P. v. Carlsness

Filed 4/17/07 P. v. Carlsness CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Timothy M. Casserly, Judge. Affirmed.

A jury convicted Michael Carlsness of residential burglary (Pen. Code,  459) and attempted burglary (id.,  459, 664). Carlsness admitted to several prior prison terms and felony convictions, and the trial court sentenced Carlsness to nine years in prison.

I

FACTUAL AND PROCEDURAL BACKGROUND

At approximately 2:00 p.m. on a weekday in January 2005, 24-year-old Casey Jankowski was steam cleaning the carpets inside her two-bedroom one-story home in Escondido. Jankowski lived in the house with her mother and their three small dogs. The back door to the house was fitted with a dog door. The front and back door to the house were locked, and a window was open.

During a break from cleaning the carpet Jankowski noticed the front door rattling as if someone was trying to open it. Jankowski looked through the door's peephole and saw Carlsness standing outside. Jankowski did not know Carlsness. Carlsness walked away from the front door and went through a latched side yard gate to the back door of the house. Carlsness tried unsuccessfully to open the back door. Jankowski's three dogs ran out of the dog door and barked at Carlsness.

Carlsness walked back to the front door and tried again to open it. When the front door did not open, Carlsness walked again to the back door. Jankowski addressed Carlsness through the open window, saying "Hey, sir." When he did not respond, she closed and locked the window and called 911.

Carlsness went back and forth between the front door and back door approximately six or seven times trying unsuccessfully to open them. On Carlsness's final trip to the back door, he pulled on one of the dogs as it tried to go into the house through the dog door. Next, Carlsness extended his arm through the dog door, and for about 10 to 20 seconds tried with his extended arm to reach the doorknob and deadbolt lock on the inside of the door.

Carlsness also walked to Jankowski's car that was parked in the driveway. He tried to open the car's passenger door, but it was locked. After that, Carlsness cupped his hands over his face to try to look inside the car.

A police officer arrived at the house and saw Carlsness coming into the front yard through the gate from the backyard. When Carlsness saw the police officer his demeanor changed, and he started to walk rapidly in the opposite direction from the officer. The police officer ordered Carlsness to the ground, threatening that the police dog would bite Carlsness if he did not comply. Carlsness asked, "What for? What for?" and then complied after the police officer repeated the command approximately three times.

After Carlsness was handcuffed, Jankowski opened the front door. Carlsness looked at Jankowski and said, "Tell them that I live here."

Dr. Clark Smith, a psychiatrist, testified on behalf of the defense. Smith testified that he interviewed Carlsness and reviewed his psychiatric treatment records, which showed a long history of psychiatric disorders. Dr. Smith concluded that Carlsness suffers from schizoaffective disorder, dementia due to brain damage, depression, grand mal seizure disorder, and episodic substance abuse. Testing showed that Carlsness's IQ was in the low 80's, meaning that he was at a low level of intellectual functioning.

Dr. Smith stated that when he interviewed Carlsness, Carlsness appeared to believe that he had entered the home at issue at the invitation of a girl that he encountered in front of the house, and that he sat on the couch and spoke Spanish with the girl. He did not understand why he had been arrested. Dr. Smith stated that Carlsness's statement was consistent with the delusional thinking of schizophrenia.

The prosecution called another psychiatrist, Dr. Jaga Nath Glassman, to testify about his assessment of Carlsness's mental condition.

Dr. Glassman concluded that Carlsness suffered from substance dependency and a "psychosis not otherwise specified," some of which was caused by drug abuse; had a personality disorder; and functioned at a borderline level of intellect.

In its rebuttal case, the prosecution called Michael Bronson, a retired police detective, to testify about a burglary for which Carlsness was arrested in 1996 (the 1996 burglary).^[1] Detective Bronson testified that in December 1996 he was working for the Escondido Police Department conducting surveillance of the strip malls on a specific street. Late one night he noticed a suspect prowling around small businesses with a rod or pry bar in his hand, looking into the windows of each business. He also saw the suspect pacing back and forth in front of an auto parts store and saw him staring into cars. At some point two people walked up to the suspect. For approximately 10 minutes the suspect attempted to pry open the door of the auto parts store. The store's alarm sounded, and the suspect fled. Carlsness was arrested for burglary approximately one minute later across the street from the auto parts store. When Detective Bronson surveyed the scene at the auto parts store, he noted that the double doors to the store had been pried apart, and that through the window of the store a bank deposit bag was visible on the counter.

The jury convicted Carlsness of residential burglary, and the attempted burglary of Jankowski's car.

