Opinion
H045361
05-04-2020
THE PEOPLE, Plaintiff and Respondent, v. WILLIAM ROBERT LINDLEY, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1760060)
Defendant William Robert Lindley was convicted by jury trial of second degree burglary (Pen. Code, §§ 459, 460, subd. (b)), grand theft (§§ 484, 487, subd. (a)), and driving or taking a vehicle with a prior conviction (Veh. Code, § 10851, subd. (a); § 666.5). The court found true three prison prior (§ 667.5, subd. (b)) allegations and sentenced defendant to six years and eight months in custody.
Subsequent statutory references are to the Penal Code unless otherwise specified.
On appeal, defendant claims that the trial court prejudicially erred in admitting evidence of his prior bad acts under Evidence Code section 1101, subdivision (b). He also contends that the trial court should not have imposed certain fines and assessments without considering his ability to pay, and he argues that he is entitled to a remand for resentencing because new legislation requires the prison priors to be stricken. We reverse the judgment and remand with directions to strike the prison priors and resentence defendant, but we reject defendant's other contentions.
I. Evidence Presented At Trial
On Sunday, October 25, 2015, a Carquest Auto Parts delivery driver returned a Carquest delivery vehicle, a white, 2013 Ford Fiesta, to a Carquest store in San Jose shortly after 5:00 p.m., when the store was closed. As he had been instructed by his manager, the delivery driver "threw the keys" to the Fiesta through the mail slot of the store's door and left the Fiesta parked and locked in the store's front parking lot. On Monday, October 26, the Fiesta was missing, and at 9:30 a.m. Carquest reported to the police that the Fiesta had been stolen. The Fiesta had a GPS tracker on it. A license plate from a Ford Focus parked in San Jose went missing between October 25 and October 26.
Bart Morgan, who worked for Jason S. Miller Construction Company, was the first employee to arrive on the morning of Monday, October 26, 2015 at a construction site at 19377 Miller Avenue in Saratoga where he had been working the previous Friday. Morgan saw that "the chain on the fence was cut and laying on the ground." The fence was open, and the trailer where they had been storing their tools for a couple of weeks had been "cut open as well." Morgan had locked the trailer before he left on the previous Friday. The door to the trailer was "wide open and a number of tools were missing." Most of the tools were marked "JSMCO" to identify them as the company's property. Some of the missing tools were too heavy or unwieldly to be carried by one person. The missing tools were worth over $5,000. Morgan reported the theft to the Sheriff's Department.
Shortly before 5:00 a.m. on October 29, 2015, deputies were dispatched after it was reported that a vehicle had crashed into a redwood tree in the front yard of a residence on Saratoga Avenue in a residential area near downtown Saratoga. When the deputies arrived, they found a Ford Fiesta with its driver's side door open and its lights on, but no one was in the car or in the vicinity. Some keys were on the driver's seat. The license plate on the Fiesta was the one that had been taken from the Focus. The Fiesta was the one reported stolen from Carquest. The passenger's side of the Fiesta had hit a mailbox and then collided with a tree, and that side of the car was "smashed." A crash of this severity had the potential to cause serious injuries, but it could also have caused no visible injuries. The deputies spent at least an hour searching the neighborhood for anyone associated with the Fiesta, but they found no one.
The back of the Fiesta was "crammed" with "a bunch of power tools." The tools, which were among those stolen from the Miller Avenue construction site, "were stacked up in the vehicle almost to the roof." There was no room for anyone to sit in the back seat of the Fiesta. The deputies found "some fruit cups, 7-Eleven receipts," "soft drinks," and a cell phone in the Fiesta. The 7-Eleven receipt showed that the fruit cups had been purchased at a 7-Eleven seven or eight miles from the site of the crash a couple of hours before the crash. The driver's side airbags had deployed, and the deputies collected the steering wheel's airbag to test for DNA. A "burnt end" of a "marijuana joint" was found on top of the car's stereo on the center console, and it too was collected for DNA testing. The following day, the deputies viewed 7-Eleven surveillance footage from the date, time, and location associated with the receipt. Defendant and another man could be seen on the surveillance footage purchasing the fruit cups that were found in the Fiesta. The other man was never identified. Two items found in the Fiesta were analyzed for DNA: the airbag and the marijuana butt. The airbag had DNA from at least three individuals. The major contributor was defendant. The butt also had DNA from multiple individuals, and defendant was a possible contributor.
