Filed 7/24/17 P. v. Viramontes CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

DREW VIRAMONTES,

Defendant and Appellant.
D070975



(Super. Ct. Nos. SCN355808, SCN339423, SCN339374)

APPEAL from a judgment of the Superior Court of San Diego County, Sim von Kalinowski, Judge. Affirmed.
Alex Kreit, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Tami Falkenstein Hennick, Deputy Attorneys General, for Plaintiff and Respondent.


I.
INTRODUCTION
Drew Viramontes appeals from a judgment of conviction after a jury found him guilty of unlawfully taking or driving a vehicle (Veh. Code, § 10851, subd. (a)) and receiving or withholding a stolen vehicle (Pen. Code, § 496d). On both counts, the jury found true that Viramontes had a prior vehicle theft conviction (Pen. Code, § 666.5, subd. (a)). Viramontes admitted a prior strike conviction.
At the time of the preliminary hearing in this matter, the court revoked Viramontes's probation in two other cases in which he had pled guilty to robbery (case No. SCN339423) and unlawfully taking and driving a vehicle (case No. SCN339374). In the instant case, the court sentenced Viramontes to four years for unlawfully taking or driving a vehicle and stayed a four-year term under Penal Code section 654 for receiving or withholding a stolen vehicle. The court also imposed a one-year term in case No. SCN339423, and an eight-month term in case No. SCN339372, resulting in a total prison sentence of five years eight months.
Viramontes appeals, contending that the trial court abused its discretion by admitting evidence of his prior conviction for unlawfully taking and driving a vehicle because the evidence was not relevant and was highly prejudicial. We conclude that the trial court abused its discretion in admitting the challenged evidence, but that the error was harmless.


