P. v. Keesling








Filed 9/15/11 P. v. Keesling CA4/3






NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, Plaintiff and Respondent, v. PAUL LAYTON KEESLING, Defendant and Appellant.

G044483 (Super. Ct. No. 08HF0910) O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, James Edward Rogan, Judge. Affirmed.
Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and Garrett Beaumont, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
A jury convicted defendant Paul Layton Keesling of one count of burglary (Pen. Code, §§ 459, 460). In a bifurcated proceeding, the trial court found to be true allegations of 12 prior strikes. The court sentenced defendant to 45 years to life in state prison.
Defendant contends the court committed prejudicial error under Evidence Code sections 1101 and 352 by admitting evidence concerning the detainment of defendant while in the midst of certain uncharged conduct four months after the charged offense, purportedly to show defendant’s common scheme or plan in connection with the charged offense. Defendant also asserts the court erred by refusing defendant’s request to represent himself, even though defendant waited to make such request until the date of his sentencing hearing. We affirm the judgment.

FACTS

This case involves the burglary of a residence on Rockingham Drive in Newport Beach, California. The residence is located in a gated community of large (approximately 4,000 to 5,000 square feet) homes. After the owners of the residence returned home from the theatre on the evening of November 30, 2007, they found their bedroom closets in disarray and could not find certain personal property valued at approximately $200,000. There were marks on a french door that appeared to be caused by the insertion of a screwdriver. There was damage to the “latch portion of the door, on the exterior.”
DNA evidence collected from the residence was analyzed by the Orange County crime lab. The analysis linked defendant to the crime scene. Defendant could not “be eliminated as a source of the DNA that was found on the ‘his’ drawer pull.” The DNA profile “is more rare than one in one trillion unrelated individuals.” The victims had never met defendant, and had never given defendant permission to enter their home.
Defendant purchased a 2002 Mercedes CL-500 on January 26, 2008, paying $13,700 in cash. Defendant listed his phone number as (818) 296-7263 on the automobile purchase contract. The officer tasked with arresting defendant left behind a business card at defendant’s sister’s residence in June 2008. Shortly thereafter, the officer received a phone call from an individual identifying himself as defendant; the phone number of the caller was (818) 296-7263. The individual on the phone told the officer he would turn himself in, but never did so.
On April 6, 2008, a deputy sheriff in Villa Park, California, noticed two individuals sitting in a parked car at 9:50 p.m. Villa Park, according to the testimony of the deputy, “is a very, very affluent neighborhood. Average price of the homes in that street [where defendant was parked is] well over a million dollars.” Defendant was sitting in the passenger seat of a Cadillac. The deputy noticed the driver reaching under the seat and “smelled an odor of marijuana coming from the vehicle when [he] made contact.” Defendant told the deputy he was “coming from a barbecue and he couldn’t tell me where they were at or the people they were with.” The other man “said they just dropped a girl off and they couldn’t give me their names.” Searching the car, the deputy found two identical pairs of gloves (“I call them gardening gloves, but they are more of a cotton type glove with an elastic wristband on them”, an 18-inch screwdriver under the driver’s seat, and a neoprene mask. The screwdriver “can be used as a pry tool.” The officer also found marijuana and two paper cups filled with alcohol.
On July 20, 2008, a beach patrol officer detained defendant for smoking and littering on the boardwalk in San Diego, California. Defendant provided a false name when asked to identify himself. The officer arrested defendant and informed him a fingerprint identification would be performed to confirm his identify. Defendant then volunteered his actual name and the fact that he was subject to an outstanding arrest warrant for burglary.
In a surreptitiously recorded phone conversation from jail on February 28, 2009, defendant stated in the course of discussing personal matters: (1) “And yeah it’s my fault for being in here”; and (2) “I get upset about it, when I think about it. But I mean, you know, what can I do‌ It’s my fault . . . .”
In support of defendant’s purported alibi, defendant’s friend testified that defendant was at a celebratory barbeque on the evening of November 30, 2007. But cell phone records suggest calls were made on defendant’s cell phone (the same number listed on the automobile purchase contract) up to 39 miles from the barbeque site on the evening in question.

