People v. Scott CA2/4

Filed 10/29/13 P. v. Scott CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, B243460

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. GA079679)
v.

THOMAS SCOTT,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County,
Janice E. Croft, Judge. Affirmed in part, reversed in part.
Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Assistant Attorney General, Marc A. Kohm
and Kathy S. Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent.
 Appellant Thomas Scott appeals his conviction of grand theft, receipt of
stolen property and multiple counts of burglary. Appellant contends the trial court
erred in disqualifying his retained counsel after she violated the Rules of
Professional Conduct by talking to a former codefendant about the case outside the
presence of codefendant‟s counsel. He further contends the court erred in denying
his motion to sever three of the burglary counts from the other charges. Finally, he
contends the conviction for receipt of stolen property must be reversed, as he was
also convicted of theft of the same property. Respondent concedes the final point.
We reverse the receipt of stolen property conviction and otherwise affirm.

FACTUAL AND PROCEDURAL BACKGROUND
A. Information
On February 4, 2011, an information was filed charging appellant with
second degree commercial burglary (Pen. Code, § 459) in count one, grand theft of
personal property (Pen. Code, § 487, subd. (a)) in count two, receiving stolen
property (§ 496) in count three, and first degree burglary (Pen. Code, § 459) in
counts four through six.1 It was further alleged that appellant had suffered nine
theft and burglary-related prior offenses between 1990 and 2008, that prison terms
were served for said offenses, and that appellant did not remain free of custody for,
and committed offenses resulting in felony convictions during, a period of five
years subsequent to the conclusion of said terms for purposes of section 667.5,
subdivision (b).

1
Undesignated statutory references are to the Penal Code. Teneka Marie Marshall
was charged with the same offenses in counts four through six and appeared at all pretrial
hearings, but was ultimately not tried with appellant.

2
 B. Evidence at Trial
On April 1, 2010, Craig Wiggins, a sergeant for the Los Angeles County
Sheriff‟s Department, and his partner stopped a car near 62nd Street and Central
Avenue in Los Angeles. Appellant was a passenger in the vehicle. Sgt. Wiggins
and his partner searched appellant and found nine gold coins encased in plastic in
one of his pockets. Appellant said the coins were his and that he got them from
“some guy.”2
Martin Chang owned a health food store in San Gabriel. The rear door,
which allowed access to his office, was left unlocked when deliveries were
expected. Chang owned nine gold coins that he had purchased from Sotheby‟s in
1996 for $30,000. They were packaged in individual plastic casings or envelopes
identifying the seller. On March 28 or 29, 2010, Chang put the coins in a backpack
and took it to his office, intending to take the coins to a bank. On April 2 or 3,
2010, deputies came to his business to ask him about the coins. Chang searched
his backpack and realized they were missing. Chang identified the gold coins
taken from appellant on April 1 as his.
A San Gabriel Police Department investigator found appellant‟s palm print
on a magazine lying on a cabinet in Chang‟s office near where Chang had placed
his backpack.
The deputies who searched appellant on April 1 also found a set of keys
inside the vehicle. The keys fit a residence located near where the vehicle was
stopped. Inside the residence, deputies found a utility bill with appellant‟s name
on it. They also found a red briefcase containing papers with the name “Sok” and
the telephone number of Sarath Sok. Sarath Sok testified that in December 2009,
the briefcase was stolen from his place of business in Northridge.
2
Interviewed after his arrest, appellant said he was a coin collector and had owned
the coins for more than a year.

