P. v. Dye

Filed 4/14/06 P. v. Dye CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

CROSS-APPEALS from a judgment of the Superior Court of San Diego County, William D. Mudd, Judge. Affirmed in part, reversed in part and remanded for resentencing.

Thomas P. Dye appeals from a judgment convicting him of multiple theft crimes committed against Emily Phillips and Lilia Antillon, for which he received a total prison term of 23 years. Dye challenges the convictions relating to Phillips, contending the trial court violated his rights to a speedy trial and due process and his rights under the Interstate Agreement on Detainers (the Agreement; Pen. Code, § 1389; all undesignated statutory references are to this code). He challenges the entire judgment, contending the trial court: (1) abused its discretion in consolidating the crimes against both victims for trial; (2) erred by admitting uncharged acts evidence; and (3) committed judicial misconduct. He also asserts that (1) the burglary convictions as to Antillon should be reversed because he had an absolute right to enter the premises; (2) the judgment should be reversed because he received ineffective assistance of counsel; and (3) the cumulative effect of all errors warrants reversal. We disagree and affirm the judgment.

The People appeal from the judgment, contending that the trial court erroneously found that Dye's Illinois attempted robbery conviction did not qualify as a serious felony prior and a strike prior. We agree. Accordingly, we will reverse the findings and remand for resentencing. This renders moot the People's contention that the trial court abused its discretion when it struck two of Dye's prior strikes.

FACTUAL AND PROCEDURAL BACKGROUND

1. Emily Phillips -- counts 8 (residential burglary), 9, 10 (grand theft of personal

property and an automobile) and 11 (unlawful taking and driving a vehicle)

In February 1999, Dye introduced himself to Phillips under a false name. Within a short period of time, Dye moved into her home and offered to help reduce her substantial credit card debt. Phillips gave Dye $4,700, believing his statement that he would give the money to an attorney friend to reduce her credit debt. Dye dropped Phillips off where she worked and borrowed her car to meet the attorney, but then failed to pick Phillips up as previously arranged. When Phillips returned home, she found that all of Dye's belongings were gone, as well as her car, social security card, passport, credit cards, driver's license, money and other items. Phillips immediately called the police and reported the theft.

The following month, Dye responded to an ad for a roommate in Denver, Colorado using the name Tommy Phillips. The female landlord contacted the police after Dye questioned her about her financial affairs. When the police arrived, they ran the license plate number of the vehicle that Dye had been seen driving and learned that it was registered to Phillips and had been reported stolen.

In August 1999, the People filed a felony complaint against Dye in San Diego for the crimes committed against Phillips (SCD147314). After the police arrested Dye in Denver, he bailed himself out of jail and then jumped bail.

2. Facts Relating to the Speedy Trial Motion

On November 24, 1999, while in custody in Illinois on local charges, Dye was arraigned on a fugitive complaint regarding his crimes against Phillips, demanded a trial and refused to waive extradition to California. In December 1999, Dye pleaded guilty to the Illinois charges and was sentenced to prison. On January 5, 2000, the San Diego District Attorney's Office lodged a detainer against Dye seeking his temporary custody under the Agreement. (§ 1389, Art. IV(a).) Dye refused to waive extradition and refused to sign the "request for final disposition of charges" form that would have allowed his transfer to California.

Between January and June 2000, the San Diego District Attorney's Office telephoned the Illinois Department of Corrections to check on the status of its transfer request, but corrections personnel initially indicated that they were not sure where Dye was being housed and then advised that he had been transferred to a prison in South Dakota to serve the rest of his Illinois prison term. In July 2000, the San Diego District Attorney's Office learned that the Illinois Department of Corrections had lost the request for temporary custody and was looking for it. During this time period, the San Diego District Attorney's Office made more telephone calls to the Illinois Department of Corrections to check on Dye's status. In August 2000, the San Diego District Attorney's Office received a letter from the Governor of Illinois indicating he "authorized" the transfer. The San Diego District Attorney asserted, however, that the letter did not give San Diego the authority to take custody of Dye and it was not the equivalent of an offer of temporary custody under the Agreement.

Dye was unsure whether he or his attorney had requested a hearing under Cuyler v. Adams (1981) 449 U.S. 433 (Cuyler) to oppose the proposed transfer; nonetheless, as of September 2000, the Illinois Department of Corrections knew that such a hearing was to be held, but did not know whether it would occur in Illinois or South Dakota. Four months later, the San Diego District Attorney's Office learned that South Dakota would hold the Cuyler hearing once it obtained the necessary papers.

In March 2001, Dye again refused to waive extradition, claiming prison personnel only provided him with a blank form without the required information regarding what charges he was facing in California. During this time period, Dye learned that he had a right to demand trial in California under the Agreement and filed a "federal enjoinment action." Dye also testified that he hired an attorney to contact officials in South Dakota and Illinois to ascertain if the necessary paperwork had come in under Article IV of the Agreement, discovered there was no detainer against him and did not learn about the detainer until just before his scheduled August 2001 release date.

The Cuyler hearing was held in October 2001 and Dye appealed the resulting transfer order. On November 13, 2001, the Illinois and South Dakota Departments of Corrections issued offers "to deliver temporary custody" of Dye. On December 6, 2001, the San Diego District Attorney's Office accepted temporary custody and Dye appeared in San Diego the following week to answer the charges against him relating to Phillips.

The Honorable Ronald L. Styn held a hearing on Dye's motion to dismiss and issued a ten-page order denying the motion. The trial court assumed that Dye had been subject to continuous restraint since November 1999, and that his right to a speedy trial triggered at that point. After evaluating the factors articulated in Barker v. Wingo (1972) 407 U.S. 514 (Barker), the trial court concluded that the delay was presumptively prejudicial, but was justifiable insofar as California was concerned because the negligence of Illinois could not be imputed to the California prosecutor. It also concluded that Dye's actions reduced the weight that should be given to his request for a speedy trial and that he failed to show actual prejudice. After Dye's reconsideration motion was denied, he waived statutory time for trial and time under the Agreement process.

