THE PEOPLE, Plаintiff and Respondent, v. MANUEL ALFRED ROCHA, Defendant and Appellant.
No. H038703
Sixth Dist.
Dec. 6, 2013
1385
David S. Adams, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Seth K. Schalit and Leif M. Dautch, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RUSHING, P. J.—A jury convicted defendant Manuel Alfred Rocha of residential burglary and interfering with a police officer based on evidence
BACKGROUND
Around 8:00 on the morning of Saturday, March 26, 2011, Gilberto Gonzales, as was his custom, opened the door of the garage attached to his San Jose home. The garage was used to do laundry as well as to store personal property, including many tools Mr. Gonzales owned for working on cars and in construction. He usually left the door open when he was home. Toward noon he drove to the auto parts store.1 A few minutes later, his wife Denise and daughter Bianka stepped out of the house to have a smoke.2 Almost as soon as they did, Bianka heard a noise in the garage. Bianka described the sound as “[l]ike going through things; making noises, closing and opening doors,” also “like people scattering things, opening drawers.” She thought the noises were being made by her father, which was odd because he had “just left.” Meanwhile Denise saw the “shadow of a person” in the corner of the garage. She too thought her husband had returned, so she went back into the house on the way to the backyard, because her husband did not like smoking in front of the house.
Bianka reentered the house and opened a door connecting into the garage, apparently expecting to see her father. Instead she saw defendant, a complete stranger, standing about 10 feet away, “opening drawers.” He turned to look at her; neither of them spoke. According to Denise, Bianka called out that someone other than her father was present. She ran to the phone and called 911. While on the phone, she went out the front of the house and saw defendant emerge from the garage and walk down the driveway and then down the street. He appeared to be holding a bulky boxlike object to his chest, apparently wrapped in a sweater or jacket. He was walking slowly. He
Bianka described the intruder to the 911 operator, who relayed it in turn to San Jose Police Officer Cooley, who was patrolling in the area. Within 10 minutes, he saw defendant—who matched the description—in a trailer park a few blocks from the Gonzales home. Defendant was carrying a black case resembling a lunch pail. Officer Cooley followed him into the mobilehome park. When defendant saw him, he froze, and then—disregarding Officer Cooley‘s command to stop—bolted, dropping the case to the ground. Additional officers were summoned to surround and search the mobilehome park. About an hour later, they found defendant standing inside a metal shed. In the shed they also found a pair of pliers and a screwdriver. Officer Cooley did not perceive defendant as “disorientated,” confused, paranoid, hallucinating, delusional, or exhibiting other physical or mental signs of being under the influence of methamphetamine. From Officer Cooley‘s experience, defendant “had the loo[k] of like he was caught.”
About 15 minutes after defendant was captured, San Jose Police Officer Vela brought Bianka to the mobilehome park for an in-field showup. She saw defendant standing by a police car in handcuffs. She apparently identified him as the man she had seen in the garage.3
Defendant was taken into custody by San Jose Police Officer Jennings, who had arrived at the scene of the capture almost immediately after it occurred. Defendant initially refused to identify himself to Officer Jennings, but did so after the officer explained that since he was going to be fingerprinted and identified anyway, he should “just avoid the delay and let us know who you are.”4 Maybe 10 to 15 minutes elapsed between his initial refusal and the yielding of his identity. During this time he sat in the back of Officer Jennings‘s patrol car. He seemed calm and resigned, exhibiting no signs of mental or emotional upset. The same was true during the 10 minutes it took Officer Jennings to drive him to the “preprocessing center,” and once
The case defendant had abandoned contained a tool variously referred to in the record as an impact wrench or drill. Officers showed this to Mr. Gonzales, who said it was his. He said the pliers were not his. He initially identified the screwdriver as his. But when it was shown to him at trial, he denied that it was his.
After the incident it appeared that several things in the garage had been moved, presumably by the intruder. A bike, normally kept near a washer and dryer along the back wall of the garage, had been left near the main garage door. The bike was not functional, having a broken chain. A “TV screen box,” also previously located near the back of the garage, was found next to the bike. Some tools normally kept on top of a desk or dresser near the center of the garage had been scattered, and various cabinets and drawers were open.
