People v. Arnell CA3

Filed 8/12/15 People v. Arnell CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE,

Plaintiff and Respondent, C072187

v. (Super. Ct. No. 12F03130)

HERBERT CARL ARNELL, JR.,

Defendant and Appellant.

A jury convicted defendant Herbert Carl Arnell, Jr., of two counts of second degree burglary. (Pen. Code, § 459.) In bifurcated proceedings, the jury found the strike prior and prior prison term allegations to be true. (Pen. Code, §§ 667.5, 1192.7.) The trial court sentenced defendant to serve eight years and four months in state prison. On appeal, defendant contends the trial court erred in admitting, under Evidence Code section 1101, subdivision (b), evidence of a cash register drawer and coin trays

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found by the police in the backyard of a residence where defendant was present.1 The trial court admitted evidence of a cash register drawer and coin trays as circumstantial evidence that was relevant and probative to the charged burglaries. We conclude that even if the evidence was admissible as circumstantial evidence, the evidence should have been excluded under section 352 in the absence of an instruction admonishing the jury the evidence could not be used to establish bad character or propensity to commit burglary. Nonetheless, the evidentiary error was harmless in light of overwhelming evidence that established defendant’s identity and commission of the charged offenses. Accordingly, we affirm. FACTS Count One: Burglary of Fashion Cleaners Around 4:00 a.m. on February 10, 2012, someone broke into Fashion Cleaners in the Arden Arcade area and took the cash register. The side window was broken with a fist-sized rock. Video surveillance showed two men, one of whom entered and removed the cash register. A sheriff’s detective reviewed the surveillance videotape and recognized defendant as the suspect who remained outside while the other suspect entered the premises. Upon viewing the surveillance videotape, two other people who had known defendant for about two years and had regular contact with him also identified defendant. Count Two: Burglary of Papa Murphy’s Around 5:30 a.m. on March 30, 2012, Papa Murphy’s pizza shop in the Arden Arcade area, two to three miles from Fashion Cleaners, was broken into and the coin trays from the cash registers were taken. The glass front door was broken with a rock. Video surveillance showed defendant throwing a rock through the window, entering the