People v. Richardson CA1/3 ( 2023 )


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  • Filed 5/3/23 P. v. Richardson 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    NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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,
    A163653
    v.
    JAMES JESSE RICHARDSON,                                                 (Contra Costa County
    Super. Ct. No. 05-201567-5)
    Defendant and Appellant.
    Defendant was convicted of driving a vehicle without consent of the
    owner (Veh. Code, § 10851, subd. (a)). On appeal, he challenges the
    admission of evidence at trial under Evidence Code section 1101,
    subdivision (b). We affirm.
    FACTUAL AND PROCEDURAL BACKGROUND
    The People charged defendant by information with driving or taking a
    vehicle without consent of the owner (Veh. Code, § 10851, subd. (a)
    (“10851(a)”)) and receiving a stolen motor vehicle (Pen. Code, § 496d,
    subd. (a)), on February 29, 2020. The People further alleged that defendant
    suffered one prior “strike” conviction for an attempted residential robbery
    while armed, for which defendant was sentenced in 2018.
    Prior to jury selection, the People moved to introduce evidence of an
    uncharged prior act pursuant to Evidence Code section 1101, subdivision (b)
    1
    (“1101(b)”).1 Specifically, the People sought to introduce evidence concerning
    defendant’s 2014 arrest and charges for violating Vehicle Code
    section 10851(a) and Penal Code section 496. Over defendant’s objection, the
    trial court ruled the evidence would be admissible as probative of intent,
    knowledge, lack of mistake, and the existence of a common scheme or plan.
    The court further found that the probative value of the evidence substantially
    outweighed any probability of prejudice, and that presentation of the
    evidence would not entail undue consumption of time.
    At trial, Jevonne B.2 testified she discovered her 2019 Jeep Cherokee
    missing on February 27, 2020, after she was out of town for a few days.
    Though she had left a set of her keys inside the car, she did not know
    defendant and did not give him or anyone else permission to drive her car.
    Deputy Evan Cubit of the Contra Costa County Sheriff’s Office testified
    he stopped a Jeep on February 29, 2020, after running the license plate and
    seeing it was listed as stolen. Defendant was the driver and sole occupant.
    When Cubit told him the car was reported stolen, defendant said he bought it
    for $2,700 two days prior from a friend named “Raul” in the city of Bay Point.
    Defendant did not know Raul’s last name and did not have Raul’s telephone
    number. Nor did he have a bill of sale or receipt for the car, and he could not
    provide any details about where the sale took place. Cubit searched the car
    and found a vehicle registration form showing the car was registered to
    Jevonne B. A car key was inside the car, and there were no signs of forced
    1    All further statutory references are to the Evidence Code unless
    otherwise indicated.
    2     Pursuant to the California Rules of Court, rule 8.90, governing “Privacy
    in Opinions,” we refer to the victim by her first name and last initial only.
    2
    entry or ignition tampering. Cubit found no tools associated with car theft in
    the car or on defendant’s person.
    The evidence concerning the uncharged act included the following.
    Officer Antoinette Lizardo of the Stockton Police Department testified that in
    November 2014, she noticed a parked Mercedes S550 with paper dealership
    plates that matched the description of a car that had been reported stolen in
    September 2013. Defendant was by himself sitting in the driver’s seat. After
    confirming the car was stolen, Lizardo arrested defendant for driving or
    taking a stolen vehicle under Vehicle Code section 10851(a) and possession of
    a stolen vehicle under Penal Code section 496.
    Officer Lazardo testified that defendant said he got the car from a
    friend named “Larry Williams.” Defendant claimed Larry allowed him to
    drive the car because he owed defendant about $1,300. Defendant did not
    know where Larry lived, and when Lazardo called a phone number that
    defendant provided for Larry, a female answered and said the officer had the
    wrong number. Lazardo searched the car and found a black backpack and
    $950 in cash which defendant claimed was his. She did not find a bill of sale
    or any loan paperwork. The car’s key was inside the car, and there were no
    tools associated with car theft and no signs of tampering with the steering
    column or engine.
