P. v. Belser
Filed 2/7/12 P. v. Belser CA2/2
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
JEROME JEFFREY BELSER, JR.,
Defendant and Appellant.
B228298
(Los Angeles
County
Super. Ct.
No. KA089451)
APPEAL from
a judgment of the Superior Court
of
County. Bruce F. Marrs,
Judge. Affirmed.
Sunnie L.
Daniels, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Idan Ivri,
Deputy Attorneys General, for Plaintiff and Respondent.
* * * * * *
Appellant
Jerome Jeffrey Belser, Jr., appeals from the judgment entered upon his conviction
by jury of first degree residential
burglary (Pen. Code, § 459),
name="_ftnref1" title="">[1] with findings that he had suffered a prior
felony conviction of attempted first
degree burglary (§ 664/459) within the meaning of section 667,
subdivision (a)(1) and the “Three Strikes†law (§§ 1170.12, subds. (a)-(d),
667, subds. (b)-(i)). The trial court
sentenced appellant to 14 years in state prison, consisting of eight years on
the burglary charge based on the middle term of four years doubled pursuant to
the Three Strikes law, plus a five-year serious felony enhancement (§ 667,
subd. (a)), and a one-year enhancement pursuant to section 667.5, subdivision
(b).
Appellant
contends the trial court erred when it admitted evidence of a prior attempted
burglary because the offenses lacked sufficient similarities, and also erred by
instructing the jury that it could consider appellant’s prior
purpose. We affirm.
FACTS
Prosecution Case
A. Starr Middleton’s Testimony
On January 26, 2010, Starr Middleton,
along with her daughter and her sister, lived with her mother, Dianne Barr, on Dexter
Street in the City of Covina. Barr provided day care for children and had
left sometime between 6:30 a.m. and 6:45 a.m. to take some children to school in Monrovia. Shortly after 7:00
a.m., Middleton was suddenly awakened by the sound of someone
attempting to open her bedroom’s sliding door.
The sliding glass door opened onto a driveway that led to Dexter
Street.
There was a screen door on the outside of the glass. The sliding door had two locks and a broom
handle in the interior sliding rail of the door which prevented it from being
opened more than a few inches.
On hearing the sound of the screen
door being moved, Middleton jumped out of bed because the sliding glass door
was not used as an entrance or exit from the house. She saw the silhouette of a person through
the drawn curtains of the door. She went
into the living room to check on her daughter and sister and found them eating
breakfast. At the preliminary hearing,
Middleton testified that she stayed in bed for 20 minutes after hearing the
noises because she assumed it was her mother or her brother. Middleton then called Barr and spent nearly
10 minutes on the phone with her. Barr
told Middleton to hang up the phone and she would be home soon.
Middleton called the police and
while on the phone with them looked out the living room window facing Dexter
Street.
Middleton told the 9-1-1
operator that she saw a man walk away from the house, cross Dexter
Street, and get on a bicycle. She could not determine his ethnicity because
she only saw him from the back. At the
preliminary hearing, Middleton testified that she may have told the operator
that the man she saw was black. The man
was about 5 feet 4 inches tall, wearing a blue and black plaid jacket with a
hoodie. He was also wearing a beanie and
gloves. Middleton could see an object in
the man’s hands but could not make out what it was. She then observed him get on a bicycle and
ride away on Dexter Street.
Middleton waited approximately 30
minutes for the police to arrive at her house.
She told the police officers what happened and showed them the sliding
door. The police officers informed
Middleton that they had detained a possible suspect and asked if she could make
an identification. Middleton testified
at trial that she told the police officers that she could identify the
suspect’s clothes but not his face. A
police officer took Middleton to conduct a field identification in a nearby
alley. Middleton testified at trial that
during the field identification appellant was wearing blue jeans and a white
T-shirt and she told the police officers that she did not think he was the man
she saw earlier. At the preliminary
hearing, Middleton testified that when told by the police officers that
appellant had been wearing the clothing she described she told the police
officers that appellant “must be the person.â€
At trial, Middleton was not even sure the person at the field
identification was appellant.
Middleton testified at the
preliminary hearing that strangers attempted to enter her sliding door on three
separate occasions, subsequent to the January 26, 2010 burglary. The police were not called to respond to any
of the three incidents. She also
testified that she did not have her glasses with her during the field
identification and her eyesight was so bad she could not see the back of the
courtroom. She did not wear glasses
during her trial testimony because she lost them.
