or identity. (People v. Durham (1969) 70 Cal.2d 171, 186; People v. Daniels (1991) 52 Cal.3d 815, 856 (Daniels) [prior act evidence is properly admitted only when there exists a “clear” connection between the prior act and the ultimate fact in dispute], overruled on other grounds in People v. Rowland (1992) 4 Cal.4th 238, 260.)
When evidence of an uncharged act or offense is offered to prove identity, common plan, or intent, it is admissible only if the uncharged conduct is sufficiently similar to the charged offense to support a rational inference of identity, common plan, or intent. (Carter, supra, 36 Cal.4th at p. 1147.) People v. Ewoldt (1994) 7 Cal.4th 380 (Ewoldt) clarifies that the highest degree of similarity (between the uncharged conduct and the charged offense) is required to prove identity, while “[t]he least degree of similarity … is required in order to prove intent.” (Id. at pp. 402-403; Carter, supra, at pp. 1148-1149.) As to the relevance of such evidence to show intent, Ewoldt explains: “‘[T]he recurrence of a similar result … tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such an act.” (Id. at p. 402.) In short, “[i]n 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.”’” (Ibid.)
Ewoldt cautions that, since “‘“substantial prejudicial effect [is] inherent”’” in evidence of prior uncharged offenses, such evidence is admissible only if it has “‘substantial probative value.’” (Id., supra, 7 Cal.4th at p. 404 (italics in original).) The probative value of evidence of uncharged prior acts depends largely on the similarity of the uncharged act(s) and the charged offenses. (King, supra, 183 Cal.App.4th at p. 1303.) Furthermore, admission of such evidence is subject to “‘other policies limiting admission, such as those contained in Evidence Code section 352.’” (Ewoldt, supra, 7 Cal.4th at p. 404.)
In sum, evidence of an uncharged act or offense is “circumstantial evidence” that, “‘if found to be true, proves a fact from which an inference of another fact may be drawn.’” (Thompson, supra, 27 Cal.3d at p. 315.) Accordingly, the admissibility of such evidence largely depends on (1) the materiality of the fact sought to be proved; (2) the tendency of the uncharged act evidence logically to prove that material fact; and (3) the application of extrinsic rules such as Evidence Code, section 352 to otherwise relevant evidence. (Thompson, supra, 27 Cal.3d at p. 315; Daniels, supra, 52 Cal.3d at p. 856.)
III. Analysis
A direct perpetrator commits the crime of burglary when he or she enters a building with the intent to commit theft. (§ 459; see CALCRIM Nos. 1700, 484; In re Matthew A. (2008) 165 Cal.App.4th 537, 540-541 [“Burglary involves the act of unlawful entry accompanied by the specific intent to commit grand or petit larceny or any felony.”].) As noted above, here the prosecutor argued that Cruz was guilty of both charged counts of burglary because she aided and abetted Miguel and Marco, the direct perpetrators of both burglaries. Accordingly, the jury was instructed that the People were required to prove: (1) the perpetrators committed the crime; (2) the defendant knew that the perpetrators intended to commit the crime; (3) before or during the commission of the crime, the defendant intended to aid and abet the perpetrators in committing the crime; and (4) the defendant’s words or conduct did in fact aid and abet the perpetrators commission of the crime. (See CALCRIM No. 401.) As to the requisite intent for aiding and abetting, the jury was instructed: “Someone aids and abets a crime if he or she knows of the perpetrator’s unlawful purpose and he or she specifically intends to and does, in fact, aid, facilitate, promote, encourage or instigate the perpetrator’s commission of that crime.” Regarding the requisite intent for aiding and abetting a burglary, in particular, the jury was instructed: “To be guilty of burglary as an aider and abettor, the defendant must have known of the perpetrator’s unlawful purpose and must have formed the intent to aid, facilitate, promote, instigate, or encourage commission of the burglary before the perpetrator finally left the structure.” (See CALCRIM No. 1702; People v. Vasquez (1972) 29 Cal.App.3d 81, 87 [“An aider and abettor’s fundamental purpose, motive and intent is to aid and assist the perpetrator in the latter’s commission of the crime.”].)
Here, the evidence of the prior burglary was offered to prove a material fact, specifically, Cruz’s intent when she drove Miguel and Marco to the Padilla and Mills homes. The evidence of the prior burglary was also logically probative on the question of Cruz’s intent in driving Miguel and Marco, given the essential similarity of the prior burglary to the instant burglaries. We recognize that Cruz directly perpetrated the prior burglary (in which she harbored larcenous intent), while, in contrast, she aided and abetted the instant burglaries. (§ 459; see CALCRIM Nos. 1700, 484.) However, an aider and abettor to a specific intent crime shares the specific intent of the perpetrator. (People v. Beeman (1984) 35 Cal.3d 547, 560.) “[A]n aider and abettor will ‘share’ the perpetrator’s specific intent when he or she knows the full extent of the perpetrator’s criminal purpose and gives aid or encouragement with the intent or purpose of facilitating the perpetrator’s commission of the crime.” (Ibid; People v. Montoya (1994) 7 Cal.4th 1027, 1039 [a person aids or abets a crime if, knowing of the perpetrator’s unlawful purpose, he intends, by his act of aid, to commit the offense or facilitate its commission].)
Since the prior burglary and the charged burglaries all occurred at residences, in the late night or early morning hours, and, each time, the homeowners’ valuables were stolen, we conclude Cruz’s commission of the prior burglary reasonably could lead to an inference, at least provisionally, that she intended to aid and abet the commission of the instant burglaries (i.e., knowing the perpetrators’ criminal purpose, she specifically intended to assist them). Accordingly, it was not an abuse of discretion for the trial court to admit evidence of the prior burglary under Evidence Code section 1101, subdivision (b), for the limited purpose of proving Cruz’s intent in driving Miguel and Marco to and from the Padilla and Mills homes on the night in question.
The question of whether the evidence was properly admitted under Evidence Code section 352 is a closer call. A trial court’s decision to admit or exclude evidence under Evidence Code section 352 is reviewed for abuse of discretion. (People v. Clair (1992) 2 Cal.4th 629, 654-655.) Further, the “‘balancing test [under Evidence Code section 352] is necessarily particularistic, depending [not] upon mechanically automatic rules, but upon the trial court’s consideration of the unique facts and issues of each case.’” (People v. Scott (1980) 113 Cal.App.3d 190, 198.) We will reverse only if the court’s ruling was “‘arbitrary, whimsical, or capricious as a matter of law.’” (People v. Branch (2001) 91 Cal.App.4th 274, 282.)
We must examine whether the probative value of the evidence of defendant’s uncharged offense was “‘substantially outweighed by the probability that its admission [would] … create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.’” (Ewoldt, supra, 7 Cal.4th at p. 404; see Evid. Code, § 352.) Here, the question is close not only because of the inherently prejudicial nature of prior crimes evidence, but also because a lot of time was expended, and several witnesses testified, to present evidence of the prior burglary, creating a realistic risk of undue consumption of time, confusing the issues, and misleading the jury. On the other hand, the jury was repeatedly instructed that it could only consider the prior offense evidence to evaluate whether Cruz had the requisite specific intent in the instant case. The jury was further instructed it could not consider this evidence unless the People proved by a preponderance of the evidence that Cruz had actually committed the uncharged offense.
In the final analysis, given the substantial probative value of this evidence on the issue of intent and the relevant limiting instructions, we cannot say the court’s admission of this evidence constituted an abuse of discretion under Evidence Code section 352.
DISPOSITION
The judgment is affirmed.