California Court of Appeal Aug 27, 2013 No. D061686Unpublished
Filed 8/27/13 P. v. Guy CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D061686
Plaintiff and Respondent,
v. (Super. Ct. No. SCN262049)
MICHAEL GUY,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Harry M.
Elias, Judge. Affirmed.
Carl Fabian, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Steven T. Oetting and Michael P.
Pulos, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant and appellant Michael Guy of numerous counts of
robbery arising out of three commercial armed robberies that took place in May 2009.
(Pen. Code,1 §211; counts 1-4, 9-11.) The jury also convicted Guy of related counts of
false imprisonment of employees at the stores. (§§ 236 & 237, subd. (a); counts 6-8, 13-
15.) As to each conviction, it was found true that Guy personally used a firearm within
admissible to prove conduct].) The admissibility of uncharged crimes depends on:
" '(1) the materiality of the facts sought to be proved, (2) the tendency of the uncharged
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crimes to prove those facts, and (3) the existence of any rule or policy requiring exclusion
of the evidence.' " (People v. Kelly (2007) 42 Cal.4th 763, 783; People v. Ewoldt (1994)
7 Cal.4th 380, 402 (Ewoldt).)
Circumstances in which evidence of uncharged crimes may properly be admitted
are described in Lindberg, supra, 45 Cal.4th 1, 23: "When the prosecution seeks to prove
the defendant's identity as the perpetrator of the charged offense with evidence he had
committed uncharged offenses, the admissibility of evidence of the uncharged offenses
turns on proof that the charged and uncharged offenses share sufficient distinctive
common features to raise an inference of identity. A lesser degree of similarity is
required to establish the existence of a common plan or scheme and still less similarity is
required to establish intent. [Citations, including Ewoldt, supra, 7 Cal.4th 380, 402-
403.]" (Italics added.)
In evaluating the admissibility of "other crimes" evidence on the issues of identity,
motive and intent, a trial court must "carefully review each count in light of the alleged
'other crimes' evidence to determine its probativeness to prove a material fact other than
criminal disposition and then . . . weigh its probative value against its prejudicial effect
before it is admitted." (People v. Armstead (2002) 102 Cal.App.4th 784, 793-794; Evid.
Code, §§ 1101, subd. (b), 352; Ewoldt, supra, 7 Cal.4th at p. 404.)3
3 Evidence Code section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, or confusing the issues, or of misleading the jury." 9
The weighing process under Evidence Code section 352 "depends upon the trial
court's consideration of the unique facts and issues of each case, rather than upon the
mechanical application of automatic rules." (People v. Jennings (2000) 81 Cal.App.4th
1301, 1314.) We review the trial court's rulings in this context for any abuse of
discretion. (People v. Lewis, supra, 25 Cal.4th 610, 637; see Alcala, supra, 43 Cal.4th
1205, 1220 [an evaluation of a trial court's exercise of discretion considers the record
before it when the ruling was made].)
B. No Forfeiture of Appellate Claims
Guy challenges his convictions by arguing the trial court erroneously allowed
admission of evidence about the uncharged robbery, because the similarities between it
and the charged robberies were not sufficiently distinctive to show identity, intent, or a
common plan, and only generic similarities were shown: e.g., the use of duct tape to
restrain employees and the hour of the day when the robberies occurred. (Evid. Code,
§ 1101, subd. (b); see People v. Rivera (1985) 41 Cal.3d 388, 393 ["signature" acts
required].) Guy points out that zip ties were used in only one of the four robberies, and a
mask was used in only one of the four robberies. He claims the uncharged offense was
particularly inflammatory evidence, since the employees in that case were women and
one of them cried during the ordeal. (Ewoldt, supra, 7 Cal.4th at pp. 404-405.)
Guy asserts his counsel's objections were adequate to protect his right to appeal
(i.e., creating a trial within a trial, being highly prejudicial, unnecessary for this particular
case). If those objections were not adequate, he argues we should examine the appellate
issues under a Sixth Amendment assistance of counsel analysis.
