P.
v. Piani
Filed 2/6/13 P. v. Piani
CA2/6
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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 SIX
THE PEOPLE,
Plaintiff and Respondent,
v.
JOHN THOMAS PIANI,
Defendant and Appellant.
2d Crim. No. B236860
(Super. Ct. No. 2011009370)
(Ventura
County)
John
Thomas Piani appeals from the judgment of
conviction by jury of first degree burglary. (Pen. Code, §§ 459, 460, subd. (a).)
found true the allegations that appellant had one prior serious felony
conviction (§ 667, subd. (a)(1)) and one prior strike conviction (§§ 667,
subd. (e)(1), 1170.12, subds. (b) & (c)(1)). It sentenced him to nine years in state
prison (a 2-year low term for burglary, doubled, under the Three Strikes law,
and a 5-year prior serious felony enhancement).
Appellant's sole contention on appeal is that the court violated his
discretion under Evidence Code section 352 by admitting evidence of a prior
offense. (Evid. Code, § 1101, subd.
(b).) We disagree and affirm.
FACT
On
March 15, 2011, just before
7:00 a.m., Nemesio (Nick) Gomes
entered the garage of his Simi Valley
home and turned on the string of holiday lights he used for illumination. He found appellant, crouched down, next to
the Gomes's car, putting items in a red bag.
Gomes yelled, "Hey, stop," and appellant ran out the side
door. Gomes chased him across the street
and down the block. It was still dark
outside.
Gomes
lost sight of appellant and walked home.
While walking, he saw his neighbor, Wendi Boudreau, who asked what had
happened. She had heard Gomes yell, and
seen him run after appellant. Boudreau
called the police. Gomes returned to his
garage and noticed that his fanny pack, car keys and cell phone were
missing. Within minutes, Boudreau yelled,
"Nick, he's coming back."
Gomes returned to the street, saw appellant, and said, "That's
him." Appellant ran down the
street, and jumped (or "flopped") over a gate, and ran away again.
Simi
Valley Police Department (SVPD) Officer Patrick Coulter arrived within minutes
of appellant's over-the-gate escape.
Gomes showed him the gate where he last saw appellant. Coulter searched the area and found Gomes's
fanny pack and other items that belonged to Gomes, as well as a phone that was
not his.
Appellant
called his fiancée, Patricia Kenney, before 8:00
a.m. He told her his phone
was gone, and asked her to meet him at a gas station. After she drove there, appellant used her
phone and dialed his phone number. SVPD
Detective Stephen Collett, who was then holding appellant's phone, answered
it. Appellant said that the phone
belonged to him. Collett identified
himself as "Jeff," and told appellant that he was at the SVPD
station, where he would leave the phone for him. Appellant urged Collett to meet him at a
nearby Arco gas station instead. Collett
agreed. Appellant said he would be in a
maroon Lexus.
Collett
and several other SVPD personnel went to the Arco station and surrounding area
in unmarked cars, wearing plain clothes.
Kenney drove appellant toward the Arco station. Before they arrived, appellant got out of the
car, in a church parking lot adjacent to the station. Kenney continued to the station, parked and
waited in her Lexus. A SVPD detective
took the phone to her. She accepted it and
drove away. Appellant then started
walking through the church parking lot, where another SVPD detective detained
him. Gomes arrived at the parking lot,
with police, and identified appellant as the man he saw in his garage. He recognized appellant's face, facial hair,
and clothing. The police then arrested
and interviewed appellant. He asked what
they "had on him." He denied any
involvement in the burglary, and claimed that his cell phone was stolen on the
prior night.
Appellant's
phone contained several text messages, including one that was sent from his
phone at 6:32 a.m. on March 15. The
Gomes burglary was reported before 7:00 a.m. that day. One of the text messages on appellant's phone
had a weird nickname that Kenney said was consistent with those used by
appellant and his brother.
At
trial, Kenney testified that appellant lived in his truck in March 2011. On the evening of March 14th, she helped him
work on his truck because he had limited use of his injured right hand. He could not hold objects in that hand, or
raise the hood of the truck without assistance.
On March 15, shortly after his arrest, the police took appellant to a
hospital to get treatment for his injured hand.
Appellant introduced medical records concerning that visit.
Appellant
did not testify at trial. He challenged
the evidence of identity, and cited the poor lighting in the Gomes garage, and
the brief time that Gomes observed the burglar, from a significant distance. He also argued that his hand injury would
have prevented his scaling a gate as the burglar had done on March 15.
DISCUSSION
Appellant
argues that the trial court violated his due
process rights and abused its discretion under Evidence Code section 352 by
admitting evidence of an uncharged offense.