3. Lilia Antillon -- counts 1 (residential burglary), 2 (grant theft of personal

property), 3 & 5 (forgery of checks), 4 & 6 (burglary), and 7 (failure to appear

while on bail)

In November 2002, while out on bail on the Phillips matter, Dye began dating Antillon in San Diego and, at some point, she moved enough clothing into Dye's room at the Island Inn to enable her to stay there for a couple of days at a time. As the relationship progressed, Dye started asking her lots of questions regarding her finances. In December 2002 and January 2003, Dye presented checks written from Antillon's account to the Island Inn for rent; the checks were written for more than the amount due and he received a total of $300 cash back. One day, Dye disappeared after stealing Antillon's driver's license and credit card. Although Antillon initially believed that Dye had also stolen her truck because he had the keys, she later found the truck but discovered that an expensive gold chain inside it was missing. After Dye's disappearance, Antillon discovered the earlier theft and forgery of her checks.

On October 30, 2003, the People filed an information against Dye in San Diego for his crimes against Antillon (SCD172719). In August 2003, Chicago police arrested Dye for another offense and sent him back to San Diego for prosecution.

4. Trial and Sentencing

Dye ultimately appeared in court in San Diego on September 8, 2003, and in July 2004, the prosecution filed an amended information joining both cases after the trial court granted its consolidation motion. The consolidated information alleged that Dye suffered numerous probation denial priors, five prison priors, three serious felony priors and three strikes. Dye waived his right to a jury and a bench trial commenced on July 20, 2004.

The trial court found Dye not guilty of the residential burglary charge as to Antillon and its associated while on bail allegation (count 1), but guilty of all other charges (counts 2-11) and as applicable, all associated allegations that he had committed the crimes while out on bail (counts 2-7). The trial court also found he had suffered five prison priors, two serious felony priors and two strikes. The court then dismissed the two strikes under section 1385 and sentenced Dye to a total of 25 years in prison. Although the abstract of judgment lists the total prison terms as 23 years, the inconsistency is moot in light of our remand for resentencing.

DISCUSSION

I. Dye's Appeal

A. Right to a Speedy Trial and Rights Under the Agreement

1. Dye's Constitutional Rights to a Speedy Trial and Due Process

Were Not Violated

Dye contends that the trial court erred in denying his motion to dismiss counts 8 through 11, the charges connected with the crimes he allegedly committed against Phillips in 1999. He argues that the prosecution's negligence in extraditing him and the extreme prejudice that he suffered because of the delay in prosecuting these counts violated his right to due process and federal and state constitutional rights to a speedy trial. We disagree.

The federal and state Constitutions guarantee a criminal defendant the right to a speedy trial. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15.) A speedy trial is necessary to prevent oppressive pretrial incarceration, minimize an accused individual's anxiety and concern, and limit impairment of the defense. (Barker, supra, 407 U.S. at p. 532.) Once the federal right to speedy trial attaches, courts evaluate the conduct of the prosecution and the defendant under a balancing test, reviewing the length of the delay, the reason for the delay, the defendant's assertion of the right, and any prejudice to the defendant. (Id. at p. 530; Doggett v. United States (1992) 505 U.S. 647, 651 (Doggett).)

The length of the delay functions as a gatekeeper and we examine the other factors only if a delay is long enough to be presumptively prejudicial. (Barker, supra, 407 U.S. at p. 530; Doggett, supra, 505 U.S. at pp. 651-652.) Delays approaching one year generally satisfy the presumptive prejudice requirement. (Doggett, supra, 505 U.S. at p. 652, fn. 1.) Here, the trial court assumed that Dye's right to a speedy trial attached in November 1999 when, while in custody in Illinois, he was arraigned on a fugitive complaint regarding this case and demanded a trial. For purposes of analysis, we also assume that Dye's right to a speedy trial attached at this point and examine the remaining Barker factors in light of the approximately two-year delay between his demand for a trial and appearance in San Diego.

As to the reasons for the delay, there is nothing in the record suggesting that the prosecution deliberately failed to extradite Dye in order to hamper his defense and any delay engendered by negligence is weighed "less heavily" against the government. (Barker, supra, 407 U.S. at p. 531.) In reviewing whether the prosecution was negligent, we must examine the procedure it used to transfer Dye to California. Here, the prosecution lodged a detainer against Dye seeking his temporary custody under Article IV(a) of the Agreement in January 2000. The Agreement, codified by section 1389, establishes procedures for resolution of one jurisdiction's outstanding criminal charges against another jurisdiction's prisoner. (§ 1389, Art. I.) Once a detainer is lodged, the warden of the correctional institution in which the prisoner is incarcerated is required to inform the prisoner of all outstanding detainers and his or her right to request final disposition of the criminal charges underlying those detainers. (§ 1389, Art. III(c).) If the prisoner requests final disposition, then the receiving state is required to bring the prisoner to trial within 180 days of the request or dismissal will result, unless the receiving state moves for a continuance. (§ 1389, Art. III(a).)

If the prisoner does not initiate procedures leading to transfer and disposition of the charges under Article III, the prosecutor may do so under Article IV and trial must then be commenced within 120 days of the arrival of the prisoner in the receiving state. (§ 1389, Art. IV(c).) Prisoners also have the right to a judicial hearing in which they can bring a limited challenge to the receiving state's custody request. (Cuyler, supra, 449 U.S. at p. 449.)