3
 Kristy Jennings lived in a loft apartment located inside the Biscuit Company
Loft Building in downtown Los Angeles. There is a restaurant on the ground floor
of the building. On March 31, 2010, at 9:00 a.m., a day prior to appellant‟s arrest,
Jennings was home with her infant child. The door to her apartment was unlocked.
She saw the door handle turn and the door open. An African-American man put
his head in the room. Jennings screamed and the intruder left.
That same day, Michael Cioffoletti, who lived in the same lofts on the same
floor, heard some people talking as they came up the stairwell. He observed his
unlocked front door opening but because he was sitting behind the door, did not
see who opened it. Cioffoletti said “good morning,” and the intruders left.
Joshua Newman lived in the same building as Jennings and Cioffoletti, on
the same floor. At approximately 9:00 a.m. on March 31, 2010, his unlocked door
was opened and two people stepped into his residence. Newman asked if he could
help them. The intruders turned and walked out. A few days later, Newman was
shown a photographic six-pack and identified appellant as one of the intruders.
Newman also identified appellant in a live lineup, at the preliminary hearing, and
in court.
The prosecution played a video from a security camera, showing appellant
and a female companion entering the building behind two workmen. Appellant
was wearing a black t-shirt and khaki pants
The prosecution also played a CD of three telephone calls appellant had
made from jail, two on April 3, 2010 and one on April 4. In the first, appellant told
a female caller to tell someone to get his beige khakis and black t-shirt out of his
dirty laundry. In the second, a female caller said she could not find what appellant
asked for and he told her to take all his black t-shirts and khakis, even the clean
ones. During the same call, appellant said “[a]ll I did is crack the door” and that
someone screamed. Appellant further stated that from outside the apartments
4
looked like businesses. He also said he did not think anybody could “identify”
because it was “so quick” and “nobody never come outside to say nothing” and
that “when that lady screamed, we got the fuck out here, then we start jogging,
getting out of there.” The caller said “I heard that each coin is worth about one
hundred thousand.” Appellant said “Yah.”
In the April 4 call, appellant asked the female caller: “[O]k look, let say
this, it‟s you know [unintelligible] walk in somebody‟s house [unintelligible] we
live at huh. . . . [¶] How‟s that burglary?” He also said: “I didn‟t even go in, I just
cracked the door” and “I didn‟t step foot in neither place, . . . not one red foot . . . .”
He pointed out that the doors were unlocked and that “[t]here wasn‟t no forced
entry,” which meant “[i]f it[‟s] any goddamn thing it[‟]s trespassing right?” The
female caller suggested he might have been “looking for somebody.” Appellant
responded: “Yeah. Somebody gave me the wrong directions.” He further stated:
“To have a burglary you have to have a forced entry. It can‟t be open, how‟s it a
burglary?”

C. Verdict and Sentencing
The jury found appellant guilty on all six counts. Asked to identify the
specific property that supported count three, the jury found appellant guilty of
receiving Chang‟s coins but not guilty of receiving Sok‟s briefcase. Appellant
admitted to seven separate and independent prison priors.
The court imposed a four-year sentence on count four (burglary of
Newman‟s loft), a one-year-four-month sentence on count five (burglary of
Jenning‟s loft), a four-year sentence on count six (burglary of Cioffoletti‟s loft), an
eight-month sentence on count two (grand theft), and an additional five years for

5
the prior prison terms, for a total sentence of 11 years.3 The court stayed the
sentences on counts one and three under section 654. Appellant was credited with
999 days of presentence custody credit -- 869 actual days plus 130 days good
time/work time.

DISCUSSION
A. Disqualification of Appellant’s Retained Counsel
1. Background
Prior to trial, appellant retained Patricia O‟Brien to represent him. His then
codefendant, Taneka Marshall, was represented by alternate public defender
Beverly Bourne.4 At a hearing on October 27, 2011, Bourne asked to speak to the
court in chambers. She reported that she had previously seen O‟Brien conversing
with Marshall in the hallway outside the courtroom with a notepad and pen in
hand.5 Bourne had immediately confronted O‟Brien and accused her of violating
the Rules of Professional Conduct by conversing with a represented client outside
the attorney‟s presence.6 In court, O‟Brien admitted having a “brief conversation”
with Marshall but claimed not to recall exactly what was said. She later stated she
was trying to find out where Marshall and appellant had been on March 31 prior to
their alleged entry into the loft building. The court found O‟Brien‟s claim not to

3
The court also imposed various fines.
4
Until the eve of trial, it appeared that Marshall and appellant would be tried
together, albeit with separate juries due to the prosecutor‟s intention to introduce
inculpatory statements made by Marshall which implicated appellant. (See Bruton v.
United States (1968) 391 U.S. 123; People v. Aranda (1965) 63 Cal.2d 518.)
5
Marshall later told Bourne that she was being interviewed by O‟Brien and that the
conversation took several minutes.
6
Bourne reported that when confronted, O‟Brien said: “[W]ell if I asked you for
permission, you wouldn‟t have given it to me, would you?” O‟Brien acknowledged that
Bourne had been “very clear that I was not to have any contact with her client.”

