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The People v. Rasheed Hilson

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO


December 13, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
RASHEED HILSON, DEFENDANT AND APPELLANT.

APPEAL from the Superior Court of Riverside County. Janet I. Kintner, Judge. (Retired judge of the San Diego Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. (Super.Ct.No. RIF134571)

The opinion of the court was delivered by: Richli J.

P. v. Hilson

CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

A jury found defendant and appellant Rasheed Hilson guilty of first degree burglary. (Pen. Code, § 459.)*fn1 Following a bifurcated proceeding, the jury also found true that defendant had suffered a prior serious and violent felony conviction (§§ 667, subds. (c)-(e)(1), 1170.12, subd. (c)(1)), a prior serious felony conviction (§ 667, subd. (a)), and two prior prison terms (§ 667.5, subd. (b)). As a result, defendant was sentenced to a total term of 15 years in state prison. On appeal, defendant contends (1) the trial court erred in denying his motion to represent himself pursuant to Faretta v. California (1975) 422 U.S. 806 [95 S.Ct. 2525, 45 L.Ed.2d 562] (Faretta); and (2) the trial court abused its discretion in admitting evidence of his prior uncharged offenses to prove identity and intent. We reject these contentions and affirm the judgment.

I

FACTUAL BACKGROUND

A. Current Incident

On the night of October 30, 2006, P.P. was in bed with her infant son at the foster home where she resided when she heard noises and the sound of "objects hitting each other." She went to investigate. Once she turned on a light, she saw a man with a white T-shirt wrapped around his hand standing about 10 feet from her. The man was African American, around 160 pounds, in his 30's, and had a gap in his teeth and "loose, messed-up" curly hair. Scared, P.P. stepped back to go upstairs. As she did so, the man said, "I'm sorry. I thought this was my girlfriend's house." The intruder then left through the front door. P.P. alerted her foster mother of the incident, and the police were notified.

Sheriff's deputies responded and interviewed P.P. and her foster mother.*fn2 After recapping the incident, P.P. informed the deputies that the suspect was "a black man, about 30 years old, thin, . . . wearing a short-sleeved shirt [with] white cloths wrapped around the palms of both of his hands." P.P. also stated that the intruder "had a gap between his front teeth" and a "misshapen" head. A search of the home revealed that the kitchen window, which had been cracked open to provide ventilation, was opened wide, and its screen had been removed. In addition, items that had been sitting on top of the kitchen counter in front of the window had been moved aside. It appeared that no items were missing from the home.

On November 16, 2006, P.P. saw a man resembling the intruder pumping gas into a blue-gray Buick. When the opportunity arose, P.P. photographed the vehicle's license plate using the camera on her cellular telephone. She thereafter informed Detective David Green of the occurrence and showed him the photograph.

A records search revealed that the house to which the vehicle registered had the same number as the victim's house but was on a different street, two blocks away. Detective Green went to that address and spoke to the woman who answered the door. The woman indicated that she lived at that address with her son-in-law and daughter Dalette Hilson and that she had never seen a car matching the description Detective Green gave her. As Detective Green was walking back toward his vehicle, he noticed a blue-gray Buick drive up. The vehicle had the same license plate number as in the photograph taken by P.P. Defendant was driving the vehicle, and a female was with him.

When Detective Green informed defendant that he was investigating a burglary, defendant responded, "I don't shit in my front yard," which in Detective Green's experience meant, "I don't commit crimes in my neighborhood." At that point, Detective Green had not yet informed defendant that the burglary had occurred two blocks from his home. Detective Green noticed that defendant had a gap in his teeth and features matching those as described by P.P.

Detective Green subsequently showed P.P. a photographic lineup containing a likeness of defendant. From the photographic lineup, P.P. unequivocally identified defendant as the intruder. She also positively identified defendant as the suspect at the time of trial.

B. Prior Uncharged Incidents

On July 24, 2007, about 2:40 a.m., two Culver City police officers were flagged down by a man who stated that a cafe had just been burglarized; he gave the officers a description of the suspect. Subsequently, the officers saw the suspect, identified as defendant, walking down a street carrying a cash register with both hands. A white towel was between his hands and the cash register. When the officers shined their spotlight on him, defendant fled into an alley, threw down the cash register, and attempted to escape. He was eventually arrested, and the white towel was found near where defendant had attempted to flee.