The detainer lodged by the prosecution properly noticed its source and the charges against Dye. Dye acknowledged that in January 2000 and March 2001, he received forms whereby he could make a request for final disposition, but complained that he never received any information about the charges against him and refused to sign the forms for that reason. Assuming the veracity of Dye's assertions, this would have resulted only from negligence by the Illinois and South Dakota officials in failing to inform him of the contents of the detainer. However, negligent compliance with the Agreement by out of state officials generally does not preclude prosecution in another state. (Fex v. Michigan (1993) 507 U.S. 43, 51-52.)

Nonetheless, Illinois and South Dakota officials were negligent in other respects. In 2000, the San Diego District Attorney's Office telephoned the Illinois Department of Corrections on numerous occasions to check on the status of Dye's transfer request, but the out of state personnel initially did not know Dye's location, lost the request for temporary custody and did not know where the Cuyler hearing would be held. In 2001, the San Diego District Attorney's Office made over 20 phone calls to South Dakota or Illinois checking on the status of its transfer request. Inexplicably, the Cuyler hearing was not held until October 2001. After Dye appealed the resulting transfer order, the Illinois and South Dakota Departments of Corrections issued offers "to deliver temporary custody" of Dye the following month. Within four weeks, the San Diego District Attorney's Office had accepted temporary custody and Dye appeared in San Diego to answer the charges.

The issue is whether the negligence of these out of state officials can be imputed to California for the purposes of analyzing whether the prosecution caused the delay. In People v. Hill (1994) 37 Cal.3d 491, 497 (Hill), our high court concluded that the risk of negligence by the California Department of Corrections should be borne by the prosecution and not the defendant for speedy trial purposes. Hill, however, did not address the instant situation where another state, over which the prosecutor had no control, caused the delay. Significantly, the Sixth Amendment right to a speedy trial requires a state to make a diligent, good faith effort to bring a prisoner serving a prison term in another state to trial. (Smith v. Hooey (1969) 393 U.S. 374, 383.) Thus, the primary question is whether the prosecution here made a diligent, good faith effort to transfer Dye to California for trial.

After considering all the evidence, the trial court specifically found that the prosecution acted in good faith and with due diligence and this implied finding of no negligence is reviewed with deference. (Doggett, supra, 505 U.S. at p. 652.) Dye complains that the prosecution did nothing besides making telephone calls and sending e‑mails to enforce compliance with the Agreement and failed to use other means to secure his transfer. The specific purpose of the Agreement, however, is to expedite proceedings to secure speedy trials for defendants facing charges in one jurisdiction and already incarcerated in another. (§ 1389, Art. I.) Illinois did not know Dye's location for a period of time and Dye was incarcerated in both Illinois and South Dakota. Given these circumstances, Dye does not explain how a writ of habeas corpus ad prosequendum, governor's warrant, federal action or an executive agreement to obtain custody would have expedited his transfer.

We must also examine Dye's desire for a speedy trial in light of his other conduct. (United States v. Loud Hawk (1986) 474 U.S. 302, 314.) Notably, after Dye's arraignment on the fugitive warrant and request for trial in November 1999, he never requested a prompt disposition of the California charges against him. Dye's failure to assert his right to a speedy trial indicates he might have believed that the delay was to his benefit, in which case he cannot now complain that his right to a speedy trial has been violated. (Barker, supra, 407 U.S. at pp. 521, 528-529, 531-532.) Had Dye truly been interested in a speedy trial on the California charges, he could have asserted his rights under Article III of the Agreement to start the 180-day clock for dismissal of his charges or waived the Cuyler hearing.

Critically, over a year passed from the time that the Illinois Department of Corrections knew about the Cuyler hearing and the commencement of the hearing. Dye admitted that in March or April 2001, he learned of his right to demand trial in California under the Agreement and he knew "a lot" about the Agreement process when he refused to waive extradition in March 2001. Dye also admitted that he refused to waive extradition or his rights under the Agreement, refused to be transferred to California and appealed the results of the Cuyler hearing. Although Dye claimed he never attempted to delay his transfer to California and was unsure whether he or his attorney had requested the Cuyler hearing, the trial court disbelieved these assertions, concluding that Dye had insisted on the hearing and that his actions contributed to the delay of his prosecution. The trial court is in the best position to judge the credibility of the evidence and we give considerable deference to its findings. (See Doggett, supra, 505 U.S. at p. 653.) Moreover, Dye's actions after his return to San Diego (jumping bail and then committing crimes against Antillon) strongly show that proceeding to trial was the last thing he wanted.

Where, as here, the prosecution proceeded with reasonable diligence, the defendant must show specific prejudice for his speedy trial claim to succeed. (Doggett, supra, 505 U.S. at p. 656; United States v. Aguirre (9th Cir. 1993) 994 F.2d 1454, 1457, cert. denied, 510 U.S. 1029.) Prejudice is assessed in the light of the interests that the speedy trial right is designed to protect, including: (1) preventing oppressive pretrial incarceration; (2) minimizing anxiety and concern of the accused; and (3) limiting the possibility that the defense will be impaired. (Barker, supra, 407 U.S. at p. 532.) Of these subfactors, "the most serious is the last, because the inability of a defendant [to] adequately . . . prepare his case skews the fairness of the entire system." (Ibid.)

Dye does not argue that he suffered anxiety and concern regarding the unresolved California charges and it is important to note that he was serving an Illinois sentence for all but the last three months of his incarceration before his transfer to San Diego. Although Dye was not released in August 2001 as he had expected because of the detainer against him, he does not argue that the additional three months of incarceration was oppressive. Dye asserts that the delay impaired his defense because his own ability to recall facts that occurred in 1999 was hampered and because he could not locate witnesses who could have testified that he did not return to Phillips's home on the day in question and that Phillips had financial troubles. Phillips, however, admitted she was a student with little or no money and $20,000 in credit card debt and testified that she gave Dye her money and allowed him to use her car for the sole purpose of reducing her debt. Although Dye complains that the passage of time prevented him from locating witnesses, he does not explain how these witnesses were critical to his defense against these charges.