II

DISCUSSION

A. The Trial Court Did Not Abuse Its Discretion by Admitting Evidence of the 1996 Burglary

We first consider Carlsness's argument that the trial court erred in admitting evidence of the 1996 burglary over defense counsel's objection.

The offense of burglary requires that the defendant enter a residence, vehicle or other enumerated structure "with intent to commit grand or petit larceny or any felony." (Pen. Code,  459, italics added.) Carlsness argues that the 1996 burglary "was not relevant to prove [his] intent" in attempting to enter Jankowski's house and car, and thus was not admissible.

Evidence Code section 1101, subdivision (b) allows the admission of evidence "that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as . . . intent . . .) other than his or her disposition to commit such an act." Evidence Code section 210 states: " 'Relevant evidence' means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." "The test of relevance is whether the evidence tends 'logically, naturally, and by reasonable inference' to establish material facts such as identity, intent, or motive." (People v. Garceau (1993) 6 Cal.4th 140, 177.) "Evidence is relevant when no matter how weak it is it tends to prove a disputed issue." (In re Romeo C. (1995) 33 Cal.App.4th 1838, 1843.) " '[T]he trial court is vested with wide discretion in determining relevance.' " (People v. Sanders (1995) 11 Cal.4th 475, 512.)

When the prosecution seeks to admit uncharged criminal conduct to show the defendants' intent in committing the charged offense, "[i]n order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant ' "probably harbor[ed] the same intent in each instance." [Citations.]' " (People v. Ewoldt (1994) 7 Cal.4th 380, 402 (Ewoldt).) "The incidents need not have the greater degree of similarity required to show the existence of a common plan or the shared distinctive pattern required to show identity." (People v. Demetrulias (2006) 39 Cal.4th 1, 15.) " '[W]hen the other crime evidence is admitted solely for its relevance to the defendant's intent, a distinctive similarity between the two crimes is often unnecessary for the other crime to be relevant.' " (People v. Delgado (1992) 10 Cal.App.4th 1837, 1845.)

The policy behind the admission of past uncharged crimes is " 'that if a person acts similarly in similar situations, he probably harbors the same intent in each instance' [citations], and that such prior conduct may be relevant circumstantial evidence of the actor's most recent intent. The inference to be drawn is not that the actor is disposed to commit such acts; instead, the inference to be drawn is that, in light of the first event, the actor, at the time of the second event, must have had the intent attributed to him by the prosecution." (People v. Robbins (1988) 45 Cal.3d 867, 879.)

We review "for abuse of discretion a decision on admissibility that turns on the relevance of the evidence in question." (People v. Waidla (2000) 22 Cal.4th 690, 717.) Similarly, we apply an abuse of discretion standard of review to a trial court's implicit determination that "the charged and uncharged offenses were sufficiently similar to support an inference that defendant harbored the same intent . . . in each instance." (People v. Carter (2005) 36 Cal.4th 1114, 1149 (Carter).)

Applying these standards, we conclude that the trial court did not abuse its discretion in admitting evidence of the 1996 burglary. The 1996 burglary and the instant offense both involved sufficient similarities "to support the inference that the defendant ' "probably harbor[ed] the same intent in each instance." [Citations.]' " (Ewoldt, supra, 7 Cal.4th at p. 402.) Specifically, both incidents involved Carlsness spending a substantial amount of time trying to open up the locked doors of a building. Both incidents also involved Carlsness peering through the windows of parked cars. Further, in both instances, Carlsness tried to flee when his actions were discovered by law enforcement  in this case when the police arrived and during the 1996 burglary when the alarm sounded. The trial court was within its discretion to conclude that the two incidents were similar enough that the evidence of the 1996 burglary would be relevant to show that Carlsness formed an intent to steal from Jankowski's house.

Carlsness also argues that even if the 1996 burglary "had some marginal relevance, its admission was barred by [Evidence Code] section 352" because its prejudicial nature outweighed its probative value.

We apply an abuse of discretion standard of review to the trial court's decision on whether evidence of uncharged crimes should be excluded under Evidence Code section 352. (People v. Kipp (1998) 18 Cal.4th 349, 371.)

