P. v. Han

Filed 8/31/07 P. v. Han CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

APPEAL from a judgment of the Superior Court of Los Angeles County, George Genesta, Judge. Affirmed.

Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Michael R. Johnsen and Juliet H. Swoboda, Deputy Attorneys General, for Plaintiff and Respondent.

____________________

INTRODUCTION

Defendant Quang Hung Han appeals from a judgment of conviction entered after a jury trial. The jury found defendant guilty of second degree robbery (Pen. Code,  211[1]) and found true a firearm use allegation ( 12022.53, subd. (b)). The trial court found true the allegations defendant suffered a prior serious felony conviction ( 667, subds. (a), (b)-(i), 1170.12) and served three prior prison terms ( 667.5, subd. (b)).

Defendant was sentenced to state prison for 24 years, consisting of six years, double the middle term, on the robbery conviction, plus 10 years for the personal use allegation pursuant to section 12022.53, subdivision (b), with five years added pursuant to section 667, subdivision (a), plus three years, one for each of the three prior prison terms, pursuant to section 667.5, subdivision (b).

On appeal, defendant contends that the trial court erred in admitting evidence of another act to show intent, pursuant to Evidence Code section 1101, subdivision (b). We disagree and affirm the conviction.

FACTS

A. Prosecution Case

Cau Raymond Phan (Phan) was a driver for the Rong Cheng Trading Company in El Monte. On February 21, 2006, at about 5:30 p.m., Phan was in the parking lot when he was approached by defendant, who said he was looking for a person named Tom. Defendant went into the office and told the owner, Zhang Tuan (Tuan), that he was looking for Tom. Defendant was informed that Tom was not working that day.

Phan had unloaded pineapples onto a hand truck and was headed to the company offices to turn in money paid by a customer. Defendant demanded money from Phan, in Vietnamese and in English. Defendant pulled out a gun and made a sliding motion as if cocking the weapon. Phan was scared and opened his wallet. The wallet contained about thirty dollars. Defendant reached into the wallet and took the money.

Tuan saw what appeared to be an argument between defendant and Phan. Tuan directed his manager, Quing Huang (Huang), to find out what was going on. Huang saw defendant give the money from the wallet back to Phan. Defendant grabbed Phans neck and told him to tell people he was borrowing money. Phan told Huang that defendant had a gun. The incident was recorded on the companys video camera. Phan and Huang were both shown a photographic lineup, from which they identified defendant.

On February 21, 2006, Jun Tom Xu (Xu) was on vacation in China from his job at Rong Cheng Trading Company. He knew defendant, but he had never borrowed money from defendant and they were not friends.

B. Evidence Code section 1101, subdivision (b) Testimony

On March 9, 2006, Yong Fang Li (Li) received a phone call from his roommate that someone was at his home and wanted to talk to him. Li went home, and defendant asked him for $500. Li had never seen defendant before and did not know him. Thereafter, defendant called Lis cell phone and demanded money over the phone. Lis friend had given the cell phone number to defendant.

On March 10, 2006, defendant asked Li to meet with him at a restaurant. After dinner, Li and defendant walked to defendants car. At the car, defendant showed Li two guns and asked Li for $500. Li did not have the money. Li reported the matter to the police. On March 24, 2006, defendant called Li and asked him to meet him at the same restaurant. At the restaurant, defendant demanded $3,000. Li gave defendant $300 in prerecorded bills. Defendant was arrested and searched by the police, and the money was found on his person.

C. Defense Case

On February 21, 2006, defendant went to the trading company to ask Xu for a loan. They had worked together about six years ago and saw each other occasionally. This relationship led defendant to believe that he might obtain a loan from Xu. After Phan told him that he didnt know Xu, defendant went to the office. Defendant was told that if it was a personal matter, he should seek Xu at home.