On June 18, 1998, about 4:00 p.m., an employee of a restaurant on Melrose Avenue was heading down the stairs from her office with a bank bag containing about $1,300 in cash when she encountered defendant inquiring about a job. As she turned around to go back up the stairs to retrieve a job application, defendant pushed her in the back onto one of the steps, snatched the bank bag, and fled. The employee cried for help. The kitchen staff responded and pursued defendant. The employee recalled that her assailant had a deformed ear. Referring to defendant at trial, she noted that he "look[ed] a little different from what [she] remember[ed]."

C. Defense Evidence

Defendant presented evidence to attack the identification evidence of the prosecution witnesses as well as an alibi. In relevant part, a psychologist testified that there are limits to one's capacity for attention and accuracy of a suspect's identifying features. The psychologist also explained that the relationship between witness confidence in identification and the accuracy of the identification is tenuous.

Defendant's wife, Dalette Hilson, testified that defendant was at home with her on the evening of October 30, 2006, watching movies. She explained that she had recently given birth via cesarean section and was recovering. During that period, defendant did all the cooking and watched the children. She further stated that defendant did not have curly hair, had always had a mustache, had a tattoo on one of his upper arms, and wore dentures because he was missing four of his front teeth. She was unable to answer whether in her opinion defendant had a "misshapen" head or a deformed ear.

II

DISCUSSION

A. Denial of Faretta Motion

Defendant contends the trial court erroneously denied his motions to represent himself under Faretta.

1. Additional factual and procedural background

On May 28, 2009, the trial court granted the People's request to admit evidence of defendant's prior misconduct involving the June 1998 and July 2007 incidents. As the trial court addressed the People's motion to admit evidence, the following colloquy occurred:

"THE DEFENDANT: Do I have to be here? Do I have to be here? Seriously.

"THE COURT: [Defendant], you can't just speak out.

"THE DEFENDANT: Do I have to be here, because this doesn't make any sense. This is a kangaroo court.

"THE COURT: You have a lawyer. You don't get to just speak out. You talk to your lawyer."

The parties thereafter continued their discussion on the admissibility of evidence as defendant interjected, "Wow," and "This is bullshit."

A few minutes later, the court announced its intention to defer its ruling on the motion and told the parties, "I'm going to bring the jury in." At that point defense counsel stated, "Your Honor, my client's requesting a Marsden*fn3 hearing." The trial court responded, "Strange time for a Marsden hearing."

During the Marsden hearing, defendant expressed his dissatisfaction with the court's evidentiary rulings, his counsel's refusal to file a motion to recuse the trial judge, and violations of his due process and speedy trial rights. After defense counsel responded, the trial court denied the Marsden motion, finding that defendant appeared to be "unhappy with the ruling that the Court has made . . . ." The court also stated, "[Y]ou don't get another [Code of Civil Procedure section] 170.6 [motion][*fn4 ] and that's not a basis for doing it. So I'm going to bring the jury in and the other side."

After defendant protested that his counsel had exercised the Code of Civil Procedure section 170.6 motion to recuse without his knowledge, the following exchange occurred between defendant and the trial court:

"THE COURT: Hearing you say that, it still has been exercised. And what you were unhappy about was the rulings by this Court, that's when you decided you wanted to do that and that's too late.

"THE DEFENDANT: And the fact that my due process rights are being violated by -- you allowed evidence of some cases that haven't even been adjudicated.

"THE COURT: I understand your objection. Your attorney [has] done a very competent job.

"THE DEFENDANT: I know he has.

"THE COURT: He's been very strong in his statements. [¶] Okay. We're going to bring them in."

The trial court thereafter began jury selection. The following day, before the prospective jurors were brought in to continue their voir dire, defense counsel informed the court that defendant wanted to bring a "Marsden [motion] or alternatively a [Faretta motion]."

During the second Marsden hearing, defendant reiterated that he was unhappy his attorney had exercised defendant's "option of recusal" for the attorney's benefit without defendant's knowledge and in his absence, his attorney's failure to ensure his medical needs were met, and his mistrust in his attorney. Defendant further stated that he believed he would not receive a fair trial in Riverside County "because of civil suits against the Riverside County Sheriff's Department for battery, sexual assault, and violation of US 1983 rights, adequate medical care."