In summary, the conduct of Illinois and South Dakota personnel is insufficient to tip the scales in Dye's favor given the diligent actions of the prosecution in pursuing Dye under the Agreement. Dye also failed to assert a speedy trial right until after his transfer to San Diego, undertook actions that delayed any possibility of trial and suffered little or no prejudice resulting from the delay. After balancing all four factors, we conclude the trial court did not err in holding that Dye was not denied a speedy trial under the federal constitution.

Although Dye also claims a violation of his state constitutional right to a speedy trial, he must show actual prejudice to succeed in this assertion. (People v. Roybal (1998) 19 Cal.4th 481, 513.) Because he has not done so, his claim of a state constitutional violation fails. Finally, Dye claims a denial of his federal right to due process. The Due Process Clause of the Fifth Amendment would require dismissal of an indictment upon a showing that "pre-indictment delay . . . caused substantial prejudice to [an accused's] rights to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused." (United States v. Marion (1971) 404 U.S. 307, 324.) Here, Dye does not allege pre-indictment delay and even if he had, he has not shown any prejudice.

2. Dye's Rights Under the Agreement Were Not Violated

In January 2000, the San Diego District Attorney's Office lodged a detainer against Dye seeking his temporary custody under Article IV, subdivision (a) of the Agreement. Under Article IV, the governor of the sending state had 30 days to "disapprove the request for temporary custody" (§ 1389, Art. IV(a)); however, delivery of the prisoner "may not be opposed or denied on the ground that the executive authority of the sending state has not affirmatively consented to or ordered such delivery." (§ 1389, Art. IV(d).) Once the prisoner arrives in the receiving state, trial must be started within 120 days unless the trial court grants a continuance. (§ 1389, Art. IV(c).) If the receiving state fails to accept temporary custody of the prisoner, or if the matter is not tried within the period provided in Article IV, the charges must be dismissed with prejudice. (§ 1389, Art. V(c).)

Dye contends that his rights under the Agreement were violated because the letter signed by the Illinois governor in July 2000 "approv[ing] the temporary transfer" to California started the 120-day time period to commence trial. We disagree.

Although the Agreement gave the governor of Illinois the ability to disapprove a request for temporary custody, there is no requirement that the governor "approve" a request for temporary custody and such approval is not required. (§ 1389, Art. IV(a) & (d).) Thus, there was no violation of the Agreement because the governor's letter did not start the time period in which to try Dye in California. Even assuming, without deciding, the validity of Dye's argument, it ignores the fact that he was entitled to a Cuyler hearing to object to his involuntary transfer to California (Cuyler, supra, 449 U.S. at p. 449) and at the time he asserts the 120-day period expired, his Cuyler hearing was still pending and he had not waived his right to this hearing.

B. The Trial Court Did Not Abuse Its Discretion in Consolidating the Cases

The trial court granted the prosecution's motion to consolidate the charges relating to Phillips and Antillon, because they involved the same class of crimes, Dye used the same plan, the evidence would be cross-admissible and any prejudice to Dye would be minimal. Dye contends the trial court abused its discretion in granting the motion because the evidence was not cross-admissible, the case involving Antillon was significantly weaker than the case involving Phillips and it is likely that the court found him guilty on the Antillon charges based on the Phillips evidence. We disagree.

To promote judicial efficiency, counts may be consolidated in a single accusatory pleading as long as they are either "connected together in their commission" or "of the same class[.]" (§ 954; People v. Ochoa (1998) 19 Cal.4th 353, 409.) We review the trial court's ruling on a motion to consolidate for abuse of discretion and when the statutory requirements for joinder are met, a defendant must make a clear showing of prejudice to establish that the trial court abused its discretion in consolidating the offenses. (People v. Maury (2003) 30 Cal.4th 342, 395.) To determine whether a defendant was prejudiced by joinder, we "examine whether evidence on each of the joined charges would have been admissible, under Evidence Code section 1101, in separate trials on the others. If so, any inference of prejudice is dispelled. [Citation.]" (People v. Kraft (2000) 23 Cal.4th 978, 1030.)

Here, the offenses were of the same class and, as defendant concedes, of a similar nature. Because the statutory requirements for joinder are satisfied, Dye can establish error only on a clear showing of prejudice. (People v. Maury, supra, 30 Cal.4th at p. 395.) Dye failed to make this showing. The offenses meet the cross-admissibility test because evidence of uncharged crimes is admissible to prove an element or material fact of the charged offense, such as identity, motive, knowledge, absence of mistake or accident, or intent if the charged and uncharged crimes are sufficiently similar to support a rational inference of the element or fact. (Evid. Code, § 1101, subd. (b); People v. Kipp (1998) 18 Cal.4th 349, 369.)

Contrary to Dye's argument, there is nothing in the record suggesting that the trial court found him guilty of the Antillon charges because of their joinder with the Phillips charges. Dye's argument that the court likely made up its mind on the Antillon charges after hearing the Phillips evidence amounts to nothing but speculation. Moreover, the trial court found Dye not guilty of the residential burglary count as to Antillon, indicating that it carried out its duty to weigh the evidence on each count separately.

