People v. White CA4/2

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

waived a jury trial on his prior serious felony conviction allegation (nickel prior3) and

prior strike conviction allegation (strike prior4), and admitted the allegations were true.

The trial court sentenced defendant to 19 years and four months in state prison.

Defendant contends there was insufficient evidence to support his conviction on

count 1 for residential burglary and the trial court abused its discretion in admitting

evidence of his prior conviction for attempted residential burglary. Defendant also

asserts, and the People agree, the trial court erred in imposing on both counts the nickel

prior enhancement, which can be imposed only once. 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.

1 Penal Code section 459; count 1. Unless otherwise noted, all statutory
references are to the Penal Code.

2 Sections 459 and 664.

3 Section 667, subdivision (a).

4 Sections 667, subdivisions (c) and (e)(1).

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 II

FACTS

Count 1, the Martinson Burglary

On January 15, 2014, Marty Martinson left his home on Val Verde Drive in

Hemet. Martinson testified he left around 10:45 a.m., but other evidence, including the

testimony of another witness, Michael Neal, indicates Martinson actually left his home

around 1:30 p.m.

Upon returning home about 20 minutes later, Martinson noticed his front door had

been kicked in, with the door jamb separated from the wall. The rear sliding glass door

was open. Inside, he found his couch and chair cushions on the living room floor. His

master bedroom had been ransacked. Martinson’s Smith and Wesson revolver, which

Martinson kept under the couch cushions, was gone. Martinson called 911. Around 1:30

p.m., Officer Derrick Young arrived at Martinson’s home and spoke to Martinson about

the burglary.

Meanwhile, at around 1:30 p.m., Michael Neal, who lived nearby on Val Monte

Drive in Hemet, exited his garage with his dog to fix his sprinklers. He was startled to

see “three tall black guys” standing in the street. They looked like teenagers. Neal

wondered where they came from because there were no African American teenagers

living on his block. As Neal kneeled down to fix his sprinklers, the three men walked by,

turned around, and came back. Neal heard one of the men say, referring to Neal’s home,

“that will not be a good house. He’s got a big dog.” The young man became silent when

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he saw Neal. Neal’s home was on the corner and around the block from Martinson’s

home.

After Neal finished fixing his sprinklers, he walked his dog around the block, onto

Val Verde Street. He noticed a couple of police cars and heard neighbors talking about a

burglary. The neighbors told him “three guys kicked [in] the back door” of the Martinson

home. Neal told the neighbors he thought he had “just seen them.” One of the neighbors

took Neal to speak to Officer Young, telling Young that Neal had seen the three men.

Young testified that Neal said he not only saw the three teenagers walk by his

house, he also saw them jump a backyard fence from Martinson’s yard to a backyard on

Val Monte. Young confirmed it was unlikely Neal could have seen this. Neal testified

he had not seen the three men jumping the fence and did not recall telling the police this.

Count 2, the Pando Burglary

Shortly before 2:45 p.m., three young African-American men went to Esther

Pando’s home on Janae Way in Hemet. Pando was not home. A neighbor, Mattie Harris,

who was home, heard a loud noise and called the police. Harris testified that she saw the

three men walk up to Pando’s front door. Harris heard a loud bang or boom that sounded

like the men were kicking Pando’s front door. The three young men then went to the side

and back of Pando’s house. Harris called 911 because she believed the men were

breaking into Pando’s house. One of the men saw Pando on the phone. The man was

wearing a white T-shirt and tan colored Dickies. Harris testified the three men were

wearing pants, not shorts. Harris was unable to identify defendant as one of the three

men.

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 Harris’s friend, Holly Benefield, was visiting Harris at the time. Benefield

testified he saw a man go to the side and back of Pando’s home. Benefield told officers

he saw some kicked-up dust coming from Pando’s backyard when the men fled. When

Pando returned home, she discovered the screen covering her bedroom window, which

was on the side of her house, had been removed. The screen was bent and in the side

yard. Two batting gloves were found on the ground next to the screen.