6
recall the contents of the conversation “disingenuous,” and described the conduct
as an “egregious” violation of the Rules of Professional Conduct and “a gross
overstepping of [counsel‟s] role.” The prosecutor contended that O‟Brien had
made herself a potential witness, as anything Marshall said to her would not be
protected by the attorney-client privilege. O‟Brien offered to review her notes and
reveal to the court what had been said. However, Bourne stated she would prefer
that information not be revealed to anyone else, and the court agreed it should not
be disclosed because of the constitutional rights that could be affected. The court
scheduled a hearing on removing O‟Brien from the case, and instructed counsel to
research the issue.
At the next hearing, O‟Brien said she had been attempting to speak to
Marshall‟s family members about where the defendants had been prior to arriving
at the lofts when Marshall came forward and volunteered information about several
places they had stopped. O‟Brien contended the information she received was
“helpful as to both clients” and “not interfer[ing] with any kind of attorney-client
confidential relationship.” The court noted that O‟Brien‟s statements were at odds
with what she had said at the prior hearing, and found a potential conflict based on
O‟Brien‟s having information that could affect the way the case was tried and the
way questions were asked. The court appointed separate counsel to advise
appellant of the potential conflict and his options. After conferring with counsel,
appellant stated he wanted to continue to be represented by O‟Brien. On behalf of
Marshall, Bourne asked the court to disqualify O‟Brien.7
The court granted the motion to disqualify, finding “the ethical breach . . .
too significant” and “the potential for conflict . . . too great.” With respect to the

7
When Bourne made the motion, Marshall asked if she could “fire” her attorney.
The court subsequently conducted a hearing to determine whether a conflict between
Marshall and her counsel existed. (See People v. Marsden (1970) 2 Cal.3d 118.)

7
conflict, the court stated: “[H]ypothetically, if Ms. Marshall were to testify in this
case . . . to something that turns out inconsistent with what she told [O‟Brien],
[O‟Brien has] then made [her]self a witness in this case.” The court further stated
that “[appellant‟s] right to counsel of his choice has to yield to the codefendant‟s
right to [a] fair trial and to the . . . integrity of the process and the integrity of the
bench and the bar.”

2. Analysis
“The Sixth Amendment provides that „[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to have the Assistance of Counsel for his
defence.‟. . . [A]n element of this right is the right of a defendant who does not
require appointed counsel to choose who will represent him.” (U.S. v. Gonzalez-
Lopez (2006) 548 U.S. 140, 144.) As the Supreme Court explained, “[the Sixth
Amendment] commands, not that a trial be fair, but that a particular guarantee of
fairness be provided -- to wit, that the accused be defended by the counsel he
