California Court of Appeal Dec 17, 2015 No. E061932Unpublished
Filed 12/17/15 P. v. White CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E061932
v. (Super.Ct.No. SWF1400518)
MARTEZ DECARLOS WHITE, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Michael J. Rushton,
Judge. Affirmed in part; reversed in part with directions.
Joanna Rehm, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Kristine A.
Gutierrez, and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and
Respondent.
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I
INTRODUCTION
Defendant Martez Decarlos White appeals from judgment entered following jury
convictions for residential burglary1 and attempted residential burglary.2 Defendant
(b). Specifically, the prosecution sought to introduce evidence of attempted burglary in
December 2012, of the Yacob home. The prosecution argued the evidence was
admissible to prove the elements of the charged burglary offenses. As to count 2, the
prosecution sought to present the evidence to establish defendant attempted to enter
Pando’s home with intent to steal, and also to show an absence of accident or mistake.
The prosecution noted that defendant had provided a statement to the police in which
defendant denied having anything to do with the charged burglaries. Defendant had
stated he and two friends went into Pando’s backyard merely to smoke marijuana, and he
fled because defendant was violating his parole by associating with his friend, Grimey,
who was in possession of a stolen gun.
The prosecution stated in its MIL that it believed defendant would argue that
defendant was not at the scene of the Martinson burglary (count 1) and that defendant had
told the police that, although he was in the Pando’s backyard with friends, he was not
there with the intent to enter Pando’s home and steal. The prosecution asserted that the
evidence of defendant’s 2012 prior was therefore highly probative of the issue of
defendant’s intent.
Defendant filed a MIL seeking to exclude any evidence of his criminal history
under Evidence Code section 1101, subdivision (b), on the ground the prosecution had
not provided any discovery regarding the facts of defendant’s 2012 prior. Defendant also
argued the evidence should be excluded under Evidence Code section 352, as unduly
prejudicial.
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During the hearing on the parties’ MILs, the trial court ruled that, unless defendant
sought to introduce defendant’s statement to the police, the statement would be excluded
(including defendant’s statement he and his friends intended to smoke marijuana in
Pando’s backyard). The court warned that if the prosecution chose to introduce portions
of the statement, the entire statement could come in.
Defense counsel objected to the prosecution’s MIL to introduce evidence of
defendant’s 2012 prior on the ground no discovery was provided regarding the prior and
defense counsel had not been given a copy of the police report. The prosecutor said the
report was emailed a few days ago and had been provided during the initial discovery.
Upon checking defense counsel’s email, she acknowledged she had received the police
report. The trial court stated its tentative was to grant the prosecution’s MIL under
Evidence Code section 1101, subdivision (b), and admit the evidence. Defense counsel
stated that her only objection was that the evidence should be excluded as unduly
prejudicial under Evidence Code section 352.
The trial court stated it was granting the prosecution’s MIL motion based on the
rationale stated in the prosecution’s MIL brief. The court explained that the burglary
technique used by defendant and his companions in committing the 2012 prior was very
unique and extremely distinctive. The court noted: “I’ve really never come across a case
where a group of guys, effectively, bum-rush a house. It’s a very unusual burglary
technique where people in mass, during the daytime, bang on doors to see if people are
home and then seek to make forcible entry into the house. [I]t may happen on a regular
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basis, but it seems to be a rather distinctive method of burglarizing or attempting to
burglarize a house.”
The court concluded this method was similar to that used in the charged offenses.
Therefore evidence of the 2012 prior offense conduct was admissible as to count 2 to
prove common plan or scheme, intent, and absence or mistake or accident, the court
added that the evidence was extremely probative, such that allowing the evidence would
not run afoul of Evidence Code section 352. The court also found the probative value of
the 2012 prior evidence substantially outweighed any danger of undue prejudice,
confusing the issues, or misleading the jury. The trial court stated that it was reserving
ruling on whether the 2012 prior itself would be admitted and whether the evidence was
admissible as to count 1 but ruled evidence of the underlying conduct would be permitted
for the limited purposes stated as to count 2. The next day, the trial court stated that the
admission of evidence of the 2012 prior was limited to count 2. During the trial, the
prosecutor introduced evidence of the 2012 attempted burglary offense. The jury was
instructed that the prior crime evidence was admissible solely on count 2, as to
defendant’s intent and common plan, and could not be considered as to count 1.
B. Applicable Law
Evidence Code section 1101, subdivision (a), generally provides, with a few
inapplicable exceptions, that evidence of a person’s character or a character trait is
inadmissible when offered to prove the person’s conduct on a specified occasion. But,
Evidence Code section 1101, subdivision (b), provides that nothing in Evidence Code
section 1101 prohibits the admission of evidence that a person committed a crime “when
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relevant to prove some fact (such as motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake or accident . . .) other than his or her disposition
to commit such an act.” (Evid. Code, § 1101, subd. (b); see People v. Catlin (2001) 26
Cal.4th 81, 111.)
