Opinion
A121852
7-8-2009
THE PEOPLE, Plaintiff and Respondent, v. LAO SONNY YANG, Defendant and Appellant.
Not to be Published in Official Reports
I. INTRODUCTION
Following a retrial, appellant Lao Sonny Yang was convicted by a jury of residential burglary (Pen. Code, § 459) and grand theft of a vehicle (§ 487, subd. (d)(1)). On appeal, he contends the trial court abused its discretion in admitting evidence of other misconduct pursuant to Evidence Code section 1101, subdivision (b) (section 1101(b)), and in admitting evidence that appellant was convicted of receiving stolen property at his first trial in this matter. Finding no error, we will affirm.
All further statutory references are to the Penal Code except as otherwise indicated.
II. FACTUAL AND PROCEDURAL BACKGROUND
Appellant is seeking reversal only of the convictions returned against him in the second trial, i.e., residential burglary and grand theft of a vehicle. Because the evidence presented in both trials was substantially similar, with the exception in the second trial of the uncharged misconduct and conviction for receiving stolen property, here we primarily summarize the evidence adduced at the second trial.
By information filed on November 1, 2007, the Solano County District Attorney charged appellant with first degree residential burglary (§ 459; count 1), grand theft of a vehicle (§ 487, subd. (d)(1); count 2), and receiving stolen property (§ 496d, subd. (a); count 3). Appellant pleaded not guilty.
The presentation of evidence in appellants first jury trial commenced on March 11, 2008, and concluded the following day. On March 13, 2008, the jury convicted appellant of receiving stolen property, a minivan belonging to Onofree Verceles, as charged in count 3, but could not reach a verdict on counts one and two, burglary of the Palma home and theft of the Palmas Ford Expedition. The court declared a mistrial as to those counts.
On April 3, 2008, the District Attorney filed an amended information, again alleging first degree residential burglary (§ 459; count 1) and grand theft of a vehicle (§ 487, subd. (d)(1); count 2). The amended information also alleged that appellant committed these offenses while on bail and his own recognizance within the meaning of section 12022.1 (on-bail/OR enhancement) in a Yolo County case. Appellant pleaded not guilty and denied the on-bail/OR enhancement allegation. Appellant waived a jury trial on the enhancement allegation.
Appellants second jury trial began on April 22, 2008.
The Charged Offenses
Lina Palma testified that in March 2007, she lived at 2936 Candleberry Way in Fairfield with her husband and their two daughters. At about 9:30 a.m. on March 26, she left the house with one of her daughters to take her to a doctor appointment. Mr. Palma and the other daughter were not at home. When Mrs. Palma left, both garage doors were closed, as was the door inside the garage leading into the home.
When Mrs. Palma returned at about 11:00 a.m., she noticed that one garage door was slightly open, the other was completely open, and her familys 2000 Ford Expedition was missing from the garage. The family had given no one permission to take it.
At the back of the house, a screen had been taken off a window and was lying on the ground. The window was open. Numerous items were missing from inside the house including jewelry, jewelry boxes, leather jackets, purses, iPods, a digital camera, a DVD player, the satellite dish receiver, a computer, and money.
The police determined that the point of entry into the house was the rear window from which the screen had been removed. They processed the window, screen and sill for fingerprints and found a single print on the frame of the screen. The print matched the left thumb contained on a set of prints belonging to appellant.
Mrs. Palma testified that, on or after the day of the burglary, she noticed a white van parked across the street near her home. It did not belong to any of her neighbors, as far as she knew. It was there for a couple of days; then one day it was gone.
At about 9:20 p.m. on the day of the burglary, the Palmas Ford Expedition was found abandoned in a church parking lot at 7520 Stockton Boulevard in Sacramento. The vehicle was missing its license plates and wheels, and was resting on four jack stands. A satellite receiver and some empty jewelry boxes were found inside the car. CHP officer Joe Phipps testified that the church where the Expedition was found was about three miles from 5906 40th Street in Sacramento, one of the two addresses for appellant on file at the DMV.
