THE PEOPLE v. RICHARD ABEL MIRAMON (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

INTRODUCTION

Defendants Richard Abel Miramon (Miramon) and Felixberto Parcon Reyes (Reyes) appeal from a judgment entered after a jury found them guilty of attempted first degree burglary (Pen.Code, §§ 459, 664).   The trial court found defendants each had a prior serious felony conviction (id., §§ 667, subds.(a), (b)-(i), 1170.12), and Miramon served two, and Reyes served one, prior prison term (id., § 667.5, subd. (b)).  The court sentenced Miramon to 12 years and Reyes to 11 years in state prison.   It imposed the upper term of three years, doubled to six years as a second “strike,” plus five years for the prior serious felony conviction.   It imposed an additional year on Miramon for one of his prior prison terms.

On appeal, defendants claim prosecutorial misconduct and evidentiary error.   Reyes also claims the trial court abused its discretion in refusing to strike his prior felony conviction.   We affirm.

FACTS

A. Prosecution Evidence

1. Current Offense

On the morning of October 18, 2009, Michael Day (Day) noticed defendants sitting in a car, with the engine running, in a driveway of a home in his West Covina neighborhood.   Day thought their behavior was suspicious and called the police.   West Covina police officer Joe Serrano responded to the dispatcher and arrived at the location in uniform and a marked patrol car approximately fifteen minutes after Day's telephone call.

Upon arriving at the scene, Officer Serrano saw a car matching Day's description in the driveway of 2400 East Rio Verde.   He also observed Reyes standing in a front planter of the home, with his arms raised near a window.   On seeing Office Serrano, Reyes quickly returned to the car, and Miramon, still sitting in the car, started to back the car out of the driveway.   Miramon's exit from the driveway was immediately blocked by Officer Serrano's patrol car.   Officer Serrano arrested defendants and subsequently inspected the windows of the house.   He found that the screen to the window where Reyes had been standing had been partially removed, in addition to several other window screens and the screen to a rear sliding door, which had all been partly or fully dislodged.   He also noticed that there were fresh pry marks in the wood frames of two windows, including the window where Reyes had been standing.   Although he did not notice if Reyes was holding anything when standing at the window, Officer Serrano found two screwdrivers on the floor behind the driver's seat in Miramon's car.

Caridad Clavo and her two sons lived at 2400 East Rio Verde.   On the morning of October 18, 2009, Clavo locked up the house, with all window screens in their proper place, before taking her sons to school and going to work.   Neither defendant had permission to enter her home.

2. Prior Offenses

On July 16, 2009, Reyes was convicted of residential burglary for a crime committed on May 7, 2008.   On that date, Arnold Shih did a walk through of his home after being notified there was a burglary, and he noticed that the screens to the back door and window had been damaged or dislodged.   Shih later recovered his stolen items from a van that crashed nearby.   Several of Reyes's fingerprints were found in the van.   The jury was admonished that this evidence was solely admissible as to Reyes.

On June 10, 2008, Miramon was convicted of residential burglary for a crime committed on May 20, 2008.   On that morning, Emma Wong noticed a car parked outside a home and, later that day, Douglas Meyers returned home to find that his house had been burglarized.   Miramon admitted to the police that he drove two men to the home knowing they intended to burglarize it, and that he waited in the car while they entered the home.   The jury was admonished that this evidence was solely admissibly as to Miramon.

B. Defense Evidence

Both Miramon and Reyes denied that the events of October 18 amounted to attempted burglary.   Both defendants testified that they had gone to the residence to pick up a woman named Monique, whom they had known for several months.   They had encountered Monique the night before in a nearby mall and dropped her off at an intersection near 2400 East Rio Verde.   Before she left, they agreed to pick her up the following morning at 9:00 a.m. Neither defendant was confident of Monique's address or knew many details about her.

