P. v. Sardinha
Filed 11/12/13
P. v. Sardinha CA2/8
NOT TO BE PUBLISHED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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE,
Plaintiff and Respondent,
v.
Joshua Sardinha,
Defendant and Appellant.
B243935
(Los Angeles County
Super. Ct. No. SA075116)
APPEAL from
a judgment of the Superior Court of
County. Kathryn A. Solorzano,
Judge. Affirmed.
Lenore De Vita, under appointment by the
Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Steven D. Matthews and Timothy M.
Weiner, Deputy Attorneys General, for Plaintiff and Respondent.
__________________________
Defendant
Joshua Sardinha appeals from his conviction of two counts of
counts 1 & 2), two counts of assault (§ 245, subd. (a)(1), (2); counts
3 & 4), and the associated firearm enhancements (§§ 12022.53, subd. (b),
667.5, subd. (c), 1192.7, subd. (c) & 12022.5). Defendant contends the trial court
erroneously admitted evidence of an uncharged crime, and, alternatively, failed
to instruct the jury on the limited permissible use of this evidence. He contends the errors amount to a constitutional
violation of his due process rights by
rendering his trial fundamentally unfair.
Finding no merit in any of defendant’s contentions, we affirm.
FACTUAL
AND PROCEDURAL BACKGROUND
Aram
Arutyunyan testified at trial that on January 23, 2009, he found an
advertisement on Craigslist for a MacBook laptop computer for $2,300. He told his brother, Gamlet, that he wanted
to buy the computer, and asked to borrow $1,300. Gamlet gave Aram the money, and insisted he go
with Aram to make the purchase, because he was concerned that it was “not safe.â€
Aram contacted defendant by email, and
received a text message response that the computer was “available, but it’s not
with me and just wait one day. It’s by my
friend.†The following day, Aram
received a text message from “Derrick†asking if he was still interested in the
laptop. Aram indicated that he was, and defendant
replied that he might have to wait until January 25 to sell the computer. Aram asked defendant to save the computer for
him, and defendant replied, “Okay. I’ll
let you know.†Later that day, defendant
texted that he could sell the computer before 9:00 that evening. Aram told him he had the cash, and they
agreed to meet at defendant’s Culver City apartment on Redwood Boulevard at
9:00 p.m.
Aram
and Gamlet drove to defendant’s apartment complex. Aram got out of the car to meet defendant. Defendant was carrying a dark-colored duffel
bag. Gamlet parked, and he and Aram
walked with defendant toward the apartment building. Defendant then said, “Let’s go [behind the
building], because my kids are sleeping, and it’s in the trunk of my car.†Gamlet became concerned and asked Aram in
Armenian, “You ‑‑ is everything ‑‑ is it cool? We’re going behind the building.†Aram replied, also in Armenian, “Yeah. I talked to him all day today. It’s fine.â€
The
three walked to a parking area behind the apartment complex. Defendant opened the duffel bag, which
contained “fake-ish†Apple boxes. Aram
and Gamlet asked to inspect the laptop, but defendant told them he wanted to
see the money first. Aram handed the
money to defendant, who counted it.
Aram
noticed someone hiding behind a nearby car, and asked defendant “Who you got
behind the car?†Defendant responded,
“Let’s just count really fast and go, because the whole building thinks that I
do drugs, like I’m a trap star,†which is slang for a drug dealer. Aram saw the person behind the car pop up
again, and asked “Why is that guy doing that again?†He told defendant “something’s wrong. Who is spying on us? He is going to rob you, and I’m scared,
because that’s my money.†Defendant
handed the money to Aram, walked around the car and reported that no one was
there. He walked back to Aram and asked
for the money. Aram handed it back to
defendant, and then saw that the person was still behind the car.
After
defendant finished counting the money, he put it in his pocket and pulled out a
semi-automatic handgun, which he held against Aram’s forehead. He told Aram to “get on the f------
floor.†Aram placed his hands behind his
head and said, “Just take the money.
Don’t kill me.†Defendant hit
Aram with the handgun, knocking him to the ground. Defendant and another person began kicking
and punching Aram.
At
least three African-American men ran toward Gamlet. One of them struck him in the right eye with
a handgun. He started bleeding and fell
to the ground, where the men repeatedly punched and kicked him, and rifled
through his pockets. Eventually,
defendant and his cohorts ran away.