On April 3, 2007, the police located a white 1999 Dodge Caravan with license plates 4JEM742 at the intersection of Gulf and Candleberry in Fairfield, across the street from the Palmas home. It was parked diagonally to the residence and facing it, about 15 to 20 feet away. The rear seats of the van were missing, and the windows were painted black except for a thin strip or scratched-out area that could allow someone inside the van to see outside. It was difficult to see into the van from the outside. The police towed the van and processed it for fingerprints. Appellants fingerprint was found on a Mountain Dew bottle inside the van.
At the first trial, the parties entered into a stipulation regarding this vehicle that read, "Onofree Verceles is the owner of a white 1999 Dodge Caravan minivan with ... license plate 4DDE12. This vehicle was stolen from his driveway in Stockton on February 6, 2007. Prior to being stolen, the windows were not painted on the inside, the keys were not in the vehicle, the rear seats were not removed, and to Mr. Verceles knowledge no Mountain Dew bottles were left in the car, and he does not drink that beverage. Mr. Verceles doesnt know the defendant, and there is no reason defendant should be in his van."
At the first trial, the court admitted into evidence a DMV document stating that license plate number 4JEM742 belonged to a 2000 Chevy Venture owned by one Guadalupe Gomez.
The prosecution witnesses could not establish when appellants fingerprints on the screen and Mountain Dew bottle were made. They could have existed for several months or even a year. Appellants fingerprints were not found on the door or steering wheel of the van, or anywhere else inside or outside the van, and no items belonging to the Palmas were found inside the van.
The prosecution introduced documentary evidence of appellants conviction at the first trial for receiving stolen property, i.e., the 1999 white Dodge minivan that belonged to Onofree Verceles and was found abandoned at Gulf and Candleberry in front of the Palmas residence.
The Other Crimes Evidence
West Sacramento Police Officer Daniel Gill testified that, on November 25, 2006, while on patrol around 11:50 p.m., he stopped a white 1999 Dodge Caravan because it had no license plates. Appellant was driving the vehicle, and another person was with him. The ignition switch to the minivan was missing, and there was a screwdriver in the ignition. Gill searched the van, which was missing its center seat bench. Gill found the vehicles license plates, a floor jack, two large bags of tools that each weighed 15 to 20 pounds, four jack stands, a pry bar, one or two sets of gloves, and a flashlight. On July 9, 2007, appellant pleaded no contest in Yolo County Superior Court to one count of unauthorized use of a vehicle/driving a stolen vehicle (Veh. Code, § 10851, subd. (a)).
Sacramento County Sheriffs Deputy Steve Vasquez testified that, on April 17, 2007, at about 1:00 p.m., he stopped a Toyota Sienna minivan after a radio check on the license plate indicated that it was lost or stolen. Appellant was driving the minivan. The vans rear windows were all painted black, and the last two rows of seats had been removed. When Vasquez searched the van, he found four jack stands, two flashlights, a lock pull, a window punch, screwdrivers and other tools, a pry bar, two sets of gloves, a ski mask, a hatchet, and approximately 18 wheel lugs. On April 25, 2007, appellant pleaded guilty in Sacramento County Superior Court to one count of unauthorized use of a vehicle/driving a stolen vehicle (Veh. Code, § 10851, subd. (a)).
On April 24, 2008, the jury found appellant guilty of both the first degree burglary and grand theft of a vehicle. The court found the on-bail/OR enhancement to be true.
On May 22, 2008, appellant was sentenced to an upper term of six years on the burglary conviction, plus a consecutive two-year term on the on-bail/OR enhancement. The court also imposed a consecutive eight-month term, representing one-third of the middle term, for the receiving stolen property conviction. Pursuant to section 654, the court stayed a two-year term on the grand theft of a vehicle conviction.
Appellant timely filed a notice of appeal.