It was stipulated that a blood sample drawn from defendant about 2:45 p.m. on March 26th, 2011, tested positive for amphetamine and methamphetamine.
A search incident to defendant‘s arrest yielded a Costco membership card in the name of Curtis Pembrook. Mr. Pembrook testified that the card had been in his wallet when the wallet and his cell phone were taken from his car by persons unknown while the car was parked in front of his home on the morning of February 17, 2011.
Defendant was charged with (1) first degree burglary of an inhabited dwelling house (
DISCUSSION
I. Evidence of Prior Burglary
A. Background
Prior to trial the prosecutor moved to admit, and defendant moved to exclude, evidence of a 2009 burglary in which defendant was found to have stolen two pairs of speakers from a residential garage in Gilroy. The trial court ruled that evidence of the prior burglary was admissible to show that defendant possessed the intent to steal when he entered the Gonzales garage. The court observed that both crimes “involv[ed] single family residences, entering through an open garage door, taking property from the garage.” In addition, both offenses “occur[red] during the daytime when the resident was home.” “All these factors,” the court found, “support a strong inference that the defendant probably harbored the same intent in each instance.” The court further found that the evidence possessed substantial probative value that was “not substantially [out]weighed by any prejudicial effect, nor would it require undue consumption of time, nor is it likely to сonfuse the issues or mislead the jury.” Accordingly, the court concluded, “the uncharged theft related offense may be admitted to prove intent.”
At trial Michael Loebs testified that in the early afternoon of November 13, 2009, he noticed a van driving slowly up and down the street in front of his Gilroy home.5 He worked in loss prevention, and the van‘s behavior made him suspicious. He went out of the house and got into his car where he watched a man whom he “knew didn‘t belong there” going in and out of the garage attached to the home of his neighbor, Michael Johnson. He was unable to identify defendant as the man at trial, but at the time of the event he described the man as an adult Hispanic male. He saw the man make four of five trips from the garage to the van, carrying items including two speakers
Michael Johnson testified that a night or two before November 13, 2009, a washing machine had flooded his garage, forcing him and his family to remove everything from the garage and dispose of items, such as carpet, that were ruined. In the early afternoon of November 13, he went to the hardware store to work on some shelving that had been made accessible by the evacuation. He left the garage door oрen. Before he returned he got a phone call from a neighbor asking if he had hired someone to haul material out of his garage. He raced home to check on his sick daughter, whom he had left there alone, and then he called the police. Later he went to where the intruder had been apprehended, and he recognized a grey box containing Polk Audio speakers and a white box containing Pioneer speakers, both of which were items he had moved earlier that day.
Defendant had been apprehended while driving a van about seven minutes after the Johnson burglary was reported, and six to eight blocks from its location, by Gilroy Police Officer Basuino.6 Mr. Johnson came to the scene and identified two speaker boxes in the van as his. At some point defendant told Officer Basuino that “he buys tools cheap and resells them.”7
It was stipulated that defendant was charged with first degree burglary in connection with the 2009 incident and was convicted of that charge in June 2010 on a plea of no contest.
