Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County No. SCD196345, Charles R. Gill, Judge.
NARES, J.
Manuel Benitez and an acquaintance stole two cases of beer from a Rite Aid store in San Diego. While trying to flee with the beer, Benitez raised his hand at a Rite Aid clerk. Once in the parking lot, Benitez and his accomplice placed the beer in the bed of Benitez's truck and then Benitez made a motion as if he were going to stab a mall security guard who had pursued him. A Rite Aid employee who witnessed Benitez's actions subdued him.
In April 2006 a jury found Benitez guilty of one count of robbery under Penal Code section 211. Benitez also admitted, under sections 667, subdivisions (b) through (i), 1170.12 and 668, that he had sustained a prior strike conviction. In May 2006 the court sentenced Benitez to a middle-term sentence of three years, doubled under the Three Strikes law to six years, and imposed a consecutive one-year term for a robbery conviction in an unrelated case.
All further statutory references are to the Penal Code unless otherwise specified.
On appeal, Benitez asserts the court erred by (1) admitting evidence of the chase and struggle in the parking lot because he was not "asporting" (i.e., moving) stolen goods at that time; (2) instructing the jury it could convict him based upon those events; (3) admitting evidence of Benitez's actions toward the security guard because the security guard did not have "constructive possession" of the beer; (4) instructing the jury under Judicial Council of California Criminal Jury Instructions (2006-2007) CALCRIM No. 1600; and (5) admitting evidence of a prior similar crime under Evidence Code section 1101, subdivision (b). We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. People's Case
At approximately 7:25 p.m. on January 20, 2006, Benitez and another man entered a Rite Aid store in San Diego and took two 30-pack cases of beer from the beer cooler and headed toward the store exit. Store clerk Anai Mercado confronted the men by the exit and told them they needed to pay for the beer. They ignored Mercado and walked quickly out of the store.
Mercado followed them. When she came within about five feet of Benitez, he raised his right hand to his ear level, "as if he wanted to frighten" her. Mercado became frightened and she turned and yelled for the cashier to call the store manager and the security officer.
Luis Sandoval, a Rite Aid loss prevention agent, and Mark Dayton, a Rite Aid assistant manager, responded to Mercado's call for assistance. Mercado directed them to a truck in the parking lot. Benitez and the other man were standing next to Benitez's truck, putting something in the truck bed. When Sandoval and Dayton approached, Benitez and the other man fled in different directions. Sandoval and Dayton chased Benitez's accomplice until he ran across the street, after which they stopped chasing him. In the meantime, Benitez had slid under his truck in the parking lot.
Ivon Moore, a security guard for the strip mall in which the Rite Aid was located, was on duty at the time and saw Benitez slide underneath the truck. When Moore approached the truck, Benitez came out from his hiding place. Moore grabbed his arm and told him to stay where he was. Benitez said, "No," and ran.
Moore chased after Benitez. Benitez then turned and faced Moore. Benitez reached behind his body to the waist or back pocket area of his pants, brought his right hand forward in a closed fist with his thumb on top, and made swinging and stabbing motions. Sandoval, who was walking toward Benitez, called out, "He's got a knife, he's got a knife." Fearing Benitez might have a weapon, Moore threw his jacket at Benitez and then tried to approach him. Sandoval approached Benitez from behind, grabbed him around the neck, and forced him to the ground. After a struggle, Sandoval, Dayton, Moore, and a security guard from another store eventually subdued Benitez
No weapons were found on Benitez. Two 30-packs of beer were found in the bed of the Benitez's truck.
B. Defense Case
Benitez testified in support of his defense. He admitted that he drove his truck to the Rite Aid to get some beer with "Jesus," an old acquaintance that he had not seen for two or three years. When they got there, Jesus grabbed some beer from the cooler and told Benitez he was going to steal it. Benitez thought that they were going to purchase the beer. Benitez, not wanting anything to do with a theft, walked away from Jesus. Jesus ran past him out the door.
Benitez heard Mercado yelling for Jesus to stop. Benitez reached into his sweater for his wallet so that he could offer to pay for the beer. Mercado became hysterical. Benitez made a "whatever" gesture by lifting his hands, and walked to his truck where he found Jesus and two 30-packs of beer in his truck bed. Jesus wanted to flee, but Benitez refused to do so because he was on probation. Jesus then ran away.