III. DISCUSSION
A. The Other Misconduct Evidence
1. Background
Prior to the first trial, the prosecutor filed a motion in limine to admit evidence under section 1101(b) of one prior misconduct: the November 25, 2006, incident in West Sacramento in which appellant was stopped by police while driving a stolen white 1999 Dodge Caravan minivan filled with burglary tools. The minivan had been stolen earlier that day from the driveway of Martin Mendozas home in Stockton, less than a mile away from the residence of Onofree Verceles, the alleged victim in the count three receiving stolen property charge. Appellants counsel sought a continuance to further investigate the November 2006 incident. When the court indicated that it would likely grant the continuance, the prosecutor withdrew his motion and the matter proceeded to trial with no evidence of the November 2006 offense.
At the second trial, the prosecutor again sought to introduce evidence under section 1101, subdivision (b). This time, in addition to evidence of appellants November 2006 driving of a stolen minivan containing burglary tools, the prosecutor also sought admission of appellants April 17, 2007, offense and evidence that appellant had been convicted of unauthorized driving of a vehicle/vehicle theft pursuant to Vehicle Code section 10851 as to both incidents. Appellant opposed the motion, arguing the prior crimes evidence was not similar to the charged offenses and thus was not admissible pursuant to section 1101(b). The trial court found that the evidence was relevant on the issues of identity, intent, and common plan or scheme, and that the probative value of the evidence outweighed its prejudicial effect. At the prosecutors request, the court instructed the jury that the evidence could be considered only on the issues of intent and common plan or scheme.
2. Legal Principles
Evidence of uncharged misconduct is inadmissible if its only relevance is to show that the defendant possessed a disposition or propensity to commit the charged offense. (People v. Gibson (1976) 56 Cal.App.3d 119, 127; Evid. Code, § 1101, subd. (a).) "[T]his rule does not prohibit admission of evidence of uncharged misconduct when such evidence is relevant to establish some fact other than the persons character or disposition," such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. (People v. Ewoldt (1994) 7 Cal.4th 380, 393 (Ewoldt), superseded by statute on other grounds as stated in People v. Britt (2002) 104 Cal.App.4th 500, 505-506; Evid. Code, § 1101, subd. (b).) "On appeal, the trial courts determination of this issue, being essentially a determination of relevance, is reviewed for abuse of discretion. [Citations.]" (People v. Carter (2005) 36 Cal.4th 1114, 1148.)
The relevance of uncharged misconduct to show identity, intent, or the existence of a common design or plan is determined by the nature and degree of the similarity between such misconduct and the charged crime. "Evidence of uncharged crimes is admissible to prove identity, common design or plan, or intent only if the charged and uncharged crimes are sufficiently similar to support a rational inference of identity, common design or plan, or intent." (People v. Kipp (1998) 18 Cal.4th 349, 369 (Kipp).) "The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent." (Ewoldt, supra, 7 Cal.4th at p. 402.) "A greater degree of similarity is required in order to prove the existence of a common design or plan." (Ibid.) "The greatest degree of similarity is required for evidence of uncharged misconduct to be relevant to prove identity." (Id. at p. 403.)
If the trial court finds that uncharged misconduct evidence is relevant to prove a material fact other than the defendants criminal disposition, it must then consider whether the potential for prejudice outweighs the probative value of the evidence under section 352. " `The probative value of the uncharged offense evidence must be substantial and must not be largely outweighed by the probability that its admission would create a serious danger of undue prejudice, of confusing the issues, or of misleading the jury." (People v. Lewis (2001) 25 Cal.4th 610, 637.) The trial courts resolution of these issues is reviewed for abuse of discretion. (Kipp, supra, 18 Cal.4th at p. 371.)
