IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
December 10, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
JERROD ANTHONY BROWN, DEFENDANT AND APPELLANT.
(Super.Ct.No. RIF131930) APPEAL from the Superior Court of Riverside County. Christian F. Thierbach, Judge. Affirmed. Jonathan E. Demson, under appointment by the Court of Appeal, for Defendant and Appellant.
The opinion of the court was delivered by: Miller J.
P. v. Brown 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant Jerrod Anthony Brown of attempted first degree burglary (Count 1--Pen. Code §§ 664, 459). The trial court sentenced defendant to the midterm of two years of incarceration and ordered him to pay an amount not to exceed $318 for the costs of the preparation of the presentence probation report. On appeal, defendant contends the court erred in permitting evidence of his commission of a subsequent burglary on the issue of intent pursuant to Evidence Code section 1101, subdivision (b).*fn1 Defendant additionally maintains that the court erred in imposing the $318 fee because it failed to offer him a hearing and render a finding on his ability to pay that fee. We affirm.
FACTUAL AND PROCEDURAL HISTORY
On February 15, 2006, Samuel Biedny was living at his home in Corona; however, he was in the process of moving to another home in Woodcrest. His home in Corona had a realty sign posted in the front yard indicating the home was for sale. Biedny left the Corona home around 10:00 a.m. on a trip to the Woodcrest home to drop off some of his possessions. He returned to the Corona home around 1:00 p.m.
When he returned, Biedny noticed a car parked in his driveway; it had been backed in. Biedny parked his truck in front of the driveway blocking the car's egress. Two people then emerged from the side gate of his property. One of the individuals was defendant; the other was a woman. Both were "very well dressed."
The individuals informed Biedny they saw that the property was for sale; they were looking to purchase property in the neighborhood. They simply walked into the backyard to look around. They apologized for doing so.
Biedney offered them an opportunity to tour the house; they accepted. He gave them a tour of the home, which lasted approximately 20 to 30 minutes. Defendant and his associate appeared attentive and interested in the home. At the end of the tour, Biedny gave them his business card, moved his car, and waved goodbye. They told the victim they would contact him. Neither he nor his realtor ever heard from them.
After defendant and his associate left, Biedny noticed that the gate was open. Biedney testified that he always locked the gate so he went over to check it. He "noticed that the hasp[*fn2 ] that mounted a padlock was somewhat twisted and the lock was missing." He had checked the lock on the gate the day before; it was then intact. Biedny immediately suspected that someone had broken in; he started looking at all the home's windows.
The screen had been removed from one of the windows and placed on the concrete slab in the backyard. That window frame had several severe pry marks. Biedny called the police.
Detective Robert Gonzalez, then a patrolman with the Corona Police Department, responded to Biedny's home. Biedny pointed out the window to Detective Gonzalez. Detective Gonzalez testified that "It looked like it had been pried. There were pry marks on the framing of the window." He dusted the window for fingerprints, obtaining three latent print cards with at least five fingerprints. Detective Gonzalez submitted the latent fingerprint cards to a forensic technician for processing.
The forensic technician matched four of the five prints to defendant. Biedny subsequently picked defendant out of a six-pack photographic lineup.
A. SECTION 1101, SUBDIVISION (B) EVIDENCE
Defendant contends the trial court abused its discretion in admitting evidence of defendant's subsequent commission of a burglary on the issue of defendant's intent in the current case. Defendant specifically maintains that the two incidents were too dissimilar; that the prosecutor initially sought admission of the offense on the issue of mistake of fact, not intent; that intent was not at issue in the current case; that the offense was more prejudicial than probative; and that the court erred in instructing the jury that it could also consider the evidence of the offense for purposes of identification. Although we agree that the court erred in instructing the jury that it could use the subsequent offense for purposes of establishing defendant's identify, we find the error harmless. We disagree with defendant's remaining contentions.
Prior to trial, the People filed a motion in limine seeking to establish defendant's intent to commit a theft in the current case by adducing evidence of the circumstances involved in defendant's subsequent conviction for burglary in another case. The trial court ruled that the evidence would be admissible on the limited basis of intent.
At trial, the People adduced such evidence through the testimony of three individuals. David Martens testified that on February 21, 2007, at around 9:30 a.m., he witnessed two men loading something into a green truck parked in his neighbor's driveway; the truck left thereafter. He called 911. Sheriff's Deputy Chris Wadkins was dispatched to the residence. He testified that "The front door to the residence had apparently been kicked in with the doorjamb splintered in the lock area." Inside he noted that the television stand had a ring of dust around what was apparently a missing television. As he went outside, Martens informed him he saw the suspect vehicle drive by. Wadkins pursued the suspect truck in his patrol car in the direction indicated by Martens.