Benitez became scared and hid under his truck. When he came out, Moore grabbed his hand. Benitez told Moore, "I didn't do nothing," and pushed him away. Moore kept trying to grab him, and he kept trying to push him away. He did not make any jabbing or slashing motions. Sandoval then slammed him to the ground from behind and pinned him face down. He did not struggle while he was on the ground. Moore struck him several times with his fist while he was on the ground.
C. Rebuttal
On May 9, 2003, Graciela Orozco and her husband went to the Auto Zone store in Escondido in their truck. Both went inside, but Orozco came back outside and waited in the passenger seat with the engine running. While she was waiting, Benitez opened the driver's side door and entered the truck. Orozco told Benitez to get out. Benitez told her to get out, and made a gesture towards the left side of his waist. Fearing that Benitez was going to pull out "a knife or a gun or something," Orozco got out of the truck.
DISCUSSION
I. ADMISSION OF EVIDENCE OF PARKING LOT CONFRONTATION
Benitez asserts that that the court erred by admitting the testimony of Sandoval, Dayton and Moores about the events in the parking lot because that evidence is irrelevant because the struggle occurred when he was not asporting the beer. We reject this contention.
A. Background
During a discussion on jury instructions, Benitez moved to strike the testimony of Moore, Sandoval and Dayton regarding the events that transpired in the parking lot of the Rite Aid, arguing that it was irrelevant because Benitez had "essentially abandoned" the beer before any confrontation occurred. Counsel for Benitez argued that "it has to be that the person is using the force or fear, not simply to get away from the scene, but to get away with the loot . . . ." Benitez also argued that, for the same reason, it would be improper to instruct the jury under CALCRIM No. 3261 that a robbery continues until the thief reaches a point of temporary safety with the stolen goods.
The court denied Benitez's motion, finding that the robbery was ongoing because Benitez had not reached a position of safety and the beer was in his "constructive possession."
B. Waiver
Benitez did not object to the testimony of Moore, Sandoval and Dayton concerning the chase and other events in the parking lot. Rather, after all trial testimony had completed, he made a belated motion to "strike" their testimony. By failing to make a timely objection to these witnesses' testimony, he has waived a claim that the court erred in admitting such testimony. (Evid. Code, § 353; People v. Champion (1995) 9 Cal.4th 879, 918, overruled on other grounds in People v. Combs (2004) 34 Cal.4th 821, 860.)
Further, even if Benitez adequately preserved this issue for appeal, it is unavailing.
C. Analysis
A "robbery" is "the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (§ 211.) The crime is essentially a theft with two aggravating factors, that is, a taking (1) from victim's person or immediate presence, and (2) accomplished by the use of force or fear. (People v. Marquez (2000) 78 Cal.App.4th 1302, 1308; see also People v. Avery (2002) 27 Cal.4th 49, 53, fn. 4.)
"The taking element of robbery itself has two necessary elements, gaining possession of the victim's property and asporting or carrying away the loot." (People v. Cooper(1991) 53 Cal.3d 1158, 1165 (Cooper).) "Immediate presence" is spatially, not temporally, descriptive and thus "refer[s] to the area from which the property is taken, not how far it is taken" or for what duration. (Id. at p. 1166, italics omitted.) "'"A thing is in the [immediate] presence of a person, in respect to robbery, which is so within his reach, inspection, observation or control, that he could, if not overcome by violence or prevented by fear, retain his possession of it."'" (People v. Hayes (1990) 52 Cal.3d 577, 626-627, quoting Commonwealth v. Homer (1920) 235 Mass. 526, 533 [127 N.E. 517].) The immediate presence component focuses on whether the stolen property "was located in an area in which the victim could have expected to take effective steps to retain control over his property." (People v. Frye (1998) 18 Cal.4th 894, 956.) Traditionally, the immediate presence requirement has been described as relating to the "gaining possession" element of the taking rather than the "carrying away" element of a robbery charge. (Cooper, supra, 53 Cal.3d at p. 1166.)