"`The principal factor affecting the probative value of the evidence of defendants uncharged offenses is the tendency of that evidence to demonstrate the existence of the fact for which it is being admitted . . . . [Citation.] Other factors affecting the probative value include the extent to which the source of the evidence is independent of the evidence of the charged offense, the amount of time between the uncharged acts and the charged offense and whether the evidence is `merely cumulative regarding an issue that was not reasonably subject to dispute. [Citations.] The primary factors affecting the prejudicial effect of uncharged acts are whether the uncharged acts resulted in criminal convictions, thus minimizing the risk the jury would be motivated to punish the defendant for the uncharged offense, and whether the evidence of uncharged acts is stronger or more inflammatory than the evidence of the charged offenses." (People v. Walker (2006) 139 Cal.App.4th 782, 806, citing Ewoldt, supra, 7 Cal.4th at pp. 404-406; People v. Balcom (1994) 7 Cal.4th 414, 427 (Balcom).)
3. Analysis
Appellant argues that the evidence of the other misconduct involving stolen minivans was not admissible to prove intent, identity, or common plan or scheme, and that the error in admitting the evidence requires reversal.
a. Relevance of Other Misconduct Evidence to Prove Intent
"Evidence of intent is admissible to prove that, if the defendant committed the act alleged, he or she did so with the intent that comprises an element of the charged offense. `In proving intent, the act is conceded or assumed; what is sought is the state of mind that accompanied it. [Citation.] For example, in a prosecution for shoplifting in which it was conceded or assumed that the defendant left the store without paying for certain merchandise, the defendants uncharged similar acts of theft might be admitted to demonstrate that he or she did not inadvertently neglect to pay for the merchandise, but rather harbored the intent to steal it." (Ewoldt, supra, 7 Cal.4th at p. 394, fn. 2.)
The People agree with appellant that there was no issue at trial regarding intent because there was no dispute that the burglar intended to commit theft. Accordingly, the People concede that the prosecutor should not have requested that the jury be instructed that they could consider the uncharged misconduct on the question of whether appellant acted with the intent to commit larceny. However, because the evidence of the uncharged misconduct was admissible to prove a common plan or scheme, as we shall discuss post, the error in admitting the evidence to prove intent did not prejudice appellant.
b. Relevance of Other Misconduct Evidence to Prove a Common Plan or Scheme
"`The presence of a design or plan to do or not to do a given act has probative value to show that the act was in fact done or not done. [Citation.] For example, a letter written by the defendant stating he planned to commit a certain offense would be relevant evidence in a subsequent prosecution of the defendant for committing that offense. [Citation.] The existence of such a design or plan may also be proved circumstantially by evidence that the defendant has performed acts having `such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations. [Citation.] Evidence of a common design or plan, therefore, is not used to prove the defendants intent or identity but rather to prove that the defendant engaged in the conduct alleged to constitute the charged offense." (Ewoldt, supra, 7 Cal.4th at pp. 393-394.)
The Ewoldt court clarified the circumstances under which evidence of uncharged acts may be used to prove a common plan or scheme: "Evidence of a common design or plan is admissible to establish that the defendant committed the act alleged. Unlike evidence used to prove intent, where the act is conceded or assumed, `[i]n proving design, the act is still undetermined . . . . [Citation.] For example, in a prosecution for shoplifting in which it was conceded or assumed that the defendant was present at the scene of the alleged theft, evidence that the defendant had committed uncharged acts of shoplifting in a markedly similar manner to the charged offense might be admitted to demonstrate that he or she took the merchandise in the manner alleged by the prosecution." (Ewoldt, supra, 7 Cal.4th at p. 394, fn. 2.)
Appellant contends that the other misconduct evidence should not have been admitted as probative of a common plan or scheme because the act or conduct—burglary and theft—was undisputed. The evidence was actually admitted, appellant argues, to prove the only real issue at trial, the identity of the perpetrator. These assertions are flawed.
First, although identity was certainly an issue at trial, it was not the only issue. The uncontroverted fingerprint evidence established that appellant touched the screen that was removed from the window through which the burglar entered the Palma residence and the soda bottle that was found in the stolen van parked across the street. The prosecution argued that appellant was present at the scene and the task for the jury was to determine what he was doing there, i.e., whether he removed the screen and entered the house or left his fingerprint on the screen for some non-culpable reason. Appellant did not contest the fingerprint evidence, but argued that there was no way to tell when he left the prints and that, due to a shoddy police investigation and despite the many things inside the house that the burglar must have touched, there was no evidence that appellant ever entered the house. Thus, appellants conduct was in question.