Aram
helped Gamlet walk to the car. Gamlet
began driving home, and Aram called their family and the police. When they arrived home, their mother fainted
when she saw Gamlet’s injuries. Friends
took Gamlet to a nearby hospital for treatment.
He was in the emergency room for two days, and the ICU for one
week. Gamlet’s eye socket was broken,
requiring major surgery.
Both
Aram and Gamlet identified defendant in court.
In March 2010, Gamlet also identified defendant in a photographic lineup,
but Aram was unable to do so.
Los
Angeles Police Sergeant Blanca Lopez investigated the case and also testified
at trial. She obtained the call records
for “Derrick’s†phone. Through those
records, she was able to locate Alex Luu, who had contacted defendant through
Craigslist about the purchase of some iPhones, and who told the Sergeant how he
had narrowly escaped harm at defendant’s hands. The prosecution introduced Alex Luu’s
testimony under Evidence Code section 1101, subdivision (b). Luu had identified defendant in a
photographic lineup. Luu also identified
defendant in court.
name="_ftnref1" title="">[1]
Luu
testified that in January 2009, he had responded to a Craigslist posting
advertising Apple iPhones for $425. When he went to meet the seller at a
supermarket parking lot, the seller did not show up, saying he was having car
trouble. On January 24, 2009, Luu
responded to a similar ad that he believed was posted by the same seller. Luu and defendant, who called himself “Derrick,â€
corresponded by text message. Defendant
told Luu to meet him at defendant’s apartment building. Later that day, Luu and a friend of his
arrived to meet defendant, and Luu asked defendant to see the phones. Defendant showed Luu a black duffel bag and
said, “The phones are in here.†When Luu
asked to inspect one of the phones, defendant told Luu to “get out of [the]
car.†Luu felt uncomfortable, so he did
not get out of the car. Defendant told
Luu he was the apartment manager and there were cameras that could see them, so
defendant suggested they should move behind a nearby tree that was “covering
everything.†Luu told defendant he was
wasting his time, and that if defendant did not show him the iPhones, Luu would
leave. When defendant asked Luu for a cigarette,
Luu drove away. Defendant texted Luu to
come back and “Grab these phones.†Luu
offered to pay for defendant’s gas money if defendant would drive to Orange County
with the phones. Defendant replied that
he would get a ride out there, but never contacted Luu again.
The
prosecutor also offered evidence of an uncharged February 22, 2009 robbery. Defendant was not the assailant in that
robbery, but his fingerprint was found on one of the iPhone boxes the assailant
left at the scene. The prosecutor
initially offered the evidence to show a “common plan and/or scheme†based upon
the common elements of the robberies of people responding to Craigslist ads for
Apple products. The court found the
evidence was not necessarily admissible under Evidence Code section 1101,
subdivision (b), but that it was relevant circumstantial evidence that
defendant was involved in these scams because his fingerprint showed he had
been in possession of the duffel bag at some point. The court concluded that all of the robberies
took place within a short distance of each other, and involved a perpetrator with
a duffel bag who lured victims to a location under the ruse that they were selling
Apple products. Defendant objected under
section 352. The trial court overruled
the objection, finding the evidence more probative than prejudicial.
Consequently,
an uncharged victim, Krystle Rae Papa, testified that on February 22,
2009, she and her then-boyfriend Trevor Gentry went to a McDonald’s on Lincoln
Boulevard to purchase iPhones that had been advertised for sale on
Craigslist. A “young guy,†who was not
defendant, approached them. He was
carrying a black backpack, and asked if they were there for the iPhones. The “young guy†suggested that the sale take
place in Papa and Gentry’s car. He got in
the back seat of their car, and asked if they had the money. When Gentry handed over the money, the
perpetrator counted it and then “maced†Gentry’s face. Papa tried to grab the perpetrator’s sweater,
and he sprayed her as well. The
perpetrator got out and ran away, but left the backpack behind. It contained several iPhone boxes, on one of
which the police found defendant’s left middle fingerprint.
Los
Angeles Police Detective Noah Stone interviewed defendant. Defendant admitted to placing “numerous ads
on Craigslist†for the sale of iPhones.
