Filed 10/28/20 P. v. Durel CA1/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
A158409
v.
ERIC ANTHONY DUREL, (Napa County Super. Ct.
No. 19CR001457)
Defendant and Appellant.
Appellant Eric Anthony Durel was convicted by jury of
felony attempted vehicle burglary, misdemeanor possession of
burglary tools, and misdemeanor petty theft. He admitted a prior
felony conviction under the three strikes law. (Pen. Code,
§ 664/459, 466, 484, subd. (a), 667, subd, (b)–(i).)1 He contends
his attempted vehicle burglary conviction must be reversed
because the evidence was insufficient to prove he intended to
enter a locked vehicle, as is required for a completed vehicle
burglary, and because the court should not have admitted
Further statutory references are to the Penal Code unless
1
otherwise indicated.
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evidence of a prior vehicle burglary incident under Evidence Code
section 1101, subdivision (b). Appellant also argues that the
sentence must be modified because the court ordered him to
participate in a drug counseling program in prison when it was
only authorized to make a recommendation for the same.
(§ 1203.096.) We agree with this final contention. We will order
the sentence modified, but otherwise affirm.
I. BACKGROUND
On May 22, 2019, appellant stole some liquor from the
Safeway in American Canyon. On the morning of May 23, 2019,
Stephanie N., who worked at Safeway and was on a break sitting
in her car and talking to her husband on her cell phone, saw
appellant testing the handles of parked cars in the Safeway
parking lot by pulling on them. She saw appellant try to open
the doors of at least three or four cars. When a car door did not
open—which none of them did—he moved on to the next car.
Appellant did not appear to notice that Stephanie N. was
watching.
Appellant was also observed by two men delivering beer,
Joseph P. and Nicholas B., who saw appellant “going car by car
and grabbing door handles, one after the other,” to see if they
were open. When a door was locked, appellant would move on to
the next one. When Joseph P. tried to record a video of appellant
with his phone, appellant flipped the men off with his middle
finger and became aggressive, pulling out a knife and asking the
men, “[W]hat are you going to do?” and, “Do you want to get your
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ass kicked?” Stephanie N. saw the confrontation, although she
could not hear what was being said from inside her car.
Later that morning, Jeanne C. was dropping off a package
at the UPS Store located in the same strip mall as the Safeway.
When she started to walk out of the store, she noticed appellant
standing in front of her car carrying a knife. Scared, she
retreated into the UPS Store and tried to tell the employees at
the counter in the back to call 911. Appellant made eye contact
with Jeanne C. through the window and then stuck his head
inside the store and said “hi” a few times. When one of the store
employees said “hi” back, appellant indicated that he had been
talking to Jeanne C. Appellant left the store and Jeanne C.
called 911.
Officers responded and appellant was arrested near the
UPS Store. A patdown search revealed that appellant was
carrying a knife and two shaved keys, which were a common tool
of car burglars that could be used to either unlock a car door or
start an ignition.
Appellant was charged with two counts of assault with a
deadly weapon (§ 245, subd. (a)(1)), two counts of dissuading a
witness from reporting a crime (§ 136.1, subds. (b)(1) & (c)),
attempted second degree burglary of a vehicle (§§ 664/459),
possession of burglary tools (§ 466) and petty theft (§ 484, subd.
(a)). It was alleged that appellant had personally used a
dangerous and deadly weapon in connection with the dissuading
counts (§ 12022, subd. (b)(1)) and had been previously convicted
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of a serious felony within the meaning of the three strikes law
and the five-year serious felony enhancement (§667 subd. (a)(1)).
The assault charges were dismissed after a successful
motion under section 995. Appellant proceeded to a jury trial on
the remaining charges. In addition to the evidence concerning
the current offenses, the jury heard evidence of two prior
incidents under Evidence Code section 1101, subdivision (b): an
auto break-in that occurred in August 2017 and an altercation
inside a gas station mini-mart that occurred in November 2017.
The jury convicted appellant of attempted vehicle burglary,
possession of burglary tools and petty theft. It acquitted
appellant of one count of dissuading a witness and deadlocked on
the second count of that offense, which was ultimately dismissed.