Two days after the Fiesta crash, on October 31, 2015, a little after 5:00 a.m., one of the deputies who had investigated the Fiesta crash saw a silver Mazda with two men in it run a red light on Saratoga Avenue about a mile and a half from the location of the Fiesta crash. The deputy followed the Mazda and pulled it over. Defendant was driving the Mazda. The deputy recognized defendant as one of the men he had seen on the 7-Eleven surveillance footage buying the fruit cups found in the Fiesta. Defendant was wearing gloves and appeared to be wearing the same clothing and beanie that he was wearing in the surveillance footage. He had no obvious injuries. The deputy asked defendant about the Fiesta, and defendant said " 'I don't know anything about that.' " Defendant was arrested, and an EBT card on his person matched the one used to purchase the fruit cups at the 7-Eleven. Defendant provided a home address of 2321 Radio Avenue in San Jose and said he was unemployed.
His passenger was James Gonering.
The Fiesta's GPS showed that it was taken at around 8:00 p.m. on October 25, 2015. At about 11:30 p.m. that night, the Fiesta was driven to a location near defendant's home address on Radio Avenue, where it remained for about an hour. After being driven to other locations, the Fiesta returned to the Radio Avenue location at about 3:00 a.m., and it remained there for another hour. At about 4:30 a.m., the Fiesta was driven to the Miller Avenue location of the trailer burglary, where it remained for about half an hour. Not much later, the Fiesta was driven to a property in the Redwood Gulch area near Highway 9 in Saratoga, where it remained for a period exceeding 12 hours.
Defendant was associated with a property known as the Gullikson property in the Redwood Gulch area near Highway 9. The Gullikson property was a 42-acre property where a dozen or more people were living in trailers, and it was usually accessed from San Jose using Saratoga Road. In August 2015, a deputy had contacted defendant at the Gullikson property. Defendant told the deputy that he lived in a motorhome on that property. The deputy subsequently saw defendant on that property three or four more times. On January 4, 2016, a sheriff's deputy searched a motorhome on the Gullikson property. In the motorhome, the deputy found indicia associated with defendant, including mail addressed to defendant at his Radio Avenue address in San Jose. In July 2015, defendant had been stopped by a Santa Clara County deputy sheriff. Defendant, who was driving an RV in San Jose, told the deputy that he was unemployed and lived at 2321 Radio Avenue in San Jose.
II. Procedural Background
Defendant was charged by information with burglary, grand theft, driving or taking a vehicle with a prior conviction, receiving a stolen vehicle with a prior conviction (§§ 496d, 666.5), and receiving stolen property (§ 496, subd. (a)). The information also alleged that defendant had served prison terms for four prior felony convictions (§ 667.5, subd. (b)). The prison prior and prior conviction allegations were bifurcated, and defendant waived his right to a jury trial on those allegations.
The jury did not return verdicts on the two receiving counts, which it had been instructed were alternative counts to the grand theft and driving or taking a vehicle counts. The two receiving counts were subsequently dismissed.
At trial, the prosecution introduced, over defense objection, evidence that defendant had committed several prior criminal acts. After the jury returned guilty verdicts on the burglary, grand theft, and driving or taking counts, the court held a court trial on the prison prior and prior conviction allegations. The prosecution struck one of the four prison prior allegations, and the court found the remaining three prison prior allegations and the prior conviction allegation true.
