P. v. Smythe

Filed 5/1/06 P. v. Smythe CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Albert J. Wojcik, Judge. Affirmed.

Michael R. Totaro, under appointment by the Court of Appeal, for the Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Robert M. Foster, Supervising Deputy Attorney General, and Scott C. Taylor, Deputy Attorney General, for the Plaintiff and Respondent.

A jury found defendant and appellant Aaron B. Smythe guilty of one count of vehicle theft, with a prior vehicle theft conviction (Pen. Code, § 666.5; Veh. Code, § 10851, count 1), and one count of receiving a stolen vehicle (Pen. Code, § 496d, subd. (a), count 2). Pursuant to Penal Code section 666.5, defendant admitted that he had previously been convicted of vehicle theft, as to count 1. He also admitted that he had one prior strike conviction, within the meaning of Penal Code sections 667, subdivision (c) and (e)(1) and 1170.12, subdivision (c)(1). The trial court sentenced defendant to a total prison term of six years.

On appeal, defendant argues that the trial court erred in admitting evidence of the prior vehicle theft under Evidence Code section 1101, subdivision (b).^[1] We affirm.

FACTUAL BACKGROUND

Current Offense

On March 26, 2004, Albert Schweikert dropped off his white van (the van) at Pep Boys for repair. He locked the doors and left the keys with an employee of Pep Boys. The van was parked in a lot on the side of the store, and the keys were kept in an unlocked drawer in the store. At some point, the van disappeared from the Pep Boys lot.

On March 31, 2004, defendant and his friend Johnny Blaze came into the restaurant where Drew Hackney, another friend, worked. Jason Rollins was also present. The four talked and planned to meet at the AM/PM market to put gas in the van that

defendant was driving. Defendant left first. Blaze then told Hackney and Rollins that defendant had stolen the van from the Pep Boys parking lot. Rollins called the sheriff's department and told Officer Samuel Acosta about the stolen van and told him that defendant was on his way to the AM/PM market.

Officer Eric Albert drove to the AM/PM market and saw defendant driving the white van onto a frontage road. Officer Timothy Vasquez, who was in another car, pulled defendant over. Officer Acosta, who also arrived at the scene, asked defendant who the van belonged to. Defendant replied that someone named Dan told him the van was stolen, and he asked Dan if he could borrow it. There was no damage done to the ignition. The keys were in the van. Defendant was arrested.

The police called Schweikert to tell him that his van was recovered. Schweikert went to the location and identified his van.

Prior Offense

Nicole Shands owned a tan Honda Civic (the car). On January 23, 2003, she and her husband parked the car in front of the entrance to a gym. Shands's husband took the keys with him into the gym. Shands and her husband discovered that the car keys and the car were missing when they left the gym.

On the afternoon of January 29, 2003, Officer Eric Hamilton spotted defendant sleeping behind the wheel of the car, which was parked in a remote area. Officer Hamilton determined that the car was stolen and asked defendant where he got the car. Defendant told him that a man named Daniel gave him the car five days ago to live in because he (defendant) was homeless.

The police returned the car to Shands. Her purse was in the car but her checkbook and a credit card were missing. There was no damage done to the car except a few scratches on the bumper. The car was returned to her with the keys.

ANALYSIS

The Trial Court Properly Admitted the Prior Crimes Evidence

Defendant argues that there were insufficient similarities between the current offense and the prior offense for the court to admit evidence of the car theft under section 1101, subdivision (b). He also argues that the potential for undue prejudice outweighed the probative value. We disagree.

A. Standard of Review

Evidence of a defendant's uncharged criminal acts is admissible when it is relevant to prove some fact at issue, such as intent and absence of mistake. (People v. Tapia (1994) 25 Cal.App.4th 984, 1021 (Tapia); People v. Simon (1986) 184 Cal.App.3d 125, 129; § 1101, subd. (b).) We review the trial court's determination of the admissibility of evidence of a prior uncharged crime under the abuse of discretion standard. (Tapia, supra, 25 Cal.App.4th at p. 1021; People v. Cole (2004) 33 Cal.4th 1158, 1195 (Cole).)

B. The Trial Court Properly Admitted the Evidence Under Section 1101, Subdivision (b)

The trial court determined that evidence of defendant's prior vehicle theft was admissible under section 1101, subdivision (b) to show the absence of mistake and defendant's intent to deprive the owner of the van in the current case. We agree that the evidence in question was relevant to these issues.

Courts have long recognized â€