The jury was instructed that if it found defendant had committed the 2009 burglary, it could “consider that evidence for the limited purpose of deciding whether or not the defendant acted with the intent to commit theft in this case.” (See CALCRIM No. 375.) It was told to consider the degree of similarity between the two offenses in evaluating this evidence. (Ibid.) It was told not to consider the evidence for any other purpose, and not to conclude
B. Section 1101
“Character evidence, sometimes described as evidence of propensity or disposition to engage in a specific conduct, is generally inadmissible to prove a person‘s conduct on a specified occasion. (
Here the evidence of the 2009 burglary was offered on the rationale that it tended to establish the requisite mental element for the charged burglary, i.e., that when defendant entered the Gonzales garage he possessed the intent to steal. (See
Defendant contends that the two incidents here were not sufficiently similar to justify the inference held permissible in cases such as the foregoing. He asserts that the trial court‘s stated finding of “several” similarities rests on “the parsing of a single factor into multiple parts.” The question, however, is not the number of points of similarity but their logical relevance to establish the mental element of the charged offense. The rationale for introducing uncharged misconduct to show intent has been said to be that “if a person acts similarly in similar situations, he probably harbors the same intent in each instance‘.... The inference to be drawn is not that the actor is disposed to commit such acts; instead, the inference to be drawn is that, in light of the first event, the actor, at the time of the second event, must have had the intent attributed to him by the prosecution.” (
Professor Imwinkelried, upon whose article the Supreme Court relied in Robbins, supra, 45 Cal.3d at pages 879-880, has suggested that the intermediate inference justifying proof of intent by evidence of uncharged misconduct is “thе objective improbability of the accused‘s innocent involve-ment in so many similar incidents.” (Imwinkelried, supra, at p. 594, fn. omitted.) In his view, such an inference is supportable only if three threshold criteria are satisfied: (1) each uncharged incident must be “roughly similar to the charged crime” (id. at p. 595, italics omitted); (2) counting both charged and uncharged incidents, the accused must have been “involved in such events more frequently than the typical person” (id. at p. 597, italics omitted); and (3) the existence of mens rea “must be in bona fide dispute,” such that the prosecution has “a legitimate need to resort to the uncharged misconduct evidence to prove intent” (id. at p. 598, italics omitted).
Here we have no difficulty in concluding that all three of these criteria were satisfied. First, the trial court could quite properly find the charged and uncharged offenses materially similar in that both involved defendant‘s nonconsensual entry into residential garages belonging to com-plete strangers, the doors of which garages had been left open. Defendant asserts that these similarities were negated by differences between the two incidents: “In the prior case, Mr. Rocha was in a vehicle, he drove by the
Professor Imwinkelried‘s second factor—extraordinary frequency—gives us some pause, for we are concerned with only one uncharged incident, making two incidents in total. But the Supreme Court has rejected the proposition that the doctrine of chances cannot justify admission of a single incident of uncharged misconduct, stating, “We agree with the Oregon Supreme Court that ‘no categorical statement can be made one way or the other. Depending upon the circumstances of the case, somеtimes one prior similar act will be sufficient. . . . A simple, unremarkable single instance of prior conduct probably will not qualify, but a complex act requiring several steps, particularly premeditated, may well qualify. These decisions must be made case-by-case . . . .‘” (Robbins, supra, 45 Cal.3d at pp. 880-881, fn. 5, quoting State v. Johns (1986) 301 Or. 535, 555 [725 P.2d 312, 324].) Neither of the incidents here may have been a particularly “complex act,” but both were sufficiently remarkable to trigger an inference that neither could have been innocent. Moreover, they occurred within two years of each other, and even one such entry is more than a “typical person” would be likely to make in a lifetime. And while the circumstances of the second charged entry do not affirmatively suggest “premeditation,” the circumstances of the first entry—defendant‘s apparent reconnoitering of the neighborhood—do indeed raise such an inference.
