P. v. Rodriguez

Filed 9/19/07 P. v. Rodriguez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from the Superior Court of Riverside County. Paul E. Zellerbach, Judge. Affirmed.

Marcia R. Clark, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Peter Quon, Jr., Supervising Deputy Attorney General, and Karl T. Terp, Deputy Attorney General, for Plaintiff and Respondent.

INTRODUCTION

A jury found defendant guilty of second degree burglary (Pen. Code, 459), resisting a peace officer (Pen. Code, 148, subd. (a)(1)), and falsely identifying himself to a peace officer (Pen. Code, 148.9, subd. (a)). Defendant admitted two prior prison term enhancements. (Pen. Code, 667.5, subd. (b).) The court sentenced defendant to four years in state prison. Defendant contends the court abused its discretion by granting the Peoples motion to admit evidence of his prior offense of unlawfully driving or taking a vehicle. (Veh. Code, 10851, subd. (a).) We affirm.

FACTS

On July 4, 2005, a uniformed security guard was patrolling the parking lot of a nightclub when he heard the sounds of someone hitting a vehicle and glass popping. The security guard followed the noise and observed defendant using his hands to pry open the window of a vehicle. The security guard saw that the vehicle window was open approximately one inch and defendant was pulling it down with his fingers. When the security guard asked defendant what he was doing, defendant ran from the area. A sheriffs deputy witnessed the incident and chased defendant, eventually catching defendant and knocking him to the ground.

While defendant was still on the ground, a second sheriffs deputy arrived. The second deputy placed defendant in the back of his patrol car. The deputy asked defendant for his name; defendant gave the deputy a name and date of birth, which sheriffs dispatch found was invalid. The deputy asked defendant for his name several more times, and each time defendant gave a different name and date of birth, all of which were found to be invalid by sheriffs dispatch. The deputies were eventually able to identify defendant from a bystander who was familiar with him. After the deputies obtained the correct name for defendant, he began kicking the doors and windows of the patrol car, and banging his head on the grate separating the backseat from the front of the patrol car. The deputy was able to calm defendant after spraying his eyes with pepper spray. Neither deputy believed defendant was intoxicated when he was arrested, although he did smell of alcohol.

During a hearing on motions in limine, the People moved to admit evidence that defendant suffered a prior conviction for unlawfully driving or taking a vehicle in March 2004. (Veh. Code, 10851, subd. (a); Evid. Code, 1101, subd. (b).)^[1] In that case, the victims vehicle was taken from her residence in Covina. The vehicle was unlocked and the keys were inside. Within hours of the vehicle being reported stolen, defendant drove the vehicle to the San Ysidro port of entry, attempting to cross into California. As defendant approached the port of entry, a border agent entered the vehicles license plate information into the agents computer system. The computer alerted the agent to inspect the vehicle. When questioned by the border agent, defendant stated the vehicle belonged to his cousin. After giving the agent a drivers license that had been cut in half, the agent detained defendant.

The People offered to prove the prior offense through the testimony of the victim, the border patrol agent that stopped defendant, and documents regarding defendants conviction. The People argued that evidence of the prior offense tended to prove defendants felonious intent at the time he entered the vehicle in the current case. Defendants trial counsel conceded that intent was an issue, especially in light of a possible defense based on diminished capacity by voluntary intoxication; however, defendants trial counsel argued the evidence should be excluded because the People already had sufficient evidence to prove defendants intent and any testimony about the prior offense would cause an undue consumption of time. The trial court granted the Peoples motion to admit the circumstances of defendants prior offense, but excluded evidence of defendants conviction in the prior case.

DISCUSSION

Defendant contends the court abused its discretion by admitting evidence of his prior offense of unlawfully driving or taking a vehicle. We disagree.

Evidence of prior offenses is not admissible to prove a defendants disposition to commit a criminal act; however, such evidence is admissible to prove a material issue, such as intent. ( 1101, subd. (b).)In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar [to the charged offenses] to support the inference that the defendant probably harbor[ed] the same intent in each instance. [Citations.] [Citation.] [Citation.] (People v. Carter (2005) 36 Cal.4th 1114, 1149.)