    The trial court instructed the jury it could consider the evidence of the
    uncharged Vehicle Code section 10851 violation if the People proved
    defendant committed that offense by a preponderance of the evidence. The
    court further instructed that if the jury found the prior offense had been
    proved, then the jury could, but need not, consider such evidence only for the
    limited purpose of deciding whether defendant acted with the intent to
    deprive the owner of possession or ownership for any period of time; whether
    3
    he knew the Jeep had been stolen when he allegedly acted; whether his
    actions were the result of a mistake or accident; and whether he had a plan
    or scheme to commit the charged offense. The court also instructed the jury
    to consider the similarity and dissimilarity between the uncharged act and
    charged offense when evaluating the evidence, and cautioned the jury against
    viewing the evidence of the prior offense as proof of defendant’s bad character
    or disposition to commit crime.
    Ultimately, the jury could not reach a verdict as to the Penal Code
    section 496d, subdivision (a), count, but it found defendant guilty of the
    Vehicle Code section 10851(a) offense. The trial court found the prior strike
    allegation true and sentenced defendant to the low term of 16 months, which
    was doubled pursuant to the Three Strikes Law. This appeal followed.
    DISCUSSION
    A. Sections 1101(b) and 352
    i. Section 1101(b)
    Defendant challenges the admissibility of the uncharged 2014
    Mercedes incident under section 1101(b). He argues the evidence was not
    probative on the questions of intent, knowledge, lack of mistake, or common
    design or plan.
    Character evidence is generally inadmissible to prove conduct on a
    specific occasion, but evidence that a defendant committed a crime, civil
    wrong, or other act is admissible if it tends to prove some fact material to the
    case, such as intent, knowledge, and absence of mistake. (§ 1101, subds. (a)–
    (b).) “The conduct admitted under . . . section 1101(b) need not have been
    prosecuted as a crime, nor is a conviction required.” (People v. Leon (2015) 
    61 Cal.4th 569
    , 597.)
    4
    Case law establishes that “[e]vidence 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.” (People v. Ewoldt
    (1994) 
    7 Cal.4th 380
    , 394, fn. 2 (Ewoldt).) On this score, “the uncharged
    misconduct must be sufficiently similar to support the inference that the
    defendant ‘ “probably harbor[ed] the same intent in each instance.” ’ ” (Id. at
    p. 402.) “The least degree of similarity (between the uncharged act and the
    charged offense) is required in order to prove intent.” (Ibid.)
    We review the admission of uncharged act evidence for abuse of
    discretion. (People v. Kipp (1998) 
    18 Cal.4th 349
    , 369.) As we will explain, no
    abuse of discretion appears.
    The elements of a Vehicle Code section 10851(a) offense are set out in
    the statute: “Any person who drives or takes a vehicle not his or her own,
    without the consent of the owner thereof, and with intent either to
    permanently or temporarily deprive the owner thereof of his or her title to or
    possession of the vehicle, whether with or without intent to steal the vehicle,
    . . . is guilty of a public offense.” (Veh. Code, § 10851(a), italics added; People
    v. Green (1995) 
    34 Cal.App.4th 165
    , 180.) “[K]nowledge that the vehicle was
    stolen is not an element of the offense” but it is “one of various alternative
    factors evidencing an intent to deprive the owner of title and possession.”
    (Green, at p. 180.) By pleading not guilty, defendant put every element of the
    offense at issue, including whether he had the requisite intent. (People v.
    Catlin (2001) 
    26 Cal.4th 81
    , 146 (Catlin).)
    Here, the circumstances of the charged offense tended to support the
    inference that defendant knew he was driving the Jeep without consent of the
    true owner. After being stopped and told he was driving a stolen vehicle,
    defendant responded that he bought the Jeep—which was less than two years
    5
    old—for a mere $2,700 from a friend named “Raul” whose last name and
    contact information he did not know. Defendant could not describe where the
    purchase took place, other than stating generally it occurred in the city of
    Bay Point. Defendant had no receipt or documentation of a sale transaction.
    Instead, a vehicle registration form reflecting Jevonne B.’s name was found
    in the car.