We disagree.
The
trial court allowed the prosecution to present evidence of appellant's 1991
attempted robbery pursuant to Evidence Code section 1101, subdivision (b). It admitted that evidence because it was
relevant to show appellant's intent to steal upon entering Gomes's garage. Appellant's former probation officer
testified that on October 22, 1991, appellant went to a grocery store to steal
cigarettes. He walked to the back of the
store, picked up a fire extinguisher and used it to hit locks on employee
lockers. He then hit an employee, while
trying to take his money. The court
excluded many older offenses offered by the prosecution, including several
burglaries and a robbery that appellant committed as a juvenile, and two adult
petty theft convictions.
We
review a trial court's ruling under Evidence Code sections 1101 and 352 for
abuse of discretion. (
637.) Evidence of a defendant's criminal
conduct on another occasion may be admitted to prove motive, intent, or lack of
self-defense. (Evid. Code, § 1101, subd. (b).) "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 . . . the presence of the normal, i.e., criminal, intent accompanying
such an act. . . .'
[Citation.]" (
402.)
A
not guilty plea places all elements of the charged crime at issue. (People
v. Daniels (1991) 52 Cal.3d 815, 857-858.)
Entry with the intent to commit theft or any felony is an essential
element of burglary. (§ 459.)
Citing
People v. Lopez (2011) 198
Cal.App.4th 698, appellant argues that the trial court erred by admitting other
crimes evidence because its potential for prejudice outweighed its probative
value. (Evid. Code, § 352.) We disagree.
In Lopez, the defendant was
charged with and convicted of residential burglary. The Court of Appeal concluded that the trial
court erred in admitting evidence of a prior burglary and theft to prove
intent. "Evidence regarding the
[charged] burglary showed that someone entered
the . . . [victim's] residence and took two purses. Assuming appellant committed the alleged
conduct, his intent in so doing could not reasonably be disputed—there could be
no innocent explanation for that act.
Thus, the prejudicial effect of admitting evidence of a
prior . . . burglary and . . . theft
outweighed the probative value of the evidence to prove intent as to the
[charged] burglary. [Citation.]" (Lopez,
at p. 715.) Appellant claims that his
prior attempted robbery had no significant probative value because, based on
the "otherwise admissible evidence in this case," there was no
dispute that the person who entered Gomes's garage did so with "the
requisite criminal intent." The
record belies his claim. During trial,
the court received and filed a juror note with the following inquiries: "Is [appellant] homeless?" and
"Where did he sleep the night before?" It received other juror notes, including one
that asked whether appellant was "employed at the time of the
crime." The juror inquiries, and
testimony that appellant lived in his truck at the time of the Gomes burglary,
support the inference that it was unclear whether he entered Gomes's garage
with the intent to seek shelter or the intent to steal.
We
also reject appellant's related claim that because the prejudicial impact of
the attempted robbery outweighed its probative value, the court abused its
discretion by admitting evidence of that crime.
(Evid. Code, § 352.) The
claim rests on the erroneous premise that such evidence lacked any significant
probative value because the issue of intent was "not disputed at
trial." Appellant stresses the
20-year age of the attempted robbery and its violent nature. The minimal evidence regarding the attempted
robbery was not unduly prejudicial. It
was not graphic and did not suggest that the victim suffered serious
injury. The record supports the trial
court's discretionary determination that the probative value of the appellant's
prior attempted robbery outweighed its prejudicial impact. In addition, before the jury heard evidence
concerning appellant's prior offense, the court instructed the jury that it
could only consider that evidence for the limited purpose of "deciding
whether [appellant] entered the garage with the intent to commit
theft." It repeated that
instruction among its final instructions to the jury. (CALCRIM No. 303, CALCRIM No. 375.) We presume that the jury followed the court's
instructions. (People v. Martin (2000) 78 Cal.App.4th 1107, 1111.) Because the disputed evidence was relevant
and admissible on the issue of intent, its admission did not implicate
appellant's federal due process rights. (People
v. Catlin (2001) 26 Cal.4th 81, 122-123.)
DISPOSITION
The
judgment is affirmed.
NOT TO BE PUBLISHED.
PERREN,
J.
We concur:
GILBERT, P.J.
YEGAN, J.
Jeffrey
G. Bennett, Judge
Superior
Court County of Ventura
______________________________
William
Paul Melcher, 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, Senior Assistant Attorney General, Steven E. Mercer,
J. Michael Lehmann, Deputy Attorneys General, for Plaintiff and Respondent.
otherwise stated.
