California Court of Appeal Aug 17, 2016 No. E061475Unpublished
Filed 8/17/16 P. v. Avatongo 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E061475
v. (Super.Ct.No. RIF1203955)
UHILA WALTER AVATONGO, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Ronald L. Taylor, Judge.
(Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to
art. VI, § 6 of the Cal. Const.) Affirmed.
Patrick Morgan Ford, 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, Barry Carlton and Seth M.
Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
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Defendant, Uhila Avatongo, is serving eight years eight months in state prison
after a jury convicted him of nine fraud, theft and burglary felonies against three victims.
Defendant made it an on-going practice, over numerous years, to approach homeowners,
in this section prohibits the admission of evidence that a person committed a crime, civil
wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake or accident . . .).” “Evidence
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of other crimes is not admissible merely to show criminal propensity, but it may be
admitted if relevant to show a material fact such as intent.” (People v. Jones (2011) 51
Cal.4th 346, 371.)
Absence of mistake or accident is related to both knowledge and intent. A
“knowledge element is akin to absence of mistake.” (People v. Hendrix (2013) 214
Cal.App.4th 216, 242.) Further, absence of mistake can rebut a claim of innocent intent.
(Ibid.) “‘To be admissible to show intent, “the prior conduct and the charged offense
need only be sufficiently similar to support the inference that defendant probably
harbored the same intent in each instance.”’” (People v. Davis (2009) 46 Cal.4th 539,
602.)
Here, defendant does not establish that the age of the oldest complaints makes
them irrelevant. Other than asserting that “some of the uncharged offenses were 10 years
old,” he does not explain how this makes them irrelevant to the issues of intent and lack
of mistake. Further, defendant did not just violate that code section in 2000 and then not
again until 2011 or 2014. Rather, he appears to have made a long and consistent practice
of contracting without a license, which is why the complaints were introduced into
evidence. Defendant has not established that the oldest complaints are too remote in time
to be admissible under Evidence Code section 1101, subdivision (b).
Defendant also asserts that “it cannot be said whether the complaints were
‘similar’ to those lodged by the present victims because the prosecution failed to provide
any details of those complaints.” The prosecution presented testimony from the CSLB
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investigator that the complaints were for contracting without a license, which is the
factual basis for the charges here. Therefore, the 48 complaints were relevant.
Finally, defendant argues the introduction of the 48 complaints was prejudicial
because of the sheer number of complaints and the doubt it created about defendant’s
honesty.
“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, of confusing the
issues, or of misleading the jury.” (Evid. Code, § 352.) For purposes of Evidence Code
section 352, prejudice means “‘evidence that uniquely tends to evoke an emotional bias
against a party as an individual, while having only slight probative value with regard to
the issues.’” (People v. Heard (2003) 31 Cal.4th 946, 976.) “We review a challenge to a
trial court’s choice to admit or exclude evidence under section 352 for abuse of
discretion.” (People v. Branch (2001) 91 Cal.App.4th 274, 282.) Here, the evidence has
great probative value—it shows defendant intended to defraud the homeowners by
representing that he had a valid contractor’s license and did not do it by mistake,
believing he had a valid license, because he had done it so many times before over a long
period of time. Further, the facts of the 48 complaints were no more inflammatory than
the facts of the charges in this case. (See People v. Ewoldt (1994) 7 Cal.4th 380, 405.)
The trial court did not abuse its discretion.
DISPOSITION
The judgment is affirmed.
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NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ P.J.
We concur:
HOLLENHORST J.
MILLER J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that sufficient evidence supported the defendant's burglary and theft convictions and that the trial court did not abuse its discretion in admitting evidence of prior bad acts to prove intent and absence of mistake.
Issues
Whether there was sufficient evidence to support the burglary convictions based on the defendant's intent at the time of entry.
Whether there was sufficient evidence to support the grand theft conviction regarding victim Mark Spencer.
Whether the trial court abused its discretion under Evidence Code sections 1101(b) and 352 by admitting evidence of 48 prior complaints against the defendant.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“Substantial evidence supports each of the three burglary convictions.”
“The jury was the trier of fact, and as such was entitled to credit the specific testimony of Mark Spencer and his wife about what they personally witnessed about the construction on their property”