Opinion
B227738
09-30-2011
THE PEOPLE, Plaintiff and Respondent, v. DAVID JEROME HENDERSON, Defendant and Appellant.
Jennifer Gerard, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr., and Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA335005)
APPEAL from a judgment of the Superior Court of Los Angeles County, William C. Ryan, Judge. Affirmed.
Jennifer Gerard, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr., and Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
David Jerome Henderson appeals his conviction of second degree commercial burglary, a felony violation of Penal Code section 459. He claims the trial court committed prejudicial error by admitting evidence of his three prior convictions of commercial burglary. We affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
In November 2007, the Far East Center, a Chinese herbal medicine store in downtown Los Angeles, was burglarized. The store's metal gate had been pried open and its glass door shattered using a metal water meter cover from the sidewalk in front of the store. One of the cash registers had been forced open and approximately $300 taken from it.
Surveillance cameras captured video of a man breaking into and entering the store after business hours. The store's owner, David Giang, testified that he could not affirmatively identify appellant from the footage, but stated that he thought the man entering the store resembled him.
Detective Erik Dirksen of the Los Angeles Police Department (LAPD) investigated the burglary. His colleagues suggested that he question appellant. Dirksen reviewed appellant's booking photograph and thought he resembled the man in the Far East Center surveillance video. Dirksen issued a crime bulletin stating that appellant was sought for questioning related to commercial burglaries. Police officers on patrol in downtown Los Angeles saw appellant, recognized him from the crime bulletin, and approached him. As officers walked toward appellant, he attempted to flee. Officers detained appellant for questioning.
During questioning, Dirksen showed appellant enhanced photographic stills from the video surveillance. Appellant said the man in the video could be him and "if it was [], that it was during business hours."
Appellant was arrested and charged with second degree commercial burglary. Appellant pleaded not guilty. Prior to trial, respondent brought a motion in limine to introduce evidence of three prior commercial burglaries to which appellant had pleaded guilty. Respondent sought to admit this other-crimes evidence to prove identity and common scheme or plan. Appellant brought his own motion to exclude the prior burglaries. At the hearing on the motions, appellant rearticulated his objections to admitting the evidence. The trial judge denied appellant's motion to exclude, ruling that the prior convictions were sufficiently similar to the charged offense to show identity.
At trial, respondent introduced the prior burglaries through testimony of the police officers who investigated these crimes. The evidence adduced at trial included the following. In 2005, a witness observed appellant throw a metal water meter cover through a glass window and climb into the Fourth Street Deli, a restaurant in downtown Los Angeles. A building security guard detained appellant until police officers arrived and arrested him. Officers discovered an open cash register that contained only coins and found appellant in possession of $131. The water meter cover was recovered from the floor inside the restaurant and booked into evidence.
Officers who testified at trial used different terminology when describing the object used to break the glass. Detective Dollie Swanson clarified that a water meter cover and a water main cover referred to the same object.
In 2006, Dollie Swanson, a LAPD detective who worked on the Fourth Street Deli case, investigated a burglary at Marasaki Restaurant. Swanson took an interest in the Marasaki burglary because she thought it had a similar modus operandi to the Fourth Street Deli burglary. She testified that she thought the crimes were very similar, because in each case the burglar used a water meter cover to break the glass and enter the business. Also, in both crimes money had been taken and both businesses were located in downtown Los Angeles. Fingerprints recovered from the Marasaki restaurant were determined to belong to appellant. Appellant was arrested.
During the Marasaki investigation, Swanson learned of another burglary which also involved the use of a water meter cover that occurred at LaBaguette Sandwiches, located in downtown Los Angeles. After appellant's arrest for the Marasaki burglary, Swanson also questioned him about the LaBaguette burglary. She told appellant that a security guard had picked him out of a photographic lineup. Swanson testified that appellant eventually admitted burglarizing the LaBaguette restaurant, however, he stated he did not take any money. She further testified that he was arrested and convicted for the LaBaguette burglary.
Appellant did not testify at trial. The only witness called by appellant testified that appellant was with him during the time of the Far East Center burglary.
After both sides had rested, a stipulation was read to the jury stating appellant had pleaded guilty to commercial burglary of the Fourth Street Deli and the Marasaki Restaurant. The LaBaguette burglary was not mentioned. Because appellant stipulated to the prior burglaries, the court did not conduct a trial with respect to them.
The trial court instructed the jury to limit its consideration of the prior crimes evidence under the terms of CALCRIM No. 375. The court admonished, "[d]o not conclude from this evidence that the defendant has a bad character or is disposed to commit crime."
The jury convicted appellant of second degree commercial burglary. Appellant was sentenced to five years in state prison. This timely appeal followed.
DISCUSSION
I
Respondent makes a number of arguments claiming that appellant waived and forfeited his right to appeal the admission of the three prior convictions. Questions relating to the admissibility of evidence generally are not reviewed on appeal absent a specific and timely objection in the trial court on the ground sought to be argued on appeal. (People v. Alvarez (1996) 14 Cal.4th 155, 186; see also Evid. Code, § 353.) "A motion in limine to exclude evidence is normally sufficient to preserve an issue for review without the necessity for defendant to renew an objection at the time the evidence was offered." (Summers v. A. L. Gilbert Co. (1999) 69 Cal.App.4th 1155, 1184.)