The following morning, defendants arrived at the intersection at 9:15 a.m. They parked in the street and waited for a few minutes.   Worried that they were late and Monique was nowhere to be seen, they pulled into the driveway of 2400 East Rio Verde, believing that Monique had entered that house the night before.   Miramon stayed in the car, while Reyes knocked on the door and looked through the window.   Reyes thought he saw someone through the window, but quickly realized it was his own reflection.   Reyes denied removing any of the screens and testified that his hand gestures near the window were the result of waving to the person he believed he saw inside.

Unable to locate Monique, Reyes returned to the car and suggested they leave.   Miramon had left the car running because the car had engine trouble, which required someone to open the hood and use a screwdriver to tap on the starter to get the car started.   Defendants did not realize that Office Serrano was present until he blocked their exit from the driveway.

DISCUSSION

A. Prosecutor's Misstatement of the Definition of “Reasonable Doubt”

Defendants contend that the prosecutor's statement during closing argument that proof “beyond a reasonable doubt” did not mean a “reason to doubt” confused the most important of jury instructions.   Defendants also claim that this misstatement amounted to prosecutorial misconduct and a violation of their due process rights.   The People argue that this claim is meritless because the court made efforts to correct the statement, and because defendants forfeited the claim by failing to timely object and request an admonition.   We agree that the court's efforts remedied any resulting confusion and rendered the error harmless.   Even in the absence of such remedy, we agree defendants forfeited this claim.

Defendants must demonstrate a reasonable likelihood that the jury applied the challenged comments in an improper manner.  (People v. Brown (2003) 31 Cal.4th 518, 553.)   In examining potential misconduct, we must scrutinize the challenged statements “in the context of the argument as a whole.”  (People v. Dennis (1998) 17 Cal.4th 468, 522.)   Within this context, prosecutorial misconduct violates a defendant's due process rights only when the behavior amounts to a pattern of behavior “ ‘ “so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.” ’ ”   (People v. Gionis (1995) 9 Cal.4th 1196, 1214;  People v. Espinoza (1992) 3 Cal.4th 806, 820.)   After examining all closing arguments, we find that the totality of the circumstances demonstrates the misstatement was harmless.

To begin, counsel for both Miramon and Reyes each provided somewhat convoluted definitions of reasonable doubt.   It was only after these statements that the prosecutor attempted to clarify the definition of reasonable doubt by saying “[a] reasonable doubt does not mean a reason to doubt.”   Miramon objected, and although the court did not sustain his objection, the court promptly instructed the prosecutor to “move on” and stated that it would personally “instruct the jury on the law.”   In fact, because the jury was given confusing definitions from each attorney, the court ultimately told the jury, “You're going to get a jury instruction on reasonable doubt.   Rely on that and not the arguments of any of the attorneys.”   In addition, the court read aloud the jury instructions on reasonable doubt, CALCRIM No. 220, and made certain the jury received written copies.

Given the number and inconsistency of reasonable doubt explanations provided to the jury, defendants are unable to demonstrate any likelihood that the jury applied the prosecutor's—and only the prosecutor's—misstatement in an improper manner.   Moreover, there is no evidence that the jury was confused, followed any of the incorrect definitions, or disregarded the verbal and written copies of CALCRIM No. 220.   Since the jury was alerted to the inaccuracy of all three attorneys' definitions and told to rely on the jury instructions, we must presume they did so.  (People v. Katzenberger (2009) 178 Cal.App.4th 1260, 1269;  People v. Chavez (2000) 84 Cal.App.4th 25, 30–31.)

Defendants have also forfeited this claim on appeal.   In order to preserve a claim of prosecutorial misconduct for appeal, a defendant “must make a timely objection, make known the basis of his objection, and ask the trial court to admonish the jury.”  (People v. Brown, supra, 31 Cal.4th at p. 553;  People v. Hill (1998) 17 Cal.4th 800, 820.)   If a defendant objects, but fails to request an admonition, the claim is still forfeited.   For example, in People v. Stanley (2006) 39 Cal.4th 913, 952, the court stated “[a]lthough defense counsel lodged objections to these remarks, he failed to further request admonitions ․, thereby waiving the claim on appeal.”   Although Miramon objected to the prosecutor's misstatement, he did not request the jury be admonished.   Miramon has therefore forfeited this claim on appeal.