Appellant admitted the three strikes allegation, which had been
bifurcated from the charges. The court dismissed the weapon use
enhancements and prior serious felony enhancement. Appellant
was sentenced to prison for the one-year middle term for
attempted vehicle theft, doubled to two years under the three
strikes law, and was given concurrent sentences for the
misdemeanor counts.
II. DISCUSSION
A. Substantial Evidence
Appellant contends the evidence was insufficient to support
his conviction of attempted vehicle burglary because there was no
evidence he intended to steal from a locked vehicle. We disagree.
In reviewing the conviction for substantial evidence, we
review the record in the light most favorable to the conviction to
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determine whether there is evidence from which a rational trier
of fact could find the elements of the crime beyond a reasonable
doubt. That a rational trier of fact may have also found to the
contrary does not justify reversal. (People v. Weddington (2016)
246 Cal.App.4th 468, 478 (Weddington).)
Vehicle burglary is defined by section 459 as occurring
when a “person . . . enters any. . . vehicle as defined by the
Vehicle Code when the doors are locked . . . with intent to commit
grand or petit larceny or any felony. . . .” “The key element of
auto burglary is that the doors be locked.” (In re James B. (2003)
109 Cal.App.4th 862, 868.) An attempt to commit a crime has
two elements: a specific intent to commit the crime, and a direct
but ineffectual act done toward its commission. (§ 21a;
Weddington, supra, 246 Cal.App.4th at p. 478.)2
Here, appellant attempted to open the doors of several
locked cars while carrying shaved keys that could be used to open
2 The jury in this case was instructed with a version of
CALCRIM No. 460 regarding attempt, which provided in part:
“The defendant is charged in Count Three with attempted car
burglary. [¶] To prove that the defendant is guilty of this crime,
the People must prove that: [¶] 1. The defendant took a direct
but ineffective step toward committing a car burglary; [¶] AND
[¶] 2. The defendant intended to commit car burglary.” It was
also instructed with a version of CALCRIM No. 1700, which
provided in part: “The defendant is charged in Count Three with
attempted car burglary. [¶] To prove that the defendant is guilty
of this crime, the People must prove that [¶] 1. The defendant
attempted to enter a locked vehicle; [¶] AND [¶] 2. When he
attempted to enter a locked vehicle, he intended to commit theft.”
Appellant does not challenge either of these instructions on
appeal.
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a locked door. He had previously committed vehicle burglary. A
reasonable trier of fact could conclude appellant had committed a
direct but ineffectual act to enter a locked car and did so with an
intent to commit a theft. (See Weddington, supra, 246
Cal.App.4th at p. 479 [sufficient evidence of attempted burglary
where defendants drove through neighborhoods knocking on
doors]; People v. Prince (2007) 40 Cal.4th 1179, 1257 [sufficient
evidence of attempted burglary where defendant examined
backyards of residences in area before knocking on front door and
asking resident about person who did not reside there].)
Appellant argues that he was merely testing the handles of
the cars hoping to find one that was unlocked, and that the
evidence that he moved on after discovering a car was locked
could only be interpreted to mean that he did not intend to enter
any car that was locked.3 We disagree. While this was one view
of the evidence, it was not the only one. In People v. Zaun (2016)
3 We assume, without deciding, that attempted vehicle
burglary requires a specific intent to enter a locked car, and that
the elements of the crime are not satisfied when the defendant
intends to enter an unlocked car. Section 459 does not require
that a defendant have knowledge that a car is locked to be
convicted of completed vehicle burglary. (See People v. Parker
(1985) 175 Cal.App.3d 818, 823 [defendant need not know he is
entering a residence to be convicted of first degree burglary].)
However, an attempt to commit a crime requires a specific intent
to commit the completed crime, even if the completed crime
requires a lesser intent. (People v. Fontinot (2019) 8 Cal.5th 57,
68.) Because the Attorney General’s respondent’s brief assumes
that attempted vehicle burglary requires an intent to enter a
locked car, and because the evidence is sufficient to support such
a finding, we do not need to decide whether such a finding was
required.
