Filed 12/29/23 P. v. Keller CA1/4
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
A155572
v.
JUSTIN WADE KELLER, (Contra Costa County
Super. Ct. No. 5-180748-6)
Defendant and Appellant.
A jury found Justin Wade Keller guilty of second degree burglary. On
appeal, Keller claims the trial court violated his constitutional rights by
failing to dismiss jurors who were “tainted” by his counsel’s mention of a
prior burglary conviction during voir dire. He also contends the trial court
committed prejudicial error by admitting evidence of the conduct underlying
his prior conviction to prove intent (Evid. Code,1 § 1101, subd. (b)). Finally, he
claims trial counsel failed to provide effective assistance by incorrectly
conceding that intent was at issue in his case. We disagree with these
contentions and affirm Keller’s conviction.
1 Undesignated statutory references are to the Evidence Code.
BACKGROUND
At around 1:00 a.m. on April 9, 2018, an alarm sounded at TJ’s Cafe in
Martinez. One of the cafe’s glass front doors was shattered and its cash
register was emptied. Cash was “thrown about inside.” An officer found
Keller walking nearby. Keller had blood on his hands and shirt, shards of
glass on his hands and shoes, and a set of keys at his feet. He had $127 in $1,
$5, and $10 bills in his pocket. Two bloody bills were in some bushes nearby.
The cafe owner met responding officers at the scene and recognized the keys
as belonging to the cafe. The $127 was the same amount of cash in the same
denominations typically left in the register at closing.
Keller was charged with the burglary of TJ’s Cafe and pled not guilty.
Keller claimed that he was walking to a 7-Eleven store on the night of the
burglary and saw another person get out of a car and break into the cafe.
This person got back in the car and departed. Keller then approached the cafe
because he “figured that maybe [he] would find something . . . where the
person was running,” and he picked up a few bills along with the keys. He
“made off for it like a fool” and was promptly detained. But he “[a]bsolutely
[did] not” cross the threshold of TJ’s Cafe.
A. The Trial Court’s Rulings Concerning a 2017 Burglary
During motions in limine, the trial court made two rulings regarding a
June 2017 commercial burglary and Keller’s October 2017 conviction for that
offense. The first was a denial of the People’s motion to use the conviction to
impeach Keller’s credibility. The court recognized that a felony conviction for
burglary constituted an offense involving moral turpitude and was
appropriate material for impeachment, but considered the factors under
section 352 and found that “it’s too similar [to the conduct alleged in the
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instant case]” and “would lead the jury to convict Mr. Keller, in part, based
on the fact that he [had] this conviction in the past.”2
The People also sought to introduce Keller’s conduct underlying the
2017 burglary conviction as part of its case-in-chief pursuant to section 1101,
subdivision (b), to prove intent as to the burglary of TJ’s Cafe. Keller’s
counsel acknowledged that “intent may be is an issue,” but argued that the
prejudicial impact of this evidence would be “substantial,” referring back to
the court’s “concern about the prejudicial impact of the conviction.” The trial
court acknowledged the evidence was “prejudicial,” but stated that Keller’s
“not-guilty plea puts at issue all of the elements in the crime,” including
intent. The court ruled that the evidence would be admissible pursuant to
section 1101, subdivision (b). The court reminded counsel that evidence
Keller was convicted of the 2017 offense would not be permitted.
B. Keller’s Counsel Raises the Burglary Conviction During Voir
Dire
During voir dire, Keller’s counsel told prospective jurors that “you’re
going to hear in this case that Mr. Keller was involved in another incident
about a year ago[,] . . . and I want to ask you if that would have any effect on
your thoughts of this case.” Counsel explained it was a “similar” incident
“involving a burglary of a business,” then despite the court’s in limine ruling
that the conviction would not be admissible, volunteered that Keller “was
convicted for it, as well” and asked prospective jurors if that “ma[d]e a
2 Keller had a second felony conviction, for a violation of Vehicle Code
section 10851, subdivision (a), which the trial court also recognized involved
moral turpitude. The court ruled that should Keller take the stand, the
People could impeach his credibility by introducing evidence of his conviction
for this violation, which the court referred to as for “auto theft.”
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difference” to them. Several prospective jurors gave responses suggesting
that it might.
Outside the jury’s presence, the trial court expressed “bewilderment as
to why the defense counsel would mention that the jury would hear that
Mr. Keller was convicted of the commercial burglary.” The court reiterated its
rulings that the conviction would not come in to evidence and the underlying
conduct alone would be introduced under section 1101, subdivision (b). The
court expressed concern as to whether Keller could receive a fair trial and
asked counsel, “you realize that I can declare a mistrial right now based on
what I believe happened?”
