(Santa Clara County Super. Ct. No. CC821367)
The opinion of the court was delivered by: Elia. J.
CERTIFIED FOR PUBLICATION
Following a jury trial, appellant Daniel Lopez was found guilty of one count of first degree burglary (Pen. Code, § 459-460, subd. (a), count one), one count of second degree burglary (Pen. Code, §§ 459-460, subd. (b), count four),*fn1 one count of using an altered, stolen or counterfeit access card (Pen. Code, § 484g, count five) and one count of petty theft of personal property (Pen. Code, § 484-488, count six).*fn2 As to count one, the jury found true the allegation that a person, not an accomplice, namely Deborah Mendicino, was present in the residence during the commission of the offense charged. Subsequently, the court found true an on bail enhancement.
On July 31, 2009, the court sentenced appellant to six years in state prison consisting of the midterm of four years for count one and two years for count four to be served concurrently and two years for the on bail enhancement (§ 12022.1, subd.(b)) to be served consecutively. The court imposed a 180-day sentence for each of the two misdemeanor convictions (counts five and six), also to be served concurrently. Appellant filed a timely notice of appeal.
On appeal, appellant challenges, on two different grounds, a jury instruction that was given, challenges the admission of evidence of his prior uncharged acts of misconduct and contends that the sentence on count six should have been stayed pursuant to section 654. For reasons that follow, we find that the admission of the evidence of prior uncharged acts of misconduct was error and prejudicial, but only as to the first degree burglary charge. Accordingly, we reverse the judgment.
Facts and Proceedings Below
By way of a second amended information, the Santa Clara County District Attorney charged appellant with one count of first degree burglary (§§ 459-460, count one), one count of grand theft of personal property (§§ 484-487, subd. (a), count two), one count of receiving stolen property (§ 496, subd, (a), count three) one count of second degree burglary (§§ 459-460, subd. (b), count four), one count of using a stolen access card (§§ 484g-488, count five) and one count of petty theft of personal property (§§ 484-488, count six).
The evidence adduced at trial was as follows.
Prior Uncharged Acts of Misconduct
Nancy Ramirez testified that in July 2007 her purse was taken from her boyfriend's green Acura Integra. As a result she lost her California identification card, a bank ATM card and $900.
Officer Jason Kilmer testified that on July 19, 2007, he searched appellant and found Nancy Ramirez's California identification and bank cards in appellant's pocket. Appellant had an iPod and a glass punch in his possession.*fn3 Appellant told him that he took the iPod from a green truck. However, he claimed that he unknowingly obtained Ramirez's property when he purchased a wallet at a garage sale.
Alan Bond testified that in February 2008, his Honda Civic was stolen and appellant did not have permission to take or drive the car. Bond said that he left his car running while he went back into his house to retrieve his wallet. While in his house, he heard his car being taken and went back outside. He made eye contact with the person taking his car, but in court was not able to recognize appellant as that person.
San Jose Police Officer Joseph Kalsbeek saw appellant driving Alan Bond's car. The officer found appellant's cell phone in the stolen vehicle and the keys to the car hidden in appellant's motel room. Appellant told him that he did not realize the car was stolen and he did not know why the keys were hidden in his motel room. Appellant said that he borrowed the vehicle from a friend and did not steal it; and that if he had stolen it he would have worn gloves so as not to leave fingerprints.
Count Three--Buying or Receiving Stolen Property
On August 24, 2008, Alfred Ruiz had a disability parking placard stolen from his truck. When officers searched appellant's residence they found a parking placard located inside a purple bag. However, Ruiz was unable to say for certain the parking placard the police located belonged to him. The court admitted into evidence a certified copy of a document from the Department of Motor Vehicles showing that the placard the police discovered in appellant's residence belonged to Ruiz.