believes to be best.” (Id. at p. 146.) “Deprivation of the right is „complete‟ when
the defendant is erroneously prevented from being represented by the lawyer he
wants, regardless of the quality of the representation he received.” (Id. at p. 148.)
Accordingly, erroneous deprivation of the right to counsel of choice is structural
error requiring per se reversal. (Id. at p. 150.)
The Sixth Amendment right to chosen counsel is not absolute, and can be
abrogated to serve a “„compelling purpose,‟” such as “[e]nsuring the ethical and
orderly administration of justice . . . .” (U.S. v. Ries (9th Cir. 1996) 100 F.3d 1469,
1471.) The Supreme Court has said that courts “have an independent interest in
ensuring that criminal trials are conducted within the ethical standards of the
profession and that legal proceedings appear fair to all who observe them,” which
in some circumstances supersedes a defendant‟s right to counsel of his or her
8
choice. (Wheat v. U.S. (1988) 486 U.S. 153, 160.) The Court has further
recognized that trial courts have “wide latitude in balancing the right to counsel of
choice against the needs of fairness.” (U.S. v. Gonzalez-Lopez, supra, 548 U.S. at
p. 152.) Our state Supreme Court has said that although the state should keep to a
minimum “its interference with the individual‟s desire to defend himself in
whatever manner he deems best, using any legitimate means within his resources,”
that desire “can constitutionally be forced to yield only when it will result in
significant prejudice to the defendant himself or in a disruption of the orderly
processes of justice unreasonable under the circumstances of the particular case.”
(People v. Crovedi (1966) 65 Cal.2d 199, 208; accord, People v. Ramirez (2006)
39 Cal.4th 398, 422; People v. Baylis (2006) 139 Cal.App.4th 1054, 1071.)
“A judge‟s authority to disqualify an attorney has its origins in the inherent
power of every court in the furtherance of justice to control the conduct of
ministerial officers and other persons in pending judicial proceedings.” (Oaks
Management Corp. v. Superior Court (2006) 145 Cal.App.4th 453, 462, quoting
Neal v. Health Net, Inc. (2002) 100 Cal.App.4th 831, 840.) “Generally, a trial
court‟s decision on a disqualification motion is reviewed for abuse of discretion.”
(People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999)
20 Cal.4th 1135, 1143.) However, “the trial court‟s discretion is limited by the
applicable legal principles.” (Id. at p. 1144; see Koo v. Rubio’s Restaurants, Inc.
(2003) 109 Cal.App.4th 719, 733 [“In exercising [its] discretion [to grant or deny a
motion to disqualify], the trial court is required to make reasoned judgments which
comply with legal principles and policies.”].) Consequently, “a disqualification
motion involves concerns that justify careful review of the trial court‟s exercise of
discretion.” (People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems,
Inc., supra, at p. 1144.) “If the trial court resolved disputed factual issues, the