Moreover, a defendants plea of not guilty puts all the elements of a crime in issue for the purpose of deciding the admissibility of uncharged misconduct "unless the defendant has taken some action to narrow the prosecutions burden of proof." (Ewoldt, supra, 7 Cal.4th at p. 400, fn. 4.) Appellant took no such action in this case.
In the present case, the prosecutions theory was that the incidents involving stolen minivans and burglary tools were part of appellants plan to commit burglaries and theft using stolen and modified minivans. Appellant did not concede that he had such a plan or that he engaged in any of the conduct the prosecution had to prove in order to obtain convictions for the charged offenses. The evidence that on two other occasions, appellant had been caught driving stolen minivans that had seats removed, that contained an extensive array of burglary tools including four jack stands, and one of which had rear windows painted black, was relevant to establish that, on a third occasion involving a stolen and similarly modified minivan, appellant entered the Palma residence and stole various items, including the Ford Expedition which was later found on four jack stands, pursuant to the same design or plan.
Appellant also contends that the evidence of the other misconduct was not relevant to show a common plan or scheme because the uncharged incidents were insufficiently similar to the charged offenses. With respect to the November 1996 incident, appellant argues there was no evidence he "used the minivan to commit a residential burglary or to commit any other thefts, and no evidence that the minivan had blackened windows." Regarding the April 2007 incident, appellant contends there was no evidence he used that minivan "to commit a residential burglary or to commit any other thefts." Appellant attempts to distinguish the Verceles van by noting that no "tools, flashlights, gloves, or ski masks were found inside the van." Appellant also argues that the uncharged incidents bore no similarity to the theft of the Ford Expedition because "[t]he Expedition was located in a church parking lot in Sacramento and had no wheels or rims and was on jack stands. It did not have blackened windows, did not have seats removed, and did not contain tools, flashlights, gloves or ski masks." The arguments are unpersuasive.
As noted above, the degree of similarity required in order to prove a common plan or scheme is greater than that required to prove intent, but less than what is required to prove identity. "[I]n establishing a common design or plan, evidence of uncharged misconduct must demonstrate `not merely a similarity in the results, but such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations. [Citation.] . . . [¶] To establish the existence of a common design or plan, the common features must indicate the existence of a plan rather than a series of spontaneous acts, but the plan thus revealed need not be distinctive or unusual." (Ewoldt, supra, 7 Cal.4th at pp. 402-403.)
All three offenses involved stolen minivans and were committed within a six-month time span, between November 2006 and April 2007. In the November 2006 incident, appellant was caught driving a stolen minivan with no license plates. The center bench seat was missing, and the van contained various tools, four jack stands, a pry bar, gloves and a flashlight. In the April 2007 incident, appellant was again driving a stolen minivan. The two rows of rear seats had been removed, the rear windows had been painted black, and the van contained four jack stands, a pry bar, a window punch, a lock pull, other tools, flashlights, gloves, a ski mask, and wheel lugs. Similarly, the Verceles minivan had been reported stolen, had license plates registered to a different vehicle, and had seats removed and rear windows painted black. These incidents were planned, as opposed to spontaneous, events. (See People v. Scheer (1998) 68 Cal.App.4th 1009, 1021 (Scheer).) We have no trouble concluding that the uncharged misconduct evidence shares sufficient common features with the charged offenses to support the inference that the uncharged acts and the charged offenses were manifestations of a common design or plan.
The fact that the uncharged misconduct did not include residential burglary or theft does not render the inference unreasonable; nor does the absence of similarity between the condition of the Ford Expedition when it was found and the stolen minivans. Rather, the jury reasonably could infer that the charged offenses were the result of the execution of appellants plan, which included stealing the wheels and rims from the Ford Expedition, while the uncharged offenses were occasions on which his plan was thwarted. The evidence supports the inference that the minivans were stolen for their utility in committing burglary and theft; the Ford Expedition was stolen as part of the loot from the Palma residence and, also, as a getaway car.