C. Admission of Uncharged Acts Evidence

1. Facts

During trial, the prosecution presented evidence of the following uncharged acts involving similar conduct by Dye to prove his criminal intent, common scheme, plan and motive as to Phillips and Antillon:

In 1990, Sharon Halperin met Dye in a nightclub in Chicago, Illinois where he introduced himself under a false name. Halperin agreed to go out with Dye the next day and she gave him her telephone number, but not her address. The following day, Dye appeared at her house with flowers and asked her to dinner. After Halperin agreed, Dye suggested that she go upstairs to change her clothes, leaving her purse on a table. When Halperin returned, Dye had disappeared along with the flowers, some of her money and jewelry.

In October 1995, Mary Ann Ryan and her friend Debbie met Dye in a Chicago restaurant where he introduced himself as "Tommy O'Shay." Dye accompanied the women home, offering to move some furniture for them. At some point, Debbie asked Dye to leave after she found him looking through Ryan's wallet. The following morning, Ryan discovered that her car key and car were missing.

Later that month, Nikki Main met Dye, who went by the name of "Tommy O'Shay," after he answered an ad for a roommate in Chicago. Dye moved in and became involved with Main's female roommate. On three separate occasions, Main found money missing from her dresser and later discovered that her cell phone was missing, but did not realize that Dye had taken the items. After Main had given Dye her bank card PIN number to process a transaction for her, she discovered that her card was missing, $550 had been taken from her account and Dye had disappeared.

In January 2003, Katherine Tomoko Speaks met Dye in a restaurant in Seattle where he worked as a waiter and used the name "David Nelsen." They became romantically involved and Dye visited her condominium from time to time. While dating Dye, Speaks discovered money missing from her bank account, which Dye admitted taking after she confronted him about it. At some point, Dye visited the apartment of Speaks's landlord, Lennie Bironne, where Bironne had left several credit cards on a table. The following day, Bironne discovered that one of his credit cards was missing and had been used the previous night. After Bironne informed Speaks of the incident, Dye disappeared with some of her belongings.

In July 2003, Dye introduced himself to Susan Baddour as "Tommy Taglia" when they met at a bar in Seattle, Washington. After dating Baddour for about a week, Dye took her car under the pretense that he would get it repaired for her; however, he did not return and she never heard from him again.

2. Analysis

Dye asserts that the trial court erred in allowing the uncharged acts evidence because he did not dispute intent and the uncharged acts were dissimilar to the charged cases. We find his contentions unpersuasive.

Evidence that a defendant committed a crime other than that currently charged is inadmissible to prove he or she has a bad character or a disposition to commit the charged crime. (Evid. Code, § 1101, subd. (a).) However, such evidence is admissible if it is relevant to prove, among other things, intent, knowledge, identity, or the existence of a common design or plan. (Evid. Code, § 1101, subd. (b).) We review the trial court's determination under Evidence Code section 1101 for abuse of discretion and such an abuse is shown when its ruling exceeds the bounds of reason. (People v. Kipp, supra, 18 Cal.4th at pp. 369, 371.)

The prosecution argued below that the uncharged acts evidence was admissible because one of the primary issues was Dye's intent in terms of the residential burglary charges and the other theft related crimes. Although Dye argues that he did not dispute intent as to either case, his not guilty plea placed in issue all elements of the charged offenses (People v. Rowland (1992) 4 Cal.4th 238, 260), including the specific intent element of the theft crimes. (§§ 459, 487, subds. (a) & (d).) In addition, he did not take any action to narrow the prosecution's burden of proof and his closing argument focused on the specific intent to steal element of the residential burglary count as to Phillips.

While relevancy requires a showing of some similarity between the prior misconduct and the current charge, the least degree of similarity is required for an act to be relevant to prove intent. (People v. Ewoldt (1994) 7 Cal.4th 380, 402, superseded by statute on other grounds as stated in People v. Britt (2002) 104 Cal.App.4th 500, 505.) "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." [Citations.]' [Citation.]" (People v. Ewoldt, supra, 7 Cal.4th at p. 402.)

Here, the uncharged acts were sufficiently similar to the charged crimes and they were reasonably admitted as tending to show intent and common plan. The incidents involving Halperin, Ryan, and Bironne revealed that Dye gained the trust of his victims so he could obtain access to their homes and tended to show that he harbored the intent to steal when he entered the homes. With Main, Speaks and Baddour, Dye became romantically involved with the victim or another individual and again used his position of trust to gain access to banking information or a vehicle. Similarly here, Dye used his position of trust with Phillips and Antillon to obtain access to their homes, personal property, money or checks. We conclude that the trial court did not abuse its discretion in admitting this evidence.

A trial court has the discretion to "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.) Dye complains that the trial court failed to properly balance the probative value against the unduly prejudicial effect of the uncharged crimes evidence because it failed to mention these factors in its oral ruling on the prosecution's in limine motion to admit this evidence. Our review of the record reveals that Dye objected to the uncharged crimes evidence solely on Evidence Code section 1101 grounds, specifically that the uncharged crimes were dissimilar and unnecessary to prove any element of the charged crimes. Dye did not challenge the evidence as unduly prejudicial under Evidence Code section 352 and he may not now complain that the evidence was inadmissible on this ground. (People v. Mickey (1991) 54 Cal.3d 612, 689; Evid. Code, § 353.)

To the extent that considering the prejudicial effect of uncharged crimes evidence is inherent in evaluating whether such evidence should be admitted under Evidence Code section 1101 (People v. Ewoldt, supra, 7 Cal.4th at p. 404), Dye's argument ignores the fact that he waived a jury trial. In a bench trial, factors such as the inflammatory nature of the crime, confusion of the issues, and the consumption of time involved in addressing the prior offenses are less significant than they would have been in a jury trial.