9
reviewing court should not substitute its judgment for the trial court‟s express or
implied findings supported by substantial evidence.” (Id. at p. 1143.)
There is no dispute that appellant‟s former counsel violated rule 2-100 of the
Rules of Professional Conduct, which provides: “While representing a client, a
member shall not communicate directly or indirectly about the subject of the
representation with a party the member knows to be represented by another lawyer
in the matter, unless the member has the consent of the other lawyer.” Rule 2-100
“„was designed to permit an attorney to function adequately in his proper role and
prevent the opposing attorney from impeding his performance in such role.‟”
(Chronometrics, Inc. v. Sysgen, Inc. (1980) 110 Cal.App.3d 597, 607.) It “„is
necessary to the preservation of the attorney-client relationship and the proper
functioning of the administration of justice . . . .‟” (San Francisco Unified School
District ex rel. Contreras v. First Student, Inc. (2013) 213 Cal.App.4th 1212, 1230
(Contreras)), and its willful breach may warrant disciplinary action against the
culpable attorney by the State Bar. (See Continental Ins. Co. v. Superior Court
(1995) 32 Cal.App.4th 94, 111, fn. 5.) However, “„the “business” of the court is to
dispose of “litigation” and not to oversee the ethics of those [who] practice before
it unless the behavior “taints” the trial.‟” (Ibid.) Accordingly, a trial court‟s goal
when faced with a violation of rule 2-100 is not to impose a penalty (Continental
Ins. Co. v. Superior Court, supra, at p. 111, fn. 5; Myerchin v. Family Benefits, Inc.
(2008) 162 Cal.App.4th 1526, 1538, disapproved on other grounds in Village
Northridge Homeowners Ass’n. v. State Farm Fire & Cas. Co. (2010) 50 Cal.4th
913), but to determine whether confidential information, or any other information
which could create an unfair advantage or impact the fairness of trial or the
integrity of the judicial system, has been obtained as a result of the misconduct.
(Continental Ins. Co. v. Superior Court, supra, at p. 111, fn. 5.) If so, the court
must then focus on “identifying an appropriate remedy for whatever improper
10
effect the attorney‟s misconduct may have had in the case before it.” (Myerchin v.
Family Benefits, Inc., supra, 162 Cal.App.4th at p. 1538, italics omitted; accord,
Contreras, supra, 213 Cal.App.4th at p. 1231.) The court may exclude improperly
obtained evidence or “take other appropriate action to achieve justice and
ameliorate the effect of improper conduct,” up to and including disqualification of
counsel. (Triple A Machine Shop, Inc. v. State of Calif. (1989) 213 Cal.App.3d
131, 144; see Rico v. Mitsubishi Motors Corp. (2007) 42 Cal.4th 807, 819
[disqualification appropriate remedy because of unmitigable damage caused by
dissemination and use of confidential information].)
Appellant contends the court could have ameliorated the effects of his
counsel‟s improper conduct short of disqualifying her by excluding evidence or
ordering that Marshall be tried separately. While exclusion of evidence may be an
appropriate remedy in a civil trial where opposing counsel has conferred with a
party (see Triple A Machine Shop, Inc. v. State of Calif., supra, 213 Cal.App.3d at
p. 144) or in a criminal case where the prosecutor has obtained information in an
improper fashion (see U.S. v. Hammad (2d Cir. 1988) 858 F.2d 834, 842),
appellant and Marshall were criminal codefendants. The court could not exclude
relevant evidence that might be helpful to the defense in a criminal matter.
Moreover, the court was constrained in its ability to make the inquiries required to
determine the exact nature of the information obtained in order to fashion a
suitable order. O‟Brien had questioned Marshall about her whereabouts just prior
to the loft burglaries in an apparent attempt to obtain information that would have
provided an innocent explanation for appellant‟s activities. But any information
from Marshall indicating she had accompanied appellant to the lofts would likely
have incriminated her, undercutting her Fifth Amendment rights in a setting in
which she was not protected by the attorney-client privilege. A hearing to
determine exactly what was said during the interview would only have exacerbated
11
the problem by placing Marshall‟s answers on the record. The court was further
constrained in its ability to determine an appropriate remedy short of
disqualification by its doubts concerning O‟Brien‟s credibility, due to her initial
assertions that she had spoken to Marshall only briefly and could not recall what
had been discussed.
Nor can we agree that ordering separate trials would have been a reasonable
response. Separate trials add unnecessary time and expense and are inconvenient
for the witnesses and the court.8 Moreover, separate trials would not necessarily
have alleviated the conflict that existed. Appellant contends there was no serious
potential for a conflict of interest because the information his former counsel
sought “would have been to the mutual benefit of Marshall and appellant,” and
because Marshall might have chosen not to testify or might have testified in
accordance with what she told O‟Brien. This begs the question. The court was not
required to credit O‟Brien‟s changing account of her unauthorized contact with
Marshall, much less defer to her assessment of its utility for Marshall‟s defense.
Nor was the court required to speculate as to whether or how Marshall would
testify.9 Moreover, as it appears appellant took the lead in testing doors and
entering the victim‟s lofts, any innocent explanation for Marshall‟s behavior was
unlikely to inure to the benefit of appellant and could well have implicated him
further. If Marshall testified in a way that implicated appellant and exonerated
herself, O‟Brien would likely have been required to testify, acting as both advocate
and witness to the confusion of the jury. (See People v. Donaldson (2001) 93