Appellant also argues that any similarity between the other misconduct evidence and the Verceles van was irrelevant at the second trial because appellant had already been found guilty of receiving stolen property at the first trial. Again, we disagree. The prosecutions theory at trial was that the Verceles van found parked in front of the Palma residence was connected to the burglary. Although neither offense charged in the second trial pertained directly to the Verceles van, its location, stolen license plates, removed seats, painted windows, and the presence inside the van of a soda bottle with appellants fingerprint were highly relevant to establishing a common plan to commit burglary and theft using stolen minivans. The trial courts conclusion that the evidence was relevant to establish a common plan or scheme was not an abuse of its discretion.
c. Relevance of Other Misconduct Evidence to Prove Identity
The trial court found that the other misconduct evidence was relevant to establish identity but, at the prosecutors request, did not instruct the jury that it could consider the evidence for this purpose. Nevertheless, the parties argue extensively about whether the evidence could have been admitted to establish identity. We will address this issue because whether or not the evidence was relevant to prove identity has a direct bearing on our analysis under Evidence Code section 352 in the next section.
"Evidence of identity is admissible where it is conceded or assumed that the charged offense was committed by someone, in order to prove that the defendant was the perpetrator." (Ewoldt, supra, 7 Cal.4th at p. 394, fn. 2.) "The greatest degree of similarity is required for evidence of uncharged misconduct to be relevant to prove identity. For identity to be established, the uncharged misconduct and the charged offense must share common features that are sufficiently distinctive so as to support the inference that the same person committed both acts. [Citation.] `The pattern and characteristics of the crimes must be so unusual and distinctive as to be like a signature. [Citation.]" (Id. at p. 403.)
The uncharged and charged offenses were remarkably similar to each other as described above, and bore distinctive similarities sufficient to prove identity in the present case. All three offenses involved the pattern of stolen minivans with rows of seats removed, and the presence or use of exactly four jack stands. In both uncharged offenses, appellant had large quantities of burglary tools in the back of the vans. We find particularly distinctive the fact that the rear windows of the minivans stolen in March and April 2007 had been painted black.
In arguing that the theft of two minivans on other occasions was not sufficiently distinctive as to be relevant to prove that he committed the charged crimes here, appellant relies on People v. Rivera (1985) 41 Cal.3d 388 (Rivera). In Rivera, the prosecution offered the following similarities: (1) both crimes occurred on a Friday night; (2) both occurred around 11:30 p.m.; (3) both involved convenience markets; (4) both markets were in the same city; (5) both markets were located on street corners; (6) both crimes involved three perpetrators; (7) both involved getaway vehicles; (8) prior to both crimes, two or three people were observed standing outside the store; and (9) the defendant used an alibi defense in both cases. The Supreme Court held that, taken alone or together, these characteristics were not sufficiently distinctive to be admissible to prove identity. (Id. at p. 393.) Rivera is distinguishable from the instant case, however, because none of the similarities detailed there was as distinctive as the painted windows here, nor was the evidence of a pattern in Rivera as striking as three stolen and modified minivans. Moreover, the fact that here there were two other cases, not just one, strengthens the inference that the same person was responsible. The trial court did not abuse its discretion in determining that the other misconduct evidence was relevant to proving identity.
Although the evidence of appellants other misconduct was relevant to establish a common design or plan (and identity), to be admissible, such evidence "must not contravene other policies limiting admission, such as those contained in Evidence Code section 352. [Citations.]" (People v. Thompson (1988) 45 Cal.3d 86, 109.) Under section 352, we consider whether the probative value of the evidence of appellants uncharged misconduct is " `substantially outweighed by the probability that its admission [would] . . . create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. (Evid. Code, § 352.)" "Evidence of uncharged offenses `is so prejudicial that its admission requires extremely careful analysis." (Ewoldt, supra, 7 Cal.4th at p. 404.)