The force or fear element may be established where the perpetrator peacefully acquires the victim's property, but then uses force to retain or escape with it. For example, in People v. Anderson (1966) 64 Cal.2d 633 (Anderson), the California Supreme Court held that the defendant was properly convicted of robbery based on evidence that he examined a rifle and ammunition at a pawnshop under the guise of being interested in purchasing the items and while the pawnshop clerk was totaling the purchase price, he loaded the rifle and pointed it at the clerk to facilitate his escape. The Anderson court stated, "In this state, it is settled that a robbery is not completed at the moment the robber obtains possession of the stolen property and that the crime of robbery includes the element of asportation, the robber's escape with the loot being considered as important in the commission of the crime as gaining possession of the property. [Citations.] [¶] Accordingly, if one who has stolen property from the person of another uses force or fear in removing, or attempting to remove, the property from the owner's immediate presence . . ., the crime of robbery has been committed." (Anderson, supra, 64 Cal.2d at p. 638.)
In reaching its decision, the Anderson court cited with approval People v. Phillips (1962) 201 Cal.App.2d 383, in which the defendant had a gas station attendant pump gasoline into his car and then confronted the attendant with a rifle, refusing to pay for the gas. There, the appellate court affirmed the judgment of conviction based on the taking of the gasoline, upholding the jury's implicit finding that the defendant took the gasoline from the immediate presence of the attendant by means of force or fear. (Anderson, supra, 64 Cal.2d at pp. 638-639.)
Although these cases address the peaceful acquisition of property from the immediate presence of the victim, with force or fear arising only in an effort to carry the property away, case law also establishes that the victim's presence after the taking is in progress is sufficient to establish the immediate presence element of a robbery charge. In People v. Estes (1983) 147 Cal.App.3d 23 (Estes), a department store security guard saw the defendant shoplifting items of clothing inside the store and attempted to stop the defendant, who had left the store without paying for the items. (Id. at p. 26.) The defendant pulled out a knife, swung it at the security guard and threatened to kill the guard. (Ibid.) The Estes court rejected the defendant's contention that the merchandise was not taken from the security guard's immediate presence, stating, "The evidence establishe[d] that [the defendant] [forcibly] resisted the security guard's efforts to retake the property and used that force to remove the items from the guard's immediate presence. By preventing the guard from regaining control over the merchandise, [the] defendant is held to have taken the property as if the guard had actual possession of the goods in the first instance." (Id. at p. 27, italics added.) The Estes court also observed that a "[d]efendant's guilt is not to be weighed at each step of the robbery as it unfolds. The events constituting the crime of robbery, although they may extend over large distances and take some time to complete, are linked by a single-mindedness of purpose. [Citation.]" (Id. at p. 28.)
What constitutes a legally sufficient Estes robbery is a subject of some dispute. (See this court's opinion in Miller v. Superior Court (2004) 115 Cal.App.4th 216, 224; id., at p. 225 (dis. opn. of McDonald, J.)). The issue is currently pending before our Supreme Court. (See People v. Gomez (2005) 134 Cal.App.4th 1241, review granted Mar. 22, 2006, S140612; People v. Johnson (2006) 141 Cal.App.4th 1161, review granted Nov. 15, 2006, S146207.)
Benitez asserts that the testimony of Moore, Sandoval and Dayton was irrelevant because he "was not in possession of the beer" when he encountered them. To be convicted of robbery a defendant need not have manual possession of the beer. "Robbery does not necessarily entail the robber's manual possession of the loot. It is sufficient if [the defendant] acquired dominion over it . . . ." (People v. Martinez (1969) 274 Cal.App.2d 170, 174.) In this case, the evidence showed that he had placed the beer in the bed of his truck and that he was hiding under that truck. It was at the moment that he emerged from under the truck that Moore confronted him, and he made swinging and jabbing motions at Moore. That evidence is sufficient to show possession of the stolen beer.
Benitez also contends he was not asporting the stolen beer at the moment when he was encountered by Moore, Sandoval and Dayton. However, it need not be shown that the beer was being moved at the exact same moment as Benitez's encounter with Moore, Sandoval and Dayton. In People v. Pham (1993) 15 Cal.App.4th 61, the victim saw the defendant in the back seat of the victim's car, removing objects from it. When the victim approached, the defendant exited the car with a black bag and attempted to flee. The victim chased the defendant and grabbed him by the shirt. The defendant dropped the bag and punched the victim in the head several times. The victim and a companion then subdued the defendant. (Id. at p. 64.) In rejecting the defendant's contention that there was insufficient evidence that he took the property by force of fear the Court of Appeal stated: "[T]he asportation or carrying away of the property occurred when defendant removed the victim's property from [the victim's] car and began to flee. The asportation continued while [the] defendant struggled with the victims and prevented them from immediately recovering their goods. Contrary to [the] defendant's contention, robbery does not require that the loot be carried away after the use of force or fear." (Id. at p. 65.)