Dye also argues that the trial court improperly allowed the prosecutor to argue the uncharged crimes evidence for propensity purposes; however, he fails to explain how the prosecutor's argument prejudiced him. Dye cannot claim error based on this improper argument because the trial court is presumed to know and follow the law that such evidence may not be used to prove propensity. (People v. Mosley (1997) 53 Cal.App.4th 489, 496; Evid. Code, § 1101, subd. (a).) In fact, in ruling on the in limine motion to admit the uncharged crimes evidence, the trial court considered the arguments of counsel and allowed only some of the evidence proffered by the prosecution on the ground it was relevant to show plan, motive, intent or scheme.

Finally, Dye argues that the trial court's comments show it improperly used the uncharged acts evidence for propensity purposes in finding him guilty. However, the portions of the record cited by Dye do not support this conclusion. The trial court noted that Phillips was an "exceptionally" credible witness and, in deciding the residential burglary charge as to her, commented that all it needed to do was look at how Dye operated, ingratiating himself with his victims and working his way into their lives through distortion and fraud. To the extent this comment reflects the uncharged crimes evidence, it appears that the trial court properly considered the evidence for purposes of showing a common plan, motive or scheme.

After making findings on all counts, the court summarized the guilt phase by stating Dye would scout out environments looking for items to steal and, after noting Speaks's testimony that Dye did not believe he was guilty of anything, stated: "That typifies you, Mr. Dye. You're a crook, a thief, a very sophisticated, but you're a crook." These comments, however, do not affirmatively demonstrate that the court misunderstood the proper use of the uncharged crimes evidence, particularly in light of the presumption that it knew and followed the law.

D. Dye's Burglary Convictions Were Supported by Substantial Evidence

The trial court found Dye guilty of two counts of burglary (counts 4 & 6), concluding that he entered the Island Inn with the intent to commit a theft when he passed the two checks from Antillon's checking account. Dye contends these convictions must be reversed because he was a resident of the Island Inn and had an absolute right to enter the premises on both occasions. We disagree.

In People v. Gauze (1975) 15 Cal.3d 709, 714, the defendant was convicted of burglary after he entered his own apartment with the intent to assault his roommate. The court concluded the defendant could not be guilty of burglarizing his own home, even if he entered with a felonious intent, because burglary requires an entry that invades a possessory right in a building. The court explained that the defendant's right to enter his own apartment "could not be conditioned on the consent of [his] roommates" and contrasted the situation with that of a store thief who has an implied invitation to enter for legal purposes only. (Id. at pp. 713-714.) Thus, a person who enters a building with a felonious purpose, even with the owner's consent, may be found guilty of burglary as long as the person entering does not have an unconditional possessory right to enter. (People v. Frye (1998) 18 Cal.4th 894, 954; In re Andrew I. (1991) 230 Cal.App.3d 572, 579.)

Here, it is undisputed that Dye had a right to enter the Island Inn for legal purposes because he rented a room in the building; however, there was no evidence that he had an unconditional possessory right to enter. Stated differently, the Island Inn could have refused his admission or ejected him from its premises when he entered with the intent to commit a felony. (People v. Gauze, supra, 15 Cal.3d at p. 713, citing People v. Barry (1892) 94 Cal. 481, 483.) If this were not the case, no one could ever be prosecuted for burglarizing a business during store hours. (People v. Felix (1994) 23 Cal.App.4th 1385, 1397; People v. Salemme (1992) 2 Cal.App.4th 775, 777-778 [burglary occurred when a salesman entered a private home intending to sell fraudulent securities].) Moreover, the testimony of the Island Inn clerks, in conjunction with the evidence that Dye had taken Antillon's checks without her permission and forged her signature, was sufficient to support the trial court's implied conclusion that Dye entered the Island Inn with an unlawful intent.

E. There Was No Judicial Misconduct, Ineffective Assistance of Counsel

1. Alleged Judicial Misconduct and Ineffective Assistance of Counsel

Dye contends that the trial court committed judicial misconduct by rushing the case to trial despite his requests for a continuance and that the court's comments reveal it found him guilty before trial. He also argues that his failure to object does not constitute a waiver of the issue because an objection would not have cured the prejudice because the court was not likely to admonish itself.

As Dye tacitly concedes, he neither objected to the trial court's comments as demonstrating bias nor moved to disqualify the judge and thus waived the judicial misconduct issue on appeal. (People v. Scott (1997) 15 Cal.4th 1188, 1207.) We reject his contention that any objection would have been futile because the actions and comments that he complains about all occurred before he decided to waive jury.

Despite waiver of this issue, we review the propriety of the court's comments because Dye contends that his counsel was ineffective for failing to object to the trial court's comments or file a challenge for cause. To establish ineffective assistance of counsel, Dye must show, by a preponderance of the evidence, that his counsel's representation fell below the standard of a competent advocate and a reasonable probability exists that, but for counsel's errors, the result would have been different. (People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) A "reasonable probability" is a probability sufficient to undermine confidence in the outcome. (People v. Bolin (1998) 18 Cal.4th 297, 333.) In determining whether counsel's performance was deficient, we exercise deferential scrutiny and "assess the reasonableness of counsel's acts or omissions . . . under the circumstances as they stood at the time that counsel acted or failed to act." (People v. Ledesma, supra, 43 Cal.3d at p. 216.) We presume that counsel's conduct fell within the wide range of reasonable professional assistance and tactical errors are generally not deemed reversible. (People v. Maury, supra, 30 Cal.4th at p. 389.) Our review is limited to the record on appeal and we must reject a claim of ineffective assistance if the record sheds no light on why counsel acted or failed to act in the manner challenged unless (1) counsel was asked for and failed to provide a satisfactory explanation or (2) there simply could be no satisfactory explanation. (People v. Burgener (2003) 29 Cal.4th 833, 880.)