The Ewoldt court cautioned that uncharged misconduct evidence, even if relevant, may nevertheless be cumulative and unduly prejudicial if the particular fact for which it is offered is not reasonably subject to dispute. (Ewoldt, supra, 7 Cal.4th at pp. 405-406.) The Ewoldt court offered, in dicta, the following example: "For example, in most prosecutions for crimes such as burglary and robbery, it is beyond dispute that the charged offense was committed by someone; the primary issue to be determined is whether the defendant was the perpetrator of that crime. Thus, in such circumstances, evidence that the defendant committed uncharged offenses that were sufficiently similar to the charged offense to demonstrate a common design or plan (but not sufficiently distinctive to establish identity) ordinarily would be inadmissible. Although such evidence is relevant to demonstrate that, assuming the defendant was present at the scene of the crime, the defendant engaged in the conduct alleged to constitute the charged offense, if it is beyond dispute that the alleged crime occurred, such evidence would be merely cumulative and the prejudicial effect of the evidence of uncharged acts would outweigh its probative value." (Ewoldt, supra, 7 Cal.4th at p. 406, emphasis added.)
This discussion is dicta because the Ewoldt court found the uncharged misconduct evidence of molestation was admissible to prove a common plan or scheme.
Relying on this passage in Ewoldt, appellant argues that, because it was beyond dispute that the charged offenses were committed, the other misconduct evidence was merely cumulative and its prejudicial effect outweighed its probative value.
We find no abuse of discretion here. Although there was no dispute that the alleged crimes occurred, the evidence of appellants driving stolen minivans containing burglary tools was not cumulative of the evidence that he entered the Palmas home and committed larceny therein. Moreover, as Ewoldt recognizes, even when there is no dispute as to what happened, and the primary issue to be determined is the identity of the perpetrator, evidence probative of a common plan or scheme is admissible if it satisfies the similarity requirement for admitting other act evidence to prove identity. (Ewoldt, supra, 7 Cal.4th at p. 406.) As discussed above, that requirement is satisfied in this case.
None of the other policies contained in Evidence Code section 352 requires that the other misconduct evidence be excluded. "The principal factor affecting the probative value of the evidence of defendants uncharged offenses is the tendency of that evidence to demonstrate the existence of a common design or plan." (Ewoldt, supra, 7 Cal.4th at p. 404.) Here, that tendency is strong. The uncharged acts in which appellant was caught driving stolen minivans containing burglary tools, and the charged offenses of burglary and theft with a stolen minivan 15 to 20 feet from the residence constituted convincing evidence that appellant was acting pursuant to a common plan to use stolen minivans to commit burglary.
In addition, the evidence of the charged crimes and the two uncharged incidents came from independent sources in that they were separately investigated by different law enforcement agencies and proved by the testimony of different witnesses. (See Ewoldt, supra, 7 Cal.4th at pp. 404-405.) Thus, there was no risk that Officer Gills testimony regarding the November 2006 incident, or Officer Vasquezs testimony regarding the April 2007 incident, was influenced by knowledge of the instant offense. The probative value of the other misconduct was further enhanced by the closeness of the incidents in time (the uncharged offenses and the charged offenses occurred within a six-month time period) and location (the uncharged and charged offenses took place in the adjacent counties of Yolo, Sacramento and Solano). (See Kipp, supra, 18 Cal.4th at p. 371.)
Against the substantial probative value of the evidence, we must weigh the danger of undue prejudice, of confusing the issues, and of misleading the jury. Evidence of the uncharged incidents posed a danger of prejudice to appellant because a jury would be inclined to view the evidence that he had been caught driving stolen vehicles containing burglary tools as evidence of his criminal propensities. "But prejudice of this sort is inherent whenever other crimes evidence is admitted [citation], and the risk of such prejudice was not unusually grave here." (Kipp, supra, 18 Cal.4th at p. 372.) Evidence that appellant had been caught driving stolen minivans with burglary tools was not substantially more inflammatory than the evidence concerning the charged offenses. Moreover, as the Supreme Court observed in Balcom, the prejudicial impact of prior misconduct evidence is reduced where, as here, the defendant was convicted of the uncharged offenses, ensuring that the jury would not be tempted to convict the defendant to punish him for the other offenses and that the jurys attention would not be diverted by having to make a determination of whether the defendant committed the other offenses. (Balcom, supra, 7 Cal.4th at p. 427.)
