Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, Richard M. King, Judge. Super. Ct. No. 05CF3099
Lynelle K. Hee, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Alana Cohen Butler, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RYLAARSDAM, J.
A jury convicted defendant Julio Ceasar Callirgos of residential burglary (Pen. Code, §§ 459, 460, subd. (a); all further statutory references are to the Penal Code). The trial court found that he had previously suffered a serious felony conviction (§ 667, subd. (a)(1) and a strike prior (§ 667, subds. (d) & (e)). The court sentenced him to 13 years, consisting of a middle term, doubled, plus 5 years for the prior serious felony conviction.
Defendant’s appeal is based on the allegedly erroneous admission into evidence that he was found with burglary tools two days after the commission of the crime. Based on the facts of this case, this evidence was only marginally relevant, if at all. We nevertheless affirm the judgment because the admission of this evidence, if erroneous, was harmless error.
The house of the victim, Jack Saine, was equipped with a surveillance system with cameras in three different locations. When Saine returned home after work, he discovered that several items of electronic equipment and a laundry hamper were missing. While waiting for the police to arrive, Saine reviewed a video tape produced by the surveillance system and made a copy of portions of the tapes for the police. The tape showed two persons, Veronica Hildebrand, whom he recognized, and defendant, whom he did not know, removing items. Two days later, police recovered items taken from Saine’s house from defendant’s car. They also found a pair of gloves, a hacksaw, and three screwdrivers. Over defendant’s objection, the court admitted evidence of these burglary tools into evidence. Defendant contends this was prejudicial error, because, absent evidence that such tools were used in the burglary, the evidence is not relevant, if relevant, its probative value is outweighed by prejudice. The Attorney General argues that the presence of the burglary tools constitute evidence of defendant’s criminal intent.
We review the trial court’s rulings on relevance and the admission of evidence for an abuse of discretion. (People v. Cole (2004) 33 Cal.4th 1158, 1195.) As defendant points out, there is no evidence that these tools, or any tools, were used to effect the burglary. As pointed out by defendant, the cases admitting such evidence have generally involved either (1) a situation where the defendant was found with burglary tools at the scene of his crime, where the possession constitutes evidence of intent, or (2) the tools can later be shown as having been used in the burglary. The cases relied upon by the Attorney General follow this pattern. (People v. Darling (1989) 210 Cal.App.3d 910, 914 [defendant apprehended with the tools as he was leaving the burgled garage]; People v. Wilson (1965) 238 Cal.App.2d 447, 463 [defendant apprehended shortly after the burglary with tools that could have been used to gain entry].)
The Attorney General’s best argument is stated “because the tools were found in [defendant’s] car just two days after the burglaries, in close proximity to one of the stolen computers, the evidence was probative [of defendant’s] intent, while at the same time not being unduly prejudicial.” This is a close question and it probably would have been better had the court denied admission of this evidence. Nevertheless, if the court erred in admitting the evidence, the error was harmless. The jury had the videotape that showed defendant in Saine’s house, removing the stolen items, and some of these items were later found in his car. We cannot conclude that the admission of this evidence resulted in a miscarriage of justice. As our Supreme Court noted in People v. Watson(1956) 46 Cal.2d818, 836, “a ‘miscarriage of justice’ should be declared only when the court, ‘after an examination of the entire cause, including the evidence,’ is of the ‘opinion’ that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” (Id. at p. 836.) We cannot conclude that, had the court sustained the objection to the admission of evidence of the burglary tools, it is reasonably probable that defendant would have obtained a more favorable result.
The judgment is affirmed.
WE CONCUR: SILLS, P. J., FYBEL, J.