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245 Cal.App.4th 1171, 1174, defendant and his cohorts knocked
on doors of homes and moved on if they were occupied The court
held that while the jury could have determined they never
intended to burglarize a home that was occupied, it could have
also determined they had the “specific intent to commit burglary
in each case, and the appearance of the [occupants] at their
respective doors served to interrupt the intended crimes, making
the actions up to that point ineffectual acts done toward the
commission of burglaries.” Similarly, it was reasonable to infer
that as appellant was testing the door handles of the locked cars,
he also was viewing their interiors through the windows and
decided to move on when he saw nothing of value. This “served
to interrupt” the intended crime and made appellant’s actions in
walking through the parking lot pulling on door handles
ineffectual acts done toward the commission of a vehicle
burglary.
The jury could have also determined that although
appellant preferred to find an unlocked car if one was available,
he was willing to use the shaved keys he possessed or break into
a locked car if he could only find locked cars. Although appellant
claims in his reply brief that there was no evidence that he was
“casing” the cars to determine which ones were locked, the jury
could have inferred that the only reason appellant did not use the
shaved key he was carrying was because he realized he was being
observed by the men who were delivering the beer to Safeway.
He became confrontational with those two men upon discovering
that they had caught him in the act of testing the door handles.
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Appellant had a criminal history that included vehicle burglary,
and as we shall discuss infra, this reasonably led to the
conclusion that he intended to commit a theft from the parked
cars whose handles he was testing, even if he did not take steps
to do so under the gaze of onlookers.
We note that defense counsel secured an instruction on
auto tampering under Vehicle Code section 10852 as a lesser
included offense of attempted vehicle burglary and argued below
that appellant was guilty only of this offense.4 The jury rejected
appellant’s claim that he was only looking for an unlocked car
and did not intend to enter one of the locked cars when it
convicted him of the charged offense. That it could have opted for
a lesser crime does not render the evidence of attempted vehicle
burglary insufficient, particularly in light of the evidence that
appellant possessed shaved keys and had previously burglarized
a car. (See People v. Hill (1998) 17 Cal.4th 800, 849, overruled on
another ground in Price v. Superior Court (2001) 25 Cal.4th 1046,
1069, fn. 13. [court's opinion that evidence could be reconciled
with a finding of innocence, or of guilt of a lesser crime, does not
warrant reversal of judgment].) The evidence was sufficient to
support the conviction of attempted vehicle burglary.
4 Vehicle Code section 10852 provides, “No person shall
either individually or in association with one or more other
persons, willfully injure or tamper with any vehicle or the
contents thereof or break or remove any part of a vehicle without
the consent of the owner.” (See People v. Mooney (1983) 145
Cal.App.3d 502, 504–507 [instruction on tampering required
when there was evidence from which jury could find that car was
not locked].)
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B. Other Acts Evidence
Over defense objection, the prosecution was allowed to
present evidence that on August 16, 2017, appellant had forced
entry into a locked car in San Francisco by breaking a window
and crawling inside.5 When appellant emerged from the car by
crawling out the back window with a backpack in his hand, he
was confronted by a witness. He ran away and was apprehended
a short time later.
The trial court ruled that evidence of this prior incident
was admissible under Evidence Code section 1101, subdivision
(b), to prove intent and common scheme and plan, and was not
unduly prejudicial under Evidence Code section 352. It gave the
jury CALCRIM No. 375 advising it to consider the evidence only
for these purposes.6 Appellant contends the evidence should not
5The prosecution also presented evidence under Evidence
Code section 1101, subdivision (b) of a 2017 incident in which
appellant was involved in an altercation with the people who
worked at a gas station mini mart when he asked them to
exchange his change for bills and was told to wait in line. This
incident was offered as being relevant to the intent necessary for
the charges of dissuading a witness under section 136.1, of which
appellant was not convicted. Appellant does not challenge the
introduction of this evidence on appeal.