Later on the same day that
Middleton testified at the preliminary hearing, she saw appellant’s girlfriend
Ebony, at a nail salon. Ebony told
Middleton that appellant wanted to send her a thank you card. Middleton testified that she moved to Alaska
after the preliminary hearing because she was offered a job there. A judge in Alaska ordered Middleton to comply
with the subpoena and return to testify in this case or face
incarceration. She testified that she
was surprised that the case against appellant was proceeding because she was
sure that he was not the person who committed the burglary. Middleton stated that her testimony was not
influenced by appellant and she denied receiving any money or gifts to change
her testimony.
B. Testimony of Covina Police Department Officers
On January 26, 2010, at
approximately 7:11 a.m., City of Covina Officer Oswaldo Preciado received a
9-1-1 call regarding a residential burglary and arrived at the Barr residence
on Dexter Street at approximately 7:13 a.m.
Officer Preciado observed the sliding door was open two or three inches
but a broom handle on the bottom railing prevented it from opening any
farther. Middleton told Officer Preciado
that the sound of the screen door sliding against the railing woke her up. She called out “Mom†thinking her mother may
have forgotten her keys, but got no answer.
She first approached the sliding glass door but when she saw the silhouette
of a person and realized that someone was trying to force the door open, she
grabbed her cell phone and immediately dialed
9-1-1 from her bedroom. Middleton told
Officer Preciado that after about five seconds she walked to the living room
and when she looked out the window she observed a man walking down her driveway
and then riding a bicycle westbound on Dexter Street. Her description of the suspect was a black
man riding a bicycle, wearing a blue hooded sweatshirt, with a black beanie.
At approximately 7:14 a.m. Officer
Stephen Henry was on patrol in the City of Covina when he received a call of a
burglary in progress on Dexter Street.
Officer Henry drove westbound on Dexter looking for the suspect based on
information he received from dispatch. The suspect was described as a male black
wearing a blue and white sweatshirt with a black beanie, riding a bicycle. Officer Henry observed appellant entering an
alley off Dexter Street a few blocks from where the burglary occurred. Appellant matched the description of the
suspect and he detained him. A large pry
bar with a flat head was recovered from appellant’s pants pocket during a
search conducted by Officer Henry.
Officer Preciado informed Middleton
that a suspect was detained and asked if she could make an identification. Middleton was confident she could identify
the person because she said she had seen his face when she saw him walking down
the driveway. At approximately 7:31
a.m., Officer Preciado drove Middleton to where appellant was being detained by
Officer Henry. Officer Henry testified
that he removed appellant’s beanie during the field identification but
appellant was wearing the hooded sweatshirt.
Appellant could not see Middleton as she sat in the police car, but from
approximately 25 to 30 feet away she had a clear and unobstructed view of
him. Middleton positively identified
appellant as the suspect and said she was sure it was him.
C. Appellant’s Prior Crime
On April 29, 2000, at approximately
2:30 p.m., Steve Uhrmann noticed three African-American individuals standing in
front of his neighbor’s first story window as he returned to his apartment in
West Covina. From his window, he
observed one of the individuals attempt to remove the screen from the sliding
glass window using a screwdriver, while the other two individuals acted as
lookouts. Uhrmann reported the incident
to the manager of the apartment complex, who called the police.
West Covina Police Officer Curtis
McLean received a complaint from a resident in Uhrmann’s apartment complex that
some individuals had run into his apartment.
Three African-American men were detained as a result of that
complaint. Uhrmann identified them as
the same individuals whom he had seen outside his neighbor’s window attempting
to remove the screen. Appellant was one
of the three individuals arrested.
A pair of knit gloves was found in
appellant’s possession while the other two individuals each possessed
screwdrivers. Appellant admitted that
they were attempting to burglarize the apartment. They planned to steal money, jewelry, and
small items they could sell for money.
Appellant claimed it was his idea to commit the burglary, he developed
the plan, and it was his idea to abandon the attempt when he believed they had
been seen.
D. Appellant’s Jail Phone Calls
When appellant was arrested he
provided the telephone number of a female that he identified as his wife,
Ebony. Numerous calls were made to
Ebony’s number from a male inmate. During
one call the male inmate provided appellant’s correct jail booking number for
mail that had been improperly addressed to him.
During another call, the woman who answered the phone at the number
provided by appellant identified herself as Ebony A. Belser. Detective Antonio Zavala, of the Covina
Police Department was the investigating officer in the case and reviewed the
recordings and transcripts of the jail phone calls. Based on his experience investigating jail
calls and his knowledge of the case he identified the male inmate caller as
appellant, and the female recipient of the calls as Ebony Belser.