As for Professor Imwinkelried‘s third factor—a bona fide dispute as to the mental element of the charged offense—defendant certainly put that issue into controversy. His entire defense was that the prosecution had failed to prove beyond a reasonable doubt that he entered the Gonzales garage with larce-nous intent. Defense counsel argued to the jury that defendant “could have been a homeless drug user, looking for a place for shelter, respite or suffering from delusions or paranoia [induced by methamphetamine use] . . . . It is quite possible that Mr. Rocha . . . as a drug user, . . . saw an open garage and looked for a place for shelter.” Later he said, “Mr. Rocha may have been high, compromised, confused, hearing voices, delusional, not knowing where he was or who he was when he entered that garage.” Consistent with this theory, the jury was instructed that it could consider the effects of voluntary
We detect no error in the trial court‘s ruling that the prior burglary was admissible under
C. Section 352
Even when evidence of uncharged conduct is otherwise admissible, it must be excluded if its probative value is outweighed by its potential to prejudice the fact finder against a party, to confuse the issues, or to consume undue amounts of time. (
In a flight of hyperbole, defendant characterizes the evidence here as “highly inflammatory.” Evidence may be fairly so characterized only when it might be expected to outrage the jurors’ sensibilities, i.e., to so “inflame” their sentiments as to render them incapable of objectively evaluating the evidence before them. The evidence here could hardly have that effect. It was about as innocuous as evidence of uncharged crimes can ever be. No one was injured or even threatened with injury in either case. In both instances, defendant simply strolled into an open garage, took some property, and left. The nearest suggestion to any kind of threat or menace was the alarm Bianka Gonzales must have felt when she opened the door into the garage and saw a complete stranger rummaging through her father‘s tools. This is hardly the stuff of which inflamed sentiments are made.
Nor does defendant identify anything particularly prejudicial about the evidence here. He therefore falls back on the threat of prejudice inherent in all evidence of uncharged misconduct. He cites a recent decision by this court in which we acknowledged that in view of this inherent risk, such evidence may be admitted ” ‘only if [it has] substantial probative value.’ ” (People v. Lopez (2011) 198 Cal.App.4th 698, 715 [129 Cal.Rptr.3d 583], quoting People v. Foster (2010) 50 Cal.4th 1301, 1331 [117 Cal.Rptr.3d 658, 242 P.3d 105].) But as we also noted there, a substantial part of the risk said to be inherent in such evidence is that it “breeds a ‘tendency to condemn, not because [the defendant] is believed guilty of the present charge, but because he has escaped unpunished from other offences [sic] . . . .‘” (Lopez, at p. 715, quoting Foster, at p. 1331.) The court obviated this risk here when it informed the jury, by stipulation, that defendant had been charged with burglary as a result of the 2009 incident “and was convicted of the same on June 29th, 2010, after defendant plead [sic] no contest to the charge.”
Based on this evidence, defense counsel asked the jury to entertain the possibility that defendant had wandered into the Gonzales garage in a state of drug-induced befuddlement, perhaps “looking for a place for shelter, respite or suffering from delusions or paranoia.” The evidence that he had, on another occasion, entered a garage with a preexisting intent to steal tended strongly, through the doctrine of chancеs, to controvert this hypothesis. A drug-addled wanderer might stray into a stranger‘s garage for a first time, but if he has previously entered such a garage for purposes of theft, and has been apprehended and punished for such conduct, he is hardly likely to do it again with innocent intent, however bewildered he may be. In a sense the defense theory may be characterized as one of mistake, i.e., defendant entered the garage without understanding what he was doing, and thus without the intent to steal, or any other objectively coherent intent. The fact that he had previously engaged in identical conduct with larcenous intent did not conclusively refute this hypothesis, but that was not required. All that was required was that the fact of the prior burglary have a substantial tendency in reason to establish that defendant entered the garage with knowledge of what he was doing аnd with intent to do the only objectively advantageous thing he could do there: steal something valuable, as he had done before in another garage. That at any rate was an inference the jury could reasonably draw, and one for which the prosecution was entitled to lay the evidentiary foundation. Its probative value arose from the very theory proffered by the defense.
Defendant suggests that the prejudicial potential of the evidence was unnecessarily heightened by the manner of its presentation, i.e., the prosecutor was permitted to “virtually retry” the earlier case by presenting three
Defendant complains of the fact that evidence concerning the 2009 burglary “was not presented in a discrete portion of the prosecution‘s case, but . . . piecemeal[,] with testimony concerning other events occurring between witnesses describing the prior burglary.” No attempt is made to build a syllogistic argument on this fact, but defendant goes on to note the trial court‘s obligation to “consider not only the lack of particular probative value but also facts showing that the use of the evidence could confuse the issues and overly complicate the issues at trial.” He acknowledges the court‘s express finding that these factors did not warrant exclusion of the evidence, but he implies that the court should have explained that finding in more detail. The court was under no obligation to do so. In any event, having reviewed the whole record with some care, we see no significant risk that the evidence as presented confused the jury, or otherwise diverted it from the proper discharge of its duties.
