Opinion
D051397
9-4-2008
THE PEOPLE, Plaintiff and Respondent, v. TERENCE NIGEL BATTLES, Defendant and Appellant.
Not to be Published
Terence Nigel Battles appeals a judgment arising out of his conviction of burglary and attempted burglary. (The same judgment also includes convictions on two counts of resisting an officer; however, Battles does not appeal from those convictions and we thus affirm the judgment as to those convictions.) He contends that the trial court erred in admitting unduly prejudicial bad act evidence against him and that there was insufficient evidence to establish that he entered the premises or that he had the specific intent necessary to support either offense. We agree with Battless first contention and reverse the judgment on that basis, but reject his challenges to the insufficiency of the evidence and remand the matter for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
At midnight on February 9, 2006, Mary Sheldon was awakened when one of her dogs started barking. Sheldon went into the living room and found the dog standing on the couch next to the living room window, barking and scratching at the window as if he wanted to get outside. She heard someone open the screen door to the front entrance to her home and try the handle to the front door; however, she could not see who was trying to get in because her view from the window was blocked by the open screen door. After the person stopped trying the door handle, Sheldon looked out the window and saw Battles, who was wearing dark clothing and gloves, standing in her driveway. Sheldon ducked down so that Battles would not see her and, when she looked out the window a minute or so later, he was gone. Within a couple of minutes, Sheldons dog settled down, so Sheldon went back to bed without calling the police.
A few hours later, Sheldons dog became upset again and started barking, so Sheldon unblocked the dog door that led from her family room into the dog run in her side yard to let him outside. The dog continued barking and pacing back and forth in the dog run and Sheldon saw a person or a persons shadow walk past outside one of the family room windows; she called 911.
As Sheldon was talking to the dispatcher, she saw that her dog had Battles cornered in her backyard near the pool equipment and heard Battles making loud screeching noises. She ducked down so that Battles would not see her and shortly thereafter heard someone pushing at the flap of the dog door, making a grunting sound and grabbing onto the carpet; she was sure that it was not the dog, which was still barking and running back and forth in the dog run at the side of the house.
The 911 operator advised Sheldon to get out of the house and, after she ran out the front door, she was met by two sheriffs deputies. One of the deputies found Battles, who was shoeless but wearing gloves, leaning against the side of the house. He was largely noncompliant with the deputies commands, even after one of them pointed a gun at him. He also engaged in unusual behavior, flirting with the female deputy and asking her out on date, asking the other deputy if he had had his Wheaties that day and acting uncontrollable one minute and tranquil the next. Believing that Battles was under the influence, the deputies had a nurse draw his blood, which showed that he had a blood alcohol level of .25.
Battles was charged with burglary (relating to the entry through the dog door), attempted burglary (relating to the attempt to enter the house through the front door) and resisting an officer in March 2006. Prior to trial, Battles made a motion in limine to exclude evidence that he committed a residential burglary in 2002 and was convicted of that offense. The courts determination of the motion, as well as the trial, was delayed as a result of Battless request to represent himself and an initial concern as to his competence to stand trial.
After Battles was found competent, the court heard argument on his motion in limine. The prosecutor argued that she did not intend to introduce evidence of his conviction for the 2002 residential burglary in her case-in-chief, but would seek to introduce the evidence to rebut Battless anticipated defense that his intoxication prevented him from forming the requisite specific intent to steal. The court deferred ruling on the motion until after the presentation of Battless defense.
At trial, Battles did not testify, but he defended against the burglary-related charges on the grounds that (1) there was no evidence to support a finding that he (rather than the dog) attempted to enter Sheldons house through the dog door and (2) he was so intoxicated at the time of the incident that he could not have formed the specific intent necessary to support convictions of those offenses. Over his objection, the court allowed the prosecutor to introduce evidence of the 2002 residential burglary conviction as part of its rebuttal case. The jury convicted Battles of the burglary-related offenses, as well as two charges of resisting an officer; he appeals the former two convictions.
DISCUSSION
1. Admission of Prior Bad Act Evidence
Pursuant to Evidence Code section 1101, subdivision (a), evidence of a persons character or trait of his character is generally inadmissible when offered by an opposing party to prove the persons conduct on a specified occasion. However, notwithstanding this general rule, evidence that a person has committed a prior crime, civil wrong or other act is admissible to prove a fact other than a disposition to commit such an act, such as motive, intent, plan or identity. (Evid. Code, § 1101, subd. (b).)
