Filed 10/10/17 P. v. Pearson CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

A jury convicted defendant Oscar Pearson of second degree vehicle burglary (Pen. Code, §§ 459, 460, subd. (b))[1] and resisting a peace officer (§ 148). Defendant raises a single issue on appeal—that the trial court erred in admitting evidence of a prior vehicle burglary conviction. We affirm.

Background

We recite only the evidence pertinent to the issue on appeal.

On November 17, 2014, at approximately midnight, police contacted Andrea Gonzales, where she learned the passenger window of her car had been broken and her neighbor had witnessed someone rifling through the vehicle. Earlier that night, around 11:15 p.m., the neighbor’s dogs alerted him that something was happening outside. When the neighbor looked through his window, he saw defendant and watched him “stick half of his body in through the passenger side window” and rifle through Gonzales’s belongings inside the car. He yelled, “ ‘Hey, leave the car alone,’ ” and defendant took off running. The neighbor then knocked on Gonzales’s door, but when he got no answer he called the police.

Officer Christopher Llamas received a dispatch about an auto burglary and a suspect description of a Black male, 6’1 to 6’3, with a dark jacket, thin, and in his 50’s. Within two minutes of the call, Officer Llamas saw defendant, who matched the description and was wearing a dark blue jacket, dark colored pants, gloves, and a beanie. Officer Llamas pulled his patrol vehicle over and ordered defendant to sit on the curb. As Officer Llamas exited his vehicle, defendant “pretended to sit on the ground, and then he stood up completely and took off in a full sprint” running westbound. Officer Llamas repeatedly yelled “ ‘Stop. Police. Get on the ground,’ ” to no effect. While defendant was running away, he “kept putting his hands into his coat pocket and he was throwing items on the ground,” and Officer Llamas saw defendant discard a flashlight, jewelry, and earbuds. Defendant also threw a screwdriver, a lighter, and an auxiliary cord on the ground.

After about 10 seconds, Officer Llamas caught up to defendant and placed him in a “bearhug style of control hold.” Defendant struck Officer Llamas on the side of his face three times “between his temple and his left eyebrow.” Defendant continued to struggle, coming free of his jacket. At this point, Officer Llamas drew his Taser and fired it. It had little effect and defendant “began rolling around on the ground and attempted to stand back up,” so Officer Llamas pressed the trigger a second time. Again, the strike had no effect, and Officer Llamas jumped on defendant’s back and delivered two “distractionary strikes.” At this point, backup arrived, and officers were able to subdue and handcuff defendant.

Officer Richard Ramos responded to the neighbor’s phone call, spoke with the neighbor and Gonzales for about 15 minutes, and then received word a suspect had been detained. Officer Ramos conducted an in-field show up with the neighbor, who recognized defendant’s face and clothing and identified him as the person he saw going through Gonzales’s car.

Defendant was then placed under arrest.

Officers also took Gonzales to the scene of defendant’s arrest, and she was able to identify some of her belongings, including her earbuds, money, a pack of gum, three lighters, and some medication. She and her neighbor were also able to collect some items by walking along the path defendant took while fleeing.

Following a preliminary hearing, defendant was charged by information with second degree vehicle burglary (§§ 459, 460, subd. (b)—count 1) and resisting an executive officer (§ 69—count 2).

Prior to trial, the People moved to introduce evidence of defendant’s 2002 and 2008 auto burglary convictions, asserting it was relevant to prove absence of mistake, intent, and motive. Defendant objected under Evidence Code section 1101, subdivision (b) and also claimed the evidence was more prejudicial than probative under Evidence Code section 352.

The trial court ruled all three incidents were “very similar” and the two priors were relevant to motive and intent, but it had “to consider [Evidence Code section] 352.” In evaluating admissibility under Evidence Code section 352, the court recognized the priors carried “substantial prejudice,” but decided to allow the 2008 vehicle burglary because of the “similar facts and the probative value and the defendant’s intent as to both the auto burglary and the resisting arrest and the fact that it’s relatively close in time to the current event.” The court also stated it would give a limiting instruction that the evidence could not “be used for propensity evidence.” The court excluded the 2002 incident as too remote and because additional details of the incident tipped the “balance on the [Evidence Code section] 352 scale in favor of exclusion.”

Accordingly, the jury heard testimony from three witnesses about the 2008 conviction. An eyewitness testified that on the afternoon of June 22, 2008, he saw defendant “crouching on the passenger side of the car,” and he “really didn’t know what he was doing until I saw some glass falling.” The witness then saw a nearby police car and told the officer “ ‘[s]omebody just broke into the car,’ ” provided a description of defendant, and indicated the direction in which defendant had run. As the witness followed behind the officer, he saw officers and defendant “struggling on the floor for a little bit, and then they finally were able to get—I guess handcuff him.”