Reyes did not join Miramon's objection at trial, and thus Reyes's claim is also forfeited.  (People v. Wilson (2008) 44 Cal.4th 758, 793 [“ ‘failure to join in the objection or motion of a codefendant constitutes a waiver of the issue on appeal’ ”].)   Neither defendant followed the correct procedure to preserve prosecutorial misconduct as an issue on appeal;  thus, it has been forfeited.

B. Admission of Defendants' Prior Convictions

The trial court made several decisions involving the admissibility of both defendants' prior crimes.   Miramon and Reyes had each been convicted of one burglary, though they worked together in at least two, as well as a vehicle theft in which they were also both involved.   The court disapproved of admitting the prior vehicle theft as evidence due to the lack of similarity between it and the charged crime.   However, the trial court did grant admission of one prior burglary for each defendant.   Reyes's counsel voiced concerns that the prior crimes were not sufficiently similar to the charged burglary to be admissible and that there would be prejudice against defendants as a result.   Nonetheless, the court admitted this evidence on the basis that it demonstrated intent and the absence of mistake.

Defendants argue that the evidence should have been excluded pursuant to Evidence Code section 1101 on several grounds.   First, they argue the prior burglaries and charged burglary lacked sufficient similarity to demonstrate intent and absence of mistake based on the test laid out in People v. Ewoldt (1994) 7 Cal.4th 380 (Ewoldt ).   Second, they argue that, even if the similarity was sufficient, the evidence was too prejudicial to pass the Ewoldt test.   Lastly, they argue that the prosecution unlawfully used this evidence to demonstrate defendants' disposition to commit the charged crime.

We review the trial court's determination as to admissibility for abuse of discretion.  (People v. Waidla (2000) 22 Cal.4th 690, 717.)   We conclude the trial court did not abuse its discretion in admitting evidence of defendants' prior burglaries.

1. Similarity under the Ewoldt test

We begin with Evidence Code section 1101, subdivision (b), which allows “the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident ․ ) other than his or her disposition to commit such an act.”   Case law has further delineated the requirements for admissibility of prior convictions.

Under Ewoldt, supra, 7 Cal.4th 380, the least degree of similarity between the uncharged act and the charged offense is required in order to prove intent.  (Id. at p. 402;  People v. Soper (2009) 45 Cal.4th 759, 776.)   By negating mistake or other innocent mental state, the recurrence of similar results tends to establish that the defendant likely harbored the same criminal intent in each instance.  (People v. Soper, supra, at p. 776;  People v. Demetrulias (2006) 39 Cal.4th 1, 15.)  “Evidence of intent is admissible to prove that, if the defendant committed the act alleged, he or she did so with the intent that comprises an element of the charged offense.”  (Ewoldt, supra, at p. 394, fn. 2.) Evidence of a common design or plan, on the other hand, is not used to prove a defendant's intent or identity, but rather to prove the defendant engaged in conduct constituting the charged offense.   (Id. at p. 394.)   In this scenario, “the plan need not be unusual or distinctive;  it need only exist to support the inference that the defendant employed that plan in committing the charged offense.”  (Id. at p. 403;  cf.  People v. Ruiz (1988) 44 Cal.3d 589, 605–606.)

a. Reyes

Reyes argues the trial court abused its discretion in admitting evidence of his prior burglary conviction because the damage to the screens and windows in his prior burglary lacked a distinctive method capable of demonstrating Reyes again intended to burglarize.   He argues that, since windows and doors are logical points of entry, the pry marks and damage to the screens in both burglaries are “meaningless,” because the damage does not prove Reyes caused the damage or that he did so intending to burglarize.   As a result, Reyes contends that his intent to burglarize 2400 East Rio Verde is only “evidenced by the simple fact that he has suffered a prior burglary conviction.”