There is an additional requirement for the admissibility of evidence of uncharged crimes: The probative value of the uncharged offense evidence must be substantial and must not be largely outweighed by the probability that its admission would create a serious danger of undue prejudice, of confusing the issues, or of misleading the jury. [Citation.] (People v. Kipp (1998) 18 Cal.4th 349, 371; see also 352.) The probative value of the evidence is evaluated based upon the following factors: (1) the similarities between the prior conduct and charged crimes; (2) the amount of time that has occurred between the previous offense and the charged crimes; and (3) the extent of independent sources of evidence that will be required to prove the previous offense. (People v. Zepeda (2001) 87 Cal.App.4th 1183, 1211.) The factors that must be considered in determining the prejudicial effect of previous conduct include (1) whether the prior conduct resulted in a criminal conviction, and (2) whether the evidence of the prior offense is stronger or more inflammatory than the evidence of the charged crimes. (Ibid.) We review the trial courts resolution of these issues for an abuse of discretion. (People v. Kipp, supra, at p. 371.)

When the trial court considered whether or not to admit evidence of defendants prior offense, it combined its examination of the factual similarities with the weighing of probative value against undue prejudice. The trial court concluded that defendants prior involvement in an auto theft, or driving a vehicle without permission or consent of the owner was probative of defendants specific intent to steal, or commit a theft in the current case.

We extrapolate from these comments the trial courts recognition that both offenses were crimes of opportunity. The prior case involved an unlocked vehicle with the keys inside, which was taken between the hours of 9:00 p.m. and 5:00 a.m. Defendant was discovered driving the vehicle a few hours after it was reported stolen. The current case involved a vehicle with a loose window, which defendant burglarized at approximately 1:30 a.m. Both cases involved vehicles parked outside while their owners were in a nearby building.

We conclude that the trial court did not abuse its discretion in determining that the facts of both cases are sufficiently similar to support the inference that defendant probably harbored the same intent in each offense, which was to deprive the owners of their possession of their vehicles. (Veh. Code, 10851, subd. (a).) Accordingly, we find no abuse of discretion in the trial courts decision to admit evidence of the prior offense based upon its factual similarities to the charged crimes.

Next, we examine whether the court abused its discretion by finding the probative value of the evidence substantially outweighed its prejudicial effect. ( 352.) The trial court determined that the prior offense was highly probative of defendants criminal intent in the current case, due to the factual similarities of the two cases, as noted above. Further, the court found that the two crimes occurred within a time period of 18 months; and the evidence of the prior crime did not necessitate an undue consumption of time because the People planned to present only two witnesses to establish the prior offense.

In weighing the prejudicial effect, the trial court recognized that defendants prior conduct resulted in a conviction; however, the court did not grant the Peoples motion to present evidence of the conviction. Additionally, we discern from the trial courts comments that it concluded the prior offense was not more inflammatory than the charged offense, due to the similarities of the two crimes.

We conclude that the trial court considered all the proper factors in weighing the probative value of the evidence against its prejudicial effect. Furthermore, we are convinced the trial court did not abuse its discretion in ruling that the evidence was admissible. There are sufficient similarities between the charged and uncharged crimes to (1) cause the prior crime to be substantially probative of defendants intent and (2) ensure that the jury would not be confused or misled.

Defendant contends that the evidence was highly prejudicial due to the courts decision to exclude evidence of his conviction for the prior offense. Defendant surmises that the jury likely convicted him of the charged offense because they wanted to penalize him for his prior crime, for which they would have assumed he had not already been punished. Defendant waived this argument by failing to raise it during the two hearings on motions in limine. When the People requested to admit evidence regarding defendants conviction, defendant argued all evidence concerning the prior offense should be excluded. Furthermore, the trial court repeatedly stated that it believed evidence of defendants conviction should be excluded because section 1101, subdivision (b), is concerned with conduct rather than convictions; defendant never raised an objection to the courts reasoning.

Defendant relies on the case of People v. Thompson (1980) 27 Cal.3d 303, to support his contention that the court abused its discretion. In that case, the court found the only similarity between the uncharged robbery of a restaurant employee in a restaurant parking lot and the charged home invasion burglary and robbery was the defendants act of demanding and taking the victims car keys. (Id. at p. 321.) The California Supreme Court ruled, Evidence that an individual intended to steal car keys on one occasion does not, by itself, substantially tend to prove that he intended to steal them on a second occasion. (Ibid.)

We do not find the facts of defendants case to be analogous to the facts of Thompson. Defendant argues that the only similarity between his previous offense and the charged offense is that they both involve a car. However, there are many more similarities, such as where the vehicles were located in relation to their owners, when the crimes took place, and the fact that both vehicles were easily accessible -- one because it was unlocked and the other because it had a loose window. Accordingly, we do not find defendants comparison to Thompson to be persuasive.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P.J.

We concur:

HOLLENHORST

J.

MILLER

J.

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^[1] All further statutory references are to the Evidence Code unless otherwise indicated.