At some point thereafter, he pulled over a vehicle matching the description provided by Martens. Two men were seated in the vehicle; defendant was the driver. A stolen television, later identified as belonging to the victim Carla Cunningham, a VCR, DVD player, camera, and other items were found in defendant's truck. Martens confirmed that defendant was one of the culprits at an infield identification. The police telephoned Cunningham to inform her that her home had been broken into. Cunningham came home to find the front door kicked in, the house rifled through, dresser drawers open, the mattresses shoved off the beds, and her television missing. Defendant pled guilty to a burglary charge arising from the incident.
"On appeal, the trial court's determination of this issue, being essentially a determination of relevance, is reviewed for abuse of discretion." (People v. Kipp (1998) 18 Cal.4th 349, 369 (Kipp).) We view the evidence in the light most favorable to the trial court's ruling. (Id. at p. 370.)
"The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent." (People v. Ewoldt (1994) 7 Cal.4th 380, 402 (Ewoldt); see also Kipp, supra, 18 Cal.4th at p. 371.) "In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant '"probably harbor[ed] the same intent in each instance." [Citations.]' [Citation.]" (Ewoldt, at p. 402; People v. Ramirez (2006) 39 Cal.4th 398, 463.)
Here, without question, defendant "'"harbor[ed] the same intent in each instance."'" (Ewoldt, supra, 7 Cal.4th at p. 402.) That intent was to remove property from the interior of the home. In both cases, defendant acted in concert with a partner. The vehicle was parked in the driveway of each residence. Defendant then attempted to break into the respective homes (successfully in the latter). Both events took place at a time when most people would be at work. Although the trial court neglected to orally exposit its analysis of the similarities of the incidents, it is readily apparent that it tacitly did so. The two situations were sufficiently similar such that the court acted within its discretion in admitting the evidence on the subsequent offense for evidence of defendant's intent to commit a theft in the current incident.
We readily acknowledge that there were differences between the two events. In the latter incident, defendant was accompanied by a man, he drove a truck, he broke in through the front door, and his truck was parked in the driveway in the opposite direction. Nevertheless, these minor disparities are not of such consequence that they negate the sufficient similarities between the two acts.
Contrary to defendant's contention, it is not at all reasonable that someone who was merely interested in the residence as a potential real estate purchase would park their vehicle in the driveway and enter the backyard uninvited. Indeed, Biedny was sufficiently suspicious of the car that he immediately blocked its path of escape. Moreover, upon defendant's departure, Biedny moved directly to inspect the gate. Similarly, it would not be reasonable to assume, as defendant would have us believe, that merely because a property was for sale, the home was empty. Indeed, Biedny testified he was living in the home. He testified he had "a lot of valuables" inside the home and that he kept all the blinds closed so that people could not look "inside the house to see what I had."
Defendant's contention that the People sought admission of the uncharged offense solely on the grounds of mistake of fact is belied by the record. While the People's trial brief's section on the issue was entitled "Evidence of the defendant's prior appropriation of lost property should be admitted to establish lack of mistake," the argument therein clearly established that the People sought admission of the evidence to establish intent: "The People intend to offer evidence of the prior conduct to prove that the defendant intended to enter the victim's house and commit a theft"; (second italics added) "The People have the burden of proving that the defendant attempted to enter the victim's home with the intent to commit a theft. The People intend to meet that burden with the introduction of the defendant's prior similar conduct." (Second italics added.) Likewise, at the hearing on the motion, the People argued that the subsequent offense was relevant to prove defendant's intent in the current case: "I think when defendant pled not guilty and put every element of the charges in issue--and one of those elements is the intent;" "I think the evidence of the prior burglary . . . . [¶] [is] pertinent . . . as far as [defendant's] intention . . . ." (Italics added.) Similarly, there is little, if any, difference in the instant case for distinguishing admission of the evidence for the purposes of mistake of fact or intent. (People v. Guerrero (1976) 16 Cal.3d 719, 726 [a defendant can admit an act, but deny the necessary intent because of a mistake or accident].) The court ultimately ruled that the evidence was admissible on the issue of intent.
Defendant extensively argues that intent was not at issue in the present case; thus, he maintains the court erred in allowing evidence on that element. However, defendant's defense in the current case was that while he may have touched the window frame, he did not pry it open or intend to enter the home. Thus, defendant's intent was directly at issue to the extent the jury determined that defendant had attempted to pry the window frame open.