Although Reyes is correct that screen and window damage may be generic to any burglary, the law requires only the least degree of similarity between offenses to prove intent.  (Ewoldt, supra, 7 Cal.4th at p. 402.)   In his prior burglary conviction, a jury found that Reyes had unlawfully entered a house by damaging a screen and removing a window.   Since Officer Serrano saw Reyes with his hands up standing at a window where the screen had been partially removed, the circumstances of the prior conviction share sufficient similarities to be admissible to prove intent here.   In fact, Reyes's actions, in combination with Miramon's role as a lookout, suggest a common plan between the burglaries, which further supports the trial court's decision to admit the prior conviction as evidence.

Even if the crimes shared fewer similarities, the trial court would not have abused its discretion in admitting the evidence, since even incidents that are “not particularly distinctive” are often “sufficiently similar to support an inference that [the] defendant harbored the same intent in both instances.”   (People v. Lewis (2001) 25 Cal.4th 610, 637.)   Consequently, although many burglaries share some of the same aspects as the evidence here suggests, the trial court did not abuse its discretion in ruling evidence of Reyes's prior conviction was admissible.

b. Miramon

Miramon argues the trial court abused its discretion in admitting evidence of his prior burglary conviction because it was insufficient to prove that Miramon was aware of either Reyes's actions outside the car or his plan to enter the house.   We disagree.   Because Miramon previously acted as a lookout and getaway driver in other residential burglaries, including one only a year before, it is a reasonable inference that Miramon intended and was aware of this burglary.   In fact, not only did he remain in the car with the engine running, but he also tried to quickly back out of the driveway as soon as he noticed Officer Serrano's patrol car.   This behavior is consistent with that of a getaway driver, and Miramon's testimony offers no adequate explanation for why he attempted to exit the driveway so quickly if not to escape from Officer Serrano.   Due to the similarity of the burglaries, as well as Miramon's identical role, Miramon's prior burglary conviction passes the minimum threshold of the Ewoldt test for admissibility.   Thus, the trial court did not abuse its discretion in finding evidence of Miramon's prior conviction admissible.

2. Prejudice under the Ewoldt test

Ewoldt makes clear that evidence of uncharged offenses “ ‘is so prejudicial that its admission requires extremely careful analysis.  [Citations.]’ ”  (Ewoldt, supra, 7 Cal.4th at p. 404, quoting People v. Smallwood (1986) 42 Cal.3d 415, 428.)   Furthermore, because there is a significant risk of prejudice, “uncharged offenses are admissible only if they have substantial probative value.”  (People v. Thompson (1980) 27 Cal.3d 303, 318.)   As a result, Ewoldt employs a balancing test, weighing whether the probative value of the evidence is “ ‘substantially outweighed by the probability that its admission [would] ․ create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.’ ”  (Ewoldt, supra, at p. 404, quoting Evid.Code, § 352.)

Both defendants argue that, even if the prior convictions were admissible by meeting the required level of similarity, the resulting prejudice was so great that the evidence did not pass the Ewoldt test.   In addressing this claim, we turn to People v. Yu (1983) 143 Cal.App.3d 358.   In Yu, the court determined that “all evidence which tends to prove guilt is prejudicial or damaging to the defendant's case.   The stronger the evidence, the more it is ‘prejudicial.’ ”  (Id. at p. 377.)   This, however, does not mean the evidence should be excluded.   In fact, “[t]he ‘prejudice’ referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against defendant as an individual and which has very little effect on the issues.”  (Ibid.) We find that this is not the case here.