    Contrary to defendant’s contention, the circumstances of the charged
    and uncharged offenses were materially similar. In each case, law
    enforcement found defendant either driving or sitting alone in the driver’s
    seat of a car reported as stolen, and in each case defendant offered an
    uncorroborated explanation for being in the car. Similar to his vague story
    about “Raul” allegedly selling him the Jeep, defendant claimed a friend
    named “Larry Williams” loaned him the Mercedes though the police could not
    contact Larry with the information provided by defendant. The inference
    that defendant knew he lacked consent to drive the Jeep is strengthened
    when considered together with the similar circumstances surrounding the
    prior Mercedes incident. (People v. Steele (2002) 
    27 Cal.4th 1230
    , 1244;
    Ewoldt, 
    supra,
     7 Cal.4th at p. 402 [“ ‘[T]he recurrence of a similar result . . .
    tends (increasingly with each instance) to negative accident or inadvertence
    or self-defense or good faith or other innocent mental state, and tends to
    establish (provisionally, at least, though not certainly) the presence of the
    normal, i.e., criminal, intent accompanying such an act . . . .’ ”].)
    Defendant also suggests the prior incident was not sufficiently similar
    for proof of intent because he was found simply sitting in the stolen Mercedes
    in 2014, and there was no evidence that he either drove or “took” the car.
    This is meritless. It is eminently reasonable to infer that defendant did in
    fact drive the car given that he was sitting by himself in the driver’s seat.
    6
    Moreover, defendant had told Officer Lazardo that “someone owed him
    money and so in return he was allowed to drive the vehicle,” which he
    admitted having for two months. (Italics added.) Finally, even though there
    was no evidence of a taking, a violation of Vehicle Code section 10851 can be
    based on an act of driving or taking a vehicle and here, defendant was
    convicted solely of a driving-based violation. No basis for relief appears.
    Defendant next asserts there was no evidence the Mercedes was worth
    more than $950 to elevate the prior act to a felony. Relying on People v. Page
    (2017) 
    3 Cal.5th 1175
    , which held a theft-based felony conviction under
    Vehicle Code section 10851(a) is eligible for reduction to a misdemeanor
    under the 2014 enactment of Proposition 47, defendant suggests that any
    conviction he might have suffered in 2014 could have been reduced to a
    misdemeanor. Defendant, however, fails to present any argument tethering
    this assertion to admissibility under section 1101(b). And notably,
    section 1101(b) broadly makes admissible “a crime, civil wrong, or other act,”
    without mention of felony or misdemeanor classifications.
    Concerning the portion of the trial court’s instruction that allowed the
    jury to consider whether the prior act evidence tended to prove a “plan or
    scheme” to commit the charged offense, defendant contends the evidence was
    insufficient to show the existence of a common plan and so admitting the
    evidence for that purpose and giving the instruction was error. But
    defendant does not contend the instruction misstated the law, and as
    explained, the instruction properly informed the jury that the prior act
    evidence could be considered as probative of intent, knowledge, and lack of
    mistake or accident. Assuming the instruction about common scheme or plan
    was irrelevant or inapplicable, that is generally “ ‘ “only a technical error
    which does not constitute ground for reversal.” ’ ” (People v. Cross (2008) 45
    
    7 Cal.4th 58
    , 67.) Here, the jury was instructed: “Some of these instructions
    may not apply, depending on your findings about the facts of the case.” We
    presume the jury disregarded inapplicable instructions. (People v. Chism
    (2014) 
    58 Cal.4th 1266
    , 1299.)
    In sum, the trial court did not abuse its discretion in admitting the
    uncharged act evidence as probative of intent, knowledge, and relatedly, lack
    of mistake or accident. Any perceived error in admitting or instructing on
    that evidence as probative of the existence of a common plan or scheme was
    harmless.
    ii. Section 352
    Defendant contends the uncharged act evidence was more prejudicial
    than probative and should have been excluded under section 352. We cannot
    agree.
    “ ‘[W]hen an objection to evidence is raised under . . . section 352, the
    trial court is required to weigh the evidence’s probative value against the
    dangers of prejudice, confusion, and undue time consumption. Unless these
    dangers “substantially outweigh” probative value, the objection must be
    overruled. [Citation.] On appeal, the ruling is reviewed for abuse of
    discretion.’ ” (People v. Jenkins (2000) 
    22 Cal.4th 900
    , 1008.)