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In response, the Attorney General appears to concede that the defense objection
below was adequate to preserve the issues for appeal, but argues that in any case, there
was no error, or any error was harmless. We agree that although the objection was quite
general in nature, the parties and the trial court were well aware of the nature of the
problem and had all the necessary tools to analyze it. There is no justification for treating
this as a forfeiture case, and we look at its merits.
C. Scope of Review
Guy strenuously argues that the trial court's ruling does not expressly mention the
establishment of intent as a ground for admission of the evidence of other offenses, and
therefore the ruling cannot be upheld on that ground. Guy also objects to any
consideration of the cell phone evidence and the evidence of Guy's similar clothing as
seen on two of the surveillance videos, as supporting admission of the uncharged offense
evidence, again because the ruling does not expressly rely on those grounds. (See Ervine,
supra, 47 Cal.4th 745, 779 [to be cognizable on appeal, a theory of admissibility must be
presented at trial, or at least a basis for the theory must be apparent in the record].)
Alternatively, Guy seems to make some kind of instructional error argument
(without calling it that), by contending that the jury was given CALCRIM No. 375 on the
proper usage of evidence of an uncharged offense to prove identity, intent, etc., and this
somehow served to expand the purposes for which the uncharged offense evidence could
properly be used. The record does not include any specific objection to the language
including intent in this jury instruction. Guy argues that the trial court's in limine ruling
must be restricted to its original grounds, motive and identity, and any additional use of
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the uncharged offenses to prove intent would be improper. However, he also admits that
the trial court's decision is reviewed on appeal based on the facts known to the trial court
when the ruling was made. (See People v. Lawson (2005) 131 Cal.App.4th 1242, 1249
[potential effect of evidentiary error upon a defendant's decision to testify].)
On appeal, most of Guy's argument deals with the uncharged crimes evidence, and
it is not entirely clear from the briefs whether he continues to object that the trial court
should not have allowed the evidence about the three charged robberies to be cross-
admissible, for proving one another. On both types of evidence, the prosecution's motion
in limine presented the trial court with several theories of admissibility, common scheme
or plan, identity, and intent. The prosecutor argued for admissibility of the entire body of
evidence that would be presented, both the charged and uncharged crimes evidence, as
probative of the charged counts (due to "striking similarities" between the four sets of
offenses). Moreover, the prosecutor orally argued the probative effect of the similarity of
the cell phone data that was related to the various charges, as well as the similarity of
clothing in the surveillance videos. There is no indication the trial court rejected those
criteria in making the ruling. Instead, the court expressly relied on the explanation given
by the prosecutor, while designating the "most significant factor" as the similarity among
the various fact patterns and timing of the various offenses, to prove modus operandi and
motive.
We consider the grounds expressly relied upon in the ruling but additionally, are
not foreclosed from considering the trial court's exercise of discretion at that time in light
of all the theories presented to it, which clearly included intent. As the trial progressed,
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Guy's defense of duress further highlighted the issue of his intent during the incidents. In
any event, there was an adequate basis in the record for each of those theories of
Moreover, Respondent's brief essentially concedes that the theory about a common
scheme or plan is not as strong as the identified grounds for admission, identity and
motive. (Ewoldt, supra, 7 Cal.4th 380, 402-403 [lesser degree of similarity among the
uncharged and charged acts required for common scheme or plan].) We need only
address in detail the purposes of proving identity and intent as justifications for
admissibility of this evidence.
VI
ANALYSIS
A. Identity
The prosecutor argued the evidence was admissible to prove identity under
Evidence Code section 1101, subdivision (b), because the crimes shared numerous
distinctive features that were similar. On appeal, Guy argues the crimes were not
identical and involved only a series of extremely generic acts (duct tape use, timing of
robberies) that in no way constituted "signature" acts that would have identified a single
perpetrator. (People v. Rivera, supra, 41 Cal.3d 388, 393.) Moreover, the Kragen
robbery was unique because only a lone man committed it, without a mask and without
restraining any employees. The Mira Mesa AutoZone robbery by two men did not
involve a mask and uniquely involved zip ties, as well as duct tape. The Encinitas CVS
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robbery uniquely involved a mask or bandanna. The Murrieta CVS robbery was different
because there were female victims.