DISCUSSION

Admission of “Common Scheme or Plan” Evidence
As he did at trial, defendant asserts the court should not have allowed the prosecutor to elicit testimony concerning the April 6, 2008 incident in Villa Park. Defendant asserts this testimony was either inadmissible character evidence or was unduly prejudicial. Although defendant contends the evidence was used to establish his identity as the perpetrator of the Newport Beach burglary, the court explicitly admitted the Villa Park evidence to prove a common scheme or plan (Evid. Code, § 1101, subd. (b)), and further ruled that the probative value of the evidence was not substantially outweighed by its prejudicial impact (Evid. Code, § 352).
The court provided the following instruction to the jury: “The People presented evidence that the defendant committed another offense, the offense of possession of burglary tools that was not charged in this case. [¶] . . . [¶] If you decide that the defendant committed the uncharged offense, you may, but are not required to, consider that evidence for the limited purpose of deciding whether or not: [¶] The defendant had a plan or scheme to commit the offenses alleged in this case. [¶] In evaluating this evidence, consider the similarity or lack of similarity between the uncharged offense and the charged offense. [¶] Do not conclude from this evidence that the defendant has a bad character or is disposed to commit crime. [¶] If you conclude that the defendant committed the uncharged offense, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of residential burglary. The People must still prove each charge beyond a reasonable doubt.” (Italics added.)
We review evidentiary rulings under Evidence Code sections 1101 and 352 for an abuse of discretion. (People v. Foster (2010) 50 Cal.4th 1301, 1328.) “‘“[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.”’” (Id., at pp. 1328-1329.)
“Except as otherwise provided by statute, all relevant evidence is admissible.” (Evid. Code, § 351.) Despite its relevance, “evidence of character in the form of specific instances of uncharged misconduct, to prove the conduct of that person on a specified occasion[,]” is inadmissible. (People v. Ewoldt (1994) 7 Cal.4th 380, 393 (Ewoldt), superseded on other grounds by Evid. Code § 1108; see also § 1101, subd. (a).) But “[n]othing . . . 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.” (Evid. Code, § 1101, subd. (b).)
“[E]vidence of a defendant’s uncharged misconduct is relevant where the uncharged misconduct and the charged offense are sufficiently similar to support the inference that they are manifestations of a common design or plan.” (Ewoldt, supra, 7 Cal.4th at pp. 401-402.) “[E]vidence of a common design or plan is admitted not to prove the defendant’s intent or identity, but to prove that the defendant engaged in the conduct alleged to constitute the charged offense. [Citation.] Such evidence, therefore, is not admitted to establish that the defendant has a criminal disposition or bad character, but to prove that he or she committed the charged offense pursuant to the same design or plan used in committing the uncharged criminal acts.” (Id. at p. 399.) “To be admissible to show a common scheme or plan, a greater degree of similarity is required than to show intent, and ‘the common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan revealed need not be distinctive or unusual’” like evidence used to prove identity. (People v. Davis (2009) 46 Cal.4th 539, 602; see also Ewoldt, at pp. 402-403.) Common scheme or plan evidence need not relate to “a single, continuing conception or plot.” (Ewoldt, at p. 401.)
The first question presented is whether the court was within its discretion when it concluded that evidence of the Villa Park incident was relevant to prove defendant’s plan or common scheme. The Villa Park incident was inadmissible if its only possible relevance was to show defendant’s propensity for engaging in illegal behavior.
There are similarities between the Newport Beach burglary and the Villa Park incident. Both communities feature wealthy residents and lavish homes. The mask, gloves, and screwdriver in the car during the Villa Park incident, along with defendant’s suspicious responses to questioning, suggests defendant and his companion may have been preparing for a burglary in the Villa Park area. A screwdriver might have been used to pry open a door in the Newport Beach burglary. Both incidents occurred at night. Despite the lack of overwhelming similarities, we cannot say the court’s ruling was arbitrary, capricious, or patently absurd. Defendant’s presence with burglary tools in Villa Park is relevant to whether defendant had a common scheme to burglarize wealthy residences.
“The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352.) In cases involving uncharged misconduct, “[t]he probative value of the uncharged offense evidence must be substantial . . . .” (People v. Kipp (1998) 18 Cal.4th 349, 371.)
In dicta, the Ewoldt court observed: “[I]n most prosecutions for crimes such as burglary and robbery, it is beyond dispute that the charged offense was committed by someone; the primary issue to be determined is whether the defendant was the perpetrator of that crime. Thus, in such circumstances, evidence that the defendant committed uncharged offenses that were sufficiently similar to the charged offense to demonstrate a common design or plan (but not sufficiently distinctive to establish identity) ordinarily would be inadmissible. Although such evidence is relevant to demonstrate that, assuming the defendant was present at the scene of the crime, the defendant engaged in the conduct alleged to constitute the charged offense, if it is beyond dispute that the alleged crime occurred, such evidence would be merely cumulative and the prejudicial effect of the evidence of uncharged acts would outweigh its probative value.” (Ewoldt, supra, 7 Cal.4th at p. 406.)
Here, however, the court did not abuse its broad discretion under Evidence Code section 352. If the jury believed the DNA evidence and believed defendant was in Villa Park preparing to burglarize a residence, such findings would be probative of defendant having a scheme or plan to burglarize wealthy residences. It was not cumulative in this case to present direct evidence of defendant’s scheme to burglarize residences. The prosecution’s case relied almost exclusively on linking defendant to the charged burglary through DNA evidence. Moreover, the Villa Park incident was not particularly prejudicial, as the circumstances of the Villa Park incident were subject to interpretation. It is extremely unlikely that the jury would have disbelieved the DNA evidence but still convicted the defendant based on an emotional response to evidence he was in a parked car with items that might be used to commit a burglary. Indeed, the jury was specifically instructed that it should not convict the defendant based purely on the Villa Park incident.
And even if we were to conclude the court abused its discretion in this case, any error was harmless. (See People v. Cole (2004) 33 Cal.4th 1158, 1195 [error in admitting evidence of prior crimes does not provide basis for reversal if such error was harmless].) As noted above, the reliability of DNA evidence was the key dispute in this case. It is not reasonably probable that the jury would have reached a different result had the Villa Park evidence been excluded, given the DNA evidence and the other evidence tending to show defendant’s guilt.