Moreover, the courts limiting instruction directed the jury to consider the uncharged misconduct only to show a common plan or intent. "If you decide that the defendant committed the acts, you may, but are not required to, consider that evidence for the limited purpose of deciding whether or not: [¶] The defendant acted with the intent to commit larceny in this case; or [¶] The defendant had a plan or scheme to commit the offense alleged in this case. [¶] In evaluating this evidence, consider the similarity or lack of similarity between the uncharged acts and the charged offenses. [¶] Do not consider this evidence for any other purpose. [¶] Do not conclude from this evidence that the defendant had a bad character or is disposed to commit crimes." The court also instructed the jury that evidence of the uncharged misconduct was only one factor to consider along with all the other evidence and that it could not find appellant guilty solely on the basis of the prior incident; the People were still required to prove each element of the charges beyond a reasonable doubt. The jury is presumed to have followed the courts instructions. (People v. Frank (1990) 51 Cal.3d 718, 728; Scheer, supra, 68 Cal.App.4th at p. 1023.)
Considering all of the circumstances, we conclude the trial court did not abuse its discretion in admitting the other misconduct evidence. Appellant has failed to establish that the trial court abused its discretion in admitting the evidence.
B. The Receiving Stolen Property Conviction
1. Background
At appellants first trial, the jury convicted him of receiving stolen property (the Verceles minivan). At the retrial on the burglary and vehicle theft charges, the prosecution sought to present evidence of the receiving stolen property conviction from the first trial. The prosecutor argued that appellants possession of the van was probative evidence that appellant committed the burglary. Defense counsel objected that the conviction was propensity evidence and the prejudicial effect outweighed any probative value. The court ruled the evidence admissible.
2. Analysis
Appellant contends the trial court erred in admitting the evidence of his conviction for receiving stolen property because it was more prejudicial than probative. Appellant admits that "evidence that appellant was in possession of the van at or around the time of the burglary and theft of the Palma vehicle may have been arguably relevant to whether he committed the burglary and theft from the Palmas, but how he came to be in possession of that van was entirely irrelevant." Appellant continues: "[t]he prosecutor offered evidence at the second trial, as he did at the first trial, that appellants fingerprint was found on a Mountain Dew bottle located inside the van. This fact, and not the fact that the jury found appellant guilty of receiving the van at the first trial, is what was relevant."
In his opening brief, appellant also argued that the conviction for receiving stolen property was inadmissible hearsay. Respondent pointed out that this objection was not raised in the trial court and thus was waived. Respondent also argued that the contention failed on the merits in light of Evidence Code section 452.5, subdivision (b), which states: "An official record of conviction certified in accordance with subdivision (a) of Section 1530 is admissible pursuant to Section 1280 to prove the commission, attempted commission, or solicitation of a criminal offense, prior conviction, service of a prison term, or other act, condition, or event recorded by the record." In his reply brief, appellant does not pursue the hearsay argument, and thus we assume he concedes the point.
We disagree. The fact that appellant had been in possession of a stolen van found abandoned across the street from the Palma residence after the burglary of their home helped to prove that appellant burglarized the home and stole their SUV. The fact that the van was stolen helped to explain why appellant would abandon it and why he would steal the SUV. The fact that he was in possession of the stolen van helped to place him at the scene with the ability to observe the area without being seen, and made it less likely that there was an innocent explanation for the presence in the van of the soda bottle with his fingerprint. Moreover, as we previously discussed, appellants conviction for receiving the van was admissible as common plan or scheme evidence. The trial court did not abuse its discretion in admitting this evidence.
IV. DISPOSITION
The judgment is affirmed.
We concur:
Kline, P.J.
Lambden, J.