P. v. Kegley

Filed 6/22/07 P. v. Kegley CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

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A jury convicted defendant James Albert Kegley of vehicle theft (Veh. Code, 10851, subd. (a)) and receiving stolen property (Pen. Code, 496, subd. (a)). On appeal, he contends the trial court abused its discretion by admitting evidence of two prior vehicle thefts. (Evid. Code, 1101, subd. (b).) We disagree and affirm the judgment.

FACTS

On August 9, 2005, the victim reported his red 1985 Ford Ranger pickup truck had been stolen. The following day, a deputy sheriff stopped defendant, who was driving a red Ford Ranger pickup, for a registration violation. Defendant stated he owned the truck, although he could not produce the registration, any other identifying information for the truck, or a key. Defendant was cited for lack of registration and permitted to leave. Later, on August 10, a sheriffs detective observed defendant standing next to a red, older Ford Ranger while arguing with a woman on the south side of the street. Defendant got into the pickup and drove away. Once advised that the truck had been reported stolen, the detective stopped and arrested defendant. The ignition was covered with black duct tape and therefore was driven with no key in the ignition. Defendant told the detective he had borrowed the truck from Ed Palandross.

At trial, defendants fiance testified she had purchased the truck from Kenny Monaco. She gave Monaco $100 in cash and promised to pay more after the truck passed a smog test, but Monaco died in an automobile accident on August 11, 2005.

Over defense objection, the prosecution introduced evidence of defendants complicity in two earlier auto thefts. On November 1, 2001, Jack Duran, Jr., reported that his black 1987 Toyota 4Runner had been stolen. On November 3, defendant was stopped for a traffic violation while driving the 4Runner. He threw a shaved ignition key from the vehicle that fit the ignition of the stolen 4Runner. Duran had not given defendant permission to drive the 4Runner.

Similarly, on September 28, 2003, Gustus Ficsher reported his blue 1987 Toyota pickup truck had been stolen. On October 8, 2003, defendant was arrested while sitting behind the steering wheel of the stolen pickup with a shaved key in the ignition. Fischer had not given him permission to possess the truck and the shaved key did not belong to him.

DISCUSSION

The focus of the trial was whether defendant knew the truck was stolen. The prosecution introduced the evidence of the two prior thefts to prove knowledge. The defense argued that the crimes were too dissimilar to give rise to a reasonable inference that defendant knew the truck with a duct-taped ignition was stolen because the prior thefts involved shaved keys. In defendants view, the prior crimes evidence was nothing more than proscribed propensity evidence under Evidence Code section 1101, subdivision (b) and substantially more prejudicial than probative under Evidence Code section 352.

Granting the prosecutions in limine motion to admit the evidence, the court explained: Well, it seems to the Court that the significant factor both in the current case and the prior cases is not whether or not he was driving without a key and in this case I think it was a damaged ignition or with an altered case but the fact that he was not using a key that is normally used to drive the vehicle whatever form that is in that seems to be consistent in both the current case and the prior cases. And it seems to me that the evidence of the prior offenses is circumstantial evidence of both his intent and knowledge in this particular case. And I would allow them to be introduced for those purposes. . . . [] . . . I understand that under code section 352 the analysis that I must go through in determining whether or not evidence of the prior conduct is more prejudicial than probative, but weighing both the prejudice to Mr. Kegley and the probative of those prior underlines his prior convictions, I do find that the probative value outweighs the prejudice involved in this case. We review the courts ruling for an abuse of discretion. (People v. Ewoldt (1994) 7 Cal.4th 380, 407-408 (Ewoldt).)

We appreciate the gravity of defendants objection to the admission of prior crimes evidence given the serious risk the jury will be tempted to convict not on the evidence of the charged crime, but based on defendants propensity or disposition to act in accordance with his past misdeeds. Indeed, this is the very evil Evidence Code section 1101, subdivision (b) is designed to preclude. (People v. Thompson (1980) 27 Cal.3d 303, 318.) And it is true that if a trial court violates section 1101, subdivision (b)s proscription, a criminal defendants right to due process under the federal Constitution is implicated. (McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378, 1384-1386.) But such a travesty does not occur if, as here, the trial court does not abuse its discretion in admitting evidence of other crimes to prove intent or knowledge.

Subdivision (a) of section 1101 prohibits admission of evidence of a persons character, including evidence of character in the form of specific instances of uncharged misconduct, to prove the conduct of that person on a specified occasion. Subdivision (b) of section 1101 clarifies, however, that this rule does not prohibit admission of evidence of uncharged misconduct when such evidence is relevant to establish some fact other than the persons character or disposition. (Ewoldt, supra, 7 Cal.4th at p. 393.) 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. (Id. at pp. 402-403.) The degree of similarity required depends on what the uncharged crime is admitted to prove. The least degree of similarity is required to establish relevance on the issue of intent. (Id. at p. 402.) For this purpose, the prior crimes need only be sufficiently similar [to the charged offenses] to support the inference that the defendant probably harbor[ed] the same intent in each instance. [Citations.] (Ibid.)

We agree with the Attorney General that the two prior thefts here met the requisite degree of similarity to prove his knowledge the truck was stolen and his intent to permanently deprive the owner of possession. As the court aptly emphasized, in each case a normal key was not used to operate the stolen vehicle. In the prior thefts, defendant used a shaved key. Although in this case the ignition was taped and no key was needed to operate the vehicle, the fact remains, as the court pointed out, that defendant was not using a key that is normally used to drive the vehicle in each of the three cases. We cannot say the trial court abused its discretion by finding a sufficient similarity given the lower threshold necessary to prove knowledge.

Nor do we find the court abused its discretion by rejecting defendants assertion, reiterated on appeal, that the evidence was substantially more prejudicial than probative. While any evidence of prior crimes is prejudicial in that it taints a defendant by informing the jury of his past transgressions, the court reasonably concluded that the prior thefts were particularly probative of the solitary issue at trial -- defendants knowledge that the truck was stolen. There was no dispute that defendant had committed the prior auto thefts since he had pled guilty to those offenses, and there was no dispute that the truck defendant was driving at the time of his arrest was stolen. Moreover, the court specifically excluded evidence of a high-speed chase that was involved in the 2001 case and restricted the admissibility to the bare facts of the two prior thefts. Thus, the fact that defendant committed each theft with the use of a shaved key and that, in this case, the ignition was taped was offered exclusively to show he knew the truck was stolen. The courts limiting instruction properly minimized the potential prejudice.

DISPOSITION

The judgment is affirmed.

RAYE , J.

We concur:

SCOTLAND, P.J.

ROBIE , J.

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