Around 2:45 p.m., off-duty CHP officer, Michael Bell, who lived on Devonshire

in Hemet, was awakened by his wife. She told him three people were in their backyard.

Bell saw three tall Black men walking in a westerly direction through his backyard. It

appeared the men came from his neighbor’s yard to the east. The men were wearing

baggy clothing. One man was wearing a baggy white T-shirt. The three men looked like

they were headed toward Bell’s back door.

Bell ran and grabbed his shotgun, which was in his garage. From a window in the

back of the garage, he could see his backyard. He saw several “images pass by the

window” in his garage. His wife was inside the house, next to the door to the garage.

She told Bell it looked like the young men were going to the front yard. As she opened

the garage door at Bell’s request, Bell exited the garage and pursued the men. The men

bounded over Bell’s fence and separated, with Bell pursuing by foot two of the men who

fled in a southeast direction. Defendant was one of the two men. When Bell ordered the

two men to stop, defendant complied. His companion jumped the wall and continued on.

Bell identified defendant in court as the person he apprehended. The third man fled in a

southwest direction, toward Brandon Way.

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 Around 3:00 p.m., K-9 handler, Corporal Derek Maddox, took his dog, Roscoe, to

a location near the corner of Devonshire and Brandon Way. Roscoe searched the parking

lot of LA Fitness located half a block from Bell’s home. Roscoe “alerted” Maddox to a

bush in the parking area and retrieved a gun. The gun was a Smith and Wesson nine-

millimeter, model 39-2, serial number A 431292. The gun was the same type of gun and

had the same serial number as the gun stolen from Martinson.

Meanwhile, shortly after Young left Val Monte, Young received a radio call

reporting an attempted break-in on Janae Way, followed by a report persons who

matched the suspects’ description were seen jumping a fence and running south from

Devonshire. Young went to 3000 West Devonshire, where off-duty CHP officer Michael

Bell was detaining defendant with a shotgun. Young took defendant into custody.

Officers told Neal they thought they had caught one of the young men who

burglarized Martinson’s home on Val Verde Drive. Neal was taken to where defendant

had been apprehended and was asked if he could identify defendant as one of the men he

had seen outside his home. Neal said he could not tell if defendant was one of the

perpetrators because he did not look closely at the men while he was fixing his sprinklers.

The officer asked Neal nevertheless to try. Neal looked at defendant and said, “yeah,

that’s one of them. Well I’m 75 percent sure.” Neal acknowledged there was a 25

percent chance defendant was not one of the three men. Neal said defendant was dressed

like one of the three men he had seen and his physical features were similar, with the

same build and shape. Defendant was approximately the same height, some of his

clothing appeared the same, and he was African-American. Also, the three men stood out

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because there were not any other African-American men living on Neal’s block, and they

were standing in the middle of the street, instead of on the sidewalk.

Young testified Neal told him one of the men wore a white T-shirt and black

basketball shorts and one wore a white T-shirt and blue basketball shorts. Neal did not

know what the third man wore. Neal testified he did not tell any officer what the men

were wearing, because Neal was not paying attention to the men’s clothing when he saw

the men. He recalled the men dressed pretty much the same. They were wearing bright

T-shirts. Neal acknowledged that one of the men might have been wearing a white T-

shirt.

Harris and Benefield were also taken to where defendant had been apprehended

and asked if they could identify defendant. Harris said she was positive defendant was

one of the men she saw enter Pando’s backyard. Benefield was unable to identify

defendant.

At the police station, after defendant waived his Miranda5 rights, defendant said

he was in Pando’s backyard but was not there in connection with breaking into any home.

Defendant said he had met friends at a nearby Rite Aid and they had planned to go to the

home of the mother of one of his friends. Since the mother was not home, they went into

Pando’s backyard to smoke marijuana. One of his friends was named Grimey.

Defendant said he was unable to provide any other information about his friends.