In one call, appellant stated to
Ebony, “You gotta make sure that girl do not come to court. On the 22nd.
She come to court, it’s a wrap.â€
Later he stated, “. . . if she tell you that she’s not
gonna come to court, then I’m coming home.
Ain’t no ifs ands or buts about it, if she don’t come to court, they
don’t got nothing. Only thing they got
is her. You feel me?†Ebony replied, “If I go to talk to Dianne and
ask her, if I give her a hundred dollars or something, you think she’ll back
off,†to which appellant responded, “Yes.â€
Detective Zavala interpreted this exchange to be referring to Dianne
Barr and Starr Middleton, and appellant acknowledging Middleton’s importance as
a witness for the prosecution.
In another call, Ebony told
appellant that “Dianne and them†“don’t even speak no more.†Appellant asked, “I’m saying did you give,
did you give her her money and stuff?â€
Ebony responded, “Oh yeah, yeah, yeah, . . . We did all,
we handled all that.†Detective Zavala
understood this reference to Middleton and her mother Barr, to be related to
the earlier conversation regarding giving Barr a hundred dollars.
Another reference to Middleton
occurred when Ebony stated, “I seen what’s her name too the other day.†Ebony described her as “[t]the twinkle in the
sky†and “[t]he little twinkle in the sky.â€
When appellant still did not understand and asked, “Who is that?†Ebony responded, “Fucking Starr, man.â€
Appellant stated to Ebony during
another call, “It don’t make no sense for me to be sitting up here doing all
this motherfucking time when I never went up in that motherfucker, you feel
me?†Detective Zavala believed that this
statement by appellant was consistent with Middleton’s testimony that the
person attempting to open the sliding glass door never actually entered the
room.
A call involved appellant stating
that he wanted to send Middleton a thank you card after she made inconsistent
statements at the preliminary hearing. Another discussed how Middleton would have to
repeat the same story at trial that she told at the preliminary hearing. Detective Zavala believed appellant was given
advice to stop making incriminating statements because in a call that took
place close to trial, appellant told Ebony that there should be no more letters
or phone calls discussing his case.
Defense Case
On January 26, 2010, Ronald
Williamson planned to pick up appellant for work between 7:30 and 8:00 a.m. at
Covina Park. Williamson had known
appellant for approximately 15 years.
Appellant was helping him with construction work on his home. The pry bar found on appellant was similar to
ones Williamson had in his toolbox. He
had seen appellant using it several times at Williamson’s home. It could be used to pry open a door. Williamson did not call appellant or go to
his house when he failed to show up for work.
When Williamson found out that appellant had been arrested he told Ebony
he was willing to testify on his behalf.
Dianne Barr
left her home between 6:30 and 6:45 a.m. on January 26, 2010. She received a call from her daughter telling
her that someone had tried to come into her bedroom through the sliding glass
door. Barr told Middleton to look out
the window to try and identify the individual and call the police. Barr was familiar with appellant and had seen
him around the area walking from his apartment and to the store. Barr had provided daycare for appellant and
Ebony’s child in October and November of the previous year and not received
full payment. Barr gave Ebony a ride to
court for the preliminary hearing, and recommended an attorney for
appellant. Barr denied that Ebony
offered her money to testify.
Procedural Background
Before trial, the People sought
to admit evidence of the April 29, 2000, attempted burglary under Evidence Code
section 1101, subdivision (b), to establish appellant’s intent to commit a
burglary in this case. Appellant argued
that the evidence should be precluded because the prosecution was trying to get
the evidence in to show that appellant was more likely to have committed this
crime because he committed a crime 10 years earlier. The People argued that the evidence was being
offered to show intent and not a propensity to commit crimes. The People cited the following similarities
between the prior attempted burglary, and the instant case: (1) both were residential burglaries; (2) the
defendant never set foot inside either one of the premises and nothing was ever
actually taken; (3) the points of entry were first-story windows and doors;
(4) the manner of entry involved removing or sliding back the screen; (5)
appellant had a screwdriver in his possession here while his companions did in
the attempted robbery; (6) both times appellant wore gloves; and (7)
appellant was identified outside of the premises in both cases. The People also argued that the evidence
should not be excluded under Evidence Code section 352, because the probative
value outweighed undue prejudice, confusion, or consumption of time.