6 CACRIM No. 375 provided in relevant part: “The People
presented evidence that the defendant committed other offenses
that were not charged in this case. [¶] You may consider this
evidence only if the People have proved by a preponderance of the
evidence that the defendant in fact committed the uncharged
offenses. . . . [¶] . . . [¶] If you decide that the defendant
committed the uncharged offenses, you may, but are not required
to, consider that evidence for the limited purpose of deciding
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have been admitted and that he was prejudiced by having the
jury consider it. We disagree that reversal is required.
Evidence Code section 1101, subdivision (a) prohibits courts
from admitting evidence of a defendant’s prior act “to prove. . .
his or her disposition to commit such an act.” Evidence Code
section 1101, subdivision (b) allows the introduction of other act
evidence “when relevant to prove some fact (such as motive,
opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake or accident . . .) other than [the defendant’s]
disposition to commit such an act.” (Evid. Code, § 1101, subd.
(b).) A trial court’s decision to admit such evidence is “essentially
a determination of relevance” and is therefore “reviewed for
abuse of discretion.” (People v. Kipp (1998) 18 Cal.4th 349, 369.)
“To be relevant, an uncharged offense must tend logically,
naturally and by reasonable inference to prove the issue(s) on
which it is offered.” (People v. Robbins (1988) 45 Cal.3d 867,
879.) Our Supreme Court has “long recognized ‘that if a person
whether: [¶] a. The defendant acted with the intent to commit
vehicle burglary . . . [¶] OR [¶] b. The defendant had a plan or
scheme to commit the offenses alleged in this case. [¶] In
evaluating this evidence, consider the similarity or lack of
similarity between the uncharged offenses and acts and the
charged offenses. [¶] Do not consider this evidence for any other
purpose. [¶] Do not conclude from this evidence that the
defendant has a bad character or is predisposed to commit crime.
[¶] If you conclude that the defendant committed the uncharged
offenses, that conclusion is only one factor to consider along with
all the other evidence. It is not sufficient by itself to prove that
the defendant is guilty of the offenses charged or that the
allegation has been proved. The People must still prove the
charge and allegation beyond a reasonable doubt.”
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acts similarly in similar situations, he probably harbors the same
intent in each instance’ [citations], and that such prior conduct
may be relevant circumstantial evidence of the actor’s most
recent intent.” (Ibid.; see People v. Rocha (2013) 221 Cal.App.4th
1385, 1393–1394.)
Here, appellant put his intent at issue by suggesting his
conduct did not satisfy the elements of vehicle burglary because
he was simply testing the doors of parked cars to find one that
was unlocked and he did not intend to enter any of the locked
cars. The prior vehicle burglary incident tended to refute this
claim.
Appellant contends the uncharged vehicle burglary was not
sufficiently similar to the charged offense to render it admissible
under Evidence Code section 1101, subdivision (b). But “[t]he
least degree of similarity . . . is required in order to prove intent.”
(People v. Ewoldt (1994) 7 Cal.4th 380, 402.) The uncharged
misconduct must only be sufficiently similar to support an
inference that the defendant probably harbored the same intent
in each instance. (Ibid.) It need not be so unusual and
distinctive as to constitute a signature, as is true when an
uncharged act is introduced to prove identity. (Id. at p. 403.)
Although the 2017 vehicle burglary differed from the charged
offense in that it involved forced entry and a completed crime, the
jury could infer that appellant had the same intent—to enter and
steal items from a car—when he committed each crime.
Our conclusion that the prior vehicle burglary was
admissible does not end the inquiry. A trial court admitting
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evidence of uncharged crimes must also conclude that the
prejudicial impact of the evidence does not exceed its probative
value within the meaning of Evidence Code section 352. (Ewoldt,
supra, 7 Cal.4th at p. 404.) The prejudice that Evidence Code
section 352 is designed to avoid is not the damage that naturally
results from highly probative evidence, but rather the prospect of
leading the jury to prejudge a person or focus on extraneous
factors. (People v. Tran (2011) 51 Cal.4th 1040, 1048.) We
review the admission of other act evidence against an Evidence
Code section 352 objection for abuse of discretion. (People v.
Merchant (2019) 40 Cal.App.5th 1179, 1192.)
