P. v. Moore
Ernest Christopher Moore appeals from his convictions by jury verdict of first degree residential burglary, attempted first degree residential burglary, assault with intent to commit a sexual offense, criminal threats, attempted robbery, and assault with a deadly weapon. He contends the trial court erred in admitting evidence of uncharged crimes and in instructing the jury on first degree burglary. Appellant challenges the sufficiency of the evidence to support the assault conviction. He argues the prosecutor violated discovery rules and due process by failing to disclose forensic test results. Appellant argues that multiple punishment for burglary, criminal threats, and attempted robbery is improper and that the case must be remanded to afford the court an opportunity to exercise its discretion to impose consecutive or concurrent sentences. He asserts that these cumulative errors warrant reversal.
We conclude that evidence of uncharged crimes was properly admitted under Evidence Code section 1101, subdivision (b). The instructions on burglary were adequate. We find sufficient evidence to support appellant's conviction for assault with intent to commit a sex crime. The curative instruction given by the trial court was an adequate sanction for the prosecution's violation of its statutory obligation to provide timely discovery. The sentences for attempted robbery and criminal threats are stayed pursuant to Penal Code section 654 (all statutory references are to the Penal Code unless otherwise indicated). Appellant forfeited his challenge to the imposition of consecutive sentences by failing to object, but in any event the court provided an adequate reason for its sentencing choice. The trial court erred by failing to impose the mandatory five-year enhancement for each new serious felony conviction under section 667, subdivision (a) and we order the abstract of judgment amended to reflect those enhancements.
Respondent asks us to review the trial court's ruling excluding evidence of uncharged crimes under Evidence Code section 1108. The issue was not preserved for appeal because the prosecutor opted not to pursue admissibility under that statute.
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