Filed 5/23/18 P. v. Gonzalez CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO



THE PEOPLE,

Plaintiff and Respondent,

v.

MIGUEL ANGEL GONZALEZ,

Defendant and Appellant.


E067866

(Super.Ct.No. SWF1601291)

O P I N I O N


APPEAL from the Superior Court of Riverside County. Elaine M. Kiefer, Judge. Affirmed with directions.
Richard L. Fitzer, 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, and Barry Carlton and Sharon L. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant and appellant, Miguel Angel Gonzalez, of residential burglary (count 1; Pen. Code, § 459), two counts of petty theft (counts 2-3; § 488), and possession of stolen property (count 4; § 496, subd. (a)). Defendant admitted suffering a prior prison term (§ 667.5, subd. (b)), a prior serious felony (§ 667, subd. (a)), and a prior strike conviction (§§ 667, subds. (c), (e)(1), 1170.12, subd. (c)(1)). The court sentenced defendant to an aggregate term of nine years of imprisonment.
On appeal, defendant contends the court erred in admitting the testimony of the victim of a 2014 residential burglary committed by defendant, for which he was convicted, for purposes of proving identity, intent, lack of mistake, and/or common plan pursuant to Evidence Code section 1101, subdivision (b). The People maintain the evidence was properly admitted on the issue of intent and harmless for any other purpose. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
On August 22, 2016, Victim 1 ran errands with her daughter, including going to the grocery store. Before leaving for her home in Murrieta, she placed her purse, in which she had left, among other items, her paystubs from work, on the floorboard of the front passenger side of her car. When she arrived home about 3:30 p.m., Victim 1 pulled into the driveway, opened the garage door, and drove into the garage. She and her daughter unloaded the groceries from her car, making multiple trips between her car and the home.
At one point while Victim 1 was putting groceries away, she noticed a vehicle parked across the street directly in front of her house. She had not seen the vehicle in the neighborhood before. It was a tan colored, older model, Toyota Corolla with slightly tinted windows. A man was sitting in the front driver’s seat with the window down; he looked up at her and appeared agitated. In court, Victim 1 identified the man as defendant. Twenty to 30 seconds after she looked at defendant, he drove off quickly.
Victim 1 went into her home, where she was looking for something that needed to be put in her purse. She asked her daughter to retrieve her purse from the car in the garage. Her daughter returned and told her the purse was not in the car. Victim 1 texted her friend at 3:56 p.m. informing her friend that she could not find her purse. She looked around the house and checked all throughout the car for her purse, to no avail. Victim 1 called the grocery store to see if she had left her purse there; personnel of the store said no purse had been found.
Also on August 22, 2016, Victim 2 dropped off her son at home, went to pick up her daughter from daycare, and then went to a stationery supply store. She had her purse with her when she dropped off her son and when she went to pick up her daughter. When Victim 2 went to pick up her daughter, she left the purse on the floor in the back seat area of her car. She parked in front of the driveway of the daycare provider’s home. Victim 2 went inside the daycare provider’s home for about two-and-a-half to three minutes. After she signed out her daughter, she placed her daughter in the car and drove to the stationery supply store.
When Victim 2 arrived at the store, she went to get her daughter out of the car and noticed that her purse was no longer inside. She drove home, called her husband, and tried to retrace her steps to make sure she did not misplace it; however, she ultimately concluded her purse had been stolen. Victim 2 called the police, audio of which the People played for the jury. In the call, she reported that her purse had been stolen while she picked up her daughter at daycare, during which she had left the car unlocked.
Victim 1 drove back to the grocery store to check for her purse in the parking lot herself; she did not find it. On her way back home from the grocery store, she stopped to get gas. As Victim 1 pulled around the back of the gas station, she saw the same vehicle which was parked in front of her house earlier. The man, who “looked very similar to the one that was parked in front of [her] house” earlier, got out of the vehicle and walked toward a green dumpster carrying a brown paper bag with papers on top. She was sure it was the same man; there was no doubt in her mind.
Victim 1 pulled over to get gas and watched defendant drop the bag and stack of papers into the trash bin and get back into his vehicle. She took down a description of defendant and the make, model, color, and license plate of his vehicle to report to the police. Victim 1 then saw her brother-in-law drive by, whom she flagged down. She told him what had happened.
Victim 1’s brother-in-law pulled his vehicle next to defendant’s and saw the man inside going through a purse. There were several purses in the car. Victim 1’s brother-in-law saw the victim’s purse and tried to open the door and grab the purse, but the man drove off.
Victim 1 called the police. During the phone call, a recording of which the People played for the jury, she provided police dispatch a description of defendant, his vehicle, and the vehicle’s license plate number.
Shortly thereafter, an officer responded to the call. Victim 1 told the officer what had happened and provided him with a description of defendant and his vehicle. The officer took pictures of the contents of the dumpster and then jumped inside; he found a couple paystubs belonging to Victim 1, which had been inside her purse, and a checkbook belonging to Victim 2.
The officer ran the license plate number given to him by Victim 1; from that, dispatch provided him with defendant’s name and address. The officer had a six-pack photographic lineup created from which Victim 1 identified defendant as the individual at her home and the gas station. The officer later contacted Victim 2 and returned some of her property, including the checkbook which had been inside her purse.
 
