Filed 1/21/20 P. v. Espinoza-Villalobos CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

SERGIO ESPINOZA-VILLALOBOS,

Defendant and Appellant.

A156429

(Sonoma County

Super. Ct. No. SCR720301-1)

A jury convicted defendant Sergio Espinoza-Villalobos of driving or taking a vehicle. (Veh. Code, § 10851, subd. (a).) He appeals that conviction on the ground the trial court prejudicially erred under Evidence Code sections 1101 and 352 by admitting evidence relating to three prior vehicle-related convictions. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A third amended information charged defendant with felony driving or taking a vehicle without the owner’s consent (Veh. Code, § 10851, subd. (a); count 1); receiving stolen property (Pen. Code, § 496d, subd. (a); count 2); and misdemeanor possession of paraphernalia (Health & Saf. Code, § 11364, subd. (a); count 3). As to counts 1 and 2, it was further alleged that he previously suffered a conviction on October 30, 2017 for receiving stolen property. (Pen. Code, §§ 496d, subd. (a), 666.5.)

The evidence at trial included the following.

Margaret Ferrel was the owner of the car that had been taken. She testified that on the evening of September 19, 2018, she drove her 2018 Honda CRV to the parking lot of a church where she volunteers. She stepped away from her car to speak with a fellow volunteer, but left her car door open and the engine running.

After finishing her conversation with the volunteer, Ferrel stopped and spoke with another person. At that point, Ferrel saw a car drive erratically through the lot, leading her to exclaim, “[W]ow! I can’t believe somebody’s being such a terrible driver in a cute car like mine.” When Ferrel returned to where she had parked, at approximately 10:00 p.m., she discovered that her car, along with her purse and cell phone in the car, were missing. Ferrel called the police and reported her car stolen.

Esthela Martinez Torres testified that at approximately 8:15 a.m. on September 20 (the day after Ferrel’s car was taken), she was driving home and saw some police officers a block or so from her apartment. After parking her vehicle on the street, she noticed a car she had never seen before. The car, which was later identified as Ferrel’s CRV, was in a nearby driveway, and the driver looked “suspicious and nervous.” The driver had started pulling out of the driveway, but when he looked to where the police were, he looked “even more nervous” and backed up the car and parked. Martinez Torres was able to see the driver’s face as he looked in her direction at the police. It was morning, and the driver’s side window was down.

In her rear view mirror, which provided a good view, Martinez Torres saw the driver exit the car and walk toward nearby Olive Park. She thought the man acted suspiciously because he tried to straighten out his clothes and his backpack. Martinez Torres exited her car and used her cell phone to call the police. As she was speaking with the police, she saw the same man enter a restroom in the park. Although he wore black shorts and a black t-shirt before entering the restroom, he exited the restroom wearing a gray shirt with white lines. He also carried a black and red backpack and at some point wore a red handkerchief. Martinez Torres estimated the man was about her height, which was four feet, ten inches tall.

The police arrived and took Martinez Torres to Olive Park to look at a couple of different people. She did not recognize the first person the officers showed her. She was, however, a “hundred percent” certain that the second person shown to her at a different location in the park was the man from the car. In the courtroom, Martinez Torres identified defendant as that person.

Santa Rosa Police Officer David McCready testified concerning defendant’s apprehension and arrest. Defendant appeared “worried and nervous” as McCready and his partner approached him in the park. When asked for his name, defendant “was kind of evasive.” He said his name was “Junior,” but he initially refused to provide a last name or any other identifying information. McCready’s patsearch of defendant turned up a glass pipe with possible methamphetamine residue.

Ferrel recovered her CRV, but not the purse and cell phone she had left inside it.

The jury was presented with the parties’ stipulation that defendant had been convicted on three separate occasions: twice in 2018 for driving or taking a vehicle without consent (Veh. Code, § 10851) on separate occasions in December 2017 and in April 2018, and once in 2017 for receiving a stolen vehicle (Pen. Code, § 496d, subd. (a)) in October 2017. The parties agreed to this stipulation after the trial court ruled, over the defense’s objection, that it would admit evidence of these three convictions as probative of defendant’s intent and knowledge.