The record reveals that the trial court made its comments during a Marsden hearing (People v. Marsden (1970) 2 Cal.3d 118) while addressing the prosecution's plea offer or in ruling on Dye's request to continue the trial. Turning to the Marsden hearing, the trial court noted that Dye made certain comments designed to "get rid" of him as the trial judge, but Dye denied the assertion, stated he had talked to his counsel and wanted to be in Judge Mudd's courtroom. When Dye asserted that he wanted to plead guilty, but did not want to plead guilty on the entire "sheet" because he had been overcharged, the trial court noted that Dye rejected the prosecution's plea bargain of 23 years, that he would be found guilty of jumping bail and, for the counts against Phillips, would "go[] down on big time" facing 75 years to life on just three counts and if convicted, he would "never see the light of day." When Dye complained that the court was finding him "guilty" without hearing any evidence, the trial court explained that it read the statement of facts, looked at Dye's extensive record and was "trying to get [him] to understand that even if [he] miraculously avoided every single charge except the bail jumping," which Dye admitted, he was looking at 25 years to life on that count alone.

At a hearing about a month before the scheduled trial date, the court and counsel discussed the prosecution's plea bargain. The court noted that the proposed plea bargain would be a "gift" given Dye's three strikes, the Antillon charges and the fact he was "dead in the water" on the Phillips charges. The court emphasized that Dye was facing a life sentence and wanted defense counsel to discuss the reality of the situation with Dye, but would not continue the trial date. Defense counsel then noted that it was up to Dye to make a decision on the plea bargain and he would need to live with his decision. The trial court agreed that it was Dye's decision, but that the "the day of reckoning has finally come" and a letter that Dye recently sent to the court was another example of him trying to manipulate the system. Before confirming the trial date, the court verified that defense counsel would be ready for trial if Dye refused the plea bargain and then noted that it had "run out of . . . patience with Mr. Dye" and there would be no choice but to proceed to trial if Dye rejected the offer.

Reviewed in context, the trial court's comments did not evidence prejudgment of the evidence; rather, they were clearly meant to impress on Dye the fact that he faced a very long prison sentence if he refused the plea bargain and was found guilty on even some of the charges against him. Accordingly, there was no basis for defense counsel to object to the court's comments or seek to disqualify the trial court and we reject Dye's contention that counsel was ineffective for failing to do so.

Similarly, the trial court's refusal to continue the trial date did not evidence bias against Dye and provided no basis for its disqualification. In ruling on Dye's motion to continue the trial in April 2004, the court repeatedly stated that the case would be going to trial but it was not a "rush to judgment" because one case was five-years old and Dye had then absconded and committed the crimes alleged in the second case. At a May 2004 hearing, the trial court noted that eleven attorneys had represented Dye, he had absconded while on bail and fought extradition, five judges had worked on the case and the court intended to get the matter resolved. Given the lengthy history of this action, the trial court's desire to resolve the matter is not surprising and defense counsel could not seek to disqualify the court based on its explanation as to why it denied Dye's request to continue the trial date.

Dye also claims he was denied his right to effective assistance of counsel because counsel: (1) waived jury; (2) failed to file written opposition against the motions for consolidation and admission of uncharged acts evidence; (3) did not prepare for trial; (4) failed to adequately cross-examine Antillon; (5) did not investigate potential exculpatory witnesses; and (6) gave only a one-page closing argument. We reject Dye's assertions because the record does not reflect the reasons for counsel's actions or the tactics were reasonable or caused him no prejudice.

At a hearing on July 16, 2004, Dye noted that he was a "little scared" to request a bench trial in light of some of the court's past comments. In response, the trial court stated that it had discussed the reality of the situation with him, the appellate court would receive the full record of those discussions and resolve any issue of bias or prejudice. Dye acknowledged that the decision to waive jury was his to make and he had discussed the matter with counsel before presenting the court with the signed jury waiver. Before accepting the waiver, the trial court questioned Dye about it and confirmed that he had talked to counsel and had no questions about the waiver. The record fails to demonstrate that Dye waived his right to a jury trial based on misadvice of counsel and his claim of ineffective assistance must be rejected.

In arguing for a continuance, Dye's prior counsel noted that the prosecution's motions were "no-brainers." After noting how old the case was, the trial court stated that defense counsel was "very capable [and] competent" and could immediately respond to the motions. Despite its comments, the trial court moved the hearing date a couple of weeks and told defense counsel that oral responses were "perfectly acceptable." On the date set for the hearing on the motions, defense counsel sought to withdraw based on a conflict. After granting the motion to withdraw, the trial court informed new counsel (noted to be the fourteenth or fifteenth counsel for Dye) that it would accept oral responses to the motions. Defense counsel later orally argued that consolidation would be unduly prejudicial and the uncharged acts evidence should not be admitted. Although the trial court granted the consolidation motion, it did not admit all of the uncharged acts evidence.

The record gives us no reason to believe that the trial court would have ruled differently had defense counsel filed written opposition or made longer arguments at the hearing and we reject Dye's suggestion that counsel was ineffective. Moreover, we examined the rulings regarding consolidation and the admission of uncharged acts evidence and found no error. Thus, Dye has not established that he was prejudiced by counsel's failure to file written opposition. (Supra, at parts IB & C.)

Dye contends that counsel did not adequately prepare for trial because he failed to investigate potential exculpatory witnesses in the Antillon case, specifically individuals that would testify as to her bipolar attacks and lying and another individual that saw Dye and Antillon together nine weeks after he allegedly disappeared. Defense counsel indicated that the individuals Dye had listed could not assist the defense because they were not present during the time period in question. Regardless, defense counsel indicated he would have an investigator interview the witnesses on the Antillon case. On this record, there is no reasonable probability that the omission of these unnamed witnesses adversely affected the trial outcome.