The court imposed a sentence of six years and eight months to be served in county jail, with one year suspended and to be served on mandatory supervision. The principal term was a four-year upper term for the driving or taking count due to "defendant's prior history" of committing that offense, "the manner in which the vehicle was taken and disposed of, the damage that was done to the vehicle, the other crimes that were alleged to have been committed around the time that the vehicle was stolen, and the totality of the circumstances including the defendant's criminal history . . . ." The court imposed a two-year term for the grand theft count, but it stayed that term pursuant to section 654. A consecutive eight-month term (one-third the midterm) was imposed for the burglary count. Because the court "used the Vehicle Code Section 10851 prior conviction . . . in considering the upper term" for the driving or taking count, the court did not impose sentence for the prison prior associated with that same prior conviction. The court imposed one-year terms for each of the other two prison priors. Defendant timely filed a notice of appeal.
III. Discussion
A. Admission of Priors
Defendant contends that the trial court prejudicially erred in admitting evidence of several prior incidents of criminal misconduct.
1. Background
a. In Limine Motions and Ruling
Defendant's trial counsel filed a motion in limine seeking to exclude evidence of any prior convictions or prior bad acts on the ground that such evidence would be irrelevant and more prejudicial than probative.
The prosecution, in turn, filed an in limine motion seeking admission of prior-acts evidence under Evidence Code section 1101, subdivision (b) to prove intent, knowledge, absence of mistake, and common plan. The motion identified the intent at issue as "intent to steal" and the knowledge at issue as "knowledge that the property is stolen." As to absence of mistake, the prosecution argued that "[t]he fact that Defendant made similar claims in prior instances supports the absence of mistake in this case."
The court ruled admissible a statement by defendant to the police denying any knowledge about the Fiesta. However, it excluded evidence of a statement defendant made at the time of his arrest disclaiming ownership of tools in the Mazda. There was no indication that those items were stolen.
The prosecution's motion identified eight prior instances. The defense objected to all of the instances under Evidence Code sections 352 and 1101, subdivision (a). Since the court admitted evidence of only three of these incidents, we confine our discussion to those three.
The court excluded the other five incidents "for various reasons including remoteness, prejudicial impact, lack of similarity, undue consumption of time or confusions of the issues . . . ."
At the time of the in limine motions, the prosecution described these incidents as follows. The earliest one occurred in August 2008. Tools and science equipment belonging to a school were stolen from a storage container, and these stolen items were later found in a vehicle that defendant was driving. Defendant claimed that he had found the tools and equipment. Another incident occurred in September 2012. Defendant evaded the police while riding a motorized scooter. He crashed the scooter and fled. When the police caught up to him, he claimed to be " 'taking a nap.' " The VIN on the scooter had been etched. The most recent incident occurred in June 2015. Defendant was seen taking several BBQ grills from a hardware store to his home. At the time, defendant had in his possession a checkbook that had been taken along with some tools in a burglary from a neighbor's home earlier that day.
The defense argued that the 2008 incident was "quite remote in time." Although defendant's trial counsel acknowledged that "the intent . . . needs to be proved" as part of the prosecution's case, he argued that "identity is so much an issue in this case that the prejudicial weight" of the prior acts was excessive.
The court found that these three incidents were admissible "as evidence of intent, knowledge, absence of mistake . . . [and] motive" but did not admit the evidence for "identity or common plan or design."
b. Evidence of Prior Acts
The prosecution presented evidence of the three incidents at trial. As to the 2008 incident, the prosecution adduced evidence that the science wing of John Muir Middle School was under construction in 2008 for a number of months for remodeling. During the construction, all of the science equipment was placed in locked construction containers. In August 2008, after some of the science equipment had been stolen, defendant was stopped while driving for failing to wear a seatbelt. He was alone in the car, and some of the stolen science equipment was in the car. Defendant told the police officer that he had "found" these items "at the back of John Muir . . . middle school . . . the previous day or the previous night." Defendant was convicted of buying or receiving stolen property and grand theft for the 2008 incident.