In order for evidence of an uncharged prior crime to be relevant on the issue of
identity, the uncharged crime must be highly similar to the charged offenses. (People v.
Catlin, supra, 26 Cal.4th at p. 111.) “In order to be relevant as 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.”’” (Ibid.) “‘[T]he common features must indicate the existence of a plan
rather than a series of similar spontaneous acts,’ and that ‘evidence that the defendant has
committed uncharged criminal acts that are similar to the charged offense may be
relevant if these acts demonstrate circumstantially that the defendant committed the
charged offense pursuant to the same design or plan he or she used in committing the
uncharged acts.’ [Citation.]” (Ibid.) “‘The least degree of similarity (between the
uncharged act and the charged offense) is required in order to prove intent. [Citation.].’”
(People v. Kelly (2007) 42 Cal.4th 763, 783.)
Even if evidence of a prior crime is admissible under Evidence Code section 1101,
Evidence Code section 352 provides that 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
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prejudice, of confusing the issues, or of misleading the jury.”
We review trial court rulings made under Evidence Code sections 1101 and 352
for an abuse of discretion. (People v. Jefferson (2015) 238 Cal.App.4th 494, 502.)
Under this standard of review, we will not reverse the trial court’s ruling unless the trial
court exercised its discretion in an arbitrary, capricious, or patently absurd manner,
resulting in a manifest miscarriage of justice. (Ibid., quoting People v. Foster (2010) 50
Cal.4th 1301, 1328-1329.)
C. Discussion
Citing People v. Perkins (1984) 159 Cal.App.3d 646 (Perkins), defendant argues
the trial court erred in admitting evidence of the underlying conduct of defendant’s 2012
prior for attempted residential burglary. Defendant argues that at the time of the trial
court’s ruling on the prosecution’s motion in limine to introduce evidence of the 2012
prior, defendant had not put at issue his criminal intent, knowledge or motive, as to count
2. Therefore under Perkins, it was improper to grant the prosecution’s motion in limine
allowing evidence of the 2012 prior.
In Perkins, the defendant was convicted of burglary. During the trial, the People
attempted to introduce evidence of a prior conviction to show the defendant’s intent and
knowledge under Evidence Code section 1101, subdivision (b). The court explained that
three factors should be considered in determining the admissibility of an uncharged
offense: “(1) the materiality of the fact sought to be proved or disproved; (2) the
tendency of the uncharged crime to prove or disprove the material fact; and (3) the
existence of any rule or policy requiring the exclusion of relevant evidence.” (Perkins,
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supra, 159 Cal.App.3d at p. 651, quoting People v. Thompson (1980) 27 Cal.3d 303,
315.)
In Perkins, the court concluded that, because the defendant did not place at issue
the ultimate facts of intent and knowledge, evidence of uncharged offenses was
inadmissible. (Perkins, supra, 159 Cal.App.3d at p. 651.) The Perkins court explained:
“In the instant case, the motion to admit the uncharged offense was made in limine, and
was the first item disposed of by the trial court. No argument had been heard from either
Perkins’ attorney or counsel for codefendant Wilson that would have brought knowledge
or intent into dispute. Therefore the granting of the motion was error.” (Id. at p. 652.)
The Perkins court suggested that, “To reduce the possibility that an uncharged
offense will be admitted to prove an element of the crime before that element is placed in
issue, trial judges are advised to follow the procedure used by the trial judge in People v.
Scott [(1980)] 113 Cal.App.3d 190.” (Perkins, supra, 159 Cal.App.3d at p. 652.) That
recommended procedure consists of the trial court instructing the prosecutor to avoid
reference to an uncharged offense in the case in chief, but if the defense places any
ultimate facts into issue, the trial court can then consider allowing the prosecutor to use
an uncharged offense in rebuttal. (Ibid.) In Perkins, neither the defendant nor his
codefendant made an opening statement or presented a defense. Therefore, neither
defendant brought into issue an element of the charged offenses.
The Perkins court noted that, although defense counsel addressed the defendant’s
lack of knowledge in closing argument, by that time he was merely refuting the improper
inferences raised by the admission of the uncharged offense. (Perkins, supra, 159
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Cal.App.3d at p. 652.) The Perkins court therefore concluded the trial court erred in
admitting into evidence the uncharged offense. (Ibid.) Nevertheless, the court found that
its admission was harmless error on the ground the evidence against the defendant, absent
the uncharged offense, was overwhelming. (Ibid.) Therefore the court concluded that, in
the absence of the contested evidence, there was no reasonable probability that a result
more favorable to the defendant would have been reached. (People v. Watson (1956) 46
Cal.2d 818, 836.)