As defendant was leaving the business, he again saw Phan. He stopped and asked Phan if he could do him a favor and proposed that Phan pawn the gun for a hundred dollars. Phan said he did not have a hundred dollars. Defendant asked for $50. Phan pulled out his wallet and showed defendant a $20 bill, a $5 bill and a few $1 bills. Defendant asked if he could borrow the twenty and reached inside the wallet and pointed to it. Before Phan could reply, the manager came up and asked what was going on. Defendant was embarrassed and mad and put his hand behind Phans neck. Defendant never took the $20 out of Phans wallet.

Since defendant was embarrassed about borrowing money, he lied to the manager and told him that Xu owed him money. He never intended to rob Phan. He had the gun to sell to Xu if he would not lend him money.

Concerning the incident involving Li, defendant testified that Li asked for a favor after someone fired shots at Lis home. Li told defendant that he believed defendant knew the people who shot at his home and could make them stop. Defendant said his services would cost $3,000. At the restaurant, Li paid him $300. Defendant used the fact that shots were fired at Lis house to intimidate him and get money.

DISCUSSION

Evidence Code section 1101, subdivision (a), prohibits, with specified exceptions, admission of evidence of a persons character . . . (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) . . . when offered to prove his or her conduct on a specified occasion. Subdivision (b) of Evidence Code section 1101 provides: Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act 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.

Evidence of uncharged offenses is admissible and relevant to prove a material fact other than defendants criminal disposition, [when] the similarity between the circumstances of the [uncharged offenses] and the charged offenses supports the inference that defendant committed the charged offenses pursuant to the same design or plan defendant used to commit the uncharged misconduct. (People v. Ewoldt (1994) 7 Cal.4th 380, 393.) The requisite similarity is not merely a similarity in the results, but such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations. [Citation.] . . . [] 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. (Id. at pp. 402-403; accord, People v. Balcom (1994) 7 Cal.4th 414, 423-424.)

The admissibility of evidence of a prior crime or wrong in order to prove a fact such as motive or intent depends on three factors: (1) the materiality of the fact sought to be proved or disproved; (2) the tendency of the uncharged crime to prove or disprove the material fact; and (3) the existence of any rule or policy requiring the exclusion of relevant evidence. (People v. Thompson (1980) 27 Cal.3d 303, 315.) There is a lesser degree of similarity required to prove intent than to show a common plan. (People v. Ewoldt, supra, 7 Cal.4th at p. 402.)

Defendant contends that the two incidents are unrelated and dissimilar, and allowing the evidence of Lis encounter with defendant does not logically tend to establish that he intended to threaten Phan with the gun. Assuming arguendo the evidence concerning the incident with Li was erroneously admitted, the error was harmless. In reviewing whether the error was harmless, we must apply the Watson[2]standard. (People v. Burgener (1986) 41 Cal.3d 505, 528; People v. Jackson (1985) 174 Cal.App.3d 260, 266.) We must determine whether a result more favorable to the defendant would have occurred in the absence of error.

It is not reasonably probable that a result more favorable to defendant would have occurred absent the alleged error. The evidence against the defendant was overwhelming. During his testimony, defendant admitted he had a 1988 felony conviction of a crime of moral turpitude. Phan, the victim, testified to the robbery. Huang witnessed and testified as to a portion of the events. The events of the robbery were shown to the jury on the trading companys video camera. We have examined the videotape of the incident. It clearly shows defendant cocking the weapon, a fact that defendant admitted in his testimony. It also shows defendant pointing the gun at Phan, a fact defendant denied twice during his testimony. It shows Phan in response taking out his wallet and defendant taking money out of the wallet. No reasonable juror viewing the videotape could find the incident to be anything but a robbery.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED

JACKSON, J.*

We concur:

MALLANO, Acting P. J.

VOGEL, J.

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[1] All further statutory references are to the Penal Code unless otherwise indicated.

[2]People v. Watson (1956) 46 Cal.2d 818, 836.

* Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.