Although we agree that evidence of prior offenses is highly prejudicial, we cannot say that the evidence of either defendant's prior burglary conviction is unrelated or lacks probative value to the attempted burglary charge.   The similarity of the past and current burglaries, as well as both defendants' unique roles as in past burglaries, provides substantial proof of their intent to burglarize in this instance.   These similarities eliminate the possibility that the jurors were confused, emotionally biased against defendants, or failed to consider the strong likelihood that defendants would have completed the burglary if not for Day's telephone call to the police.   Therefore, defendants cannot claim that evidence is “prejudicial” merely because it is damaging to their case.   Holding that this evidence should have been excluded is the same as holding that the “evidence may be barred because it is too relevant.”   (People v. Yu, supra, 143 Cal.App.3d at p. 377.)   As a result, we find the trial court's admission of such evidence was not an abuse of discretion under Evidence Code section 352.

3. Evidence to Prove Character or Disposition

Lastly, defendants argue the prosecution unlawfully used evidence of their prior burglary convictions to demonstrate their disposition to commit the charged crime.   We disagree.

Evidence Code section 1101, subdivision (a), prohibits, with specified exceptions, admission of “evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) ․ when offered to prove his or her conduct on a specified occasion.”   Evidence of other crimes is admissible only to prove a material fact at issue, unrelated to criminal tendency.  (People v. Daniels (1991) 52 Cal.3d 815, 856.)

In this case, however, the similarities between the circumstances of the prior burglaries and the charged burglary indicate that defendants were following the same general plan with Miramon acting as lookout and getaway driver, while Reyes removed screens and windows.   This is the same as in Ewoldt, in which “evidence of defendant's prior misconduct” was “relevant to prove a material fact other than defendant's criminal disposition, because the similarity between the circumstances of the prior acts and the charged offenses supports the inference that defendant committed the charged offenses pursuant to the same design or plan defendant used to commit the uncharged misconduct.”   (Ewoldt, supra, 7 Cal.4th at p. 393.)   In fact, evidence of defendants' involvement in a vehicle theft was not admitted for this reason;  the circumstances surrounding the vehicle theft were too dissimilar to prove anything about the residential burglary charge except for defendants' criminal disposition.   Evidence of their prior burglaries, however, was sufficiently similar to demonstrate defendants committed the charged burglary in accordance with the same general scheme as their previous burglaries.   For this reason, the evidence could not have been admitted solely to prove their criminal propensities.  (Ewoldt, supra, 7 Cal.4th at p. 399.)

Additionally, we agree with the People that the evidence of defendants' prior convictions would have been admissible to impeach their credibility, regardless of the argument above.   Any prior felony conviction can “ ‘be used without limitation for purposes of impeachment or enhancement of sentence in any criminal proceeding.’ ”  (In re Kenneth H. (1983) 33 Cal.3d 616, 619, fn. 3, quoting former Cal. Const., art.   I, § 28, subd. (f).)  Therefore, the trial court did not abuse its discretion in allowing evidence of either Miramon's or Reyes's prior burglary conviction.

C. Denial of Reyes's Motion to Dismiss his Prior Strike Conviction

Finally, Reyes contends that the trial court abused its discretion by declining to dismiss his prior strike conviction, which has resulted in an unjust and disproportionate punishment.   After Reyes's motion to dismiss his prior strike conviction was denied, he was sentenced to the high term of three years, doubled to six years as a second strike, with an additional five years imposed for the prior conviction.   This makes his total sentence 11 years.   Although we agree that this is a lengthy sentence, due to the severity and number of Reyes's prior offenses, we disagree that it was an abuse of discretion.

A court's discretion to strike prior felony convictions is based on whether such action would be “in furtherance of justice.”  (People v. Williams (1998) 17 Cal.4th 148, 159;  Pen.Code, § 1385, subd. (a).)  In determining whether the dismissal of a prior strike conviction is in “furtherance of justice,” the court should consider the nature of the current and prior felonies as well as “the particulars of [defendant's] background, character, and prospects.”  (Williams, supra, at p. 161.)   The trial court should also consider the general objectives of sentencing such as those set forth in California Rules of Court.  (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 978.)   These include:  protecting society, punishing the defendant, encouraging the defendant to lead a law abiding life, deterring others from criminal conduct by demonstrating its consequences, and achieving uniformity in sentencing.  (Cal. Rules of Court, rule 4.410(a).)   If these factors suggest the defendant falls “outside the scheme's spirit, in whole or in part,” the court can treat him as though he had not previously been convicted.  (Williams, supra, at p. 161)