    As discussed, the circumstances of the charged and uncharged offenses
    were materially similar such that the uncharged acts evidence was probative
    on the central issue regarding defendant’s intent and knowledge. Defendant
    now argues the evidence failed to satisfy the highest degree of similarity
    required for evidence of uncharged misconduct to prove that the offenses
    were committed by the same person. (See Ewoldt, 
    supra,
     7 Cal.4th at p. 403
    [evidence of uncharged misconduct to prove identity requires crimes that are
    “ ‘so unusual and distinctive as to be like a signature’ ”].) This contention is
    8
    off the mark. Identity was not disputed in this case, and the uncharged act
    evidence was not introduced to prove identity.
    Nor are we persuaded by defendant’s argument that the uncharged
    act—which took place six years before the charged offense—was too remote in
    time to remain probative. The probative value of prior acts evidence can vary
    depending on the remoteness of the uncharged misconduct. (See Ewoldt,
    
    supra,
     7 Cal.4th at p. 398, fn. 3.) But “ ‘[n]o specific time limits have been
    established for determining when an uncharged offense is so remote as to be
    inadmissible,’ ” and much longer time periods have been approved in other
    cases. (People v. Spector (2011) 
    194 Cal.App.4th 1335
    , 1388–1389, and cases
    cited.)
    Defendant suggests the trial court abused its discretion under
    section 352 in admitting the evidence without informing the jury that the
    prior Vehicle Code section 10851 charge had been dismissed, or that
    defendant pled to possession of a gun found in the black backpack in the
    Mercedes, or that defendant would be impeached with the firearm-related
    convictions if he testified. We cannot agree. There appears no indication in
    the record of a defense request that the jury be informed of these matters.
    Indeed, defendant himself requested the exclusion of his prior convictions,
    including his gun-related convictions. Moreover, the record reflects that the
    earlier Vehicle Code section 10851 charge had been dismissed “in the interest
    of justice” on the same day that defendant pled to several firearm related
    charges alleged in the same complaint, thus the dismissal appears to have
    been part of the plea agreement. As the People note, providing the jury with
    defendant’s abbreviated version of the earlier dismissal could have caused
    confusion by suggesting that defendant was cleared of any wrongdoing as to
    the prior Vehicle Code section 10851 charge.
    9
    Defendant argues there was a “high degree of confusion” because he
    was not seen driving the car during the prior incident and Officer Lazardo
    looked at his latest booking photograph to help identify him. We have
    already addressed and rejected defendant’s point that he was not seen
    driving the Mercedes during the prior incident. Moreover, it is unclear why
    Lazardo’s viewing of defendant’s most recent booking photo would have
    caused any confusion. The officer openly testified she looked at defendant’s
    latest booking photo to help identify defendant in court, and the photo
    showed the same exact person she arrested.
    Defendant claims the uncharged act evidence “consumed undue time.”
    We are unpersuaded. The in limine proceedings on the subject were not
    particularly protracted, and Officer Lazardo was the only witness at trial who
    testified concerning the uncharged act.
    Defendant also argues the prior uncharged act instructions—which
    tracked CALCRIM No. 375—were “complicated.” But defendant made no
    such objection below; nor did he request to simplify the instructions in any
    way. (People v. Beeler (1995) 
    9 Cal.4th 953
    , 983.)
    Defendant further contends the trial court’s prejudice analysis “should
    have also included consideration of the exclusion of [Jevonne B.’s] priors,”
    namely a prior conviction for perjury that was about 13 years old. He argues
    the court’s “uneven rulings added to the substantial prejudice” from the
    erroneous introduction of the Mercedes incident, which violated the basic
    purpose of a trial to determine the truth. But this specific argument does not
    appear to have been raised below and has been forfeited. (People v. Black
    (2007) 
    41 Cal.4th 799
    , 810.) Even now, defendant does not challenge the
    ruling excluding Jevonne B.’s priors, and that ruling is presumptively correct.
    (Denham v. Superior Court (1970) 
    2 Cal.3d 557
    , 564.)