To be admissible, evidence that satisfies the criteria set forth in Evidence Code section 1101, subdivision (b), must also qualify for admission under Evidence Code section 352. (Evid. Code, § 1108, subd. (a); Brown v. Smith (1997) 55 Cal.App.4th 767, 791.) Evidence is admissible under Evidence Code section 352 unless the trial court determines that 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, confusing the issues or misleading the jury.
The probative value of prior act evidence is determined from various considerations, including the frequency of the uncharged acts and their similarity and temporal proximity to the charged acts. (People v. Soto (1998) 64 Cal.App.4th 966, 989-990.) To be relevant, the other acts must bear a certain degree of similarity to the conduct giving rise to the current charges; the precise degree of similarity that is required depends on the purpose for which the other act evidence is admitted. (People v. Ewoldt (1994) 7 Cal.4th 380, 402, superseded by statute on other grounds as stated in People v. Britt (2002) 104 Cal.App.4th 500, 505.)
To establish intent, for example, the uncharged misconduct must merely be sufficiently similar to support the inference that the defendant "`probably harbor[ed] the same intent in each instance." (People v. Ewoldt, supra, 7 Cal.4th at p. 402.) A greater degree of similarity is required to establish that the defendant acted in accordance with a common design or plan and the greatest degree of similarity is required to prove identity. (Id. at pp. 402-403; see also People v. Nible (1988) 200 Cal.App.3d 838, 848 [to be admissible to show identity, prior act must be sufficiently distinctive and similar to the charged crime that a proper inference may be drawn the same person committed both].)
Battles argues that the trial court erred in admitting the prosecutions rebuttal evidence regarding the 2002 residential burglary. Specifically he contends, as he did below, that the prior incident was so dissimilar from the current offense that the court should not have admitted evidence of it at trial. We review the trial courts rulings for an abuse of discretion (People v. Lewis (2001) 25 Cal.4th 610, 637) and will not reverse an evidentiary ruling absent a showing of manifest abuse. (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
Although the prior and the current offenses need not be distinctively similar in order for evidence of the former to be admissible in a trial of the latter on the issue of intent, the offenses must have substantial similarities. (People v. Nible, supra, 200 Cal.App.3d at pp. 848-849; see generally People v. Wilson (1991) 227 Cal.App.3d 1210, 1215-1218 [holding that evidence of the prior burglary was properly admitted in trial on the current burglary offense where the defendant knew each of the victims and had entered their homes at a time when he knew they were not home and his defense in each case was that he had entered their homes not with the intent to steal, but for the purpose of waiting to talk to them].) Battles committed the prior offense in the middle of the day by prying open the window of a home when the resident was not at home and taking a computer and some bedding. The current offense occurred in the middle of the night, with Battles attempting to gain access to Sheldons home through the front door and through the dog door, at a time when Sheldon was home and he was highly intoxicated.
A review of these facts establishes that the only similarity between the 2002 offense and the current one is that both were residential burglaries. This similarity is not sufficiently substantial to permit the admission of the evidence of the prior offense. (See generally People v. Robbins (1988) 45 Cal.3d 867, 880, superseded by statute on another ground as noted in People v. Jennings (1991) 53 Cal.3d 334, 387, fn. 13.) For this reason, the superior court erred in admitting the 2002 offense at trial.
The Attorney General nonetheless contends that any error in the admission of the evidence was harmless because, in light of the courts instructions to the jury regarding the limited purpose for which the evidence was admitted, it is not reasonably probable that Battles would have obtained a more favorable result if the prior offense evidence had not been admitted. (See People v. Watson (1956) 46 Cal.2d 818, 836-837; People v. Felix (1993) 14 Cal.App.4th 997, 1007-1008.) We are unpersuaded.
The other evidence establishing that Battles committed burglary and attempted burglary was purely circumstantial and, particularly on the issue of intent, cannot be described as overwhelming. Although the jury was instructed regarding the limited purpose for which the evidence was admissible, the potential prejudice of that evidence as to the intent issue was substantial. The admission of the evidence that Battles had previously committed a residential burglary created a significant danger that the jury would find him guilty based on his propensity to commit such an act, giving rise to a reasonable probability that the jury verdicts on the burglary and attempted burglary counts were influenced by the evidence of the 2002 incident.