II.
FACTUAL AND PROCEDURAL BACKGROUND
Present Offense
On an evening in February 2016, Michael Wittman parked his vehicle in his assigned parking spot at his apartment building. He locked the car and left a key in a hidden compartment inside the vehicle. The next morning, Wittman went to his parking spot and saw that his vehicle was missing. He had not given anyone permission to take his car. Wittman called the Vista Sheriff's Department to report that his vehicle was missing.
Two days later, San Diego Sheriff's Deputy Jared Anderson received a notice to be on the lookout for Wittman's stolen vehicle. Deputy Anderson saw the vehicle, followed it until it turned into a driveway, and called for backup assistance. Deputy Anderson initiated a traffic stop. When Deputy Anderson approached the vehicle, he drew his firearm and observed a male driver, Viramontes, and a female passenger, S. Sanchez, inside the vehicle. After additional deputies arrived at the scene, they detained Viramontes and Sanchez. While a deputy was handcuffing Viramontes, Viramontes spontaneously stated, "She doesn't know the vehicle is stolen." Viramontes was referring to Sanchez.
Deputy Anderson interviewed Viramontes at the sheriff's station. Viramontes stated that he had borrowed the vehicle earlier that day from a friend, Adrian Lopez. According to Viramontes, Lopez had lent the car to him to take Sanchez on a date. While Viramontes and Sanchez were driving around, Viramontes began to question how Lopez had obtained the vehicle because Lopez did not have a job. Viramontes called Lopez to ask him if the vehicle was stolen, and Lopez confirmed that it was. Viramontes informed the deputy that he continued to drive the vehicle after knowing it was stolen because he needed it badly. Viramontes stated that he did not know where Lopez lived and did not have his phone number.
When Deputy Anderson recovered the vehicle, it did not show any signs of forced entry. A factory key was in the ignition.
Prior Offense Evidence
The People moved in limine to admit evidence of Viramontes's 2014 conviction for unlawfully taking and driving a vehicle. The People argued that the evidence was admissible under Evidence Code section 1101, subdivision (b), to show intent because in both the current and 2014 offenses, Viramontes knew that the vehicle was stolen and claimed that he had permission to drive it. Viramontes objected to the admission of the prior offense evidence, arguing that the evidence was not relevant to show intent because the underlying circumstances of the offenses were different. Viramontes further argued that the prejudicial impact of the evidence of the prior offense outweighed any probative value.
The trial court determined that the evidence was admissible under section 1101, subdivision (b), to show intent. The court noted that in both the prior and present offenses, Viramontes claimed that a friend had given him the vehicle. The court explained that the prior conduct was not remote in time, was not more inflammatory than the charges in this case, and was not the type of crime that a jury would find so reprehensible that it could not evaluate the facts objectively. The trial court concluded that the prosecution could present evidence of Viramontes's prior offense through his change of plea form and testimony from an investigating officer regarding the underlying facts of the 2014 offense, to show the similarities in the crimes.
During trial, the prosecutor informed the court that the People were not going to call an officer to testify about Viramontes's prior offense. Instead, the prosecutor stated that the People had elected to proceed by relying only on Viramontes's change of plea form in that case. Ultimately, the court admitted a packet of documents pertaining to Viramontes's 2014 conviction that included the complaint, portions of Viramontes's change of plea form, and court minutes that referred to Viramontes's guilty plea. The packet did not contain information regarding the underlying facts of the 2014 offense.
During closing argument, the prosecutor informed the jury that it would receive a packet concerning Viramontes's prior conviction, including charging documents showing that Viramontes had previously been charged with the same offenses as were charged in this case. The prosecutor went on to tell the jury, "So you actually get to consider the fact that [Viramontes] suffered this prior conviction for the same exact thing in determining whether or not he had the intent and his actions were not a mistake."
The trial court instructed the jury that if the People had proved by a preponderance of the evidence that Viramontes had in fact committed the uncharged offenses, the jury could consider that evidence for the limited purpose of deciding whether he acted with the intent to deprive the owner of possession of the vehicle in this case, and whether his actions were the result of a mistake or accident.
III.
DISCUSSION
Viramontes contends that the trial court abused its discretion under sections 1101 and 352 when it admitted evidence of his 2014 conviction for unlawfully taking and driving a vehicle to show intent because the evidence was not relevant to prove a fact other than his disposition to drive stolen vehicles, and the evidence was unduly prejudicial.
A. The Trial Court Abused Its Discretion by Admitting Propensity Evidence
Section 1101, subdivision (a) limits the admissibility of evidence of a person's past conduct "when offered to prove his or her conduct on a specified occasion." It "generally prohibits the admission of a prior criminal act against a criminal defendant" for the purpose of showing that he or she acted similarly on the occasion in question. (People v. Cole (2004) 33 Cal.4th 1158, 1194.) However, subdivision (b) of the statute provides that evidence of a defendant's prior criminal acts is admissible "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." (§ 1101, subd. (b).)
"Evidence of uncharged crimes is admissible to prove identity, common design or plan, or intent only if the charged and uncharged crimes are sufficiently similar to support a rational inference of identity, common design or plan, or intent." (People v. Kipp (1998) 18 Cal.4th 349, 369.) "The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent." (People v. Ewoldt (1994) 7 Cal.4th 380, 402.) "[T]o 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.]' " (Ibid.)
Even if evidence of a prior offense is relevant to prove a nonpropensity fact under section 1101, "to be admissible such evidence 'must not contravene other policies limiting admission, such as those contained in . . . section 352. [Citations.]' [Citation.]" (People v. Ewoldt, supra, 7 Cal.4th at p. 404.) Section 352 gives the court discretion to exclude otherwise relevant evidence if its probative value is " 'substantially outweighed by the probability that its admission [would] . . . create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.' " (Ibid.) " 'The prejudice which [section 352] is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence.' [Citations.] 'Rather, the statute uses the word in its etymological sense of "prejudging" a person or cause on the basis of extraneous factors.' " (People v. Zapien (1993) 4 Cal.4th 929, 958.)
We review the trial court's rulings on the admissibility of evidence under sections 1101 and 352 for abuse of discretion. (People v. Bryant (2014) 60 Cal.4th 335, 405.)
The trial court concluded that Viramontes's 2014 conviction for unlawfully taking and driving a vehicle was relevant to the issue of intent. The court stated that Viramontes's prior offense was similar to the present case because in both cases, Viramontes drove a stolen vehicle and told law enforcement officers that a friend had given him permission to drive it. In making this ruling, the trial court intended for the prosecution to introduce evidence concerning the similarities of the offenses through the testimony of an investigating officer from the 2014 case. However, in the middle of trial, the prosecutor informed the court that she was not going to call an officer to testify about Viramontes's prior offense. Instead, the prosecutor offered a prior conviction packet for the 2014 offense that contained the complaint, portions of Viramontes's change of plea form, and court minutes that referred to Viramontes's guilty plea. The prior conviction packet did not contain any information about the underlying facts of the crime, including that Viramontes had claimed that a friend gave him permission to drive a vehicle that turned out to have been stolen.