Likewise in this case, Benitez was asporting the stolen goods when he placed them in the bed of his truck. He then used force or fear to prevent Moore, Sandoval and Dayton from regaining immediate possession of the goods. The asportation phase did not end when the stolen goods were not being actively moved. As we stated, ante, a "[d]efendant's guilt is not to be weighed at each step of the robbery as it unfolds. The events constituting the crime of robbery, although they may extend over large distances and take some time to complete, are linked by a single-mindedness of purpose." (Estes, supra, 147 Cal.App.3d at p. 28.)
Finally, evidence of the events in the parking lot were relevant and admissible to show Benitez's "consciousness of guilt," an entirely independent ground for its admission. "An instruction on flight is properly given if the jury could reasonably infer that the defendant's flight reflected consciousness of guilt, and flight requires neither the physical act of running nor the reaching of a far-away haven. [Citation.] Flight manifestly does require, however, a purpose to avoid being observed or arrested." (People v. Crandell (1988) 46 Cal.3d 833, 869, overruled on other grounds in People v. Crayton (2002) 28 Cal.4th 346, 365.) The court instructed the jury on the relevance of Benitez's flight, or attempted flight, under CALCRIM No. 372, as follows: "If the defendant fled or tried to flee immediately after the crime was committed, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled or tried to flee, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled or tried to flee cannot prove guilt by itself."
Here, there was substantial evidence of Benitez's attempt to flee when confronted in the parking lot, first by Rite Aid employees Dayton and Sandoval, and then by Moore. Thus, the jury was entitled to infer a consciousness of guilt on the part of Benitez as a result of that flight, and evidence of what occurred in the parking lot was relevant to that issue. Thus, the court did not err in allowing evidence of the events that transpired in the parking lot of the Rite Aid store.
II. INSTRUCTION UNDER CALCRIM NO. 3261
A. Background
The court instructed the jury under CALCRIM No. 3261, the "escape rule," which reads in part:
"The crime of robbery continues until the perpetrator has actually reached a temporary place of safety. The perpetrator has reached a temporary place of safety if he has successfully escaped from the scene and he is no longer being chased and he has unchallenged possession of the property and he is no longer in continuous physical control of the person who is the target of the robbery."
B. Analysis
Benitez asserts that the court erred in instructing the jury under CALCRIM No. 3261 because it "misled the jury into believing that the robbery . . . continued during [Benitez's] flight and confrontation in the parking lot, even though he was not asporting stolen property at that time." However, we have already concluded that there was sufficient evidence from which a jury could conclude that Benitez was asporting the stolen goods at the time of his flight and the confrontation in the parking lot. Accordingly, Benitez's assertion that the court erred by instructing the jury under CALCRIM No. 3261 is unavailing.
III. EVIDENCE OF BENITEZ'S ACTIONS TOWARD SECURITY GUARD MOORE
Benitez asserts that the court erred in admitting evidence of his actions towards Moore as it was irrelevant because Moore did not have constructive possession of the stolen beer. This contention is unavailing.
A. Background
Moore, the security guard who confronted Benitez in the parking lot, was not an employee of Rite Aid. Rather, he was employed by A & A Protective Services. He was assigned to watch the parking lot and the 16-store shopping center where Rite Aid was located. Rite Aid did not have any uniformed security officers on duty on the night of the robbery.
While discussing jury instructions, counsel for Benitez argued that because Moore was not an employee of Rite Aid, he could not be considered to be in constructive possession of the beer that was stolen, and therefore any evidence of force or fear Benitez directed toward Moore was irrelevant. The prosecutor argued that Moore was acting as an employee of Rite Aid and the other stores in the shopping center. The court found that while it was uncertain whether Moore had constructive possession, Sandoval, who reacted to Benitez's threatening actions towards Moore, did. The court stated, "I believe that the robbery clearly allows for that force or fear to involve someone else that is being perceived, in essence, a third party."