In light of the trial court’s concerns, the court reporter read back the
exchanges between Keller’s counsel and the prospective jurors. The court
concluded that only two prospective jurors said they could not be fair. The
court continued, “I remember more people expressing more concern. So to
that extent, I stand corrected. [¶] I am open to bringing the jury back and
questioning them as to whether they can be fair if there’s no evidence of any
conviction.” Keller’s counsel responded that he was concerned about
“highlighting” the prior offense. The People proposed instructing the
prospective jurors as to the limited purpose for which they could consider the
prior offense using CALCRIM No. 375 and asking them if they could follow
that instruction. Keller’s counsel did not object to this approach or ask the
court to dismiss all of the prospective jurors who had heard his comments.
C. The Court Admonishes the Jury Regarding the 2017 Burglary
The prospective jurors returned to the courtroom for further voir dire
and the court excused several of them, including the two the court had
concluded could not be fair. The court read CALCRIM No. 375 and asked if
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there was “anyone that cannot be fair to Mr. Keller . . . based on what they
learned regarding the 2017 commercial burglary?”3 No one responded.
Voir dire continued. Counsel for both sides declined to challenge
additional prospective jurors for cause. Counsel exercised peremptory
challenges, but neither side exhausted its allotment of ten challenges. A jury
was impaneled and neither side objected to its composition.
D. Evidence of the 2017 Burglary Is Presented at Trial
At trial, a responding officer testified about Keller’s conduct during the
2017 burglary. Keller took the stand and volunteered that he was convicted
for that offense. After the close of the evidence, the trial court instructed the
jury using CALCRIM No. 375 again, including the instruction that that the
jury not consider the 2017 burglary “except for the limited purpose of
determining whether the defendant had the intent required to find him guilty
of burglary as charged” and not consider the 2017 burglary to conclude “that
the defendant has a bad character or is disposed to commit crime.”
The jury convicted Keller and this appeal followed.
3 The trial court explained that if the jury found by a preponderance of
evidence that the defendant committed the prior offense they may, but were
not required to, consider that evidence for the limited purpose of deciding
whether the defendant acted with a required intent in this case. The court
also told the prospective jurors, “Do not consider this evidence for any other
purpose except for the limited purpose of determining whether in this case he
acted with the required intent. [¶] . . . [I]f you receive this evidence, do not
conclude from this evidence the defendant has a bad character or is exposed
[sic] to commit crimes. [¶] If you conclude that the defendant committed the
uncharged offense last year, 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 this charge here. [¶] The People must still prove the
charge here beyond a reasonable doubt, which is a different standard.”
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DISCUSSION
1. Keller Forfeited Any Challenge to the Composition of the Jury
Keller argues the trial court erred when it failed to dismiss all
prospective jurors who heard about his 2017 burglary conviction, or at least
to question all of them about it, including those who were not sitting in the
jury box when the court addressed the issue. Keller has forfeited these
arguments.
Criminal defendants are constitutionally entitled to a trial before an
impartial jury. (U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, § 16; In
re Hamilton (1999) 20 Cal.4th 273, 293–294 (Hamilton).) Jurors’ receipt of
information about the case outside the trial evidence may establish bias.
(People v. Nesler (1997) 16 Cal.4th 561, 578.) However, “[v]oir dire is the
crucial means for discovery of . . . juror bias.” (Hamilton, supra, 20 Cal.4th at
p. 295.) Defendants have the right during jury selection “to challenge and
excuse candidates who clearly or potentially cannot be fair.” (Ibid.)
To preserve a claim of juror bias, a defendant must exhaust all
peremptory challenges and express dissatisfaction with the jury as finally
constituted. (People v. Westerfield (2019) 6 Cal.5th 632, 665.) Keller did not
meet these requirements. He raised no challenges for cause after the trial
court admonished the potential jurors about the 2017 burglary. He did not
exhaust his peremptory challenges, and he did not express dissatisfaction
with the final composition of the jury. Keller’s claim that jurors were biased
is accordingly forfeited. (People v. Romero and Self (2015) 62 Cal.4th 1, 44.)
Any argument that the trial court had a sua sponte duty to excuse
potentially biased jurors or was bound to do so because it expressed concern
at defense counsel’s statements is also without merit. (People v. Bolin (1998)
18 Cal.4th 297, 315–316.) Here, “the court questioned the jurors . . . and
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admonished them. At no time did defense counsel propose additional
questions, object to any juror’s continued service,” or request that all
potential jurors who heard about the 2017 conviction be dismissed.4 (People v.