Additionally, the trial court permitted the prosecution, over the defense’s objection, to present witnesses for the 2017 conviction, which involved a Toyota Prius that was taken from a bank parking lot without the two registered owners’ permission. Santa Rosa Police Officer Nick Madarus testified that on October 16, 2017, he responded to a report of a suspicious male sitting in a vehicle behind a closed business. At the scene, Madarus found defendant sitting in the driver’s seat of a Toyota Prius with a broken passenger window. Madarus’s record check revealed the vehicle was not registered to defendant. Defendant first told Madarus he had rented the car from a friend named “Anna” for $300. When defendant could not produce any supporting documentation or Anna’s phone number, he changed his story and claimed to be in the process of buying the car from Anna. Defendant claimed his girlfriend threw a brick through the passenger window after she caught him sleeping with another woman. The registered owners each testified briefly about the incident.

Defendant took the stand in the instant case and testified his first name technically is “Junior.” He estimated his height as five feet, eleven inches. On the morning of his arrest, defendant was at the park and saw police searching people at the park bathroom. Because defendant had trouble with police officers in the past, he turned around and walked the other way. Defendant denied wearing a gray shirt with white stripes and said the backpack he was carrying was all black with no red. Although he had a red bandana in his backpack, he did not wear it that day. Defendant additionally denied having gone to the church parking lot and denied taking Ferrel’s car. He also denied being near the apartment complex where Martinez Torres said she saw him.

The jury found defendant guilty of felony driving or taking a vehicle (count 1) and misdemeanor possession of paraphernalia (count 3). As instructed, the jury did not return a verdict for the alternative charge of receiving stolen property (count 2). The jury also found true the allegation that defendant was previously convicted of a violation of Penal Code section 496d, subdivision (a), in October 2017.

DISCUSSION

In advance of opening statements, the prosecution moved in limine for a ruling to admit evidence that defendant suffered three convictions for vehicle-related offenses. The prosecution also sought to present witness testimony for all three of those offenses. The trial court granted the motion in part, ruling that evidence of the three convictions and witness testimony concerning the October 2017 offense would be admissible to prove defendant’s intent and knowledge. The court, however, denied admission of witness testimony on the other two offenses, finding its probative value was outweighed by undue consumption of time and potential jury confusion. Relying on sections 1101 and 352 of the Evidence Code, defendant contends the court prejudicially erred and abused its discretion in admitting any of the evidence. We cannot agree.

Under section 1101, subdivision (a), “[c]haracter 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.” (People v. Leon (2015) 61 Cal.4th 569, 597 (Leon).) But under section 1101, subdivision (b) (hereafter section 1101(b)), evidence that a person committed a crime other than the crime charged may be admitted “to prove some other material fact, such as that person’s intent or identity” that is at issue. (Leon, at pp. 597–598; see § 210.) When evidence of uncharged crimes is offered to prove the defendant’s intent, a distinctive similarity between the two crimes is often unnecessary; indeed, the “ ‘least degree of similarity (between the uncharged act and the charged offense) is required.’ ” (Leon, at p. 598.) That is because “the recurrence of a similar result tends to negate an innocent mental state and tends to establish the presence of the normal criminal intent.” (People v. Jones (2011) 51 Cal.4th 346, 371.) The similarity between the charged and uncharged crimes must simply be sufficient “ ‘to support the inference that the defendant “ ‘probably harbor[ed] the same intent in each instance.’ ” ’ ” (Leon, at p. 598.)

We review trial court rulings made under section 1101 for abuse of discretion. (People v. Davis (2009) 46 Cal.4th 539, 602.) We will not disturb a ruling or order a reversal unless the trial court “ ‘ “ ‘exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.’ ” ’ ” (People v. Rogers (2013) 57 Cal.4th 296, 326.) We see no error or abuse of discretion.