The trial
court ruled that evidence of the prior attempted robbery was admissible. It indicated a pertinent factor was whether
the prior bad act was offered “to establish motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake or accident, all
specifically referenced in [Evidence Code section]
1101, subdivision (b).†The court
stated that it understood the People’s theory was absence of mistake and
intent, and not to prove identity. The
court concluded by finding the evidence was relevant and that there were
sufficient similarities between the two incidents from which a jury could find
intent and absence of mistake.
I. Appellant’s Contentions and
Materiality
Appellant
contends his conviction must be reversed because the trial court erred when it
admitted evidence of other crimes under Evidence Code section 1101, subdivision
(b). Specifically, appellant argues
that: (1) the court abused its
discretion by admitting the prior attempted burglary to prove intent because it
lacked sufficient similarity; and (2) the court improperly instructed the jury
that it could use evidence of the prior attempted burglary to find a
characteristic method, plan, or scheme between the two incidents.
Burglary
is a specific intent crime (People v.
Wallace (2008) 44 Cal.4th 1032, 1077), and appellant’s not guilty plea put
his specific intent in issue. (
907, fn. 7.) Here, the jury was
instructed that to convict appellant of burglary “there must exist a union or
joint operation of act or conduct and a certain specific intent in the mind of
the perpetrator†(CALJIC No. 3.31)
time of the entry†appellant “had the specific intent†to commit a felony
(CALJIC No. 14.50).
name="_ftnref4" title="">[4]
II. Applicable
Principles
Other crimes evidence, as a general proposition, is
inadmissible to prove a defendant’s disposition. (Evid. Code, § 1101, subd. (a).)
evidence produces an “overstrong tendency to believe the accused guilty of the
charge merely because he is a likely person to do such acts.†(1A Wigmore, Evidence (Tillers rev. 1983) §
58.2, p. 1215.) “Any evidence of a
defendant’s criminal conduct, on other occasions, no matter how relevant to
issues legitimately before the court, will have an inevitable tendency to
suggest that the defendant has a general criminal propensity or disposition,
and thus an inevitable tendency to persuade a trier that the defendant is
somewhat more likely to have committed the crime currently charged.†(People
v. Scott (1980) 113 Cal.App.3d 190, 198.)
But
Evidence Code section 1101, subdivision (b)
carves out an exception to this rule. It
provides that such evidence is admissible if it is relevant to an issue other
than disposition to commit the act, such as intent. Admissibility of other crimes evidence depends
upon (1) the materiality of the facts sought to be proved, (2) the tendency of
the uncharged crime to prove those facts, and (3) any policy requiring
exclusion, such as Evidence Code section 352.
v. Scott, supra, 113 Cal.App.3d at p. 198; People v. Ewoldt (1994) 7 Cal.4th 380, 404 (Ewoldt) [“[T]o be admissible such evidence ‘must not contravene
other policies limiting admission, such as those contained in Evidence Code
section 352â€].)
“The least degree
of similarity (between the uncharged act and the charged offense) is required
in order to prove intent.
[Citation.] ‘[T]he recurrence of
a similar result . . . tends (increasingly with each instance)
to negative accident or inadvertence or self-defense or good faith or other
innocent mental state, and tends to establish (provisionally, at least, though
not certainly) the presence of the normal, i.e., criminal, intent accompanying
such an act . . . .’
[Citation.] 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.â€
[Citations.]’ [Citation.]†(Ewoldt,
supra, 7 Cal.4th at p. 402.) “By
contrast, a higher degree of similarity is required to prove common design or
plan, and the highest degree of similarity is required to prove identity.†(People
v. Soper (2009) 45 Cal.4th 759, 776, fn. omitted.)
III. Standard of
Review
We review the
trial court’s Evidence Code sections 1101, subdivision (b) and 352 rulings
under the abuse of discretion standard.
(People v. Lewis (2001) 25
Cal.4th 610, 637 [Evid. Code, § 1101]; People
v. Carter (2005) 36 Cal.4th 1114, 1147; People
v. Rodrigues (1994) 8 Cal.4th 1060, 1124 [Evid. Code, § 352].) Abuse occurs when the trial court “exceeds
the bounds of reason, all of the circumstances being considered.†(People
v. Giminez (1975) 14 Cal.3d 68, 72.)
“‘[I]n most instances the appellate courts will uphold [the trial
court’s] exercise [of discretion] whether the [evidence] is admitted or
excluded.’†(People v. Kwolek (1995) 40 Cal.App.4th 1521, 1532.)
“We determine
whether a jury instruction correctly states the law under the
independent or de novo standard of review.