2. Insufficiency of the Evidence
Although we conclude that the erroneous admission of the prior act evidence requires a reversal of the judgment as to Battless convictions for burglary and attempted burglary, for the purposes of determining whether he can be retried for these offenses on remand, we must proceed to address his challenges to the sufficiency of the evidence to support those convictions. (People v. Grant (2003) 113 Cal.App.4th 579, 594 [recognizing that principles of double jeopardy would preclude retrial if the prosecutions evidence in the first trial was insufficient to support the conviction].) In doing so, we must review the whole record in the light most favorable to the judgment to determine whether substantial evidence supported it, with our task limited to determining if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Bolin (1998) 18 Cal.4th 297, 331.) We may reverse a conviction based on the insufficiency of the evidence only if "it appears `that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]." (Ibid., quoting People v. Redmond (1969) 71 Cal.2d 745, 755.)
A. Entry
Under Penal Code section 459, the crime of burglary is committed when a person "enters any . . . building . . . with [the] intent to commit . . . petit larceny or any felony . . . ." (See also Pen. Code, § 460 [the burglary is of the first degree when the building is an inhabited structure].) Battles contends that his burglary conviction must be reversed because there was insufficient evidence to establish that he entered the home through the dog door. However, any kind of entry, even a very limited one, will suffice for this purpose. (People v. Valencia (2002) 28 Cal.4th 1, 13.) Thus, for example, a persons penetration into an area behind a window screen but outside the window itself is sufficient to constitute an entry into a building within the meaning of the burglary statute. (Id. at p. 6.)
Here, the evidence presented at trial showed, circumstantially, that Battles pushed open the dog door at the back of the house. Sheldon saw Battles outside her house just after she heard her front screen door being opened and someone trying to open the front door itself and she saw him in her yard again approximately two hours later. Shortly after the second sighting, Sheldon saw someone walk by her family room window and heard him open the dog door flap, a matter that she reported to the 911 dispatcher. At trial, she testified that she knew it was Battles rather than the dog opening the flap because it did not snap closed as it did when a dog used it. Finally, after Sheldon called 911, the responding sheriffs deputies found Battles standing by the side of her house.
Battles argues that although this evidence created a "strong suspicion" that he was the one who opened the dog door flap, this is not sufficient to support his conviction. However, this same argument could be asserted in any case where the evidence is circumstantial in nature and, in any event, it is not an accurate statement of the law. (People v. Stanley (1995) 10 Cal.4th 764, 793 [recognizing that circumstantial evidence may be sufficient to connect a defendant with a crime and to prove his guilt beyond a reasonable doubt].)
"Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence . . ., it is the jury, not the appellate court which must be convinced of the defendants guilt beyond a reasonable doubt." (People v. Stanley, supra, 10 Cal.4th at pp. 792-793 [citations omitted].) Here, Battles argued to the jury that the evidence was too ambiguous as to whether the dog may have pushed open the dog door flap, an argument the jury rejected. The evidence presented at trial provided a sufficient basis for the jury to reasonably infer that Battles pushed open the dog door on the night in question, which was sufficient to constitute "entry" into Sheldons home for purposes of establishing the elements of the offenses of burglary.
B. Intent
Battles also contends that his burglary and attempted burglary convictions must be reversed because there was insufficient evidence showing he intended to steal from inside the house. Specifically, he asserts the evidence of his extreme intoxication at the time of the incident, as well as the physical impossibility of him getting into the house through the dog door and the fact that he did not have his glasses with him, renders it nonsensical that he was trying to enter the house to steal rather than trying to find shelter. We disagree that this evidence precluded the jury from finding that Battles had the requisite specific intent to steal.
Direct evidence proving the intent to commit a burglary rarely exists and such intent usually must be inferred from all the facts and circumstances disclosed by the evidence. (People v. Lewis, supra, 25 Cal.4th at p. 643.) Here, Battles attempted to enter Sheldons house through the front door at approximately midnight. After that attempt was unsuccessful, he tried to enter the house again a second time, two hours later. On both occasions, he was not deterred in the slightest by the presence of a large barking dog.
Although this evidence is again purely circumstantial, the jury could have reasonably concluded that Battles had the intent to steal. He did not knock on the door, as one might expect if he had been merely seeking shelter, nor is there any evidence that he tried to find shelter elsewhere on her property despite the fact that there were two cars and a motor home parked there. The overall circumstances were sufficient to permit the jurors, who were properly instructed regarding the reasonable doubt standard and the weighing of circumstantial evidence, to conclude that Battles had the intent to steal; under such circumstances, the fact that we might conclude the evidence could reasonably be reconciled with a finding of innocence would not justify a reversal of the judgment. (People v. Hill (1998) 17 Cal.4th 800, 848-849.)
DISPOSITION
The judgment is affirmed as to Battless convictions of resisting an officer and is reversed as to the convictions of burglary and attempted burglary. The matter is remanded for further proceedings consistent herewith.
We Concur:
OROURKE, J.
AARON, J.