Foster (2010) 50 Cal.4th 1301, 1341.) Keller forfeited any claim of prejudice
due to jurors’ exposure to this information. (People v. Johnsen (2021)
10 Cal.5th 1116, 1169–1170.)
Even if Keller had preserved the issue for appeal, we would reject the
claim on the merits. After Keller’s lawyer disclosed the prior burglary
conviction to the prospective jurors, the trial court properly admonished them
by reading CALCRIM No. 375 and asked them to notify the court if they had
any doubt about following that instruction. No one responded. Keller’s
counsel had ample opportunity to ask further questions of the panel and to
excuse jurors using peremptory challenges. The record does not reveal any
lingering “taint” warranting reversal.
2. The Trial Court Properly Admitted Evidence of the 2017
Burglary
Keller contends the trial court erred by admitting evidence of the 2017
burglary to prove intent. He claims intent was not at issue because his
defense was based on identity, and any probative value this evidence had was
outweighed by the prejudice it caused. Keller contends the court’s error
violated his constitutional right to due process because evidence of the 2017
burglary was not admissible for any statutory purpose. He further claims
trial counsel was ineffective because, although he objected that the evidence
4 The trial court’s comment that Keller’s counsel “cannot voir dire any
of the other jurors about the word conviction with respect to other conduct”
was merely a warning not to raise the issue again after the court gave the
contemplated admonishment. Keller’s counsel had not requested and did not
request permission to voir dire any prospective jurors about this issue.
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was prejudicial, he conceded that intent was an issue in the case.
Section 1101 states that although evidence of a person’s character is
inadmissible to prove conduct on a specific occasion, “evidence that a person
committed a crime” is admissible “when relevant to prove some fact . . . other
than his or her disposition to commit such an act,” including intent. (§ 1101,
subd. (b).) Still, the court may exclude such evidence under section 352 if its
probative value is substantially outweighed by the probability that its
admission will create a substantial danger of undue prejudice, among other
factors. (§ 352.) We review a trial court’s decision to admit evidence under
sections 1101 and 352 for abuse of discretion. (People v. Thomas (2023)
14 Cal.5th 327, 358.)
As to relevance, the trial court correctly determined that Keller’s “not-
guilty plea puts at issue all of the elements in the crime,” including intent.
Our high court “ha[s] repeatedly noted” this point: While the defense might
focus on identity, this does not eliminate the prosecution’s burden to
establish all elements of a crime, including intent, beyond a reasonable
doubt, and the prosecution has the right to introduce all relevant and
admissible evidence towards that end even when other evidence is present.
(People v. Chhoun (2021) 11 Cal.5th 1, 29 (Chhoun); People v. Jones (2011)
51 Cal.4th 346, 372 (Jones) [“ ‘[T]he prosecution’s burden to prove every
element of the crime is not relieved by a defendant’s tactical decision not to
contest an essential element of the offense’ ”].) Here, the 2017 burglary was
similar enough to the charged offense to support the inference that Keller
probably harbored the same intent in each instance—which Keller does not
dispute. (People v. Ewoldt (1994) 7 Cal.4th 380, 402 (Ewoldt) [least degree of
similarity between the uncharged act and the charged offense is required to
prove intent].)
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However, even though prior conduct may be relevant under
section 1101, subdivision (b), the trial court must still weigh the probative
value of the evidence under section 352. Section 352 gives the trial court
discretion to exclude evidence “if its probative value is substantially
outweighed by the probability that its admission will (a) necessitate undue
consumption of time or (b) create substantial danger of undue prejudice, of
confusing the issues, or of misleading the jury.”
We find no abuse of discretion in the trial court’s ruling under
section 352. The 2017 burglary had probative value because intent was
disputed and had to be proven by circumstantial evidence. That probative
value was enhanced because its source—testimony by an officer uninvolved
in investigating the charged crime—was wholly independent of the evidence
of the charged offense, and the prior offense occurred not long before the
charged one. (Ewoldt, supra, 7 Cal.4th at pp. 404–405.)
Keller’s contrary argument is based on Ewoldt, which held that
evidence of prior misconduct was admissible to show a common design or
plan, but not to prove lewd intent that could not reasonably be disputed given
the facts of the charged crime (involving molestation of a child). (Ewoldt,
supra, 7 Cal.4th at pp. 404–406.) Ewoldt explained that evidence of prior acts
must have substantial probative value to be admitted and cannot be “merely
cumulative regarding an issue that was not reasonably subject to dispute.”
(Id. at pp. 404, 406.)