After hearing defense counsel's response, the trial court denied the Marsden motion. The court explained, "I'm concerned that it seems like you just are having some problems proceeding and this is becoming a delaying tactic, but you definitely ha[ve] competent counsel. . . . I'm going to bring the jury in and other counsel." Immediately thereafter, defendant interjected, "I'd like to invoke my [Faretta] rights." The trial court responded, "It's not timely." The following dialogue then commenced:

"THE DEFENDANT: Excuse me, excuse me, we haven't picked one juror.

"THE COURT: We are, we have, halfway.

"THE DEFENDANT: We haven't picked one juror. We haven't picked one juror, your Honor.

"THE COURT: We're going to bring the jury in.

"THE DEFENDANT: Excuse me, excuse me, I have a right to invoke [Faretta] rights. You're telling me I don't have a right for that?

"THE COURT: . . . [I]t appears that to me you're simply stalling, and we're not doing it.

"THE DEFENDANT: Excuse me, I can invoke that . . . any time I want to. I don't have to do it in a timely fashion.

"THE COURT: And the prosecutor is not here, and it's not timely. We'll bring the jury in."

The Marsden hearing was then concluded. Before the prospective jurors were brought in, defendant continued conversing with the court as follows:

"THE DEFENDANT: Your Honor, I don't want to be here, then. You can do what you need to do. You have your own mind set on what you believe the law is.

"THE COURT: You have a right to be present.

"THE DEFENDANT: I don't want to be present. You can do what you want to do, obviously. [¶] . . . [¶]

"THE COURT: If you want us to proceed without you -- you're trying to stop the trial.

"THE DEFENDANT: You're right. You're right. I have a right to stop the trial, if I don't want to be in this trial.

"THE COURT: You don't.

"THE DEFENDANT: Yeah, I do. I have a right to stop this trial, if I don't feel --

"THE COURT: The jury is coming in.

"THE DEFENDANT: I don't recognize [defense counsel] as my lawyer. I have a right to proceed propria persona.

"THE COURT: You're going to have to be quiet, we're bringing the jury in."

Jury selection thereafter continued, and a jury was chosen and impaneled.

On June 1, 2009, prior to opening statement, defense counsel informed the court that defendant again wanted to invoke his Faretta rights. The trial court summarily denied the request, finding the motion to be untimely and not unequivocal.*fn5

2. Analysis

"A trial court must grant a defendant's request for self-representation if the defendant unequivocally asserts that right within a reasonable time prior to the commencement of trial, and makes his request voluntarily, knowingly, and intelligently. [Citations.]" (People v. Lynch (2010) 50 Cal.4th 693, 721 (Lynch).) In other words, the high court has clearly stated that the right of self-representation is not absolute. (Ibid.; see also Indiana v. Edwards (2008) 554 U.S. 164 [128 S.Ct. 2379, 2384, 171 L.Ed.2d 345.) Therefore, "a Faretta motion may be denied if the defendant is not competent to represent himself [citation], is disruptive in the courtroom or engages in misconduct outside the courtroom that 'seriously threatens the core integrity of the trial' [citation], or the motion is made for purpose of delay [citation]." (Lynch, at pp. 721-722.)

Similarly, a Faretta motion may be denied if untimely. (People v. Doolin (2009) 45 Cal.4th 390, 453.) A motion is timely if made "a reasonable time prior to the commencement of trial." (People v. Windham (1977) 19 Cal.3d 121, 128, fn. omitted.) "[I]mposition of a timeliness 'requirement should not be and, indeed, must not be used as a means of limiting a defendant's constitutional right of self-representation.' [Citation.] Rather, the purpose of the requirement is 'to prevent the defendant from misusing the motion to unjustifiably delay trial or obstruct the orderly administration of justice.' [Citation.]" (Lynch, supra, 50 Cal.4th at p. 722.) "Despite this tacit approval of the timeliness limitation on the self-representation right, the high court has never delineated when a motion may be denied as untimely. Nor has this court fixed any definitive time before trial at which a motion for self-representation is considered untimely, or articulated factors a trial court may consider in determining whether a self-representation motion was filed a reasonable time before trial." (Ibid.)