Count One--First Degree Burglary
Sometime during the night on September 15, 2008, Ellen Smith and her daughter-in-law Deborah Mendicino had their purses stolen from the kitchen of Mendicino's house located on Fontanelle Court in San Jose. Smith heard someone in the kitchen at approximately 4:40 a.m., but assumed that it was Mendicino getting ready for work. Smith's purse contained prescription sunglasses, $200, and a dark blue Razor cell phone. Mendicino's purse contained a wallet with cash and credit cards, house and car keys, earrings, a hot pink flashlight in a black canvas holder, and a black Razor cell phone.
Mendicino called the police when she discovered her purse was missing and then called her bank to cancel her cards. In talking to her bank, she discovered that the card had been used around 5 a.m. at a 7-Eleven store for a transaction amounting to $20.71. The bank told Mendicino the identification number of the store at which her card was used; she called several 7-Eleven stores until she was able to locate the correct store, which turned out to be located on Seven Trees at Capitol Expressway. One of the workers at the store told her that they had a video of the transaction. Mendicino went to the store and with police officers viewed the videotape.*fn4
The 7-Eleven store had a surveillance camera that recorded the stolen credit card transaction. On the tape, appellant could be seen along with another individual who actually used Mendicino's card.
Surinder Singh identified appellant as the man in a red 49ers jacket who was accompanying the person that used Mendicino's card. Singh recognized appellant as a former customer who had not been in the store for several months. Singh felt intimidated by appellant so he wrote down the license plate number of the car that appellant drove away from the 7-Eleven after Mendicino's card was used.
The 7-Eleven store manager testified that the transaction involving Mendicino's credit card occurred at 4:52 a.m. She received from Singh a credit card receipt for a transaction that occurred at 4:53 a.m., which had what she thought was a license plate number on the back.
Officer Ruben Chavez obtained a credit card receipt from the 7-Eleven that had a license plate number written on the back. Using the license plate recognition system in his vehicle, Chavez learned that the plate number on the back of the receipt was associated with appellant and registered to a Joe Fernandez. Chavez viewed a system photo of appellant and thought that he resembled one of the individuals on the 7-Eleven videotape.
Officer Gene Ito went to the home of Joe Fernandez where he located appellant's girlfriend Nicole Fernandez. Nicole gave the officer permission to search her car. Officer Caballo searched the car and found numerous gift cards from various vendors that were wrapped up "like, a real fat wallet . . . ." There were several other items in the back of the car, but nothing that he could identify as stolen.
Nicole Fernandez testified that she owned a 2005 Honda Accord with her father. In September, 2008, appellant had been her boyfriend for about five or six years. Appellant sometimes used her car. She recalled that appellant had her car on September 15 through September 16. On September 18 Fernandez was pulled over by the police and her car was searched. She told the police that she recognized some things in the car, but not others. Specifically, she did not recognize a pink flashlight, a handbag and earrings that the police found in the car. Fernandez identified appellant on the videotape from the 7-Eleven.
Officer John Prim testified that when he talked to Fernandez on September 18, 2008, she told him that appellant had her car on September 15 and 16. In addition, on the morning of September 16 as she put her daughter into the back seat of the Honda, in the rear of the car, she noticed a pink flashlight on the driver's side on the floorboard. Fernandez told him that she had never seen the flashlight before. Further, Fernandez could not identify wallets that the officer found in the vehicle or gold earrings.
Count Two--Grand Theft of Personal Property
In September, 2008, Daniel Trevino lived on Fontanelle Place in San Jose. Sometime during the night of September 15, someone stole the radio out of his 1995 BMW. The radio was worth approximately $1300.
Count Six--Petty Theft of Personal Property
Mahalani Sablan lived across the street from Daniel Trevino on Fontanelle Place. Sometime during the night of September 15, 2008, her purse was stolen from her car. She had her identification, credit cards, and cash in her wallet, which was in the purse. The next morning the police arrived and notified her that her credit card had been used. The police allowed her to view a videotape of the transaction, but ...