Respondent argues that appellant only objected to the Marasaki and LaBaguette convictions, and thus forfeited his right to challenge admission of the Fourth Street Deli conviction. While appellant's statement of facts in his motion to exclude expressly discussed only those two burglaries, his legal arguments sought to exclude his "prior convictions in Case Nos. BA 291487 and BA 309160." Defendant's guilty plea in case No. BA291487 was for the Fourth Street Deli burglary. Case No. BA309160 included both the Marasaki and LaBaguette burglaries. His arguments opposing admission of his prior convictions thus included all three cases. Because he raised objections to his prior convictions for all three burglaries based on Evidence Code sections 1101 and 352, he did not forfeit his right to appeal admission of the Fourth Street Deli burglary.
Respondent also asserts that once appellant stipulated to the admissibility of the three convictions, he forfeited his claim on appeal. Appellant objected to respondent's proposal to admit the evidence by filing a motion to exclude and arguing the motion before the trial court. The court expressly denied the motion. Thereafter, respondent introduced testimonial evidence from police officers who worked on the three prior burglaries. Through this testimony, the jury learned about the three burglaries. It was not until both sides had rested that the stipulation was read to the jury. We conclude that appellant did not forfeit his right to appeal by subsequently stipulating to the prior convictions, because he did so only after the trial court had denied his motion and after the evidence was admitted at trial. His motion to exclude was thus sufficient to preserve his claim on appeal.
Finally, respondent argues that appellant waived his challenge to the LaBaguette conviction by failing to meaningfully raise it in the opening brief he submitted on appeal. "When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived." (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-85; see also People v. Williams (1997) 16 Cal.4th 153, 206 [holding that claim asserted in single sentence is perfunctory and need not be considered].) Appellant's briefs on appeal do not expressly discuss evidence of the LaBaguette burglary. However, because we hold that the prior convictions were properly introduced, we need not decide the waiver issue as to the LaBaguette burglary.
II
Appellant claims that the trial court abused its discretion by admitting evidence of his prior burglary convictions. He argues that the Far East Center burglary and the three prior burglaries were insufficiently similar to show either common scheme or plan or identity, and hence were not admissible under Evidence Code section 1101, subdivision (b).
Evidence Code section 1101, subdivision (a), prohibits admission of evidence of a person's character, including evidence of character in the form of specific instances of uncharged misconduct, to prove that person's conduct on a particular occasion. However, subdivision (b) of the statute permits admission of evidence of uncharged misconduct when it is relevant to establish some fact other than the person's character or disposition, such as intent, motive, common design or plan, or identity. (People v. Ewoldt (1994) 7 Cal.4th 380, 393, superseded on other grounds as stated in People v. Britt (2002) 104 Cal.App.4th 500, 505-506.)
"To be admissible on the issue of identity, an uncharged crime must be highly similar to the charged offenses, so similar as to serve as a signature or fingerprint." (People v. Barnwell (2007) 41 Cal.4th 1038, 1056.) "To be admissible to demonstrate a distinctive modus operandi, the evidence must disclose common marks or identifiers, that, considered singly or in combination, support a strong inference that the defendant committed both crimes." (People v. Bradford (1997) 15 Cal.4th 1229, 1316.) The acts need not be identical to be highly distinctive. (People v. Carter (2005) 36 Cal.4th 1114, 1148.)
If uncharged criminal acts are relevant, the court then determines whether the probative value of the evidence outweighs the likelihood that its admission would create a substantial danger of undue prejudice, confusion, or misleading of the jury. (People v. Ewoldt, supra, 7 Cal.4th at p. 404; Evid. Code, § 352.) Because of the danger of prejudicial effect, uncharged offense evidence is admissible only if it has substantial probative value. (People v. Leon (2008) 161 Cal.App.4th 149). We review the trial court's decision in admitting evidence of a defendant's uncharged misconduct for abuse of discretion. (People v. Ewoldt, supra, 7 Cal.4th at p. 405.)
There is one striking similarity shared by all four incidents: each involved the use of a metal water meter cover to shatter a glass door or window and gain entry to a commercial business. Using a metal water meter cover to break into a business is unusual and distinctive. Through this feature, detectives working on the case were able to connect appellant to the LaBaguette burglary. Other similarities shared by some of the incidents include a pried open metal gate, money taken from the cash register, and the location of the businesses in downtown Los Angeles. While all of these factors were not present in all of the cases, the acts do not need to be mirror images of each other in order to be distinctive. (People v. Carter, supra, 36 Cal.4th at p. 1148.) In this case, we conclude that the unusual method of using a water main cover to break in to the businesses, coupled with the additional factors, supports the court's conclusion that the uncharged incidents contained sufficiently distinctive similarities to serve as appellant's signature. The trial court did not abuse its discretion in concluding that the prior act evidence was sufficiently similar to this present crime to be admissible.
Appellant also contends that the trial court abused its discretion in admitting the evidence under Evidence Code section 352, because the probative value of the prior convictions did not outweigh their prejudicial nature. He argues, in particular, that the prior burglaries are so recent in time to the Far East Center burglary that there was a substantial risk that the jury would convict him for the prior burglaries.
Here, the uncharged acts also were commercial burglaries. These acts were highly probative since they showed that appellant has engaged in a pattern of burglaries committed in a highly distinctive and similar way. This evidence tended to prove that appellant was the individual who also committed the Far East Center burglary. The evidence of the other crimes was no stronger and no more inflammatory than the testimony concerning the charged offense. Also, any prejudicial impact was reduced precisely because defendant was previously convicted of all three prior burglaries. We conclude that the trial court did not abuse its discretion in admitting the evidence of the prior convictions.
Finding no error in the admission of this evidence, we find no resulting violation of federal due process.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
EPSTEIN, P. J. We concur: WILLHITE, J. MANELLA, J.