However, "[m]otions made just prior to the start of trial are not timely. [Citations.]" (People v. Scott (2001) 91 Cal.App.4th 1197, 1205; see also People v. Valdez (2004) 32 Cal.4th 73, 102 [Faretta motion made "moments before jury selection was set to begin" deemed untimely]; People v. Horton (1995) 11 Cal.4th 1068, 1110 [self-representation motion made on the date scheduled for trial untimely]; People v. Clark (1992) 3 Cal.4th 41, 99-100 [case had been continued day to day after August 10 "in the expectation that the motions would be concluded and jury selection set to begin at any time," and hence the defendant's August 13 motion was "in effect the eve of trial" and untimely]; as compared with People v. Halvorsen (2007) 42 Cal.4th 379, 434 [Faretta motion made seven months before penalty retrial jury selection commenced was timely]; People v. Stanley (2006) 39 Cal.4th 913, 932 [self-representation motion made one year before the preliminary hearing and nearly two years before trial was timely].) Case law makes clear that "timeliness for purposes of Faretta is based not on a fixed and arbitrary point in time, but upon consideration of the totality of the circumstances that exist in the case at the time the self-representation motion is made." (Lynch, supra, 50 Cal.4th at p.724.)

"[O]nce a defendant has chosen to proceed to trial represented by counsel," a defendant's motion for self-representation is "addressed to the sound discretion of the court." (People v. Windham, supra, 19 Cal.3d at p. 128.) "'"When a motion for self-representation is not made in a timely fashion prior to trial, self-representation no longer is a matter of right but is subject to the trial court's discretion." [Citation.] In exercising this discretion, the trial court should consider factors such as "'the quality of counsel's representation of the defendant, the defendant's prior proclivity to substitute counsel, the reasons for the request, the length and stage of the proceedings, and the disruption or delay which might reasonably be expected to follow the granting of such a motion.'"' [Citation.]" (People v. Valdez, supra, 32 Cal.4th 73, 103.) Recently, our Supreme Court in Lynch noted other factors such as: "the time between the motion and the scheduled trial date, . . . whether trial counsel is ready to proceed to trial, the number of witnesses and the reluctance or availability of crucial trial witnesses, the complexity of the case, any ongoing pretrial proceedings, and whether the defendant had earlier opportunities to assert his right of self-representation." (Lynch, supra, 50 Cal.4th at p. 726.)

An appellate court must review the entire record de novo to determine whether the invocation of the right of self-representation satisfies these requirements, even where the trial court has failed to conduct a full and complete inquiry. (People v. Marshall (1997) 15 Cal.4th 1, 24.) If the trial court's stated reason for denying a Faretta motion is found to be improper, the ruling still will be upheld if the record as a whole establishes that the motion could have been denied on an alternative ground. (People v. Dent (2003) 30 Cal.4th 213, 218.)

Here, we conclude the trial court correctly denied defendant's Faretta motions as untimely. Valdez supports our conclusion. In Valdez, the court denied defendant's self-representation motion because it was untimely. (People v. Valdez, supra, 32 Cal.4th at p. 102.) In that case, the defendant asserted his right to self-representation moments before jury selection was set to begin. (Ibid.) The court reasoned, "'[A] defendant should not be permitted to wait until the day preceding trial before he moves to represent himself and requests a continuance in order to prepare for trial without some showing of reasonable cause for the lateness of the request.'" (Ibid.)

In the present matter, defendant's first request occurred on the second day of jury selection, and his second request was made just prior to opening statements. Moreover, the record is clear that defendant's requests were in response to or out of frustration over the denial of his Marsden motions and/or the evidentiary rulings made by the trial court. A request made as a result of a temporary whim, annoyance, or frustration, particularly at the time of the denial of a motion for substitute counsel, need not be granted. (People v. Marshall, supra, 15 Cal.4th at pp. 21-22, 23; People v. Valdez, supra, 32 Cal.4th at p. 99.) Vacillation between requests for self-representation and appointment of counsel can lead to a loss of the right of self-representation, and requests for self-representation made for the apparent purpose of delay or manipulation may be denied. (Marshall, at pp. 22, 23.) Based on their timing, the trial court aptly noted the motions were made for the purpose of delaying or stalling the proceedings. Therefore, because the proceedings were already in progress, this first factor favors denial of the motion.