The People charged defendant by felony information with residential burglary while another person was present (count 1; §§ 459, 667.5, subd. (c)(21)), two counts of misdemeanor petty theft (counts 2-3; § 488), and possession of stolen property (count 4; § 496, subd. (a)). The People additionally alleged defendant had suffered a prior prison term (§ 667.5, subd. (b)), a prior serious felony (§ 667, subd. (a)), and a prior strike conviction (§§ 667, subds. (c), (e)(1), 1170.12, subd. (c)(1)).
On January 9, 2017, the People filed a motion to admit the facts of defendant’s prior conviction for first degree burglary pursuant to Evidence Code section 1101, subdivision (b) for purposes of identity, intent, lack of mistake or accident, and common scheme or plan. According to the People, defendant’s prior offense involved his knocking on the door and window of the victim’s home, jumping her fence, and entering into the house through the sliding glass door. The victim exited the home, but returned later to find items missing.
Defendant filed a motion in limine on the same day requesting the prohibition of any testimony about charged or uncharged prior acts pursuant to Evidence Code section 1101, subdivision (b). Defendant requested that each objection in the motion constitute a continuing objection to admission.
At the hearing on the in limine motions, the People argued the evidence of defendant’s prior offense was admissible to show his intent was the same in that crime as in the instant case. Defendant maintained: “Intent is not an issue in this case.” Defendant also contended the probative value of the evidence was outweighed by its prejudice. The court noted that the “evidence in this case, clearly the prior acts are very probative of intent, lack of mistake, common scheme. The two crimes are not similar but they are not dissimilar.” The court ruled that the prior act was admissible for intent, identity, common scheme, plan, and lack of accident and mistake. Defendant moved to bifurcate trial on the prior conviction allegations, which the court granted.
At trial, without objection from defendant, the victim of the prior offense testified that on April 29, 2014, in the City of Riverside, her doorbell rang; she looked through the window, but did not recognize the man standing at the door so she didn’t answer it; she then heard the doorbell ring again. The man grabbed a stick and started hitting the window for two to three minutes. The man then jumped the fence. The victim went inside her room and locked the door. The man entered the home through the sliding glass door. The man attempted to open her door, but was unsuccessful because it was locked. She jumped out her window, went to her neighbor’s house, and knocked on the door. The victim saw the man come out of the house. After returning inside the home, an iPod was noticed missing and a number of drawers throughout the home were open. The victim spoke with an officer that day and positively identified defendant as the burglar at an in-person identification.
The parties entered the following stipulation into evidence: “The People and Defense stipulate that the defendant, Miguel Angel Gonzalez, was convicted of residential burglary, a violation of Penal Code section 459 first occurring on April 29th, 2014, at [an] inhabited dwelling house . . . . Conviction date, May 19th, 2015.”
Defendant called the custodian of records for U-Haul in Temecula, defendant’s employer, to testify that defendant worked on August 22, 2016, and clocked out at 3:00 p.m. A psychologist and expert witness on eyewitness identification testified regarding the various factors which make eyewitness identifications unreliable. Defendant’s mother testified that defendant would visit her after he got off work, around 3:05 or 3:10 p.m., about three times weekly. He would stay for between 20 and 30 minutes. It was possible he came to visit her on August 22, 2016.
The court instructed the jury with CALCRIM No. 375, providing, in pertinent part, that the jury could use the evidence of the prior offense only to prove identity, intent, lack of mistake, and/or common plan: “Do not conclude from this evidence that the defendant has a bad character or is disposed to commit crime.” During closing argument, defense counsel contended the case was one of mistaken identity, though he admitted defendant was the individual present at the gas station.
II. DISCUSSION
Defendant contends the court erred in admitting the testimony of the victim of the 2014 residential burglary committed by defendant for purposes of proving identity, intent, lack of mistake, and/or common plan pursuant to Evidence Code section 1101, subdivision (b). He additionally argues the evidence was more prejudicial than probative. The People maintain the evidence was properly admitted on the issue of intent and harmless for any other purpose. We agree with the People.
We begin with the fundamental premise that evidence of prior misconduct is admitted in the trial court’s discretion (People v. Lewis (2001) 25 Cal.4th 610, 637), and that we are enjoined not to disturb a ruling admitting such evidence unless the trial court “exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice [citation].” (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.) Evidence of past acts may be admissible to prove that defendant had the same intent when he committed the charged crime: “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 (Ewoldt), superseded by statute on other grounds as stated in People v. Britt (2002) 104 Cal.App.4th 500, 505; see also People v. Kipp (1998) 18 Cal.4th 349, 371.) “In 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.]’ [Citation.]” (Ewoldt, supra, at p. 402; People v. Ramirez (2006) 39 Cal.4th 398, 463.)
