Filed 3/16/18 P. v. Borgerding CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

v.

ANDY J. BORGERDING,

Defendant and Appellant.
D071614



(Super. Ct. No. SCD268257)

APPEAL from a judgment of the Superior Court of San Diego County, Joseph P. Brannigan, Judge. Affirmed.
Russell S. Babcock, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Annie Featherman Fraser and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
A jury convicted Andy J. Borgerding of unlawfully taking and driving a vehicle (Veh. Code, § 10851, subd. (a)), obtaining personal identifying information with intent to defraud (Pen. Code, § 530.5, subd. (c)(1)), and possession of burglary tools (Pen. Code, § 466). He separately pleaded guilty to possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)). He also admitted having a prior strike conviction (Pen. Code, §§ 667, subds. (b)-(i), 1170.12) and three prior prison commitment convictions (Pen. Code, § 667.5, subd. (b)). The court sentenced him to an aggregate term of seven years in prison.
Borgerding appeals, contending we must overturn his convictions because the court improperly admitted evidence of past misconduct under Evidence Code section 1101, subdivision (b). We conclude Borgerding has not established the court abused its discretion in admitting the evidence because the evidence was relevant to his mental state for some of the charged offenses and its potential prejudicial effect did not substantially outweigh its probative value. We, therefore, affirm the judgment.
II
BACKGROUND
A
1
A woman used another person's identification without the person's permission to rent a cargo van valued at over $950. When the woman failed to return the van, the rental company reported the van stolen.
Several months later, a parking enforcement officer located the van on a city street. The parking enforcement officer pulled his vehicle in front of the van and was filling out paperwork to impound the van when he saw Borgerding drive the van away.
A police sergeant later located the van in a grocery store parking lot. The van's rear and side doors were open and Borgerding was lying down in the back. The sergeant told Borgerding not to move and Borgerding spontaneously said, "It's not stolen."
Two police officers subsequently searched Borgerding. They found a stolen debit card and a stolen credit card in one of his pockets.
One of the police officers also searched the van. The officer discovered the van had an improvised secondary ignition, the primary ignition was damaged, and someone had tampered with the steering column. Among the items the officer found inside the van were men's and women's clothing, two bags of tools, a flathead screwdriver, a large pair of bolt cutters, and a slim jim. When the officer placed the flathead screwdriver in the secondary ignition, the van's electronic functions turned on, but the van's engine did not start.
2
In addition to the evidence underlying the charged offenses, the prosecution introduced evidence of two occurrences of misconduct by Borgerding four years earlier.
a
In the first occurrence, a man parked his truck on the street outside his home. When he looked inside the truck the next morning, he discovered the dashboard was torn out and the ignition was damaged. It appeared someone used a screwdriver or a hammer to pop out the ignition and remove the ignition wires. There were several items missing from the truck, including the stereo system, digital cameras, and some compact discs.
A police officer found a black glove and a screwdriver in the back of the truck. These items did not belong to the truck's owner. The officer also found two smears of blood on the dashboard cover. The DNA profile found in the blood smears matched Borgerding's DNA profile.
b
A month later, sheriff's deputies went to a storage facility and saw Borgerding there by himself near a pickup truck. The truck's doors were open, the door panels had been removed, and the steering column had been disassembled. There were car parts in the back of the truck, tools on the ground, and loose wires everywhere. Some of the truck's electronic components, including the stereo, were missing.
The deputies interviewed Borgerding. Borgerding first told them he had met the truck's owner that morning in a casino parking structure. He later told them he met the truck's owner the prior evening while sitting next to a slot machine. The man asked Borgerding for help because the truck's wires were sparking. They went to the storage unit and Borgerding showed the man how to fix the problem.
The deputies told Borgerding the truck had been stolen earlier that morning. Borgerding did not provide the deputies with the man's contact information.
B
The owner of a smog inspection station testified Borgerding worked for him intermittently for four or five years. The stolen cargo van had been in the shop two or three times in the recent past for ignition problems. A man usually brought it in; but occasionally a woman brought it in. Once the woman and a friend brought it in together.
The owner never worked on the van. Borgerding worked on it after hours. The owner never saw Borgerding drive the van.
III
DISCUSSION
Borgerding contends we must overturn his convictions because the court improperly admitted the evidence of his past misconduct. The California Supreme Court has articulated the following principles to guide our review: " ' "Evidence that a defendant has committed crimes other than those currently charged is not admissible to prove that the defendant is a person of bad character or has a criminal disposition; but evidence of uncharged crimes is admissible to prove, among other things, the identity of the perpetrator of the charged crimes, the existence of a common design or plan, or the intent with which the perpetrator acted in the commission of the charged crimes. (Evid. Code, § 1101.) 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. Rogers (2013) 57 Cal.4th 296, 325–326 (Rogers).)
" ' "The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent. [Citation.] ... In order to be admissible to prove intent, the uncharged conduct must be sufficiently similar to support the inference that the defendant ' "probably harbor[ed] the same intent in each instance." ' " ' " (Rogers, supra, 57 Cal.4th at p. 326.)
" 'If evidence of prior conduct is sufficiently similar to the charged crimes to be relevant to prove the defendant's intent ... the trial court then must consider whether the probative value of the evidence "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.' (Evid. Code, § 352.)" [Citation.] "Rulings made under [Evidence Code sections 1101 and 352, ...] are reviewed for an abuse of discretion. [Citation.]" [Citation.] "Under the abuse of discretion standard, 'a trial court's ruling will not be disturbed, and reversal ... is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.' " ' " (Rogers, supra, 57 Cal.4th at p. 326.)
Here, the prosecutor presented evidence of past misconduct to prove the mental state elements for the unlawful taking and driving a vehicle and the possession of burglary tools offenses. The prosecutor asserted the similarities between these two offenses and the past misconduct showed: (1) Borgerding possessed the tools found with him in the van with the intent to use them to burglarize a vehicle; (2) Borgerding intended to deprive the rental company of possession or ownership of the van; (3) Borgerding knew the rental company did not give its consent to Borgerding's taking and driving of the van; and (4) Borgerding's actions were not the result of a mistake or accident.
We agree evidence of the past misconduct was probative of Borgerding's mental state for the charged offenses. More particularly, the evidence was probative of Borgerding's intent to use tools to burglarize vehicles and circumvent their ignition systems. The evidence was also probative of his knowledge the owners of vehicles whose ignitions have been circumvented were unlikely to have consented to the taking and driving of their vehicles.
In addition to being probative of Borgerding's mental state, the evidence of the past misconduct was not unduly prejudicial. Neither occurrence of past misconduct was more serious or inflammatory than the charged offenses, neither was too remote in time to be probative, and neither was individually or collectively cumulative. (See People v. Jones (2012) 54 Cal.4th 1, 51 [evidence of uncharged offenses is not more prejudicial than probative when the evidence is relevant, the uncharged offenses are not more serious or inflammatory than the charged offenses, the evidence is not remote in time, and the evidence is not cumulative].) Accordingly, we conclude Borgerding has not established the court abused its discretion in admitting evidence of the past misconduct or that the admission of the evidence deprived him of a fair trial. (See People v. Fuiava (2012) 53 Cal.4th 622, 670 [evidence properly admitted under state law does not violate a defendant's constitutional right to a fair trial].)
IV
DISPOSITION
The judgment is affirmed.


MCCONNELL, P. J.

WE CONCUR:



AARON, J.



GUERRERO, J.