He claimed that he placed the ads for his friend, and received $100 for
each sale. He posted the ads with a
contact phone number, and would answer calls concerning the iPhones, telling
the caller where to meet to buy the phones.
A
defense witness testified she had paid defendant to paint her apartment in New
York, and he was there between January 21, 2009, and January 26, 2009.
DISCUSSION
Defendant
contends the trial court erroneously admitted evidence of the uncharged
February 22 incident. Specifically, he
contends the evidence was irrelevant and prejudicial, and that the trial court
erroneously concluded the evidence was not subject to an Evidence Code section
1101, subdivision (b) analysis.
Alternatively, defendant contends the trial court failed to instruct the
jury on the limited permissible use of this evidence. Defendant claims the errors amount to a
process and fair trial rights.
“As a general rule, evidence the defendant has
committed crimes other than those for which he is on trial is inadmissible to
prove bad character, predisposition to criminality, or the defendant’s conduct
on a specific occasion.†(
Cal.App.4th 587, 607; see also Evid. Code, § 1101, subd. (a) [“evidence of a
person’s character or a trait of his or her character (whether in the form of
an opinion, evidence of reputation, or evidence of specific instances of his or
her conduct) is inadmissible when offered to prove his or her conduct on a
specified occasionâ€].) However, Evidence Code section 1101,
subdivision (b) permits evidence of a defendant’s uncharged misconduct when
relevant to prove “some fact (such as motive, opportunity, intent, preparation,
plan, knowledge, identity, absence of mistake or accident . . . ) other
than his or her disposition to commit such an act.†“ ‘The admissibility of other crimes
evidence depends on (1) the materiality of the facts sought to be proved, (2)
the tendency of the uncharged crimes to prove those facts, and (3) the
existence of any rule or policy requiring exclusion of the evidence.’ [Citation.]â€
(People v. Steele (2002) 27
Cal.4th 1230, 1243.)
Admissibility under Evidence Code section
1101, subdivision (b) is also subject to section 352 analysis. (People
v. Ewoldt (1994) 7 Cal.4th 380, 404 (Ewoldt).) Section 352 gives the trial court 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.†“ ‘The “prejudice†referred to in . . . section
352 applies to evidence which uniquely tends to evoke an emotional bias against
defendant as an individual and which has very little effect on the issues. In applying section 352, “prejudicial†is not
synonymous with “damaging.†’ [Citation.]â€
(People v. Bolin (1998) 18
Cal.4th 297, 320 (Bolin).)
A trial court’s ruling under Evidence Code sections
1101 and 352 is reviewed for abuse of discretion. (People v. Lewis (2001) 25 Cal.4th 610,
637.)
The trial court found that the evidence of the
February 22 incident was probative of defendant’s participation in a scam like
the one for which he was on trial, yet concluded that it “[didn’t] see an [Evidence
Code section] 1101(b) issue.†We
conclude evidence of the February 22 incident was not “generally admissible†as
circumstantial evidence that defendant committed the charged robberies, independent
of section 1101, subdivision (b). The
probative value of the evidence depended on the inference that defendant’s
fingerprint on the empty iPhone box established his participation in the
February 22 crime. Accordingly, the fingerprint was “evidence that [defendant] committed a
crime, civil wrong, or other act†within the meaning of section 1101,
subdivision (b). Other
crimes evidence is not admissible to prove defendant committed the charged
offense, except under limited circumstances requiring a more stringent analysis
than relevance. (§ 1101, subds. (a), (b);
see also Ewoldt, supra, 7 Cal.4th at p. 404 [“Evidence of uncharged offenses ‘is so
prejudicial that its admission requires extremely careful analysis.’ â€].)
Nevertheless, any ruling that is correct in
law will be sustained “ ‘ “regardless of the considerations which may
have moved the trial court to its conclusion.†[Citation.]’ [Citation.]†(People
v. Zapien (1993) 4 Cal.4th 929, 976; see also People v. Jones (2012) 54 Cal.4th 1, 50.) Here, because the prosecution initially
offered the evidence under Evidence Code section 1101, subdivision (b), there
is a full and complete record demonstrating the evidence was admissible to
establish defendant’s identity, as well as a common plan or scheme.