[Citation.] Review
of the adequacy of instructions is based on whether the trial court ‘fully and
fairly instructed on the applicable law.’
[Citation.] ‘“In determining
whether error has been committed in giving or not giving jury instructions,
we must consider the instructions as a whole . . . [and] assume
that the jurors are intelligent persons and capable of understanding and
correlating all jury instructions which
are given.†[Citation.]’ [Citation.]â€
‘Instructions should be interpreted, if possible, so as to support the
judgment rather than defeat it if they are reasonably susceptible to such
interpretation.’ [Citation.]†(People
v. Ramos (2008) 163 Cal.App.4th 1082, 1088.)
IV. Analysis
of Appellant’s April 29, 2000, Attempted Burglary Was Properly Admitted to
Prove Intent Because It Was Sufficiently Similar to the Charged Offense
Appellant
contends that the similarities between the two incidents are commonplace and of
little importance, and conversely that the differences are numerous and
distinctive. We disagree.
The
crimes occurred in neighboring cities, Covina and West Covina. In both instances, entry into residential
properties from areas open to the public was attempted during the day. In the uncharged offense the access point was
a first floor window and in the present case it was a sliding glass door. In both cases, tools that can be used to
unscrew or pry open the barrier to entry were found. In the uncharged offense appellant’s
companions possessed screwdrivers and in the present case appellant had a pry
bar. In both cases, appellant wore
gloves. In the uncharged offense, the
owner had left and the residence was empty and in the present case, the owner
Dianne Barr had recently left to take some daycare children to school. In both cases appellant abandoned his plan
when it was apparent to him that he had been discovered.
The
differences appellant highlights between the two incidents are not
distinctive. That the charged burglary
occurred in early morning while the uncharged attempted burglary occurred in
the afternoon does not change the fact that both were daytime incidents. Nor is it significant that appellant and his
companions appeared to be on foot during the uncharged incident, while
appellant made his getaway by riding a bicycle in the present case. Appellant’s argument that the pry bar in his
possession here was dissimilar to the Phillip’s head-screwdriver and flat-head
screwdriver found on his companions in the uncharged offense does not take into
account the multi-purpose uses of the tools.
Rather, it highlights another similarity between the two offenses, in
that the pry bar with a flattened head can be used (similar to the screwdrivers)
to remove screens or pry open points of entry quietly rather than loudly by
breaking doors or glass.
Appellant
also argues that a gap of almost 10 years between the prior attempted burglary
and the current offense is significant.
But there is no bright line test of remoteness and even remote offenses
are admissible where as in this case, appellant spent five to six of those 10
years in prison. (People v. Mendoza (2000) 78 Cal.App.4th 918, 925–926.) Here, the prior attempted burglary occurred
almost 10 years before the charged incident.
Uncharged conduct occurring five years (see People v. Regalado (2000) 78 Cal.App.4th 1056, 1059) and 23 years
(see People v. Pierce (2002) 104
Cal.App.4th 893, 900) before the charged offense have been found not to be too
remote to permit their admission in evidence.
The strong probative value of the earlier attempted robbery, further
supports its admission, despite the length of time that had passed.
The
least degree of similarity was required to prove intent. (Ewoldt, supra, 7 Cal.4th at p.
402.) Here, there were many similarities between the April 29, 2000,
attempted burglary in which appellant admitted it was his intent to steal
items, and the present offense.
We
cannot say that the trial court abused its discretion under Evidence Code
section 352 in admitting evidence of appellant’s prior attempted burglary. In considering whether the probative value of
uncharged crimes is outweighed by the prejudice, we must evaluate the
inflammatory nature of that evidence, the degree of certainty of its
commission, the consumption of time, and remoteness, as well as other unique
factors presented. (People v. Harris (1998) 60 Cal.App.4th 727, 738–740.) Here, the prejudice did not outweigh its
relevance because evidence of a prior attempted burglary was not inflammatory
when appellant was charged with burglary; appellant’s prior conduct resulted in
a conviction; and evidence of the misconduct did not necessitate the undue
consumption of time, consuming only 24 pages of an approximately 549-page
reporter’s transcript.
Not Prejudicial Error
Appellant contends his conviction should be reversed
because the trial court improperly instructed the jury that they could consider
the evidence of appellant’s prior attempted robbery to show the existence of a
larger continuing plan or scheme.