8
As noted, at the time of the motion, appellant and Marshall were set to be tried
together.
9
As noted, Marshall‟s own counsel, Bourne, after talking with her client and with a
superior knowledge of her anticipated defense, made a determination of the risk posed to
her client and sought O‟Brien‟s disqualification.

12
Cal.App.4th 916, 928, 930 [acting as both advocate and witness “„is a situation to
be avoided if possible,‟” as it may cause “„confusion over the lawyer‟s role,‟”
which could “prejudice one or more of the parties or call in to question the
impartiality of the judicial process itself”].) In view of the real possibility of a
conflict arising and with no clear way to ameliorate short of disqualification, the
court did not abuse its discretion in ordering O‟Brien to step down.

B. Motion to Sever
1. Background
Appellant‟s counsel moved to sever counts one through three (the charges
related to the coins and the briefcase) from counts four through six (the charges
related to the lofts). Appellant contended the evidence supporting the commercial
burglary was substantially stronger, as he was found in possession of the stolen
property and his handprint was left at the scene of the crime. He argued that trying
the counts together would confuse the jury, particularly with respect to the intent to
steal element of the residential burglary charges. The prosecution argued there was
no good cause for severance given the law‟s preference for joinder, but did not
suggest that the evidence pertaining to the commercial burglary was cross-
admissible under Evidence Code section 1101 to establish intent in support of the
loft burglary charges.
At a pretrial hearing, the court denied the motion, stating that a reasonable
jury would not be “so overwhelmed by the evidence” that it would not see the
weaknesses in the case or be able to “sort those things out.” The motion to sever
was renewed before the trial judge, who found joinder appropriate because each
count was within the same class of crimes and occurred within a few days of each
other, and concluded the evidence pertaining to the burglary of the gold coins was
not “more prejudicial” or likely to “overcome the jury‟s decision-making process.”
13
 During closing argument, the prosecutor acknowledged that “the real issue
as to the residential burglaries” was appellant‟s intent. He initially advised the jury
to “isolate [and] put . . . to the side” that appellant had just committed the
commercial burglary and “just look at the facts as to residential burglary.” He
asserted that appellant‟s intent was inferable from the video showing appellant and
his companion waiting by a pillar for someone else to gain entry to the building
and entering “[i]n a very secretive and quick fashion . . . .” He argued that “[t]she
manner in which [appellant] conducted each of [the loft] entries indicate[d] that he
was there to steal,” including failing to knock and failing to apologize or explain
his intrusion, as well as the fact that he continued to enter one loft after another
until someone screamed, and never spoke with any of the residents or asked for
directions. He later repeated his suggestion that the jury “look at [the loft entry] in
its own bubble aside from the commercial burglary and theft of the coins, in its
own little universe,” but then stated that was “not how you need to look at it,” and
also argued: “Let‟s not look at it in a bubble. Let‟s look at it with what we know
about [appellant]. We know that once he gained entry into somewhere where there
was no person present, he stole. And . . . he did it . . . within five days.”
Defense counsel argued, based on the instructions given, that the jurors
“must consider each count separately and return a separate verdict for each one,”
and further contended that “the People have not proved beyond a reasonable doubt
that [appellant] had the specific intent to steal when he entered the lofts.” On
rebuttal, the prosecutor stated: “I can say . . . why don‟t you just look at the
commercial burglaries and the grand theft to infer intent for the residential
burglary. There‟s no principal of law that says I can‟t do that . . . .” He further
said: “I‟m not asking you [to] . . . isolate everything individually instead of
looking at it, like common sense and logic would dictate, as a whole picture. So

14
even if I‟m just saying look at the commercial burglary to infer intent to the
residential burglary, that‟s proper for me to do that.”

2. Analysis
Section 954 permits joinder of different offenses “„if there is a common
element of substantial importance in their commission, for the joinder prevents
repetition of evidence and saves time and expense to the state as well as to the
defendant.‟” (4 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Pretrial
Proceedings, § 208, p. 412, quoting People v. Scott (1944) 24 Cal.2d 774, 778.)
“[A]n accusatory pleading may charge two or more different offenses so long as
. . . [t]he offenses are (1) „connected together in their commission,‟ or (2) „of the
same class.‟” (People v. Soper (2009) 45 Cal.4th 759, 771, quoting § 954 (Soper).)
Appellant does not dispute that the counts were properly joined under section 954,
but contends the court erred in denying his motion to sever the first three counts
from the remaining three counts. For the reasons discussed, we disagree.
“„“A defendant, to establish error in a trial court‟s ruling declining to sever
properly joined charges, must make a „“clear showing of prejudice to establish that
the trial court abused its discretion . . . .”‟” (Soper, supra, 45 Cal.4th at p. 774,
quoting Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1220.) “In determining
whether a trial court abused its discretion under section 954 in declining to sever
properly joined charges, „we consider the record before the trial court when it
made its ruling.‟” (Soper, supra, at p. 774.) We begin by considering the cross-
admissibility of the evidence under Evidence Code section 1101 in a hypothetical
trial. (Ibid.) “If the evidence underlying the charges in question would be cross-
admissible, that factor alone is normally sufficient to dispel any suggestion of