As indicated, the two 2018 convictions were for the same offense charged here, i.e., a violation of Vehicle Code section 10851, subdivision (a), while the 2017 conviction and witness testimony related to the offense of receiving a stolen motor vehicle. The number of the prior convictions, and their shared or similar mental state requirements, reasonably supported the inference that defendant harbored the necessary intent in committing the charged violation of Vehicle Code section 10851. (Veh. Code, § 10851, subd. (a); see People v. O’Dell (2007) 153 Cal.App.4th 1569, 1574 (O’Dell).) As our Supreme Court explained, “the doctrine of chances teaches that the more often one does something, the more likely that something was intended, and even premeditated, rather than accidental or spontaneous.” (People v. Steele (2002) 27 Cal.4th 1230, 1244.) Accordingly, the evidence was admissible on the issue of intent.

The prior convictions and witness testimony were also admissible as probative of defendant’s knowledge. “Whether similarity is required to prove knowledge and the degree of similarity required depends on the specific knowledge at issue and whether the prior experience tends to prove the knowledge defendant is said to have had in mind at the time of the crime.” (People v. Hendrix (2013) 214 Cal.App.4th 216, 241.) To establish a violation of Vehicle Code section 10851, subdivision (a), the prosecution had to prove that a vehicle was driven or taken without the owner’s consent. (See O’Dell, supra, 153 Cal.App.4th at p. 1574.) Here, the evidence that defendant suffered three recent vehicle-related convictions and the witness testimony placing defendant in a car that he knew he had no permission to be in (the 2017 offense) had a tendency in reason to prove defendant’s knowledge that he drove or took Ferrel’s car without her consent.

In disputing the admissibility of the evidence, defendant argues that intent and knowledge were irrelevant in this case because he denied taking Ferrel’s CRV and offered no false explanation (as he did in the 2017 incident) for supposedly being spotted in possession of her stolen car. That is, if the jury believed defendant had taken the car, then his intent to steal it was beyond dispute and not in issue. Consequently, defendant argues, the challenged evidence was inadmissible because the only issue for the jury to decide was the identity of the person who took the CRV, but the uncharged and charged crimes did not share unusual or distinctive features and therefore were insufficiently similar to prove identity. (People v. Ewoldt (1994) 7 Cal.4th 380, 403 [for identity to be established, the uncharged and charged offenses “must share common features that are sufficiently distinctive so as to support the inference that the same person committed both acts”].) We are not persuaded. By pleading not guilty and proceeding to trial, defendant “put in issue all the elements of the charged offenses” (People v. Catlin (2001) 26 Cal.4th 81, 146), including whether he drove or took Ferrel’s car without her consent and whether he harbored the requisite intent to permanently or temporarily deprive her of title or possession (O’Dell, supra, 153 Cal.App.4th at p. 1574).

Moreover, to the extent defendant contends the uncharged crimes evidence was improperly admitted and considered by the jury as proof of the perpetrator’s identity, we conclude otherwise. None of the evidence was offered, admitted, or used to establish defendant’s identity as the driver or taker of Ferrel’s car. To the contrary, the prosecution specifically sought to admit the evidence solely as evidence of defendant’s “intent, knowledge, absence of mistake or accident, and motive.” Both the prosecution’s closing argument and the trial court’s instructions admonished the jurors against using the evidence for reasons other than establishing intent, knowledge, or lack of mistake or accident. We presume the jury understood and followed the trial court’s instructions. (People v. Scott (2015) 61 Cal.4th 363, 399.)

Contrary to defendant’s assertion, People v. Lopez (2011) 198 Cal.App.4th 698 (Lopez) does not compel a different result. In Lopez, the defendant was charged and convicted of residential burglary. In concluding the trial court abused its discretion in admitting evidence of a prior car burglary and car theft as probative of intent, Lopez reasoned that “[e]vidence regarding the [charged] burglary showed that someone entered the kitchen of the [subject] residence and took two purses. Assuming [the defendant] committed the alleged conduct, his intent in so doing could not reasonably be disputed—there could be no innocent explanation for that act. Thus, the prejudicial effect of admitting evidence of a prior car burglary and prior car theft outweighed the probative value of the evidence to prove intent as to the [charged burglary offense]. [Citation.] [¶] Simply put, evidence of uncharged acts cannot be used to prove something that other evidence showed was beyond dispute; the prejudicial effect of the evidence of the uncharged acts outweighs its probative value to prove intent as it is cumulative regarding that issue.” (Id. at p. 715.)