“‘[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. Rather, if the other crime sheds great light on the defendant’s intent at the time he committed that offense it may lead to a logical inference of his intent at the time he committed the charged offense if the circumstances of the two crimes are substantially similar even though not distinctive.’ [Citation.]” (People v. Demetrulias (2006) 39 Cal.4th 1, 16-17.) “[I]n establishing a common design or plan, evidence of uncharged misconduct must demonstrate ‘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.]” (Ewoldt, supra, 7 Cal.4th at p. 402.) “Unlike evidence of uncharged acts used to prove identity, the plan need not be unusual or distinctive; it need only exist to support the inference that the defendant employed that plan in committing the charged offense.” (Id. at p. 403.) “‘For identity to be established, the offenses must share common features that are so distinctive as to support an inference that the same person committed them.’ [Citation.]” (People v. Sanchez (2016) 63 Cal.4th 411, 453.)
Evidence of prior misconduct is inherently so prejudicial that its admission requires extremely careful analysis. (Ewoldt, supra, 7 Cal.4th at p. 404.) The probative value of the uncharged offense evidence must be substantial, and the court must carefully analyze the evidence to determine both its relevance to the disputed issue and the extent to which its probative value outweighs its inherently prejudicial effect. (Ibid.) “‘“The ‘prejudice’ referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against defendant as an individual and which has very little effect on the issues. In applying section 352, ‘prejudicial’ is not synonymous with ‘damaging.’”’ [Citation.]” (People v. Rucker (2005) 126 Cal.App.4th 1107, 1119.)
“Erroneous admission of other crimes evidence is prejudicial if it appears reasonably probable that, absent the error, a result more favorable to the defendant would have been reached. [Citations.]” (People v. Felix (1993) 14 Cal.App.4th 997, 1007-1008; People v. Whitson (1998) 17 Cal.4th 229, 251.) “The admission of relevant evidence will not offend due process unless the evidence is so prejudicial as to render the defendant’s trial fundamentally unfair.” (People v. Falsetta (1999) 21 Cal.4th 903, 913.)
Here, we agree with defendant that the prior offense evidence was improperly admitted to prove defendant’s identity. The crimes for which defendant stood trial in the instant case and the prior offense for which he stood convicted were not “‘so distinctive as to support an inference that the same person committed them.’ [Citation.]” (People v. Sanchez, supra, 63 Cal.4th at p. 453.) With respect to lack of mistake and/or common plan or scheme, we observe the issue is a closer call. It is certainly plausibly arguable that the prior offense and the instant offenses did not share “‘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.]” (Ewoldt, supra, 7 Cal.4th at p. 402.) However, the evidence was admissible to prove intent.
Here, at least with respect to the issue of intent, the facts of defendant’s prior conviction for the offense of residential burglary were sufficiently similar to the offense committed against Victim 1 that the prior act was properly admitted pursuant to Evidence Code section 1101, subdivision (b). In both cases, defendant surveilled the residence ahead of time to ensure a safe time in which to enter the residence before doing so. In both cases, defendant entered the residence for an apparently short duration and removed property. This demonstrated sufficient similarity that defendant entered the residences on both occasions with the same intent, to steal property therein.
Defendant complains the evidence of intent was overwhelming; thus, the prior act evidence was cumulative and unnecessary. However, at the time the court granted the People’s motion to allow the evidence, the court had not heard any of the evidence adduced at trial; the ruling was made during a pretrial motion; thus, even assuming arguendo that evidence was cumulative and unnecessary on the issue of intent, the court could not have known at the time it issued its ruling this would be the case. Although defendant requested that his objection to admission of the evidence be construed as a continuing objection, defendant failed to obtain a ruling on that request. As such, he forfeited any objection based upon subsequently adduced evidence as rendering the prior act evidence cumulative and unnecessary. (People v. Lewis (2008) 43 Cal.4th 415, 481 [“Failure to press for a ruling on a motion to exclude evidence forfeits appellate review of the claim because such failure deprives the trial court of the opportunity to correct potential error in the first instance.”], rejected on other grounds in People v. Black (2014) 58 Cal.4th 912, 919.) As noted above, defendant did not renew the objection to the prior offense evidence on this, or any other, basis when the victim testified regarding the prior offense after the People had already adduced the bulk of its case-in-chief.
 