Appellant claims the trial court should have excluded the
evidence of the prior vehicle burglary as unduly prejudicial under
Evidence Code section 352. We disagree. Although the prior
crime involved an actual break-in rather than an attempt, it was
a relatively straightforward offense hardly likely to inflame the
jury against appellant. Any prejudice to appellant was
outweighed by the probative value of the evidence, and the trial
court did not abuse its discretion in allowing evidence of the prior
car burglary to prove intent.
It is a closer call as to whether the evidence should have
been admitted to prove a common scheme or plan. “Evidence of a
common design or plan is admissible to establish that the
defendant committed the act alleged. Unlike evidence used to
prove intent, where the act is conceded or assumed, ‘[i]n proving
design, the act is still undetermined. . . .’ ” (Ewoldt, supra, 7
Cal.4th at p. 394, fn. 2.) Although there was a question as to
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whether appellant’s actions constituted an attempt by going
beyond “mere preparation” and becoming a “direct but ineffectual
act” done toward the commission of the crime (Weddington,
supra, 246 Cal.App.4th at p. 478), his action in trying to open the
handles of locked cars was not undetermined.
Assuming the evidence was not admissible to prove a
common plan or scheme, any error in this regard was harmless
because it is not reasonably probable the jury would have reached
a result more favorable to appellant had the evidence been
excluded for this purpose. (People v. Malone (1988) 47 Cal.3d 1,
22, 49–51; People v. Watson (1956) 46 Cal.2d 818, 835.)
First, as we have already explained, the evidence was
admissible to prove intent, so the jury would have learned about
the incident anyway. (See People v. Foster (2010) 50 Cal.4th
1301, 1329 [evidence of prior acts admissible to prove intent and
plan; unnecessary to decide whether it was also admissible to
prove identity].) Second, the jurors were instructed with
CALCRIM No. 375, which advised them that the other crimes
evidence was not enough to prove guilt, that it was only one
factor for the jury to consider, and that it could not be used to
prove criminal disposition. (Id. at p. 1332.) Third, the jurors
acquitted appellant of one charge and were unable to reach a
verdict on another, showing that they were not unduly prejudiced
by the other crimes evidence. (See People v. Smith (2003) 30
Cal.4th 581, 617 [acquittal of one count suggested jury’s
deliberations were not affected by alleged prosecutorial
misconduct].) “[T]hat defendant was acquitted of any of the
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offenses suggests the lack of prejudice and the jury’s clear ability
to consider each count on the evidence presented and nothing
else.” (People v. Mendibles (1988) 199 Cal.App.3d 1277, 1312,
overruled on another ground in People v. Soto (2011) 51 Cal. 4th
229, 248, fn.12.) Reversal is not required.
C. Amendment of Sentencing Order
Appellant contends the court’s order that he participate in
substance abuse counseling while in prison must be amended to
show it is a recommendation. The People concede the point and
we agree.
At the sentencing hearing, the trial court ordered appellant
to participate in a counseling or education program having a
substance abuse component “if one is available.” Section
1203.096, subdivision (a), specifically provides that a trial court
shall “recommend in writing that the defendant participate in a
counseling or education program having a substance abuse
component while imprisoned.” (§ 1203.096, subd. (a), italics
added.) Case law finds that the appropriate authorities need not
heed the recommendation. (People v. Peel (1993) 17 Cal.App.4th
594, 599–600.) Accordingly, it was appropriate for the trial court
to recommend such counseling rather than order it. We shall
order that the minute order and abstract of judgment be modified
to clarify that such participation is recommended, not ordered, by
the trial court.
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III. DISPOSITION
The judgment is modified to reflect that substance abuse
counseling pursuant to section 1203.096 is recommended, not
ordered. The superior court clerk is directed to prepare an
amended minute order and abstract of judgment to state that
substance abuse counseling is recommended. As so modified, the
judgment is affirmed.
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NEEDHAM, Acting P.J.
We concur.
BURNS, J.
REARDON, J. *
People v. Durel / A158409
* Judge of the Superior Court of Alameda County, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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