Defendant said he fled because he knew Grimey had a stolen gun in his pocket and this

5 Miranda v. Arizona (1966) 364 U.S. 436.

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was a violation of defendant’s parole. Defendant also knew he was “wanted.” Defendant

said he did not know anything about the burglary on Val Verde. Young testified

defendant was not in possession of any marijuana and did not smell like marijuana.

Prior Conviction for Attempted Residential Burglary

Over defense counsel’s objection, the prosecution entered evidence of defendant’s

2013 conviction for attempted residential burglary. Ezzat Yacob testified that on

December 23, 2012, around 8:25 a.m., four men attempted to burglarize his house on

Pine White Road in Hemet, while he and his wife were home. One of the men was trying

to kick in the front door. The other three men jumped the fence into Yacob’s backyard

and the other man joined them as they went to the back door. The men were about to

break down the back door but, when they saw Yacob point to his wife, who was calling

the police and screaming, the men jumped back over the fence and ran away. Later, the

police told Yacob the police had arrested the men. Yacob was taken to an in-field show-

up and identified as the perpetrators the men shown to him. During the trial in the instant

case, Yacob was unable to identify defendant as one of the four perpetrators. The jury

was told, as stipulated by the prosecutor and defense counsel, that “[O]n January 3rd,

2013, Martez Decarlos White, pled guilty [¶] . . . to one count of attempted residential

burglary . . . , admitting that on or about December 23rd, 2012, he attempted to enter a

home located at 4595 Pine White Road in Hemet with the intent to commit theft.”

III

SUFFICIENCY OF EVIDENCE SUPPORTING COUNT 1 CONVICTION

Defendant contends there was insufficient evidence he committed the burglary of

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Martinson’s home, charged in count 1. Defendant argues the evidence did not establish

that he was one of the burglars.

“When an appellant challenges a criminal conviction based on a claim of

insufficiency of the evidence, ‘the reviewing court’s task is to review the whole record in

the light most favorable to the judgment to determine whether it discloses substantial

evidence—that is, evidence that is reasonable, credible, and of solid value—such that a

reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’

[Citations.] ‘Resolution of conflicts and inconsistencies in the testimony is the exclusive

province of the trier of fact. [Citation.] Moreover, unless the testimony is physically

impossible or inherently improbable, testimony of a single witness is sufficient to support

a conviction.’ [Citation.]” (People v. Ortiz (2012) 208 Cal.App.4th 1354, 1362 (Ortiz).)

The reviewing court must determine “‘whether a reasonable trier of fact could

have found for the respondent based on the whole record.’ [Citation.] ‘[T]he power of an

appellate court begins and ends with the determination as to whether, on the entire

record, there is substantial evidence, contradicted or uncontradicted, which will support

the determination, and when two or more inferences can reasonably be deduced from the

facts, a reviewing court is without power to substitute its deductions for those of the trial

court. If such substantial evidence be found, it is of no consequence that the trial court

believing other evidence, or drawing other reasonable inferences, might have reached a

contrary conclusion.’ [Citation.]” (Ortiz, supra, 208 Cal.App.4th at p. 1363.)

A residential burglary conviction requires substantial evidence of entry into a

home with intent to commit a theft or felony. (§ 459; People v. Anderson (2009) 47

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Cal.4th 92, 101.) We conclude there was overwhelming evidence defendant perpetrated

the Martinson burglary. Such evidence includes Neal’s statements to Officer Young and

testimony he saw three men at about the same time as the burglary of Martinson’s home.

Neal lived around the corner from the Martinson home. In addition, Neal heard one of

the three men make a statement, while passing Neal’s home, indicating the men were

contemplating burglarizing Neal’s home but rejected doing so because Neal had a big

dog. The clothing defendant was wearing when apprehended was similar to the clothing

Neal told Young the three men were wearing, and Neal identified defendant at an in-field

identification as one of the three men he had seen. Neal said he was 75 percent certain of

his identification of defendant.