In contrast to Lopez, the issues of intent and knowledge were not beyond dispute in this case. Although Martinez Torres provided strong evidence placing defendant in Ferrel’s car the morning after it was stolen, there was no witness identifying defendant as the person who took the car from the church parking lot. While one might reasonably agree with defendant that “whoever took the CRV had the intent and knowledge needed to reach that result” (italics added), defendant does not argue, nor can we conclude, that no reasonable person would dispute that the person seen driving Ferrel’s car the next morning had the requisite criminal intent.

We next consider whether exclusion of the uncharged crimes evidence was nonetheless required because its probative value was “substantially outweighed by the probability that its admission” would “necessitate undue consumption of time” or “create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (§ 352.) Evidence is prejudicial under section 352 when it “ ‘ “uniquely tends to evoke an emotional bias against the defendant as an individual and . . . has very little effect on the issues.” ’ ” (People v. Doolin (2009) 45 Cal.4th 390, 439.) Again, we review for abuse of discretion.

As discussed, the evidence pertaining to defendant’s prior convictions was probative on the issues of intent and knowledge. The prior offenses all occurred within a year of the charged crime, so they were not remote in time. Moreover, the trial court restricted the presentation of witness testimony to the one 2017 offense to avoid potential jury confusion and undue consumption of time, and in fact the presentation of such testimony, along with the parties’ prior conviction stipulation, did not consume a significant amount of time. Nor did the evidence threaten to evoke an emotional bias against defendant. The stipulated descriptions of the offenses and the witness testimony were not salacious and were no more inflammatory than the facts of the charged offense. And because the stipulation informed the jurors that defendant had been convicted of the prior offenses, it is unlikely they were tempted to condemn him for escaping punishment on those offenses. (Cf. People v. Ewoldt, supra, 7 Cal.4th at p. 405.)

Additionally, not only did the trial court restrict the witness testimony as indicated, but it took further action to minimize any possibility of jury confusion. In addition to giving the instructions referenced in footnote 2, ante, the court expressly admonished the jurors not to consider the uncharged crimes evidence “for any other purpose except for the limited purpose of showing that the defendant had the intent to take or drive the vehicle, or possess the vehicle, without consent and that he was not mistaken in taking or driving the vehicle without consent.” The court also specifically cautioned: “Do not conclude from this evidence that the defendant has a bad character or is disposed to commit crime.” On this record, we cannot say the trial court abused its discretion.

Finally, any erroneous admission of the uncharged crimes evidence is harmless unless it is reasonably probable that a more favorable result would have been obtained had the evidence been excluded. (People v. Malone (1988) 47 Cal.3d 1, 22 [applying People v. Watson (1956) 46 Cal.2d 818].) Here, the other evidence establishing defendant’s guilt was substantial and strong. Ferrel saw her car being driven away without her consent. Martinez Torres identified Ferrel’s car as the vehicle she saw defendant driving the morning after it was reported stolen. Martinez Torres testified she was a “hundred percent” certain she had seen defendant driving the car, and she positively identified him in Olive Park shortly after she reported his suspicious activity and again at trial. Although Martinez Torres may have been mistaken in her description of defendant’s height and some aspects of his clothing and backpack, her report to the police of initially seeing defendant wearing a red handkerchief, a black t-shirt, and dark-colored shorts aligned with the evidence that he had a red bandana and a black long-sleeve sweater in his backpack after exiting the park bathroom and that the long pants he put on covered a pair of mostly black shorts. This evidence of defendant changing his clothes—as well as the evidence that he appeared nervous upon seeing the police while in Ferrel’s car, that he reversed direction and left the car after moving it away from the police line of sight, and that he was evasive and refused initially to identify himself to police—tended to show consciousness of guilt. Given the strong and ample evidence at trial, it is not reasonably probable that defendant would have obtained a more favorable result absent admission of the challenged evidence.

DISPOSITION

The judgment is affirmed.

 

_________________________

Fujisaki, J.

WE CONCUR:

_________________________

Siggins, P. J.

_________________________

Petrou, J.

A156429