Right to Self-Representation
Defendant also claims the court violated his right to represent himself under Faretta v. California (1975) 422 U.S. 806 (Faretta). Pursuant to Faretta, “[t]he state may not ‘hale a person into its criminal courts and there force a lawyer upon him, even when he insists that he wants to conduct his own defense.’ [Citation.] Rather, the defendant may waive the Sixth Amendment right to counsel in favor of self-representation. [Citation.] The waiver must be voluntary, knowing, and intelligent. [Citation.] And the defendant must be competent to make that choice.” (People v. Wrentmore (2011) 196 Cal.App.4th 921, 930.)
On the date set for the bench trial on defendant’s prior convictions and the sentencing hearing, defendant sought to represent himself, and also requested a continuance to investigate and pursue additional legal theories. The trial court denied defendant’s motion as untimely and found granting the motion would “create an unjustifiable delay. [¶] And further, . . . [granting defendant’s request] would obstruct the orderly administration of justice . . . .”
“The right of self-representation is absolute, but only if a request to do so is . . . asserted a reasonable time before trial begins. Otherwise, requests for self-representation are addressed to the trial court’s sound discretion.” (People v. Doolin (2009) 45 Cal.4th 390, 453.) “The timeliness requirement ‘serves to prevent a defendant from misusing the motion to delay unjustifiably the trial or to obstruct the orderly administration of justice.’” (Id. at p. 454.) A trial court acts within its discretion by denying a Faretta motion brought on the day set for sentencing or the day set to begin a penalty phase of a capital trial. (Doolin, at pp. 454-455.)
Defendant claims the court abused its discretion, but offers no cases in support of his supposition that he was entitled to represent himself under the circumstances. Here, the court was clearly within its discretion in denying defendant’s untimely motion.

DISPOSITION

The judgment is affirmed.



IKOLA, J.

I CONCUR:



FYBEL, J.

BEDSWORTH, ACTING P.J., Concurring:

I concur. I see no reason to reach the merits of the Evidence Code section 1101 issue. Any error would have been harmless.








BEDSWORTH, ACTING P. J.




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