In addressing an appeal, we must also consider three additional standards.   First, “ ‘[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary.  [Citation.]  In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.’ ”  (People v. Superior Court (Alvarez), supra, 14 Cal.4th at pp. 977–978.)   Second, “ ‘[a] decision will not be reversed merely because reasonable people might disagree.  “An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.”   [Citations.]’ ”  (Ibid.) Lastly, we must uphold the trial court's decision absent an abuse of discretion that “ ‘exceeds the bounds of reason.’ ”   (Ibid ).

Although we agree that 11 years is a lengthy sentence for attempted burglary, Reyes's prior record, his age and background, as well as the interests of society, support the trial court's decision to impose the maximum sentence.   Reyes was convicted of possession of marijuana in 2003, driving on a suspended license in 2004, possession of burglary tools in 2005, grand theft in 2005, vehicle theft twice in 2006, and burglary in 2008.   Reyes served time in prison for the 2008 burglary and was on parole when he committed the present burglary.   Reyes is only 25 years old, but has committed numerous and varied crimes, increasing in seriousness, and prior jail and prison sentences have failed to deter him.   For this reason, Reyes falls clearly within the class of criminals targeted by goals of the “Three Strikes” law, and the court was within its discretion to deny his motion to dismiss his prior strike.

Reyes relies on People v. Bishop (1997) 56 Cal.App.4th 1245, but we find significant differences between Bishop and Reyes's case.   For example, the court in Bishop struck two of the defendant's prior strikes because they had occurred 17 to 20 years earlier.  (Id. at p. 1248.)   Similarly, the defendant's current crime, which would have been his third strike, was stealing videocassettes from a drug store.  (Ibid.) Although Reyes's crimes are also non-violent, his burglary is significantly more serious than the petty shoplifting in Bishop, his last crime occurred as little as four years ago, and he has exhibited a high rate of recidivism.   Overall, Reyes's situation lacks the mitigating factors the Bishop court considered paramount in its decision to dismiss prior strikes.

Finally, Reyes argues that the trial court never ruled on, and therefore never considered, his motion to dismiss his prior strike.   On this basis, Reyes argues that the court's failure to give consideration to the motion constituted an abuse of discretion, and that the case should be remanded to the trial court for resentencing with directions to the trial court to make an individualized determination based on the circumstances of the case and Reyes's background.   The record, however, indicates that the trial court did consider the particulars of Reyes's background, and thus we disagree.

In fact, the trial court expressed sympathy for both defendants' families, acknowledged the lack of mitigating factors, and recognized the enormous impact prison time would have on both defendants' young lives.   Since it appears that the trial court made sincere efforts to sympathize with both defendants' situations before sentencing, we cannot agree with Reyes that the trial court “blind[ed] itself to [his] actual circumstances” by failing to rule on his motion to dismiss his prior strike before sentencing.

Furthermore, the record simply does not support Reyes's argument that “the court exhibited a prohibited antipathy toward [him] and abused its discretion by failing to exercise it.”   For example, the trial court stated it “reviewed the probation reports, ․ reviewed the People's sentencing memorandum, the defendants' motion for new trial, ․ the letters from the family that were submitted ․ and this is a tough decision.”   It continued by commenting on the lack of mitigating factors (“I'm looking for mitigating factors, and other than the fact that they're both young, I really don't see any”), and recognized that it was constrained by the “many aggravating factors.”   Thus, despite not making an explicit ruling, the court exercised its discretion by making the necessary considerations and forming a judgment about Reyes's case.   The court then impliedly denied Reyes's motion to dismiss his prior strike by sentencing Reyes to the maximum term.   We therefore conclude there was no abuse of discretion.

DISPOSITION

The judgments are affirmed.

We concur:

PERLUSS, P. J. WOODS, J.