Additionally, we note this case began on January 31, 2007, with the filing of a felony complaint, and defendant brought his first motion for self-representation about two years and four months later, on May 29, 2009, the second day of jury selection. A case that had endured substantial delay was finally nearing resolution. Defendant cannot escape any responsibility for not timely invoking his right to self-representation. At his first Marsden motion, he gave no explanation for why he had waited over two years to express concern about counsel's perceived deficiencies. Similarly, defendant, who had been represented by the same counsel nearly since his arrest, gave no explanation at the hearings on his self-representation motions why he had waited nearly two and a half years, or until the parties were prepared to proceed to trial, to seek self-representation.

Moreover, it is apparent from the record that if the self-representation motion had been granted, defendant would have required an undetermined amount of time to investigate and prepare for trial. A trial court may properly consider the delay inherently caused by such uncertainty in evaluating timeliness. (See Morris v. Slappy (1983) 461 U.S. 1, 11 [103 S.Ct. 1610, 75 L.Ed.2d 610] ["[t]rial judges necessarily require a great deal of latitude in scheduling trials"].)

In light of all these circumstances, defendant's self-representation motions were properly deemed untimely. Thus, the trial court had discretion to deny the motions, and it acted well within its discretion in doing so on the grounds that the parties were prepared to proceed, defendant had offered no justification for his untimely requests to represent himself, and granting the motions was reasonably likely to result in substantial delay and disruption of the proceedings.

B. Admission of Uncharged Offenses

Defendant next asserts that the trial court abused its discretion when it admitted evidence of his prior uncharged acts to prove identity and intent.

1. Additional factual and procedural background

In May 2009, the People filed a motion seeking to admit at trial evidence that defendant had committed a prior uncharged burglary of the cafe (July 2007 incident) to prove his identity as the perpetrator of the charged burglary. The People also sought to admit evidence that defendant had committed a prior uncharged grand theft at the restaurant (the June 1998 incident) to prove defendant's intent, preparation, planning, and lack of mistake. Defendant moved in limine to exclude the challenged evidence pursuant to Evidence Code sections 352 and 1101.

At a hearing, in regard to the July 2007 incident, the prosecutor argued that during that burglary, defendant had placed a towel between his hands and the cash register so as to avoid leaving fingerprints on the cash register; and in this case, defendant had a white T-shirt wrapped around his hand. The People asserted that defendant's use of the cloth item in both cases were "very distinct hallmarks" and relevant to prove defendant's identity. As to the 1998 incident, the prosecutor asserted that the pretext defendant had offered for his presence, i.e., he was there to apply for a job, was probative of his plan, preparation, and intent in this case where defendant had told the surprised victim that he believed he was in his girlfriend's house. The prosecutor also pointed out that in this case defendant had selected a house that had the same numbered address as his girlfriend's house, but on a different street; therefore, defendant had "preplanned that out as an excuse if he got caught in the act, like his excuses in the other two crimes."

After further discussion, the trial court ruled that the uncharged offenses evidence would be admissible at trial. The court explained, "I have in many cases refused to allow [Evidence Code section] 1101(b) evidence, but I do find the People persuasive in this case regarding identity of the defendant and in particular that first incident with the white towel around his hand being similar to this case being a unique hallmark, and in incidents two and three using an excuse for being there and having the excuse for being in the house. I find that going to intent, and I have to tell you I'm absolutely amazed that [the prosecutor has] been able to persuade me of this, because I'm not usually persuaded of that." The court concluded that the probative value of the challenged evidence outweighed any undue consumption of time or prejudice.

2. Analysis

Evidence of prior crimes is not admissible to prove the defendant's propensity to commit the charged offense. (Evid. Code, § 1101, subd. (a).) However, under Evidence Code section 1101, subdivision (b), "'evidence of uncharged crimes is admissible to prove, among other things, the identity of the perpetrator of the charged crimes, the existence of a common design or plan, or the intent with which the perpetrator acted in the commission of the charged crimes. [Citation.] Evidence of uncharged crimes is admissible to prove identity, common design or plan, or intent only if the charged and uncharged crimes are sufficiently similar to support a rational inference of identity, common design or plan, or intent.'" (People v. Carter (2005) 36 Cal.4th 1114, 1147.) A defendant's similar crime can be circumstantial evidence tending to prove identity, intent, and motive in the present crime, and "[l]ike other circumstantial evidence, admissibility depends on the materiality of the fact sought to be proved, the tendency of the prior crime to prove the material fact, and the existence vel non of some other rule requiring exclusion." (People v. Roldan (2005) 35 Cal.4th 646, 705.)