Moreover, contrary to defendant's contention, a defendant's plea of not guilty puts the elements of the crime in issue for the purpose of deciding the admissibility of evidence of uncharged misconduct, unless the defendant has taken some action to narrow the prosecution's burden of proof. (Ewoldt, supra, 7 Cal.4th at p. 400, fn. 4.) The prosecution's burden to prove every element of the crime "'is not relieved by a defendant's tactical decision not to contest an essential element of the offense.'" (Ibid.) Here, defendant did not stipulate that if he had attempted to pry the window open, he had done so with the intent to steal; hence, intent remained at issue and it was the People's burden to prove this at trial. Defendant's citation to People v. Thompson (1980) 27 Cal.3d 303, 315, for the proposition that an accused must actually place an element in issue before an uncharged offense may be adduced to prove that element is unavailing. Thompson's holding on that issue has been "substantially limited," if not overruled. (People v. Rodriguez (1986) 42 Cal.3d 730, 757-758; People v. Daniels (1991) 52 Cal.3d 815, 857-858; see also Ewoldt, supra, at p. 400, fn. 4.) Furthermore, since the court's ruling was made prior to the defense case, let alone prior to trial, the court could not have known which elements defendant would contest and which he would not. (Rodriguez, at pp. 757-758.) Thus, the court properly admitted the evidence of the uncharged offense.
Furthermore, we find defendant's argument that the evidence of the uncharged crime was more prejudicial than probative wanting. "Evidence of uncharged offenses 'is so prejudicial that its admission requires extremely careful analysis. [Citations.]' [Citations.] 'Since "substantial prejudicial effect [is] inherent in [such] evidence," uncharged offenses are admissible only if they have substantial probative value.' [Citation.] [¶] . . . We thus proceed to examine whether the probative value of the evidence of defendant's uncharged offenses is 'substantially outweighed by the probability that its admission [would] . . . create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.' (Evid. Code, § 352.)" (Ewoldt, supra, 7 Cal.4th at p. 404; see also People v. Balcom (1994) 7 Cal.4th 414, 426-427; Kipp, supra, 18 Cal.4th at p. 371.)
"Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. [Citation.] Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion 'must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]' [Citation.]" (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125; see also Kipp, supra, 18 Cal.4th at p. 371.) "The probative value of this evidence is decreased, however, by the dissimilarities between the uncharged and the charged offenses." (People v. Balcom, supra, 7 Cal.4th at p. 427.)
Although we observed dissimilarities between the two incidents, we also discerned substantial similarities as noted above. Moreover, another burglary, albeit a completed one, could hardly prove so inflammatory that the jury was likely to disbelieve defendant's guilt based on the current evidence, but convict him because of the subsequent crime. Thus, "[t]his circumstance decreased the potential for prejudice . . . ." (Ewoldt, supra, 7 Cal.4th at p. 405.) Additionally, defendant had already been convicted of the subsequent offense; thus, the jury was less likely to find a compelling need to punish defendant for the uncharged behavior. Likewise, where evidence of two sets of crimes come from independent sources because they were separately investigated by different law enforcement agencies and proved by the testimony of different witnesses, the probative value of such evidence, for purposes of balancing prejudice, is correspondingly enhanced. (Ewoldt, supra, 7 Cal.4th at p. 404; Kipp, supra, 18 Cal.4th at p. 371.) Here, both crimes were investigated by different law enforcement agencies and testified to by different witnesses. Finally, the trial court instructed the jury not to find defendant was predisposed to commit burglaries. (CALCRIM No. 375; People v. Barnett (1998) 17 Cal.4th 1044, 1119 [court's instruction minimizes any danger jury might rely on testimony for an improper purpose].) The court acted within its discretion in determining that the evidence was not more prejudicial than probative.
Finally, we agree with defendant that the trial court erred when it instructed the jury, both verbally and in writing, that it could utilize the subsequent offense for the "very limited purpose of deciding whether or not . . . defendant was the person who committed the offense alleged in this case," in addition to using it to render a finding whether "defendant acted with the intent to commit the crime charged in this case." Indeed, in order to be admissible for the purpose of proving identity, "'The pattern and characteristics of the crimes must be so unusual and distinctive as to be like a signature.' [Citation.]" (Ewoldt, supra, 7 Cal.4th at p. 403.) Here, the two crimes were not so similar as to be distinctive enough to prove identity. Nevertheless, the error was harmless. "[I]ts admission could not have been prejudicial because the evidence was already properly admitted on the issue of . . . intent . . . ." (People v. Gray (2005) 37 Cal.4th 168, 204.) Neither side argued that the evidence was relevant to prove identity. Defendant did not contest that he was at the property, i.e., defendant's defense was not mistaken identity. Thus, the erroneous instruction was harmless.
