P. v. Clark>



















Filed 1/14/13 P. v. Clark CA2/3









NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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




>

THE PEOPLE, Plaintiff and Respondent, v. LUCKY PETTIS CLARK, Defendant and Appellant.

B237061 (Los Angeles County Super. Ct. No. BA385981)

APPEAL from a
judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, William Ryan, Judge. Affirmed.

Melissa J. Kim,
under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E.
Winters, Assistant Attorney General, Scott A. Taryle and Kimberley J.
Baker-Guillemet, Deputy Attorneys General, for Plaintiff and Respondent.



>_________________________>_______











Lucky
Pettis Clark appeals the judgment entered following his conviction by jury of href="http://www.mcmillanlaw.com/">first degree burglary. (Pen. Code, § 459.) He contends the trial court erred in
permitting the People to introduce evidence of an uncharged burglary to show
his intent in the charged burglary. We
find no error in the admission of the evidence.
Moreover, even if error is assumed, it was harmless. We therefore affirm the judgment.

>FACTS
AND PROCEDURAL BACKGROUND

1. >The prosecution’s evidence.

a. The
charged burglary of Esaw’s apartment on April 24, 2011.

On the
morning of April 24, 2011, Curtis Esaw left his third floor apartment in a low income
apartment complex known as 39 West, located at 3885 South Western Avenue in Los Angeles.
When Esaw returned the following day, he did not notice any damage to
the front door or the windows but a DVD player, a surround sound system and some clothes and food were
missing. Esaw had never given Clark a
key to his apartment, had never lost a key to the apartment and, to Esaw’s knowledge, the only other
person who had a key to his apartment was the complex manager.

After
Esaw called the police, he went to the first floor and reported the burglary to
Carlos Lopez, a 39 West manager. Lopez
and Esaw looked at digital security video from the evening of April
24, 2011. A three-minute video taken at 10:30
p.m.
depicted Clark coming up a flight of stairs with a
bag and walking to the area of Esaw’s apartment. Later
in the video, the bag appears to contain a DVD player. Esaw had known Clark for almost a year, they were
neighbors, they talked on occasion and Esaw considered Clark a friend. Esaw recognized Clark’s gait and, although the video is
dark, Esaw could see the top portion of Clark’s
head, including his nose and ears.

Lopez
testified he recognized Clark at first sight in the video based on
the “way he walks.” Also, the facial
features that are visible in the video are consistent with Clark’s appearance.

At a meeting with 39
West case workers regarding the burglary, Lopez showed Clark the video and told him he was going to
be evicted. Clark initially denied it was him in the
video but eventually signed a statement admitting he broke into Esaw’s
apartment and promising to make restitution if Esaw agreed not to prosecute.href="#_ftn1" name="_ftnref1" title="">[1] Clark never
paid Esaw restitution and did not return any of the stolen property.

b. >The uncharged burglary of Battest’s
apartment on >May 5, 2011.

On May 5,
2011, John
Battest returned to 39 West and found his apartment on the first floor had been
ransacked. A money order in the amount
of $2,221 and $500 in cash were missing.
The back window of the apartment had been “torn open.”

Karla
Acosta, a 39 West manager, viewed surveillance video tape recordings of various
areas of the complex with Battest. In
one video, Acosta saw Clark leave his apartment through the window
and enter the window of the apartment of his neighbor, Battest. After viewing the video, Acosta called the
police. Shortly thereafter, Clark walked past the office. Acosta called Clark into the office and showed him the
video. Clark initially said he was not the person
depicted. Clark then told Acosta he had “locked
himself out of his apartment, so he came out and then [went] back in.” Clark ultimately
acknowledged he was the person entering Battest’s window. Acosta told Clark she had called the police and there
was a possibility Clark would be evicted. When the police arrived, Clark was not in his apartment and Acosta
never saw him again at the complex.