An additional requirement for the admission of uncharged crimes is that the probative value of such evidence must outweigh its prejudicial effect under Evidence Code section 352. Pursuant to Evidence Code section 352, the court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.

On appeal, we review the trial court's ruling on the issue for abuse of discretion. (People v. Carter, supra, 36 Cal.4th at p. 1147.) We do not substitute our judgment for that of the trial court on appeal. We only grant relief where an abuse of discretion amounts to a miscarriage of justice. (See Wanland v. Los Gatos Lodge, Inc. (1991) 230 Cal.App.3d 1507, 1523; see also People v. Cegers (1992) 7 Cal.App.4th 988, 1000-1001.) In this context, a miscarriage of justice occurs when it is reasonably probable that the jury would have reached a result more favorable to defendant, absent the erroneously admitted evidence. (People v. Watson (1956) 46 Cal.2d 818, 836.)

a. Identity - 2007 prior burglary of cafe

"'To be relevant on the issue of identity, the uncharged crimes must be highly similar to the charged offenses. [Citation.] Evidence of an uncharged crime is relevant to prove identity only if the charged and uncharged offenses display a "'pattern and characteristics . . . so unusual and distinctive as to be like a signature.'" [Citation.] "The strength of the inference in any case depends upon two factors: (1) the degree of distinctiveness of individual shared marks, and (2) the number of minimally distinctive shared marks." [Citation.]' [Citation.]" (People v. Carter, supra, 36 Cal.4th at p. 1148.)

"For identity to be established, the uncharged misconduct and the charged offense must share common features that are sufficiently distinctive so as to support the inference that the same person committed both acts." (People v. Ewoldt (1994) 7 Cal.4th 380, 403, superseded by statute on other grounds as stated in People v. Britt (2002) 104 Cal.App.4th 500, 505; see also People v. Kipp (1998) 18 Cal.4th 349, 371.) "'[I]nference of identity arises when the mark common to the charged and uncharged offenses, considered singly or in combination, logically operate to set the charged and uncharged offenses apart from other crimes of the same general variety and, in so doing, suggest that the perpetrator of the uncharged offenses was the perpetrator of the charged offenses.'" (People v. Beamon (1973) 8 Cal.3d 625, 633.)

Defendant has not shown the court clearly abused its discretion in admitting his prior uncharged burglary of the cafe on the issue of identity. Viewing the evidence in the light most favorable to the trial court's ruling (People v. Carter, supra, 36 Cal.4th at p. 1148), we agree the circumstances reveal a substantially distinctive "hallmark." In both instances, defendant used a cloth object to avoid leaving fingerprints. That the structure defendant entered to commit the burglary in the instant case was a residence and in the 2007 incident was a commercial building does not defeat the latter incident's probative value on identity; "[t]o be highly distinctive, the charged and uncharged crimes need not be mirror images of each other." (Ibid.) Similarly, the fact that defendant was caught prior to stealing any items during the current incident was not determinative in a consideration of its probative value. The distinctions go to the weight of the evidence and did not preclude the prosecution from introducing evidence regarding defendant's 2007 offense. (Ibid.) We cannot say under the circumstances the court's ruling was an abuse of discretion.

Since the prior crime evidence was admissible as to identity, the trial court properly considered its admission under Evidence Code section 352. The issue of identity was important in this case because defendant denied he committed the instant crime. Indeed, "[i]dentity of a defendant charged with a crime is the 'guts' of any prosecution for the crime charged." (People v. Rogers (1985) 173 Cal.App.3d 205, 213.) Therefore, this evidence was highly probative in establishing the identity of the perpetrator. The risk of prejudice was minimal here. The burglary of a commercial establishment is a significantly less inflammatory crime than the instant residential burglary. The testimony concerning the prior burglary also did not unduly consume time. Moreover, as the People note, the court properly admonished the jury it could only use such evidence to prove defendant's identity and intent in the current matter "only if the People have proved by a preponderance of the evidence that the defendant, in fact, committed the uncharged offenses." The court also instructed the jury to only consider the prior uncharged evidence for the limited purpose of identification and intent and "not conclude from this evidence that the defendant has a bad character or is disposed to commit crime." Therefore, we find that the court acted properly in concluding that the potential for prejudice was outweighed by the probative value of the evidence.