B. Waiver
As with evidence in general concerning Benitez's encounter with Moore, Sandoval and Dayton, Benitez made no timely objection to testimony concerning his interactions with Moore. Accordingly, his claim that this evidence was irrelevant and inadmissible has been waived. (Evid. Code, § 353; People v. Champion, supra, 9 Cal.App.4th at p. 918.)
Further, even if Benitez did not waive this claim, it lacks merit.
C. Analysis
Robbery occurs only as to those who have actual or constructive possession of the property that is ultimately taken. (People v. Nguyen (2000) 24 Cal.4th 756, 764.) A person who does not have immediate physical control may nonetheless have constructive possession of property if he has the right to control it, either directly or through another person. (People v. Frazer (2003) 106 Cal.App.4th 1105, 1111-1112.) Constructive possession may exist based on the existence of a special relationship in which the property owner has entrusted another with the custody of the property. (People v. Hamilton (1995) 40 Cal.App.4th 1137, 1143.)
A special relationship is most frequently recognized where the robbery involves business property taken from the presence of an agent or employee of the business. (See, e.g., People v. Miller (1977) 18 Cal.3d 873, 880 [store security guard]; Estes, supra, 147 Cal.App.3d at p. 27 [same]; People v. Gilbeaux (2003) 111 Cal.App.4th 515, 522 [janitors employed by business's cleaning company]; People v. Jones (1996) 42 Cal.App.4th 1047, 1054 [store truck driver]; People v. Poindexter (1967) 255 Cal.App.2d 566, 568-569 [barmaid].) However, a good samaritan or a security guard employed by a nearby business who attempts to intervene in a robbery is not a robbery victim because he or she does not have a sufficient interest in the property to have constructive possession. (Sykes v. Superior Court (1994) 30 Cal.App.4th 479, 484; People v. Galoia (1994) 31 Cal.App.4th 595, 599.)
Here, the evidence established that Moore was an agent of Rite Aid such that he had constructive possession of the stolen merchandise. While he was not directly employed by Rite Aid, he testified that his duty on the day of the robbery "was to watch the parking lot and 16 stores inside" the shopping center, including Rite Aid. His status was similar to janitors who worked in a Food 4 Less grocery store, who were not employed by the grocery store, but by its cleaning business. (People v. Gilbeaux, supra, 111 Cal.App.4th at p. 523.) They had constructive possession of the stolen goods because they were "part of the group of workers in charge of the premises at the time of the robbery" and thus had "a special relationship with Food 4 Less that made them akin to employees." (Ibid.) Similarly, because Moore was operating as the security guard for Rite Aid, along with the other stores in the shopping center, he had the requisite "special relationship" with Rite Aid to be considered "akin to an employee and in constructive possession of the stolen beer."
Further, it need not have been Moore who was in constructive possession of the stolen merchandise. Section 212 provides that: "The fear mentioned in Section 211 may be either: [¶] 1. The fear of an unlawful injury to the person or property of the person robbed, or of any relative of his or member of his family; or, [¶] 2. The fear of an immediate and unlawful injury to the person or property of anyone in the company of the person robbed at the time of the robbery." (Italics added.) Sandoval and Dayton, as employees of Rite Aid, were in constructive possession of the stolen beer. The jury could reasonably conclude that when they acted to subdue Benitez, he was attempting to steal the beer in the back of the truck by fear directed at Moore. Thus, Benitez's interaction with Moore was relevant to the "force or fear" element of the charge of robbery under section 211.
Further, as discussed, ante, evidence of Benitez's interactions with Moore, his making movements simulating possession of a knife, and his attempts to flee, were relevant to his consciousness of guilt. Accordingly, evidence of Benitez's confrontation with Moore was relevant and admissible on this issue as well, and the court did not err in admitting this evidence.
IV. INSTRUCTION UNDER CALCRIM NO. 1600
Benitez asserts the court erred when it instructed the jury on constructive possession by a store employee under CALCRIM No. 1600 without admonishing the jury that Moore was not an employee of Rite Aid. We conclude that the claimed error (1) has been waived; and (2) if not waived, the court properly instructed the jury under CALCRIM No. 1600.