As
given, CALJIC No. 2.50 read: “Evidence
has been introduced for the purpose of showing that the defendant committed a
crime other than that which—for which he is here on trial. [¶]
Except as you will be otherwise instructed, this evidence, if believed,
may not be considered by you to prove that defendant is a person of bad
character or that he has a disposition to commit crimes. It may be considered by you only for the
limited purpose of determining if it tends to show: [¶] A
characteristic method, plan, or scheme in the commission of criminal acts
similar to the method, plan, or scheme used in the commission of the offense in
this case, which would further tend to show the existence of the intent which
is a necessary element of the crime charged;
[¶] The existence of the intent
which is a necessary element of the crime charged; [¶] A
motive for the commission of the crime charged;
[¶] That the defendant had
knowledge of the nature of things found in his possession; [¶]
That the defendant had knowledge or possessed the means which might have
been useful or necessary for the commission of the crime charged; [¶] Or
the crime charged is part of a larger continuing plan or scheme. [¶] For
the limited purpose for which you may consider such evidence, you must weigh it
in the same manner as you do all other evidence in this case. [¶]
Except as you will be otherwise instructed, you are not permitted to
consider this evidence for any other purpose.â€
Appellant
contends that the prosecution never sought to admit evidence of the prior
attempted burglary to show a common scheme or plan and the portion of the
instruction that states, “Or the crime charged is part of a larger continuing
plan or scheme[,]†implicates the intermediate standard of similarity in
The People argue that the similarities between the prior and current
offenses were also substantial enough to make the prior-offense evidence
relevant to show that the burglaries were all pursuant to a common scheme or
plan.
The
People did not seek to show a common scheme or plan, and did not argue to the
jury that appellant’s two crimes shared a characteristic method, plan, or
scheme. Nor did the court admit the
evidence for that purpose. But, it is
not necessary to determine if the evidence satisfied the intermediate prong of
the Ewoldt test because even if the
claimed evidentiary error occurred, the ultimate question is whether giving the
instruction was prejudicial. We must determine
whether there is a reasonable probability that defendant would have obtained a
more favorable outcome if the jury had been instructed to consider it only on
the issue of intent. (
836.) We conclude there is not.
There
is no real dispute that someone committed first degree burglary of the Barr
residence on January 26, 2010. The real
issue here is identity. During the
hearing on the motion to admit the evidence, counsel for appellant stated, “The
issue here is not whether [appellant] had intent, but whether or not he
actually did—was the person that committed this crime of trying to go
inside—inside the sliding glass door.â€
Evidence
(other than the prior offense) tending to show that appellant was the perpetrator
included appellant’s jail phone calls; testimony by the police officers; and
testimony by the victim, Starr Middleton.
This evidence had considerable weight.
First, the jail phone calls in which appellant identified himself using
his correct booking number, and the female identified herself by name as Ebony
A. Belser, contained numerous references to Dianne Barr, and Starr Middleton by
name. The majority of the calls related
to efforts to get Middleton to provide favorable testimony for appellant.
Second, the police officers
testified as to the statements provided by Middleton, who provided an accurate
description of appellant both to the 9-1-1 operator and during the
investigation at her home. She
positively identified him at the field identification in a nearby alley.
Finally, Middleton’s reluctance to
return from Alaska to testify; her contradictory testimony during the
preliminary hearing and at trial in which she was unable to identify appellant
as the perpetrator; her version of events which did not match the timeline as
provided by the testimony of the police officers and her 9-1-1 call, and the
portions of the jail phone calls referencing her changed testimony, undermined
her credibility and was damaging to appellant.
Moreover, the court properly instructed
the jury that it was not permitted to consider the evidence of the prior
attempted burglary to prove appellant had a bad character or was disposed to
commit a crime. It is, of course,
presumed the jury understood and followed the court’s instruction in the
absence of any showing to the contrary.
(People v. Yeoman (2003) 31
Cal.4th 93, 139.)
In light of the
other evidence of identity, the claimed evidentiary error was not prejudicial
and there is no reasonable probability that the jury would have reached a
different verdict if it had not been instructed to consider the prior offense
as part of a continuing plan or scheme.
(People v. Watson, supra, 46
Cal.2d at p. 836.)
DISPOSITION
The
judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, J.
DOI TODD
We concur:
____________________________,
P. J.
BOREN
____________________________,
J.
ASHMANN-GERST
further statutory references are to the Penal Code unless otherwise stated.
information alleged that appellant suffered three prior felonies for the
purposes of enhancement under section 667.5, subdivision (b). Two additional one-year enhancements under
this section were stricken.