Defendant alludes to testimony by the officer who arrested him for the 2009 burglary that defendant made a comment at that time reflecting his familiarity with the fact that used tools could be profitably sold. This is not charged as a separate error but apparently offered to substantiate defendant‘s claims of undue prejudice. We fail to see how it can have that effect. The trial court carefully limited the testimony so as to convey nothing more than defendant‘s familiarity with the possibility of profitably selling used tools. This was obviously relevant to motive, which in turn supported an inference of intent. We again decline to discuss in depth an argument defendant has not trоubled to articulate.
We find no error under state law in the court‘s admission of the evidence of the 2009 burglary.
D. Due Process
Finally, defendant contends that admission of the evidence of the 2009 burglary violated his right to due process. In the one federal case he cites where such a conclusion was reached, the court found that the evidence of uncharged misconduct had served no legitimate purpose and thus operated only to invite an “impermissible propensity inference.” (McKinney v. Rees (1993) 993 F.2d 1378, 1383.)8 Here, as we have noted, the evidence was
relevant to support a legitimate incriminating inference independent of any consideration of propensity. The cited case therefore provides no ground for reversal.
Defendant also cites People v. Partida (2005) 37 Cal.4th 428, 435 [35 Cal.Rptr.3d 644, 122 P.3d 765], for the proposition that “a trial court‘s improper application of Evidence Code section 352 may also rise to the level of a due prоcess violation.” What the court actually held there was that after a defendant‘s Evidence Code section 352 objection had been overruled, he could—despite failing to mention the due process clause in the trial court as a separate ground of objection—“make a very narrow due process argument on appeal,” i.e., “that the asserted error in admitting the evidence over his Evidence Code section 352 objection had the additional legal consequence of violating due process.” (37 Cal.4th at p. 435.) The holding of that case cannot come into play unless the Evidence Code section 352 objection was overruled in error. Here we have concluded that the court did not err by overruling the objection. Therefore no due process claim can be predicated on the holding of Partida.
Defendant‘s final argument is that the asserted error in admitting this evidence was prejudicial. It is of course unnecessary to reach this question in view of our determination that no error occurred. We do wish to acknowl-edge, however, defendant‘s concern that the jury “struggled with the issue of intent,” thus indicating the critical role of that question in its verdict. It would hardly be surprising if the jury focused on this issue, since it was essentially the only ground of defense. But the evidence cited by defendant indicates that insofar as the jury “struggled” with this issue, it was dealing with the legal parameters of burglarious intent and not their application to the evidence presented. Thus the jury foreperson did submit an inquiry to the court expressing “confus[ion] about ‘intent to commit burglary.’ ”9 But the note referred to an instruction which, as originally given, invited confusion on this
The record provides no basis to suppose that the jurors’ “confusion” about the intent element had any bearing at all on its evaluation of the defense theory. So far as the record shows, the jury sought clarification only because the original instruction conflated the element of intent, which was necessary to convict, with the elements of a completed theft, which was not.
II. Presentence Custody Credits
Defеndant contends that the trial court shortchanged him on credit for presentence confinement by denying credit for the entire period he was also subject to a parole hold. Defendant contends that 41 days of this time were solely attributable to the conduct underlying the present charges, and there-fore seeks additional credit of 41 actual days and 6 days’ conduct, for a total of 47 days. Respondent concedes the point. We accept the concession. The crucial premise, which respondent concedes, is that under the governing guidelines, “only 9 months of the 12-month parole term could have been
DISPOSITION
The trial court is directed to modify the abstract of judgment to reflect an additional 41 days’ credit for actual time in presentence confinement, plus 6 days’ conduct credit. In all other respects the judgment is affirmed.
Premo, J., and Elia, J., concurred.
Appellant‘s petition for review by the Supreme Court was denied March 19, 2014, S215754.