A. Background
The court instructed the jury on constructive possession under CALCRIM No. 1600 as follows:
"A store employee may be robbed if the property of the store is taken, even though he or she does not own the property and was not, at that moment, in immediate physical control of the property. If the facts show that the employee was a representative of the owner of the property, and the employee expressly or implicitly had authority over the property, then that employee may be robbed if the property of the store is taken by force or fear." (Italics added.)
In closing arguments the prosecutor argued that Benitez was guilty of robbery because he raised his hand at Mercado and because he made jabbing and slashing motions at Moore, which was witnessed by Dayton and Sandoval.
B. Waiver
Benitez does not contend that CALCRIM No. 1600 is an incorrect statement of the law. Rather, Benitez asserts the court should have also admonished the jury that Moore was not an employee of Rite Aid. However, Benitez did not object to the giving of CALCRIM No. 1600 or request that it be modified in any manner to discuss Moore's relationship to Rite Aid. Because Benitez never requested that the court "admonish" the jury that Moore was not a Rite Aid employee, he has waived this issue. (People v. Lewis (2001) 26 Cal.4th 334, 380 [failure to request amplification of instruction that correctly states law waives claimed instructional error on appeal].)
Further, even if there were no waiver, we reject Benitez's contention that the court erred instructing the jury under CALCRIM No. 1600.
C. Analysis
As detailed above, Mercado, Sandoval and Dayton were all Rite Aid employees who had constructive possession of the beer. Benitez's actions as against Mercado were enough to convict him of robbery. Further, Benitez's use of force or fear as against Moore was sufficient under section 212 because Sandoval and Dayton observed those actions and subdued Benitez to prevent that use of force of fear from being successful. Thus, the court correctly instructed the jury under CALCRIM No. 1600.
Further, Moore had a special relationship with Rite Aid that made him akin to an employee. (People v. Gilbeaux, supra, 111 Cal.App.4th at p. 523.) Thus, the instruction was accurate as to Moore as well.
To make the instruction clearer, the court could have amended it to state "employee or agent," as it is clear, as discussed, ante, that agents or independent contractors of a business may also be in constructive possession of stolen goods, as they are "akin to employees." (People v. Gilbeaux, supra, 111 Cal.App.4th at pp. 521-523; Bench Notes to CALCRIM No. 1600 (1st ed. 2007) p. 1223.) However, the fact the instruction limited its reach only to those who could be considered "employees" could have only helped Benitez's case, as Moore's testimony was clear that he was not an employee of Rite Aid, but an employee of A & A Protective Services. Thus, Benitez could argue under that instruction that Moore had no constructive possession of the stolen beer as he was not a store employee. Therefore, Benitez cannot claim that he was prejudiced by the instruction.
V. PRIOR CRIMES EVIDENCE
Benitez asserts that the court erred in admitting the testimony of Orozco concerning the 2003 car theft by Benitez because that act was too dissimilar to the charged offense, and any slight probative value was outweighed by the prejudice to him. We reject this contention.
A. Background
The People filed a pretrial motion to admit Orozco's testimony, arguing it was relevant to the issues of intent and motive. The court found that the evidence would not be admissible in the People's case-in-chief, but that it was inclined to admit it, subject to an Evidence Code section 402 hearing, on rebuttal.
Evidence Code section 402, subdivision (b), provides in part: "The court may hear and determine the question of the admissibility of evidence out of the presence or hearing of the jury."
After the defense rested, the court held a hearing, out of the presence of the jury, to hear the proposed testimony of Orozco. Orozco testified to essentially what is described, ante, as her testimony on rebuttal. In addition, she testified that when she became frightened that Benitez had a weapon, and Benitez began reversing and accelerating the truck, she jumped out of the moving vehicle and fell to the ground.
The court found that Orozco's testimony, up to the part about Benitez reversing and accelerating the truck and Orozco jumping from the truck, was relevant based on the testimony of the prosecution witnesses and Benitez's testimony about his actions. The court also found that the prejudicial impact of the evidence was outweighed by its probative value that was "presented by the similarity of the acts, the recency [sic] in time, as well as the relatively small amount of court time that will be taken."