Moreover, a “‘defendant’s plea [of not guilty] . . . puts the elements of the crime in issue for the purpose of deciding the admissibility of evidence [of uncharged misconduct], unless the defendant has taken some action to narrow the prosecution’s burden of proof.’” (Ewoldt, supra, 7 Cal.4th at p. 400, fn. 4; see People v. Catlin (2001) 26 Cal.4th 81, 146; People v. Myers (2014) 227 Cal.App.4th 1219, 1225-1226.) The prosecution’s burden to prove every element of the crime “‘is not relieved by a defendant’s tactical decision not to contest an essential element of the offense.’” (Ewoldt, supra, at p. 400, fn. 4.) Here, one of the elements of the crime of residential burglary was the intent to commit a theft and one of the elements of petty theft was the intent to permanently deprive the owner of that property. (CALCRIM Nos. 1700, 1800.) Defendant did nothing to narrow the People’s burden of proof of these elements; thus, the prior offense evidence was properly admitted for that purpose.
On the issue of prejudice, the prior offense was not so prejudicial as to outweigh its probative value on the issue of intent. The prior offense involved no act of violence, was not inflammatory, and occurred relatively recently. (Butler v. LeBouef (2016) 248 Cal.App.4th 198, 207 [“Appellant makes no showing that the prior acts evidence, as a matter of law, was remote in time, or inflammatory, or denied him a fair trial.”]; People v. Rucker, supra, 126 Cal.App.4th at p. 1119 [“‘“‘prejudicial’ is not synonymous with ‘damaging.’”’”].) Likewise, “[t]he probative value of evidence of uncharged misconduct also is affected by the extent to which its source is independent of the evidence of the charged offense.” (Ewoldt, supra, 7 Cal.4th at p. 404.) Where evidence of two sets of crimes come from independent sources because they were separately investigated by different law enforcement agencies and proved by the testimony of different witnesses, the probative value of such evidence, for purposes of balancing prejudice, is correspondingly enhanced. (People v. Kipp, supra, 18 Cal.4th at p. 371.) Here, the Riverside Police Department presumably investigated the prior offense, which was proved by the testimony of the victim, while the current offenses were investigated by the Murrieta Police Department, which was proved primarily by the testimonies of Victims 1 and 2. Similarly, defendant was convicted of the prior offense; thus, there was no danger the jury would feel compelled to find him guilty of the present crime in order to punish him for the previous one. (See People v. Jones (2013) 57 Cal.4th 899, 930-933 [less prejudice is attached to the admission of prior offenses of which the defendant had been both charged and convicted].)
Therefore, since the court properly admitted the prior offense evidence on the issue of intent, the issue becomes the court’s error in instructing the jury that it could use the evidence for the purposes of identity, lack of mistake, and/or common plan, an issue not raised by defendant. Regardless of any error in the court’s instruction to the jury on how it could use the prior offense evidence, we find it harmless.
Here, there is no reasonable probability that, absent the instructional error, a result more favorable to defendant would have been reached. Indeed, even if the court erred in admitting the prior offense evidence in its entirety, there is no reasonable probability defendant would have obtained a more favorable result. Here, Victim 1 identified defendant as the individual she saw sitting in a car in front of her house when her purse went missing. Victim 1 identified defendant as the individual she saw dumping papers into the dumpster at the gas station. Victim 1’s brother-in-law saw the individual whom Vicitm 1 identified as defendant going through Victim 1’s purse and as having a collection of other purses.
Victim 1 provided the police with a description of defendant and his vehicle, including its license plate number. The officer ran the license plate, which reflected the vehicle was registered to defendant, the very person Victim 1 repeatedly identified as the individual in front of her home and at the gas station dumpster. A search of the dumpster turned up paystubs belonging to Victim 1 and a checkbook belonging to Victim 2. The People played surveillance video of the gas station from several different cameras recorded while defendant was there. The People introduced into evidence several still photographs of defendant and his vehicle taken from the videos. Thus, any error in the admission of the prior offense evidence or the instruction on how the jury could use that evidence was harmless.
III. DISPOSITION
The one-year section 667.5, subdivision (b) prior prison term enhancement imposed but stayed is ordered stricken. The trial court is directed to amend the abstract of judgment and its minute order of the sentencing hearing to reflect these modifications and to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation, Division of Adult Operations. (§§ 1213, 1216.) In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER
J.


We concur:

RAMIREZ
P. J.

FIELDS
J.