Acosta
identified the person in the video as Clark
based on his height, clothing and gait.
Acosta testified the person in the video walked with a hunched back and Clark “always walks like that.” Acosta confronted Clark because she recognized him in the
video.

2. The
defense.

The defense rested without
presenting evidence.

CONTENTION

Clark
contends the trial court erroneously admitted evidence of the Battest burglary
to prove his intent in the Esaw burglary.

DISCUSSION

1.
Relevant principles.

Evidence Code section
1101,
subdivision (a) prohibits the admission of character evidence, including
evidence of specific instances of uncharged offenses, to
prove conduct on a particular occasion.
Notwithstanding this prohibition, Evidence Code section 1101,
subdivision (b) permits evidence of uncharged offenses
when relevant to prove some fact in issue, such as motive, opportunity, name="SR;2043">intent, preparation, plan, knowledge, identity, absence of
mistake or accident, or consent.

The
admissibility of evidence of uncharged offenses under
Evidence Code section 1101, subdivision (b) depends upon the fact sought to be
proved and the degree of similarity between the charged and uncharged
offenses. (People v. Ewoldt (1994) 7 Cal.4th 380, 402-403, superseded by statute
on other grounds as stated in People v. Britt (2002) 104 Cal.App.4th
500, 505.) “The least degree of
similarity (between the uncharged act and the charged
offense) is required in order to prove intent.”
(People v. Ewoldt, supra,
at p. 402.) name="SDU_2">To be admissible to prove intent, the uncharged misconduct must be sufficiently
similar to the charged offense to support the inference the defendant probably
harbored the same intent in each instance. (Ibid.;
People v. Lindberg (2008) 45 Cal.4th 1, 23;name="citeas((Cite_as:_2010_WL_927249,_*12_(Ca"> People v. Kelly
(2007) 42 Cal.4th 763, 783.)

When evidence
of uncharged crimes is deemed admissible under Evidence Code section 1101, subdivision (b),
the trial court also must determine if the evidence should be excluded as
unduly prejudicial under Evidence Code section 352.href="#_ftn2" name="_ftnref2" title="">[2] (People v.
Lenart (2004) 32
Cal.4th 1107, 1123.) name="sp_999_8">Because evidence of uncharged crimes
is inherently prejudicial, such evidence must have “ ‘substantial probative
value’ “ to be admissible. (>People v. Ewoldt, supra, 7 Cal.4th at p. 404, italics omitted; >People v. Lindberg, supra, 45 Cal.4th at p. 23; People v. Kelly, >supra, 42 Cal.4th at p. 783.) Ewoldt identified various factors to
be considered when weighing the probative value against the prejudicial effect
of uncharged
crimes evidence, including the tendency of the uncharged offense to demonstrate
the fact in issue, the independence of the source of the name="SR;4665">uncharged
crime, whether the uncharged crime resulted in conviction,
whether the facts of the uncharged
crime are more inflammatory than the facts of the charged offense, the
remoteness in time to the charged offense, and whether there is other evidence
to substantiate the fact in issue. (>People v. Ewoldt, supra, at pp. 404-406.)

name="SDU_14">We
review rulings under Evidence Code sections 1101, subdivision (b) and 352 for abuse of discretion. (People v. Foster (2010) 50 Cal.4th
1301, 1328; People v. Davis (2009) 46 Cal.4th 539, 602; People v.
Cole (2004) 33 Cal.4th 1158, 1195.)

2. Litigation
of the issue in the trial court.

Before
trial, the prosecutor sought leave to introduce evidence of the Battest
burglary to prove Clark’s intent in the Esaw burglary. The prosecutor contended the proximity and
similarity of the two events demonstrated intent in the charged incident. When defense counsel objected, the prosecutor
indicated that, based on the preliminary hearing transcript, it appeared that
Clark and Esaw knew each other. Thus,
even if defense counsel did not argue Clark had permission to enter, there
remained an implicit suggestion Clark may have had permission to enter, even
though Esaw would deny it had been granted.
The prosecutor noted defense counsel had pointed out to the prosecutor
that the security footage arguably showed Clark holding keys.