15
prejudice and to justify a trial court‟s refusal to sever properly joined charges.”
(Id. at pp. 774-775.)10
Section 1101 of the Evidence Code permits the admission of evidence of
uncharged misconduct to establish a fact other than the person‟s character or
disposition, including intent, plan, identity, and absence of mistake or accident.
“„In proving intent, the act is conceded or assumed; what is sought is the state of
mind that accompanied it.‟ (2 Wigmore[ Evidence] (Chadbourn rev. ed. 1979)
§ 300, p. 238.) For example, in a prosecution for shoplifting in which it was
conceded or assumed that the defendant left the store without paying for certain
merchandise, the defendant‟s uncharged similar acts of theft might be admitted to
demonstrate that he or she did not inadvertently neglect to pay for the merchandise,
but rather harbored the intent to steal it.” (People v. Ewoldt (1994) 7 Cal.4th 380,
394.) Appellant‟s intent to steal was at issue with respect to counts three through
six because he left the lofts without taking anything. (See People v. Rodriguez
(2004) 122 Cal.App.4th 121, 131 [“Burglary is defined as entry into a building or
certain structures and vehicles „with intent to commit grand or petit larceny or any
felony.‟].) The evidence that a few days earlier, he had entered Chang‟s office and
stole the gold coins supported the existence of the requisite intent to steal on the
other occasions.
Appellant contends the crimes were too dissimilar to support cross-
admissibility. As explained in People v. Ewoldt, “[t]he least degree of similarity
(between the uncharged act and the charged offense) is required in order to prove
intent.” (People v. Ewoldt, supra, 7 Cal.4th at p. 402.) In order to be cross-
admissible to prove intent, the evidence of the other crime “must be sufficiently

10
Although the prosecution did not oppose appellant‟s severance motion on the
ground that the evidence in the first three counts was cross-admissible to support the
remaining counts, the parties address this issue on appeal.

16
similar to support the inference” that the defendant “„“probably harbor[ed] the
same intent in each instance.” [Citations.]‟” (Ibid.) Here there were a number of
similar elements. The three loft residents testified that appellant opened their
unlocked doors and immediately withdrew when he realized the premises were
occupied. There was no evidence of a break-in at the health food store, and Chang
testified that the back door was regularly left unlocked. He was unaware of the
unauthorized entry and had no notion that the coins had been taken until visited by
the investigators. The evidence supported that appellant opportunistically entered
unlocked premises for purposes of theft when he believed no one was there. A
potentially significant difference was that counts one through three related to
burglaries of commercial establishments and counts four through six involved
burglaries of residences. However, the evidence further established that there was
a restaurant on the ground floor of the lofts and that the name of the building --
Biscuit Company Loft Building -- suggested a commercial enterprise.
Significantly, appellant stated in his first recorded telephone conversation that the
building appeared to contain businesses. Accordingly, the evidence supporting
counts one through three was admissible to show appellant‟s intent with respect to
counts four through six.
Even were we to conclude otherwise, we would not find reversible error.
Our Supreme Court has stated that “the circumstance that evidence underlying
[the] charges would not be cross-admissible at hypothetical separate trials is,
standing alone, insufficient to establish that a trial court abused its discretion in
failing to sever those charges.” (Soper, supra, 45 Cal.4th at pp. 779-780.) If the
reviewing court determines that the evidence underlying properly joined charges
would not be cross-admissible, it must proceed to consider “„whether the benefits
of joinder were sufficiently substantial to outweigh the possible “spill-over” effect
of the “other-crimes” evidence on the jury in its consideration of the evidence of
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defendant‟s guilt of each set of offenses.‟” (Soper, supra, at p. 775.) The court
explained that the benefits of joinder were tangible and substantial: “„A unitary
trial requires a single courtroom, judge, and court attach[és]. Only one group of
jurors need serve, and the expenditure of time for jury voir dire and trial is greatly
reduced over that required were the cases separately tried. In addition, the public
is served by the reduced delay in disposition of criminal charges both in trial and
through the appellate process.‟” (Soper, supra, 45 Cal.4th at p. 772.) It further
stated that a court, including an appellate court, errs when it fails to take into
account “the circumstances that, as a general matter, a single trial of properly
joined charges promotes important systemic economies,” including one track for
discovery and other pretrial matters, one set of prospective jurors, and one appeal
and record. (Id. at at pp. 772, 782.) In view of these clear benefits, a heavy burden
is imposed on the defendant “„to persuade the court that these countervailing
considerations are outweighed by a substantial danger of undue prejudice.‟” (Id. at
p. 773, italics omitted.)11
As applicable here, the specific factors to be considered in determining
prejudice include “(1) whether some of the charges are particularly likely to
inflame the jury against the defendant; [and] (2) whether a weak case has been
joined with a strong case or another weak case so that the totality of the evidence
may alter the outcome as to some or all of the charges . . . .” (Soper, supra, 45