Despite the prosecution's failure to introduce evidence of the specific details of Viramontes's prior vehicle theft offense, the trial court allowed the prosecution to provide the jury with the packet of information showing that Viramontes had previously been convicted of the same crime as alleged in the present case. As the People concede, the only evidence of the prior offense that was given to the jury "contained no facts regarding the prior theft, except that [Viramontes] pled guilty to the crime." Without details about the factual similarities of the uncharged and charged offenses, the prior offense evidence had no probative value on the issue of intent. There was no evidence from which the jury could infer based on the similarities of the crimes that Viramontes " ' "probably harbor[ed] the same intent in each instance." [Citations.]' " (People v. Ewoldt, supra, 7 Cal.4th at p. 402.) Rather, the only probative value of the prior offense evidence was to show that Viramontes had a propensity to unlawfully take and drive vehicles.
The evidence admitted in this case that Viramontes had previously been convicted of unlawfully taking and driving a vehicle is exactly the type of propensity evidence that section 1101 prohibits. The evidence was not "relevant to prove some fact . . . other than [Viramontes's] . . . disposition to commit such an act" (§ 1101, subd. (b)) and created a significant danger that the jury would find him guilty based on his propensity to commit vehicle thefts. The prosecutor compounded the error by failing to present evidence concerning the similarities in charged and uncharged offenses, yet emphasizing to the jury in closing argument that it could "consider the fact that [Viramontes] suffered [a] prior conviction for the same exact thing in determining whether or not he had the intent and his actions were not a mistake."
The Supreme Court has repeatedly stressed that "evidence of uncharged misconduct ' "is so prejudicial that its admission requires extremely careful analysis." ' " (People v. Lewis (2001) 25 Cal.4th 610, 637, quoting People v. Ewoldt, supra, 7 Cal.4th at p. 404; e.g., People v. Medina (1995) 11 Cal.4th 694, 748.) Other crimes evidence "should be received with 'extreme caution,' and if its connection with the crime charged is not clearly perceived, the doubt should be resolved in favor of the accused." (People v. Haston (1968) 69 Cal.2d 233, 244.)
In our view, once the prosecutor informed the trial court that the People did not intend to introduce testimony from an officer about the underlying facts of the prior offense, it was incumbent on the trial court to engage in a careful analysis of the remaining prior offense evidence that the prosecutor sought to introduce. The trial court should have viewed the evidence with extreme caution and determined whether it had probative value on the issue of intent or rather, constituted improper propensity evidence. The trial court did not engage in that analysis and instead simply allowed the prosecutor to provide the jury with the prior conviction packet that contained no details of the prior offense. Absent evidence that Viramontes's prior offense was similar to the current offense to support an inference of intent, the evidence of Viramontes's prior offense had no probative value under section 1101, subdivision (b). The trial court therefore abused its discretion by admitting it.
B. The Error Was Harmless
Viramontes argues that the trial court's erroneous admission of evidence of his prior conviction was not harmless error because the prosecutor invited the jury to engage in propensity reasoning and absent this evidence, the jury could have drawn alternative conclusions about his knowledge and intent.
"[T]he erroneous admission of prior misconduct evidence does not compel reversal unless a result more favorable to the defendant would have been reasonably probable if such evidence were excluded." (People v. Scheer (1998) 68 Cal.App.4th 1009, 1018-1019; see also People v. Watson (1956) 46 Cal.2d 818, 836.)
Although trial court improperly admitted Viramontes's 2014 conviction for unlawfully taking and driving a vehicle and the prosecutor exacerbated the prejudicial impact of the error in her closing argument, we conclude that the error was harmless because there is no reasonable probability that the result of the case would have been different if the trial court had excluded the prior offense evidence. The spontaneous statement that Viramontes made while being handcuffed and his statements during postarrest questioning constitute overwhelming evidence that he knew that the vehicle was stolen and that he intended to deprive the owner of title and possession. (People v. O'Dell (2007) 153 Cal.App.4th 1569, 1574 ["Knowledge that the vehicle was stolen . . . may constitute evidence of the defendant's intent to deprive the owner of title and possession."].)
The prosecution presented evidence that Viramontes spontaneously stated to a sheriff's deputy who was handcuffing him that Sanchez did not know the vehicle was stolen. Further, during his postarrest interview, Viramontes stated that although he knew the vehicle was stolen, he continued to drive it because he needed it to take his girlfriend on a date. Viramontes concedes that "[t]hese statements surely provide sufficient evidence to support the jury's finding of guilt," but argues that the jury could have drawn other conclusions if the evidence of his prior offense had not been admitted. For example, Viramontes contends that the jury could have found that he had a good faith belief that he had the right to drive the vehicle because his friend had allowed him to borrow it, and that he made the spontaneous statement about Sanchez because the deputies made a "hot stop," which would have left anyone in his position with the impression that the car that he had borrowed was stolen.
Given the totality of the evidence in this case, it is not reasonably probable that the jury would have drawn alternative conclusions about Viramontes's postarrest statements and that Viramontes would have thus obtained a more favorable result at trial if the evidence of the prior offense had not been admitted. At the time Viramontes informed sheriff's deputies that Sanchez did not know that the vehicle was stolen, the deputies had not questioned him and had not advised him that they knew the vehicle was stolen. Viramontes's statement was voluntary and spontaneous. There was no evidence indicating that the statement resulted from Deputy Anderson drawing his firearm when he approached the vehicle or from any other aspect of the deputies conducting a high-risk vehicle stop.
Moreover, Viramontes's postarrest interview statements support the jury's conclusion that he knew that the vehicle was stolen. In the version of events that Viramontes conveyed in his postarrest interview, he admitted that he continued to drive the vehicle despite knowing that it was stolen. Further, although Viramontes told Deputy Anderson that a friend had allowed him to borrow the vehicle, Viramontes was unable to provide the friend's address or phone number. Based on this evidence, it is not reasonably probable that the jury would have concluded that Viramontes had a good faith belief that he had the right to drive the vehicle.
Given the state of the evidence, we are convinced that Viramontes would not have obtained a more favorable result if the jury had not heard evidence that Viramontes had previously been convicted of unlawfully taking and driving a vehicle. Thus, the error in admitting evidence of the prior offense was harmless.
IV.
DISPOSITION
The judgment is affirmed.

AARON, J.

WE CONCUR:



HALLER, Acting P. J.



IRION, J.