Defense counsel asserted
Clark would defend based on misidentification, not lack of intent. Therefore, the uncharged incident was
irrelevant. Additionally, the evidence
constituted impermissible
propensity evidence and
was highly prejudicial as the jurors would assume Clark had committed both
offenses.

The trial court found
the uncharged offense relevant to show Clark’s intent and found the probative
value of the evidence outweighed its prejudicial effect, noting the jury would
be instructed not to consider the evidence to prove propensity.

3.
The
trial court properly admitted evidence of the Battest burglary to show Clark’s
intent in the Esaw burglary.

By
pleading not guilty, Clark placed all elements of the charged offense at issue,
including whether he harbored the requisite intent. (People v. Lindberg, >supra, 45 Cal.4th at p. 23). Thus, the People were required to establish
he entered Esaw’s apartment “with [the] intent to commit grand
or petit larceny or any felony .
. . .” (Pen. Code, § 459.) name="citeas((Cite_as:_2011_WL_2803488,_*9_(Ca">Lacking direct evidence of
Clark’s mental state, evidence of the Battest burglary was relevant to
demonstrate Clark’s intent during the Esaw incident. That is, the two incidents were sufficiently
similar to support the inference Clark probably harbored the same intent in each instance. (People v. Ewoldt, >supra, 7 Cal.4th at p. 402; People
v. Lindberg, supra, 45 Cal.4th
1, 23; People v. Kelly, supra, 42
Cal.4th at p. 783.)

Clark claims the two incidents had numerous dissimilarities. He notes that in the Esaw offense, the mode
of entry was unknown and the unit was not ransacked. In the Battest offense, the burglar
entered through a window and ransacked the apartment. Also, the units were on different floors and
the residents were away for different periods of time at the time of the
burglaries. However, given that the
least amount of similarity is required to show intent, a residential burglary
of another of Clark’s neighbors committed within ten days of the charged
offense while the resident was away, was sufficiently similar to the Esaw
burglary to warrant introduction on the issue of intent. (People
v. Ewoldt, supra, 7 Cal.4th at p.
402.)

Also,
consideration of the factors
identified in Ewoldt reveals no abuse of the trial court’s discretion in
weighing the probative value of the evidence against its prejudicial
effect. The uncharged crime had a strong tendency to
prove Clark’s intent in the charged offense; the uncharged offense was proved
by evidence independent of the evidence relied upon to prove the charged
offense; the uncharged
offense was nearly identical to the charged crime and thus was not more inflammatory;
the uncharged offense was not remote in time; and, the evidence was not
cumulative as there was little other evidence tending to establish Clark’s
state of mind when he entered Esaw’s apartment.
Although the uncharged
conduct did not result in a conviction, the danger the
jury might punish Clark for that offense, rather than consider the evidence
solely for the limited purpose for which it was admitted, was minimal given
that the two offenses were
nearly identical and Clark was on trial for the charged offense.

Also, evidence of the Battest burglary did
not consume an undue amount of time and would not have confused the jury as it
clearly involved a separate incident.
Clark resists this conclusion by noting the testimony of Battest and
Acosta consumed approximately 40 percent of the trial testimony and the
evidence related to the uncharged offense was confusing because Acosta, the
first witness, testified about the uncharged offense. Notwithstanding these considerations, each
incident involved a separate victim and a separate 39 West manager. Thus, there was little danger of confusing
the jury. Also, the entire trial was
relatively brief. Consequently, the presentation
of evidence related to the uncharged offense did not consume an undue amount of
time.