11
The court went on to explain: “Although our courts work diligently to ensure due
process in all proceedings, their resources are limited. California‟s trial courts in
particular face ever-increasing civil and criminal dockets without any guarantee of
corresponding, additional funds for court services -- judges, judicial staff, and clerk‟s
office personnel -- to meet the demand. Today, no less than in the past, the opportunity
for joinder with its attendant efficiencies provided by section 954 is integral to the
operation of our public court system. Manifestly, severance of properly joined charges
denies the state the substantial benefits of efficiency and conservation of resources
otherwise afforded by section 954.” (Soper, supra, 45 Cal.4th at p. 782.)

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Cal.4th at p. 775.) Here, the evidence for neither set of charges was likely to
inflame the jury. The evidence overall suggested that appellant operated in a
manner that was nonviolent, non-confrontational and non-destructive, as it
supported that he slipped into and out of Chang‟s office without being noticed,
entered only unlocked doors, and left if the premises were occupied. Moreover,
we cannot agree that counts four through six were substantially weaker than the
first three counts, even with respect to intent. Appellant was caught on video
waiting for the outer security door to be opened by workmen and entering the
building surreptitiously. Once inside, he opened three different doors in quick
succession and offered neither an apology nor an innocent explanation for his
actions when observed by the occupants. He left when Jennings screamed.
Afterward, he was overheard instructing his female callers to get rid of the clothing
he was wearing in the video and speculating as to whether there was sufficient
evidence to sustain a conviction for burglary. On this record, we conclude that the
trial court did not abuse its discretion in determining that the prospect of prejudice
was outweighed by the substantial benefits of joinder, and in denying the motion to
sever.
Even if the trial court‟s ruling denying severance was correct when made, a
reviewing court must determine whether, in the end, the trial was conducted in
such a way as to result in gross unfairness, depriving the defendant of due process
of law. (Soper, supra, 45 Cal.4th at p. 783.) Although the jury was not specially
instructed to restrict its consideration of the evidence of appellant‟s intent to the
evidence pertaining to each charge and the prosecutor blurred the distinction
between the charges in closing argument, these factors, standing alone, do not
establish gross unfairness depriving defendant of due process as a matter of law.
(Id. at pp. 783-784.) Where, as here, the evidence underlying the separate charges
or sets of charges is “straightforward and distinct” and “independently ample to
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support [the] defendant‟s conviction of both crimes,” there is no “great disparity in
the nature of the two charges,” the jury is correctly instructed on the element of the
charges and the burden of proof for conviction, and the jury is told that each count
charged is a distinct offense that must be separately decided, “the risk of any
prejudicial spillover” is mitigated. (Id. at p. 784.) The jury here was clearly able
to follow instructions and compartmentalize the evidence presented, as it found
appellant not guilty of any crime with respect to the briefcase. We conclude that
viewed as a whole, appellant received a fair trial.

C. Conviction of Theft and Receipt of the Stolen Coins
Appellant was charged with and convicted of grand theft of the gold coins in
count two and of receiving stolen property in count three. Although the charge in
count three pertained to both the coins and Sok‟s stolen briefcase, the jury
specifically found appellant not guilty with respect to the briefcase. Accordingly,
he was convicted of theft and receipt of the gold coins. Respondent concedes
appellant cannot stand convicted of stealing and receiving the same property, and
that the conviction of receiving stolen property must therefore be reversed. We
agree. (See § 496; People v. Allen (1999) 21 Cal.4th 846, 857; People v. Recio
(2007) 156 Cal.App.4th 719, 723.)

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 DISPOSITION
The conviction on count two for receipt of stolen property shall be reversed.
In all other respects, the judgment is affirmed. The superior court is directed to
prepare an amended abstract of judgment and to forward a copy to the Department
of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MANELLA, J.

We concur:

WILLHITE, Acting P. J.

SUZUKAWA, J.

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