Finally, even if we assume that the admission of the prior burglary was erroneous, we cannot find that it caused a miscarriage of justice, since there was abundant other evidence to show defendant was the burglar. The victim P.P. immediately and unequivocally identified defendant as the suspect she discovered inside her home. She also positively identified defendant as the perpetrator at the time of trial. Defendant possessed distinctive physical features that would make misidentification improbable. In addition, when Detective Green informed defendant that he was investigating a burglary, defendant spontaneously responded, "I don't shit in my front yard," even though Detective Green had not yet informed defendant that the burglary had occurred two blocks from his home. Given the strength of the circumstantial evidence, the jury could reasonably have concluded that defendant was the burglar absent the prior crime evidence. Thus, there was no reasonable probability that an outcome more favorable to defendant would have resulted had the prior crimes been excluded. (People v. Felix (1993) 14 Cal.App.4th 997, 1007-1008 [it is well established that "[e]rroneous admission of other crimes evidence is prejudicial if it appears reasonably probable that, absent the error, a result more favorable to the defendant would have been reached"].)

b. Intent - 1998 prior grand theft of restaurant employee

On the other hand, as to the prior grand theft evidence, we believe the trial court erred in admitting this evidence to prove defendant's intent in the current case. "To be relevant, an uncharged offense must tend logically, naturally and by reasonable inference to prove the issue(s) on which it is offered." (People v. Robbins (1988) 45 Cal.3d 867, 879.) Whether the other crimes evidence is admissible depends on "(1) the materiality of the fact sought to be proved or disproved; (2) the tendency of the uncharged crime to prove or disprove the material fact; and (3) the existence of any rule or policy requiring the exclusion of relevant evidence . . . ." (People v. Sully (1991) 53 Cal.3d 1195, 1224.) To be admissible to prove intent, the uncharged misconduct must be "'sufficiently similar to the charged offense to support the inference that the defendant probably harbored the same intent in each instance.'" (People v. Cole (2004) 33 Cal.4th 1158, 1195.)

"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 (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such an act . . . .' [Citation.]" (People v. Ewoldt, supra, 7 Cal.4th at p. 402.)

Here, while a lesser degree of similarity is required to establish relevance to prove common design or plan, and the least similarity is required to establish relevance to prove intent (People v. Lenart (2004) 32 Cal.4th 1107, 1123), we find the prior grand theft incident dissimilar to the charged offense. The People argue the prior grand theft evidence was similar to the present offense because defendant "furnished a pretext that purported to explain his presence in a non-public area of the building . . . . The prosecution was entitled to demonstrate that [defendant] had not entered [the victim's] residence by accident, and that it was his intent to commit theft once inside."*fn6 However, defendant's excuse in approaching the restaurant employee in the prior grand theft incident, i.e., he was there to apply for a job, bears no similarity to his current excuse in being in the victim's home, i.e., he thought it was his girlfriend's home. Furthermore, there appears to be many dissimilarities between the charged and uncharged offenses and the manner in which defendant accomplished the crimes.

The error, however, was harmless. As discussed, ante, there was overwhelming evidence to show defendant committed the instant crime and that he had entered the residence with the intent to steal. Moreover, the victim of the prior uncharged grand theft crime was unable to identify defendant as the perpetrator of that crime. In addition, and importantly, the jury was specifically and unambiguously instructed that the prosecution bore the burden of proving the prior crime and it could consider the evidence only for the limited purpose of proving identity and intent. The jury was also instructed not to conclude from the evidence that the defendant has a bad character or is disposed to commit crime. "We presume absent contrary indications that the jury was able to follow the court's instructions." (People v. Pinholster (1992) 1 Cal.4th 865, 919.) Nothing in the record suggests the jury did otherwise here, and this factor limited the prejudicial potential of the prior offense evidence for purposes of Evidence Code section 352. (See, e .g., People v. Daniels (1991) 52 Cal.3d 815, 858.) Therefore, to the extent the court erred by instructing the jury it could use the prior grand theft evidence on the intent issue, there was no reasonable probability that an outcome more favorable to defendant would have resulted had the prior crime evidence been excluded. (People v. Felix, supra, 14 Cal.App.4th at pp. 1007-1008; People v. Watson, supra, 46 Cal.2d at p. 836.)

III

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

We concur: RAMIREZ P.J. CODRINGTON J.*fn7


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