The driver testified that she parked her rental car and locked the doors, but left her purse on the floor of the car. While across the street, she heard a noise and saw “somebody had taken my purse.” She then saw the man running with her handbag, and as he did so, he opened the purse, took out a smaller purse where she kept money and change, and threw the larger purse into the brush. She ran over and grabbed her bag, and then saw police following him around a corner.

Officer Michael Hernandez testified that after the witness flagged him down, approximately 30 seconds passed and then he saw defendant, who was “attempting to discard loose change.” The officer ordered defendant to stop and sit on the curb multiple times. Defendant continued walking away. The officer finally grabbed him by the back of his shirt, and defendant “spun around and pushed away from me.” Officer Hernandez attempted to grab defendant again, and defendant continued to resist. At one point, they ended up on the ground, and Officer Hernandez was able to radio for backup, but defendant got back on his feet and again attempted to walk away. Officer Hernandez continued to order defendant to stop. Eventually, backup arrived and helped secure defendant who continued “to kick . . . [and] resist the officers.” A search of defendant produced a flathead screwdriver, gloves, and a debit card in the victim’s name.

The jury found defendant guilty of second degree vehicle burglary and, as a lesser included offense, misdemeanor resisting a peace officer (§ 148). Citing defendant’s “abysmal history” on probation and his 13 prior felony convictions, the trial court sentenced him to a total term of five years, three to be served in county jail and the remaining two years would be suspended with the remaining two on mandatory supervision.

Discussion

“ ‘ “Evidence of the defendant’s commission of a crime other than one for which the defendant is then being tried is not admissible to show bad character or predisposition to criminality but it may be admitted to prove some material fact at issue, such as motive or identity. (Evid. Code, § 1101.) . . . [Citation.]” [Citation.] In cases in which the prosecution seeks to prove the defendant’s identity as the perpetrator of the charged offense by evidence he had committed uncharged offenses, admissibility “depends upon proof that the charged and uncharged offenses share distinctive common marks sufficient to raise an inference of identity.” ’ [Citation.] A somewhat lesser degree of similarity is required to show a common plan or scheme and still less similarity is required to show intent.” (People v. Roldan (2005) 35 Cal.4th 646, 705, overruled on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; see People v. Fuiava (2012) 53 Cal.4th 622, 667 [“ ‘Evidence that a defendant committed crimes other than those for which he is on trial 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.’ ”].)

“We review for abuse of discretion rulings by the trial court on the admissibility of evidence, including rulings that turn on the relative probativeness and prejudice of the evidence in question.” (People v. Hamilton (2009) 45 Cal.4th 863, 930.)

The trial court ruled evidence of the 2008 auto burglary was relevant to motive and intent. Defendant maintains intent was never at issue, claiming without citation to any case law, that “ntent is conclusively implied by circumstantial evidence if not rebutted.”

As the trial court instructed the jury, the crimes with which defendant was charged required a showing of intent. (CALCRIM No. 1700 [prosecution required to prove defendant entered a locked vehicle with intent to commit theft]; CALCRIM No. 2651 [prosecution required to prove defendant intended to prevent or deter officer from performing his lawful duty].) The prosecution also had the burden of proving every essential element of the crimes beyond a reasonable doubt. (See [i]People v. Daniels (1991) 52 Cal.3d 815, 858 [“defendant offered no concession which limited the issues, so the prosecution had the burden of proving all the elements of the crime”].)

Accordingly, since there was ample similarity between the charged vehicle burglary and the 2008 vehicle burglary, evidence of the latter was admissible under Evidence Code section 1101 to prove intent and motive. In both crimes, defendant shattered the passenger-side windows, he was apprehended with the victims’ property, he had burglary tools (screwdriver) on him, when confronted, he took off running or walked away while trying to dispose of the victims’ property, and when the officers tried to detain and question him, he disobeyed orders and continuously resisted until pinned to the ground by multiple officers.

Nor did the court abuse its discretion under Evidence Code section 352 in concluding the 2008 vehicle burglary was more probative than prejudicial. The court carefully weighed the probative value against the potential for undue prejudice. The court also gave a limiting instruction, emphasizing that the jury was to consider the evidence only as to intent and motive. Moreover, the court excluded evidence of the 2002 vehicle burglary, ruling it was too remote and contained “additional prejudicial information” that would tip the “scale in favor of exclusion.”

Accordingly, the trial court acted well within its discretion in ruling on the admissibility of the prior crimes, disallowing evidence as to one entirely and expressly limiting the relevance of the other. (See People v. Stewart (1985) 171 Cal.App.3d 59, 65 [an abuse of discretion is found only if the court failed to engage in any weighing of factors under Evidence Code section 352 or if the trial court’s ruling exceeded the bounds of reason].)

Disposition

The judgment is affirmed.

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Banke, J.

We concur:

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Margulies, Acting P.J.

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Dondero, J.

A147121, People v. Pearson