B. PROBATION REPORT FEE
Defendant contends the court erred in imposing a fee not to exceed $318 for the cost of preparing the probation report. In particular, defendant maintains the court failed to notify him he had a right to a hearing to determine his ability to pay such a fee, and that no evidence supported the court's implicit order that he had such ability. We hold defendant forfeited the issue by failing to raise it below.
Penal Code section 1203.1b, subdivision (a) permits the sentencing court to order defendant to pay the reasonable costs of the preparation of any presentence probation report. "The probation officer, or his or her authorized representative, shall determine the amount of payment and the manner in which the payments shall be made to the county, based upon the defendant's ability to pay. The probation officer shall inform the defendant that the defendant is entitled to a hearing, that includes the right to counsel, in which the court shall make a determination of the defendant's ability to pay and the payment amount. The defendant must waive the right to a determination by the court of his or her ability to pay and the payment amount by a knowing and intelligent waiver." (Pen. Code, § 1203.1b, subd. (a).) "[F]ailure to object in the trial court to statutory error in the imposition of a probation fee under [Penal Code] section 1203.1b [forfeits] the matter for purposes of appeal." (People v. Valtakis (2003) 105 Cal.App.4th 1066, 1072 (Valtakis).)
Here, defendant was notified that the probation office was seeking that defendant "[p]ay the costs of pre-sentence probation report, pursuant to [Penal Code section] 1203.1b[,] in an amount and manner to be determined by Enhanced Collections Division; not to exceed $318.00." At the sentencing hearing, defense counsel argued that the court should grant defendant probation. Defense counsel argued that defendant's credits had been calculated incorrectly. Thus, the sentencing court offered defense counsel ample opportunity to request a hearing on defendant's ability to pay the probation report fee.
We agree with Valtakis that the Legislature could not have intended "that a defendant and his counsel may stand silent as the court imposes a fee--even a nominal one like the $ here--and then complain for the first time on appeal that some aspect of the statutory procedure was not followed." (Valtakis, supra, 105 Cal.App.4th at p. 1075.) This is particularly so when defendant had prior warning of the fee. Moreover, we note that the court did not actually order defendant to pay $318, but an amount "not to exceed $318." The probation report indicates that the amount would be determined by the "Enhanced Collections Division." We note that Penal Code section 1203.1b, subdivision (c) provides that "[t]he court may hold additional hearings during the probationary or conditional sentence period to review the defendant's financial ability to pay the amount, and in the manner, as set by the probation officer, or his or her authorized representative, or as set by the court pursuant to this section." "At any time during the pendency of the judgment rendered according to the terms of this section, a defendant against whom a judgment has been rendered may petition the probation officer for a review of the defendant's financial ability to pay or the rendering court to modify or vacate its previous judgment on the grounds of a change of circumstances with regard to the defendant's ability to pay the judgment." (Pen. Code, § 1203.1b, subd. (f).) Thus, to the extent defendant does not have the ability to pay the fee, the interest of judicial economy would be better served if defendant simply filed a petition with the court at the time the Enhanced Collections Division actually set, if it ever does, the amount of the fee.
At oral argument, defendant essentially maintained that the holding in Valtakis, and, hence, our reliance on it in the present case has been disapproved of in People v. Pacheco (2010) 187 Cal.App.4th 1392. Pacheco held, in part, that appellate challenges to the sufficiency of the evidence supporting the amount of the fees imposed at sentencing are not forfeited for failure to object below. (Id. at p. 1397.) We find Pacheco readily distinguishable. First and most importantly, the court in Pacheco actually imposed definitive fees, in contradistinction to the present case in which, as noted above, the court merely directed that defendant pay the costs in an amount not to exceed $318. Thus, there is no certainty in the present case that defendant will actually ever be ordered to pay any definitive fee. Second, the fees imposed in Pacheco were not for the costs of the preparation of the presentence probation report; instead, the fees imposed were a criminal justice administration fee, a probation supervision fee, an attorney's fee, a court security fee, and a booking fee. (Id. at pp. 1396-1397.) Third, the defendant in Pacheco was granted probation while the court here sentenced defendant to a two-year term of imprisonment. (Id. at p. 1396.) Fourth, in Pacheco a couple of the fees were impermissibly imposed as conditions of the defendant's probation, making them independently erroneous regardless of whether substantial evidence supported the amounts. (Id. at pp. 1402-1404.)
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
/s/ RAMIREZ P. J.
/s/ KING J.