Finally, Dye contends that defense counsel failed to adequately cross-examine Antillon because he did not include any questions regarding a "jilted lover defense" and gave only a one-page closing argument. Decisions regarding the scope of cross-examination and closing argument are tactical in nature and where, as here, the record sheds no light regarding the reason for counsel's actions a claim of ineffective assistance must be rejected as we will not "second-guess" defense counsel's tactical decisions. (People v. Stewart (2004) 33 Cal.4th 425, 459.)

II. The People's Appeal

A. The Trial Court Erroneously Found that Dye's Attempted Robbery Conviction

Did Not Qualify as a Strike

In 1983, Illinois charged Dye with attempted robbery, to wit, that he "attempted to take property from the person and presence of [an individual] intending to permanently deprive [the individual] of the use of the property." Dye later pleaded guilty to the attempted robbery. The trial court concluded that the record of this prior conviction did not show that the property was taken by means of force or fear and found that the offense did not qualify as a serious felony under California law. Based on its conclusion, the trial court found the second serious felony prior and second strike allegations to be not true.

The People appeal, contending that use of force or fear is not a necessary element of the crime of attempted robbery and under the least adjudicated elements test, the Illinois conviction qualified as a strike and a serious felony prior. We agree and reverse the trial court's not true findings.

Attempted robbery is a prior serious strike enhancement under section 667, subdivisions (b) through (i). (§ 1192.7, subd. (c)(19), (c)(39).) Under the "Three Strikes law" (§§ 667, subds. (b)-(i), 1170.12), an out-of-state prior conviction will support a strike enhancement if the conviction is for an offense that includes all the elements of a California crime supporting that enhancement. (§ 667, subd. (d)(2).) Where, as here, the record does not disclose the facts of the prior offense, a presumption arises that the prior conviction was for the least offense punishable under the law of the convicting state. (People v. Mumm (2002) 98 Cal.App.4th 812, 816.) If, upon analyzing the elements of the predicate offense, we determine that the prior out-of-state conviction could have been based on acts not specified in section 1192.7, subdivision (c) as a serious felony, "then, as a matter of the sufficiency of the evidence, the least offense punishable was not a serious felony, and the prior conviction may not be used to impose a sentence pursuant to the Three Strikes law." (People v. Cortez (1999) 73 Cal.App.4th 276, 280.)

In California, "robbery" is defined as "the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (§ 211.) Fear may be inferred from the circumstances in which the crime is committed or property is taken (People v. Shadden (2001) 93 Cal.App.4th 164, 170) and may include the fear of an unlawful injury to the person robbed or the fear of an immediate and unlawful injury to the person or property of anyone in the company of the person robbed at the time of the robbery. (§ 212.) Robbery in Illinois is similarly defined: "A person commits robbery when he or she takes property . . . from the person or presence of another by the use of force or by threatening the imminent use of force." (720 Ill. Comp. Stat. 5/18-1(a).)

Conviction for the attempted commission of a crime in California requires "a specific intent to commit the crime, and a direct but ineffectual act done towards its commission." (§ 21a.) The act need only have some significance, even if slight, in facilitating commission of the intended offense (People v. Memro (1985) 38 Cal.3d 658, 698), but the actual commission of an element of the underlying crime, other than formation of intent to do it, is not necessary. (People v. Dillon (1983) 34 Cal.3d 441, 453 (Dillon).) As our high court explained: "As long as the trier of fact is convinced beyond a reasonable doubt that the defendant intended to commit a crime and was in the process of attempting to carry out that intent, no public purpose is served by drawing fine distinctions between those who have managed to satisfy some element of the offense and those who have not." (Ibid.)

To commit an attempted robbery, a defendant must have the specific intent to rob and commit a direct unequivocal overt act in furtherance of that robbery. (Dillon, supra, 34 Cal.3d at p. 452.) Thus, although proving that the defendant actually used force or fear is not necessary for the crime of attempted robbery, the defendant must actually have the intent to rob, as contrasted with the intent to steal, because theft is a lesser included offense of robbery without the additional element of a taking by force or fear. (People v. Bradford (1997) 14 Cal.4th 1005, 1055-1056.) For example, in Dillon the defendant, along with others, approached a closely guarded marijuana field armed and disguised and intending to steal some of the marijuana crop. (Dillon, supra, 34 Cal.3d at pp. 451-452.) While the defendant and his cohorts were standing outside the field discussing their next move, a guard came up behind them carrying a gun and the defendant proceeded to shoot him. (Id. at p. 452.) The defendant was guilty of attempted robbery because his action of going to a heavily guarded field while armed and disguised was an unequivocal act toward the commission of a robbery, even though the defendant never took any marijuana or even entered the field. (Id. at pp. 455-456.) In contrast, the defendant would be guilty of attempted theft had he gone to the field alone and unarmed, intending to take some marijuana after all the guards had left, but was scared off by a noise before entering the field.

Review of Illinois authority shows that Illinois law is in accord. In Illinois, an attempt is defined as the doing of any act that constitutes a substantial step toward the commission of a specific offense with the intent to commit that offense. (720 Ill. Comp. Stat. 5/8-4.) To sustain a conviction for attempted robbery in Illinois, "the evidence must show a substantial step toward the taking of property from the person or presence of another by the use of force or the threat of imminent use of force and an intent toward that end. [Citation.] The use of force or the threat of the imminent use of force is an essential element in the crimes of robbery and attempt robbery. It is the element that differentiates robbery from theft. [Citation]" (People v. Williams (1976) 42 Ill.App.3d 134, 138.) If anything, Illinois law regarding attempted robbery is more stringent than California law, with attempted robbery in Illinois requiring force or threatening the imminent