Here, the evidence of the 2017 offense was not cumulative because the
intent of the person who broke into TJ’s Cafe was not beyond dispute. There
was no concession by Keller’s counsel as to intent, and the jury would have to
infer intent from the circumstances of the break-in, including the missing
cash. (See Chhoun, supra, 11 Cal.5th at p. 29; People v. Scott (2015)
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61 Cal.4th 363, 399–400 [evidence of other burglaries by defendant was not
cumulative of evidence wallet went missing during the charged crime]; Jones,
supra, 51 Cal.4th at p. 372 [evidence of prior robbery by defendant admissible
to prove intent despite other undisputed evidence that perpetrator meant to
rob residence].)5
The trial court did not abuse its discretion by concluding that the
probative value of this evidence was not outweighed by a danger of undue
prejudice or confusion. Prejudice was not undue because both the 2017
burglary and the instant offense were thefts from unoccupied commercial
establishments. There were no allegations of use of weapons, threats or
bodily injury to a third party, or assault. The evidence of the uncharged
offense was no stronger or more inflammatory than the evidence of the
charged offense. (Ewoldt, supra, 7 Cal.4th at p. 405.) And there was little
danger that the jury would be inclined to punish Keller for the prior offense
since it knew the testifying officer had investigated it and Keller later
volunteered that he had been “convicted” for it. (See Jones, supra, 51 Cal.4th
at pp. 371–372.)
5 We are unpersuaded by Keller’s citation of dicta in Ewoldt suggesting
that in most cases where it is undisputed a burglary occurred and the main
issue is the perpetrator’s identity, evidence of uncharged offenses should not
be admitted unless those offenses were similar enough to the charged offense
to establish identity. (Ewoldt, supra, 7 Cal.4th at p. 406.) More recent
opinions by our high court clarify that the People’s burden to prove intent
may justify admitting evidence of uncharged offenses even where the defense
argues on appeal that only identity was at issue at trial, circumstances of the
charged offense tended to show intent, and the defense chose not to contest
intent at trial. (See Jones, supra, 51 Cal.4th at p. 372.)
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In addition, the trial court read limiting instructions directing the jury
not to use the evidence for an improper purpose, including bad character. We
presume the jury followed these instructions. (Chhoun, supra, 11 Cal.5th at
p. 30.) Thus, we do not find that there was a danger that the jury would be
confused or misled.
In sum, the trial court did not abuse its discretion by admitting
evidence of the 2017 burglary. Because the court made no error under state
law, Keller’s constitutional claim also fails. (Chhoun, supra, 11 Cal.5th at
p. 26.) And since intent was clearly at issue in the case, Keller’s counsel was
not ineffective in acknowledging that intent “may be” at issue. (See People v.
Gutierrez (2002) 28 Cal.4th 1083, 1140 [failure to make an objection that
would have been unavailing does not constitute ineffective assistance of
counsel].)6
Finally, even if the court abused its discretion in declining to exclude
evidence of the 2017 burglary under section 352, such error was harmless
under People v. Watson (1956) 46 Cal.2d 818 because it was not “ ‘reasonably
probable’ ” Keller would have received a more favorable result had the
evidence been excluded. (People v. Johnson (2022) 12 Cal.5th 544, 611.) The
6 Keller asserts that his trial counsel committed ineffective assistance
of counsel by “conceding” that intent was at issue. This argument
mischaracterizes the record. At most, defense counsel acknowledged that
intent “may be” an issue and failed to offer a stipulation to intent. But even if
defense counsel had offered a stipulation to preclude the prosecution from
presenting the 2017 burglary, our Supreme Court has ruled that a trial court
may not forbid the prosecution from offering uncharged misconduct by
requiring it to accept a stipulation. (People v. Rogers (2013) 57 Cal.4th 296,
329 [“A trial court cannot compel a prosecutor to accept a stipulation that
would deprive the state’s case of its evidentiary persuasiveness or
forcefulness.”].) For these reasons, the claim of ineffective assistance of
counsel fails.
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evidence tying Keller to the burglary was strong, and it was inconsistent with
his testimony that he never entered the cafe. Responding officers testified
that Keller had wet blood on his hands, glass on his hands and shoes, keys
from the cafe, and over a hundred dollars in small bills when he was
apprehended. Keller offered several different, improbable explanations for
the blood (he had just been in a fight), the cash (he had collected money from
his friend’s girlfriend, a Coinstar machine, and elsewhere to bail his friend
out of jail, all in small denominations), and his presence in the area (he
wanted to buy a portable charger for his phone because the power was out).
He admitted he told an officer at the scene “I wish I knew why glass was on
my hands,” but claimed he was being “sarcastic.” He admitted he had the
keys from the cafe and said he did not know why he had picked them up. The
People properly impeached Keller’s testimony with evidence of his recent
conviction for driving a stolen vehicle. Given the strong evidence that Keller
did break into the cafe and his unimpressive testimony on his own behalf, we
see no reasonable probability that the jury would have reached a different
outcome had the trial court excluded evidence of the 2017 burglary.
DISPOSITION
The judgment is affirmed.
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HIRAMOTO, J.*
WE CONCUR:
STREETER, ACTING P. J.
GOLDMAN, J.
People v. Keller (A155572)
Judge of the Superior Court of California, County of Contra Costa,
assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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