    10
    Finally, while we do not condone arguments raised in reply briefs, we
    briefly acknowledge defendant’s belated contentions that: (1) “the evidence
    was substantially more prejudicial than probative given the recognized
    ‘subconscious or implicit bias against racial minorities and that this bias
    manifests itself in the application of racial stereotypes’ ”; and (2) the trial
    court should have considered defendant’s “inability to testify” (presumably,
    because he could be impeached with other prior convictions). These
    arguments were never raised below, and so they are forfeited. In any event,
    with regard to the implicit bias argument, as we will discuss more below, the
    uncharged act evidence was neither emotionally charged nor inflammatory.
    In sum, the trial court did not err in admitting the uncharged act
    evidence under sections 1101(b) and 352.
    B. Due Process
    Defendant contends the admission of the uncharged act evidence
    violated his rights to due process and a fair trial. He relies on Kipp v. Davis
    (9th Cir. 2020) 
    971 F.3d 939
     (Kipp), which set out factors for determining
    whether the admission of other crimes evidence renders a trial so
    fundamentally unfair as to violate due process: “(1) the balance of the
    prosecution’s case against the defendant was ‘solely circumstantial’; (2) the
    other crimes evidence . . . was similar to the [crime] for which [the defendant]
    was on trial; (3) the prosecutor relied on the other crimes evidence at several
    points during the trial; and (4) the other crimes evidence was ‘emotionally
    charged.’ ” (Kipp, at p. 956.) In defendant’s view, the admission of other
    crimes evidence violated due process both because the prosecution’s case was
    “based mostly on circumstantial evidence of [his] knowledge that the vehicle
    was stolen in 2014” and because the uncharged act evidence was emotionally
    charged.
    11
    We disagree. As a preliminary matter, defendant offers no “authority
    establishing that a state law permitting the admission of evidence of
    uncharged crimes violates a defendant’s right to a fair trial.” (Catlin, 
    supra,
    26 Cal.4th at p. 123.) In any case, the admission of evidence “results in a due
    process violation only if it makes the trial fundamentally unfair.” (People v.
    Partida (2005) 
    37 Cal.4th 428
    , 439.)
    Turning to the Kipp factors, we observe the People’s case was not
    “ ‘solely circumstantial.’ ” (Kipp, 
    supra,
     971 F.3d at p. 956; McKinney v. Rees
    (9th Cir. 1993) 
    993 F.2d 1378
    , 1385 (McKinney).) There was direct evidence
    on two of three elements of the charged offense, i.e., that defendant drove a
    stolen car and did so without the consent of Jevonne B. While it remains the
    case that a defendant’s “[m]ental state and intent are rarely susceptible of
    direct proof and must therefore be proven circumstantially” (People v.
    Thomas (2011) 
    52 Cal.4th 336
    , 355), this does not detract from the fact that
    direct evidence largely supported the prosecution’s case.
    Next, defendant asserts the uncharged act evidence was emotionally
    charged because he is an African-American male who was found in a stolen
    car with a “suspicious backpack” and $950 in cash. But that evidence was
    not highly inflammatory; indeed, it was “relatively sterile” and “not the type
    of evidence that ‘necessarily prevents a fair trial.’ ” (Jammal v. Van de Kamp
    (9th Cir. 1991) 
    926 F.2d 918
    , 920–921 [concluding “[t]here’s nothing illegal or
    immoral about carrying large sums of cash in the trunk of a car”].) Such
    evidence bears no resemblance to the inflammatory and emotionally charged
    other acts evidence introduced in Kipp or in McKinney, cases defendant relies
    on. (Kipp, 
    supra,
     971 F.3d at p. 958 [involving two days of testimony about
    the details of a murder-rape crime scene and photographs of the victim’s dead
    body]; McKinney, 
    supra,
     993 F.2d at p. 1385 [painting defendant as a “man
    12
    with a knife collection, who sat in his dormitory room sharpening knives,
    scratching morbid inscriptions on the wall, and occasionally venturing forth
    in camouflage with a knife strapped to his body,” which “served only to prey
    on the emotions of the jury”].)
    In sum, admission of the uncharged act evidence did not violate
    defendant’s rights to due process and to a fair trial.
    DISPOSITION
    The judgment is affirmed.
    FUJISAKI, J.
    WE CONCUR:
    TUCHER, P.J.
    RODRÍGUEZ, J.
    People v. Richardson (A163653)
    13