Perkins is not on point because intent was not undisputed. Defendant admitted
during his statement to the police that he was in Pando’s backyard solely for the purpose
of smoking marijuana. Although the trial court ruled the statement could not come in as
evidence unless defendant introduced it, there remained the possibility defendant would
introduce the evidence or refute intent in some other way. The prosecution was still
required to prove intent and that defendant participated in the Pando attempted burglary.
(People v. Rowland (1992) 4 Cal.4th 238, 260.) The 2012 prior was highly probative in
showing that defendant was involved in the burglary and intended to break into the Pando
home with intent to steal. Furthermore, even if there was error in allowing evidence of
the 2012 prior, it was harmless error because there was overwhelming evidence
defendant committed both charged crimes.
Defendant argues the prior evidence was duplicative, unnecessarily cumulative
evidence of intent, since there was already evidence three African American men were
seen attempting to break into the Pando home midday by trying to kick in the front door
and then when that effort failed, attempting to enter through a side window. The men left
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gloves and a removed screen on the ground and fled when it appeared a neighbor was
calling the police. Defendant also argues the evidence was prejudicial, particularly as to
count 1, and rendered defendant’s trial fundamentally unfair, in violation of his
constitutional right to due process. We disagree.
Evidence of the 2012 prior was admissible to show common plan or scheme and
did not constitute overly cumulative evidence. Both the 2012 prior and the Pando
burglary circumstances were similar in that they were both perpetrated by a group of
three or four young African American men, who walked up to the homes and attempted
to break into the homes during the daytime, by attempting to kick in the front door.
When unsuccessful, the men then went to the side or back of the home and attempted to
break in. When the men became aware someone was observing them and calling the
police, the men fled. Furthermore, defendant committed the 2012 prior not long before
the charged crimes (13 months before) and both the charged crimes and the 2012 prior
were committed in Hemet. The circumstances of the 2012 prior and Pando burglary were
not identical but sufficiently relevant and similar for purposes of admitting the evidence
to show intent and common plan or scheme.
The highly probative and relevant evidence of the 2012 prior was not outweighed
by any undue prejudice under Evidence Code section 352. Furthermore, any prejudice
was sufficiently countered by the trial court’s jury instructions limiting consideration of
the evidence to count 2 and to the issues of common plan or scheme and intent. The trial
court did not abuse its discretion in allowing evidence of defendant’s 2012 prior, and
admission of the evidence did not violate defendant’s due process rights because the
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evidence was properly admitted.
V
IMPROPER IMPOSITION OF FIVE-YEAR ENHANCEMENT ON COUNT 2
Defendant contends, and the People agree, the trial court erred in imposing
defendant’s nickel prior on count 2, when the same nickel prior was also imposed on
count 1. The nickel prior is defendant’s prior serious felony strike conviction for
attempted residential burglary in 2012. Status enhancements, such as the nickel prior
imposed under section 667, subdivision (a), can be imposed only once to a determinate
sentence. Therefore the trial court erred in imposing the nickel prior both to count 1 and
count 2, and the five-year nickel prior must be vacated as to count 2. (People v. Sasser
(2015) 61 Cal.4th 1, 16-17.)
VI
DISPOSITION
The judgment is affirmed, with the exception imposition of the nickel prior on
count 2 (§ 667, subd. (a)) is reversed and ordered vacated, because the trial court
incorrectly imposed the nickel prior twice.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS CODRINGTON J. We concur:
KING Acting P. J.
MILLER J.
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AI Brief
AI-generated · verify before citing
Holding. The court affirmed the defendant's convictions for residential burglary and attempted residential burglary, but reversed the imposition of a second 'nickel prior' enhancement, ordering it vacated.
Issues
Whether there was sufficient evidence to support the conviction for residential burglary (count 1).
Whether the trial court abused its discretion in admitting evidence of a prior conviction for attempted residential burglary under Evidence Code section 1101(b).
Whether the trial court erred in imposing the 'nickel prior' enhancement on both counts.
Disposition. Affirmed in part; reversed in part with directions.
Quotations verified verbatim against the opinion
“We affirm the judgment, with the exception of the sentencing error, in which the trial court imposed the nickel prior twice. Imposition of the nickel prior on count 2 is therefore reversed and ordered vacated.”
“The jury was instructed that the prior crime evidence was admissible solely on count 2, as to defendant’s intent and common plan, and could not be considered as to count 1.”