Clark also claims the prosecutor emphasized evidence of
the uncharged act in closing argument by referring to the evidence four
separate times. However, review of the
record reveals the prosecutor made no improper use of the evidence. The
prosecutor argued the jury had the videos, the confession, the uncharged
burglary that took place two weeks later regarding Clark’s intent, and Clark’s
suspicious activity when he was confronted with these allegations. Later, the prosecutor advised the jury that,
when determining what Clark could have intended when he entered Esaw’s
apartment, it could consider that Clark subsequently entered Battest’s
apartment with the intent to steal.
These arguments did not make unfair use of the evidence.

Clark next asserts the
fact the jury reached a verdict after 20 minutes of deliberation indicates the
jury reacted emotionally to evidence of the uncharged offense.
However, overwhelming evidence of guilt is a more likely explanation for
the quick verdict than an emotional reaction to the uncharged burglary. (See discussion, post.)

Finally,
Clark disputes whether the item in the hand of the person in the video can be
deciphered. Clark further argues that,
even if he had keys in his hand, he was in his own apartment complex and there
was no evidence he had a key to Esaw’s apartment or that Esaw had given Clark
permission to enter. Rather, Esaw
testified he did not give Clark permission to be in his apartment, he never
gave Clark his keys and he has never lost his keys. Because Esaw’s testimony showed Clark did not
have permission to enter, intent was not in dispute and, when intent is not
contested, the prejudicial effect of admitting an uncharged act to prove intent
outweighs the probative value of the evidence.
“[E]vidence of uncharged acts cannot be used to prove something that
other evidence showed was beyond dispute; the prejudicial effect of the
evidence of the uncharged acts outweighs its probative value to prove intent as
it is cumulative regarding that issue.”
(People v.
Lopez (2011) 198
Cal.App.4th 698, 715.) Clark asserts the
evidence of the uncharged offense portrayed him as a serial burglar and, absent
the evidence, a different result is reasonably probable.

Unlike People v. Lopez, Clark’s intent in the charged offense
was not beyond dispute. As the
prosecutor argued at the hearing on the admissibility of the evidence, based on
the evidence that indicated Clark and Esaw knew each other, the jury might
infer Clark had permission to enter even if the defense did not argue it and
Esaw denied it. Also, the security video footage was clear enough to permit the reasonable
inference the item in Clark’s hand could have been keys. In fact, defense counsel suggested to the
prosecutor the object in Clark’s hands might be keys. Therefore, in order to rebut the inference
Clark entered Esaw’s apartment with permission for some purpose other than to
commit theft, the trial court did
not abuse its discretion in permitting
the prosecution to present evidence of the Battest burglary.

4. >Any
error in the admission of the evidence was harmless.

Even assuming the admission of the
challenged evidence constituted error, Clark would not have obtained a more
favorable result absent the error.
Defense counsel argued the identifications of Clark were not reliable as
they were based on body language, not facial features; Clark’s confession was
tainted by the pending threat of eviction; and, the identifications were
tainted by the confession. However,
Clark’s confession could not have tainted the identifications because Esaw and
Lopez, witnesses who were familiar with Clark, immediately identified him as
the individual depicted in the video.
Further, it is unlikely the threat of eviction would cause Clark to
admit the commission of a felony. Thus,
the defense arguments were not persuasive.


On the
other hand, the surveillance video depicted Clark holding an empty bag and
reappearing at the end of the video with items in the bag, including an object
that appeared to be a DVD player. Clark
was identified in the surveillance video by Esaw and Lopez, two individuals who
knew him, and Clark thereafter admitted the crime in writing. Given this overwhelming evidence of guilt,
there is no reasonable probability Clark would have obtained a more favorable
result had evidence of the uncharged burglary been excluded. Thus, regardless of the standard of review,
any error in the admission of the evidence must be seen harmless. (Chapman
v. California (1967) 386 U.S. 18, 22-24 [17 L.Ed.2d 705]; People v. Watson (1956) 46 Cal.2d 818, 836.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS







KLEIN,
P. J.





We concur:





CROSKEY,
J.









ALDRICH,
J.