People v. Richardson CA1/3 ( 2023 )

Filed 5/3/23 P. v. Richardson CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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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)
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(“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.
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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
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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.)
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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
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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.
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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
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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
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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.
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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.)
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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.
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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
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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)
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