Before Orozco's testimony, the court instructed the jury that "you may but are not required to consider [evidence of the uncharged offense] for the limited purpose of deciding whether [Benitez] acted with the intent to cause fear in [Mercado] and [Moore] in this case, [and whether] the defendant had a plan or scheme to commit the offenses alleged in this case." The court also cautioned the jury not to conclude from that evidence "that [Benitez] has a bad character or is disposed to commit crime." The court reiterated these instructions before the jury began deliberations.
B. Analysis
"Evidence Code section 1101, subdivision (a), generally prohibits the admission of [an uncharged] criminal act against a criminal defendant 'when offered to prove his or her conduct on a specified occasion.' Subdivision (b), however, provides that such evidence is admissible 'when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity . . .).'" (People v. Harrison (2005) 35 Cal.4th 208, 229.)
In People v. Ewoldt (1994) 7 Cal.4th 380, 402 (Ewoldt), superseded by statute on other grounds as stated by People v. Britt (2002) 104 Cal.App.4th 500, 505, the California Supreme Court explained the theory underlying the admissibility of evidence of an uncharged offense to prove a defendant's intent in committing the charged offense:
"'[T]he recurrence of a similar result . . . tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such an act . . . .' [Citation.] In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant '"probably harbor[ed] the same intent in each instance." [Citations.]'"
The highest degree of similarity between the charged and uncharged offenses is required when the uncharged offense is offered to prove identity. (People v. Lenart (2004) 32 Cal.4th 1107, 1123.) "[A] lesser degree of similarity is required to establish relevance to prove common design or plan, and the least similarity is required to establish relevance to prove intent." (Ibid.)
"To be admissible to show intent, 'the prior conduct and the charged offense need only be sufficiently similar to support the inference that the defendant harbored the same intent in each instance.' [Citations.]" (People v. Cole (2004) 33 Cal.4th 1158, 1194.) For admission to show a common design or plan "'the common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual.' [Citation.]" (People v. Kipp (1998) 18 Cal.4th 349, 371.)
However, even if a defendant's commission of other crimes is relevant for some purpose under Evidence Code section 1101, subdivision (b), in order to be admissible, such evidence "'must not contravene other policies limiting admission, such as those contained in Evidence Code section 352. [Citations.]'" (Ewoldt, supra, 7 Cal.4th at p. 404.) Evidence Code section 352 authorizes a trial court 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." "'"The prejudice which [Evidence Code section 352] is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence." [Citations.] "Rather, the statute uses the word in its etymological sense of 'prejudging' a person or cause on the basis of extraneous factors. [Citation.]" [Citation.]' [Citation.]" (People v. Mullens (2004) 119 Cal.App.4th 648, 658.)
We review a court's ruling on the admissibility of evidence under Evidence Code section 1101, subdivision (b) under the deferential abuse of discretion standard. (People v. Cole, supra, 33 Cal.4th at p. 1195.)
The court did not abuse its discretion by admitting the testimony of Orozco. In this case and the Orozco matter Benitez pretended to have a weapon when confronted by his victims during thefts. The jury could properly infer from the similarities between the two incidents that Benitez had a common plan to frighten victims with an imagined weapon if confronted. The court also properly admitted the evidence of the prior crime to rebut Benitez's testimony that he had no intent to steal beer from the Rite Aid store. (See People v. Vidaurri (1980) 103 Cal.App.3d 450, 457-459 [trial court properly admitted evidence of prior robbery in which defendant threatened security guards with a knife "to rebut defendant's contention [as to present crime] that he drew his knife only in self-defense"].)
Further, the testimony describing the prior offense "was no stronger and no more inflammatory than the testimony concerning the charged [offense]." (Ewoldt, supra, 7 Cal.4th at p. 405.) The court also limited the potential for prejudice by not allowing Orozco to testify that Benitez reversed the truck and was accelerating, forcing her escape by jumping out of a moving vehicle. The court also reduced the risk of prejudice by twice instructing the jury that the evidence could only be considered for a limited purpose. Finally, the fact that the uncharged offense evidence was relevant and inculpatory does not mean that it was likely to cause "undue prejudice" as the phrase is used in Evidence Code section 352. (See People v. Karis (1988) 46 Cal.3d 612, 638 ["'In applying section 352, "prejudicial" is not synonymous with "damaging"'"].)
DISPOSITION
The judgment is affirmed.
WE CONCUR: BENKE, Acting P. J., HALLER, J.