In assessing relevance under Evidence
Code section 1101, subdivision (b), the least degree of similarity between the
uncharged and charged offenses is required to prove intent. (Ewoldt,
supra, 7 Cal.4th at p. 402.) The uncharged misconduct need only be
sufficiently similar to support an inference that the defendant probably had
the same intent on each occasion. (
To prove the existence of a common design or plan, a higher degree of
similarity between the uncharged and charged offenses is required. (Ibid.) “To establish the existence of a common
design or plan, 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.†(
relevant. (Ibid.) “The greatest degree
of similarity is required for evidence of uncharged misconduct to be relevant
to prove identity . . . . ‘The pattern
and characteristics of the crimes must be so unusual and distinctive as to be
like a signature.’ †(
The February 22 incident shared sufficient features
common with the charged offenses to support the inference that they were part
of a common plan in which defendant had a hands-on role, to rob victims by
luring them with phony Craigslist ads and to use violence to immobilize them
while making the getaway. In the
charged and uncharged crimes, victims responded to Craigslist postings
advertising the sale of Apple products.
The crimes occurred within a month of each other, at nearby locations. In each, the perpetrator carried a dark bag
containing “fake-ish†Apple boxes. The
perpetrator did not allow the victims to inspect the products, demanding the
money in advance. After the money was
counted, the perpetrator violently immobilized the victims, and made off with
their money. Just as defendant was aided
in the robbery of the Arutyunyan
brothers by several others, more than one perpetrator was involved in the
February 22 robbery (at least, the accomplice who arranged the transaction and
the assailant who pepper sprayed the victims).
It is immaterial that defendant was not the assailant in the
February 22 incident; defendant’s fingerprint on one of the empty boxes showed
he had touched it at some point before it was put inside the bag, just as he
handled the duffel bag holding the fake Apple boxes involved in the other
crimes. Clearly, defendant handled the decoys in both crimes, having a
pivotal role in the ruse. Given these similarities,
the February 22 incident was highly probative of defendant’s participation in
the charged crimes. (See
424-425.)
Moreover, the evidence was not unduly
prejudicial. The February 22 incident
was significantly less violent than the charged crimes, and defendant did not
take part in the assault on the victims in the February 22 incident. Therefore, the evidence was unlikely to “ ‘evoke
an emotional bias against defendant.’ â€
(Bolin, supra, 18 Cal.4th at p. 320.)
Defendant contends that even if the evidence was
admissible, the jury did not receive a limiting instruction on the permissible
use of the evidence.
name="_ftnref2" title="">[2] Defendant admits that he did not request a
limiting instruction at trial. Generally,
a court is not required to instruct sua sponte on the limited admissibility of
prior crimes evidence. (
1056, 1094.) There is an exception where
the uncharged offense is a dominant part of the evidence against the defendant
and is highly prejudicial and minimally relevant. (Ibid.) The February 22 crime was not a dominant part
of the case. Moreover, as discussed
and was not unduly prejudicial.
Even assuming, arguendo, that the evidence should have
been excluded, any error was necessarily harmless, even in the absence of the
limiting instruction. The erroneous
admission of evidence requires reversal only if it is reasonably probable that defendant
would have obtained a more favorable result had the evidence been
excluded. (Evid. Code, § 353, subd. (b);
People v. Earp (1999) 20 Cal.4th 826,
878; People v. Watson (1956)
46 Cal.2d 818, 836.)
and the February 22 incident was only a small part of the case. Aram, Gamlet, and Luu all identified
defendant in court, and Gamlet and Luu also identified him in a photographic
lineup. Defendant admitted to placing
ads on Craigslist to sell iPhones for a “friend.†It is not reasonably probable that defendant
would have received a more favorable result had the testimony regarding the February
22 incident been excluded.
DISPOSITION
The judgment is affirmed.
GRIMES,
J.
We concur:
BIGELOW, P. J.
RUBIN, J.
Defendant
does not challenge the admission of the uncharged crime against Luu on appeal.
No. 375 directs the jury to consider other crimes evidence only if the People
have proved by a preponderance of the evidence that the defendant committed it
and to consider it only for a specified limited purpose, such as identity,
intent, motive, knowledge, accident, common plan or consent.