Additional evidence supporting defendant’s Martinson burglary conviction

includes evidence of defendant’s count 2 conviction for attempted burglary of Pando’s

home, which was about three and a half miles from Martinson’s home. Defendant does

not contest the sufficiency of evidence of his count 2 conviction. The burglary was

committed about an hour after the Martinson burglary. Pando’s neighbor, Harris, saw

three men at Pando’s front door and heard them attempting to kick in the door. When

unsuccessful, they went to the side and back of Pando’s home, and tried to break in. The

circumstances of the Pando attempted burglary are similar to those of the Martinson

burglary. Also, Harris identified defendant as one of the men in Pando’s backyard who

tried to break in. Although defendant denied involvement in the Pando burglary, he

admitted he was in Pando’s backyard with his friends. Defendant also admitted one of

his friends had a stolen gun, and that defendant fled because he was “wanted” and had

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violated his parole by associating with someone with a stolen gun.

Bell’s testimony and identification of defendant provided additional evidence

supporting defendant’s conviction for the Martinson burglary. Bell testified that around

the time of the Pando burglary, he saw three men, including defendant, at his home in the

backyard. It appeared that the men were going to break into Bell’s home. Bell caught

defendant and identified him as one of the three men. The other two men ran away and

shortly thereafter, Martinson’s stolen gun was found nearby in a bush, leading to the

reasonable inference that defendant and his two companions committed the Martinson

burglary and one of defendant’s two companions discarded the stolen gun in the bush.

Defendant argues Neal’s identification of defendant as a perpetrator was unreliable

because Neal was only 75 percent certain defendant was a perpetrator. But the degree of

certainty of a witness’s identification goes to the weight of the evidence, which is a

factual determination for the jury. “‘Apropos the question of identity, to entitle a

reviewing court to set aside a jury’s finding of guilt the evidence of identity must be so

weak as to constitute practically no evidence at all.’ ([Citations]; see also In re Gustavo

M. (1989) 214 Cal.App.3d 1485, 1497 [when the circumstances of an eyewitness

identification and its weight are explored at trial and the trier of fact believes the

eyewitness identification, the trier of fact’s determination is binding on the reviewing

court].)” (People v. Mohamed (2011) 201 Cal.App.4th 515, 521.) Although defendant

argues certain facts and evidence support a finding of innocence, this court cannot

reweigh the evidence. We must affirm the judgment if there is substantial evidence

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supporting it. (Ortiz, supra, 208 Cal.App.4th at p. 1363; People v. Manibusan (2013) 58

Cal.4th 40, 87.)

Here, the totality of the evidence, as discussed above, is more than sufficient to

support defendant’s conviction for the Martinson burglary. Furthermore, evidence of

defendant’s prior attempted burglary in December 2012 provided additional support,

since the 2012 attempted burglary was committed in a similar manner as the Martinson

burglary. Defendant and three companions committed the 2012 crime during the day

time by attempting to kick in the front door. At an in-field show-up, the owners of the

home, Yacob and his wife, identified defendant and his companions as the perpetrators of

the 2012 attempted burglary and defendant pled guilty to the crime.

IV

ADMISSIBILITY OF PRIOR ATTEMPTED BURGLARY CONVICTION

Defendant contends the trial court abused its discretion and denied him due

process in admitting under Evidence Code section 1101, subdivision (b), evidence of his

prior 2013 conviction for attempted burglary committed in December 2012 (2012 prior).

Defendant argues the trial court should have excluded this evidence because it was

irrelevant (Evid. Code, § 350), constituted inadmissible character evidence (Evid. Code,

§ 1101), and its probative value was substantially outweighed by the potential for undue

prejudice (Evid. Code, § 352).

A. Procedural Background

The prosecution filed a motion in limine (MIL) seeking to admit evidence of

defendant’s prior uncharged acts pursuant to Evidence Code section 1101, subdivision

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(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

19
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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