Nevertheless, both the uncharged offenses and the charged acts involved robbery
at gunpoint and moving employees around, to obtain money from store registers or safes,
and three out of four incidents included a coperpetrator. The closing time auto store
robberies, followed by 2:00 a.m. CVS robberies some driving distance away, formed
some kind of pattern that was distinctive in nature and raised an inference of identity.
(People v. Medina (1995) 11 Cal.4th 694, 748 [admissibility depends upon proof that the
various offenses shared distinctive common marks sufficient to raise an inference of
identity].) Here, the uncharged offense evidence had a strong tendency toward proving
the identity of the perpetrator, a material issue, and there were enough common features
or similarities to justify its admission for that purpose (same types of commercial targets,
same sequence of events within the store, use of a gun, same time frame, same driving
vicinity). (Ibid.; People v. Carpenter (1997) 15 Cal.4th 312, 378-379 (Carpenter);
Lindberg, supra, 45 Cal.4th 1, 21-22.)
Further, Guy has not pointed to any rule or policy that should have required
exclusion of that evidence. (Carpenter, supra, 15 Cal.4th 312, 378-379.) As compared
to the manner in which the charged robberies took place, the court could permissibly
conclude there was no excessively inflammatory effect in admitting the evidence about
the uncharged robbery, even though the victims in that case were female. The evidence
had a significant tendency to prove the facts of modus operandi and identity, as expressly
14
stated by the trial court. The evidence was not unduly remote or dissimilar, nor was its
presentation unduly burdensome in terms of trial time.
B. Intent
To be relevant on the issue of intent, uncharged crimes need to be sufficiently
similar to a charged offense to support an inference that the defendant probably harbored
the same intent in each instance. (People v. Kipp (1998) 18 Cal.4th 349, 371; Ewoldt,
supra, 7 Cal.4th 380, 402 [least degree of similarity required to establish intent].)
Robbery is the felonious taking of personal property in the possession of another, "from
his person or immediate presence, and against his will, accomplished by means of force
or fear." (§ 211.) By pleading not guilty, Guy placed into dispute all the elements of the
robberies and other charges, as of the outset of trial, when the challenged evidentiary
ruling was made.
Later, Guy placed the issue of his intent to rob in further dispute, through his
defense of duress, and the jury instructions properly addressed that defense. In
CALCRIM No. 375, regarding other crimes evidence, the jury was told the evidence had
been admitted for a limited purpose, not to prove the defendant's predisposition to
commit crimes, but rather to determine whether the necessary element of intent to rob
was proven. This effectively eliminated any danger of confusing the issues or misleading
the jury. (Evid. Code, § 352.) No defense objections to the instruction have been called
to our attention, and "we presume the jury followed these instructions." (Lindberg,
supra, 45 Cal.4th 1, 25-26.)
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We conclude these uncharged crimes were sufficiently similar to the charged
offenses to support and allow inferences that Guy probably demonstrated and had the
same intent to rob store employees in each instance. (People v. Kipp, supra, 18 Cal.4th
349, 371; Alcala, supra, 43 Cal.4th 1205, 1220 [trial court's exercise of discretion is
viewed in light of the record before the trial court when ruling was issued].) Since there
was no error or undue prejudice in the admission of this evidence for the purposes that
were presented to the trial court, no harmless error analysis is appropriate. (See People v.
Walker (2006) 139 Cal.App.4th 782, 808 [" 'the erroneous admission of prior misconduct
evidence does not compel reversal unless a result more favorable to the defendant would
have been reasonably probable if such evidence were excluded.' "].)
DISPOSITION
The judgment is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
HALLER, J.
McDONALD, J.
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AI Brief
AI-generated · verify before citing
Holding. The trial court did not abuse its discretion in admitting evidence of an uncharged robbery to prove identity, motive, and intent, as the offenses shared sufficient distinctive common features.
Issues
Whether the trial court erred by admitting evidence of an uncharged robbery to prove identity, intent, and common plan.
Whether the trial court erred by allowing cross-admissibility of evidence regarding three sets of charged robbery offenses.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“The admissibility of evidence of the uncharged offenses turns on proof that the charged and uncharged offenses share sufficient distinctive common features to raise an inference of identity.”