We conclude that the trial court did not abuse its discretion under Evidence Code section 352. As discussed above, evidence regarding the 1996 burglary had probative value on the issue of intent. We cannot say, as a matter of law, that this probative value was "substantially outweighed" by the danger of undue prejudice. (Evid. Code,  1101.) Moreover, the jury was specifically instructed that it should not consider the 1996 burglary to show that Carlsness has a bad character or is predisposed to commit crime. We must assume, absent contrary evidence, that the jury followed the trial court's instructions. (People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17.) The limiting instruction thus served to reduce any prejudice resulting from evidence of the 1996 burglary. (See Carter, supra,36 Cal.4th at p. 1151 [as part of its analysis of whether evidence of prior criminal acts should have been excluded under Evidence Code section 352, the court observed that the jury instructions "conveyed that evidence relating to those events could not be considered to prove defendant's bad character or criminal disposition"].)^[2]

B. Substantial Evidence Supports the Verdict

We next examine Carlsness's argument that insufficient evidence supports the jury's verdict.

Carlsness argues that the evidence does not support a finding that he entered Jankowski's house and attempted to enter her car "with intent to commit grand or petit larceny or any felony," as required by Penal Code section 459. Carlsness argues that the record contains no evidence indicating why he was trying to enter the house and the car. He further argues that his bizarre behavior of going back and forth numerous times between the front and back door, and his persistence in trying to enter the house in the middle of the day when the house was occupied, is inconsistent with an inference that he had an intent to steal.

" 'In reviewing a challenge to the sufficiency of the evidence . . . , we review the entire record in the light most favorable to the judgment to determine whether it discloses substantial evidence  that is, evidence that is reasonable, credible, and of solid value  from which a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt.' [Citation.] 'The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' " (People v. Ramirez (2006) 39 Cal.4th 398, 464.) Reversal is not warranted "unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' " (People v. Bolin (1998) 18 Cal.4th 297, 331.) "[I]t is not within our province to reweigh the evidence or redetermine issues of credibility." (People v. Martinez (2003) 113 Cal.App.4th 400, 412.)

We may find substantial evidence of an intent to commit theft based on rational inferences and circumstantial evidence. "Commonly, . . . intent [to commit a felony or theft] must be inferred from the circumstances of the charged offense or offenses. [Citation.] ' "While the existence of the specific intent charged at the time of entering a building is necessary to constitute burglary in order to sustain a conviction, this element is rarely susceptible of direct proof and must usually be inferred from all of the facts and circumstances disclosed by the evidence." [Citation.]' " (People v. Holt (1997) 15 Cal.4th 619, 669-670, italics added.)

Having reviewed the evidence presented at trial, we conclude that the jury could reasonably infer that Carlsness attempted to enter Jankowski's house and car with the intent to steal or commit another felony. Significantly, "[b]urglarious intent can reasonably be inferred from an unlawful entry alone." (People v. Jordan (1962) 204 Cal.App.2d 782, 786; see also People v. Hinson (1969) 269 Cal.App.2d 573, 578 [solely from evidence of an "unlawful and forcible entry" into a store, "burglarious intent could be reasonably and justifiably inferred"].) Further, the jury heard evidence of the 1996 burglary, which because of its similarity to the instant case could reasonably add to an inference that Carlsness was trying to enter Jankowski's house and car to steal something rather than for a lawful reason. The fact that Carlsness's demeanor changed and he walked in the opposite direction when he saw the police officer also supports a reasonable inference that Carlsness was aware of the culpability of his conduct because he had been attempting to enter the house to commit theft or another felony. (See People v. Frye (1985) 166 Cal.App.3d 941, 947 [the defendant's "sudden flight" upon being discovered in a vacant house supported an inference that the defendant entered the house with the intent to steal].) Specifically with respect to Jankowski's car, because Carlsness tried to open the car door and cupped his hand over his face to look inside the car, the jury could reasonably have inferred that Carlsness was looking for something valuable inside the car.

Based on all of this evidence, the jury could reasonably conclude that despite the bizarre nature of his behavior, Carlsness was trying to enter the house and car with the intent to commit a theft or another felony.

DISPOSITION

The judgment is affirmed.

IRION, J.

WE CONCUR:

HUFFMAN, Acting P. J.

McDONALD, J.

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^[1] During motions in limine, the trial court ruled that evidence of the 1996 burglary could not be admitted in the prosecution's case-in-chief, but stated that it would reconsider the ruling, and likely would allow the evidence if the defense put Carlness's intent at issue in its portion of the case. After Dr. Smith testified about Carlness's mental condition, the trial court revisited the issue and ruled that the evidence of the 1996 burglary could be admitted because "at this point the probative value does outweigh any prejudice on the issue of intent."

^[2] Having concluded that the trial court did not abuse its discretion in admitting the challenged evidence, we also conclude that admission of that evidence did not violate Carlsness's constitutional rights. (People v. Kraft (2000) 23 Cal.4th 978, 1035; People v. Cudjo (1993) 6 Cal.4th 585, 611.)