Evidence of the 2012 incident was also introduced at trial. On September 20, 2012, at about 4:00 a.m., a Morgan Hill police officer saw defendant driving a motorized scooter that lacked a rear license plate. Defendant tried to evade the officer's attempt to stop him. He was wearing a black hooded sweatshirt with the hood over his head, a black ski mask, black gloves, and black pants. Defendant ran stop signs and dropped items on the ground as he drove along with the police officer in pursuit. Eventually, he crashed, fell off the bike, and ran away. The officer summoned assistance, and officers found defendant hiding under a piece of sheet metal. When he was discovered, defendant "put his hands up [and said] I was taking a nap." The VIN on the scooter "had been etched out" so that it "was basically unreadable." A compartment under the seat of the scooter contained pliers, a screwdriver, a "car stereo deck," and a cell phone that bore defendant's photo. Defendant was convicted of "fleeing a police officer's motor vehicle" and possession of stolen property for the 2012 incident.
The prosecution also adduced evidence of the 2015 incident. This incident occurred on June 1, 2015 at an Ace Hardware store in San Jose. At 3:00 p.m. that day, an Ace employee noticed that some barbeques that had been located in the store's parking lot next to a forklift were missing along with the forklift. The barbeques had been missing for about seven minutes. The employee ran across the street and saw the forklift. He continued running in the direction of the forklift in search of the missing barbeques. The employee ran in the direction the forklift was facing and came upon one of the barbeques. When he reached nearby Radio Avenue, he saw defendant taking two barbeques up a driveway on a dolly. The employee asked defendant what he was doing with the barbeques, and defendant said, "I just found these and I decided to take them." Defendant claimed that he had found the barbeques in the alleyway where the forklift was parked, and he said that he would return them. Ace's surveillance footage showed that a man who was not defendant had used the forklift to move the barbeques.
The police arrived and arrested defendant. A search of defendant's person turned up a checkbook with the name Matthew Aguilar on it. Defendant told the police that he lived at 2321 Radio Avenue. He said that he had found the barbeques in a dumpster and decided to take them to his house. Defendant said that the checkbook belong his "friend" "Matt," and that Matt had left the checkbook at defendant's house. Defendant claimed that he was "planning on returning it" to Matt, but he also said he did not know Matt's last name.
Matthew Aguilar testified that on Monday, June 1, 2015, at 7:00 a.m., he returned to a "job site" on Richland Avenue in San Jose where he was remodeling a home he had purchased a few months earlier. Aguilar's backyard neighbor was 2321 Radio Avenue. Aguilar knew that defendant lived in the house at 2321 Radio Avenue. Aguilar noticed that the garage door of his house had been pried open and that his checkbook and most of his power tools were missing from his toolbox. A blowtorch had been used to melt the lock on his toolbox. Aguilar had not been at the job site since 5:00 p.m. the Saturday previous. He had never given defendant permission to come onto his property or possess his checkbook. Defendant was convicted of receiving stolen property and theft or misappropriation of lost property for the 2015 incident.
c. Instructions and Argument
The jury was instructed that it "may consider" the evidence of the 2008, 2012, and 2015 incidents for "a limited purpose" "only . . . and for no other." "If you decide that the defendant committed the uncharged offense, you may but are not required to consider that evidence for the limited purpose of deciding whether the defendant acted with the intent required to prove the offenses alleged in this case; or the defendant had a motive to commit the offenses alleged in this case; or the defendant had the knowledge required to prove the offenses alleged when he allegedly acted in this case; or the defendant's alleged actions in this case were not the result of mistake or accident. [¶] In evaluating this evidence consider the similarity or lack of similarity between the uncharged offenses 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 disposed 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 any crime charged in this case. The People must still prove each charge beyond a reasonable doubt."
The prosecutor began her opening argument: "Burglars and thieves, like the defendant in this case, strategically pick the time of night when there is less [sic] people available as witnesses." Defendant's trial counsel did not object. Toward the end of her opening argument, the prosecutor addressed the "past crimes" evidence. She told the jury that it could use the prior-acts evidence to show "motive" and "knowledge." "So, for example, if he's done something like this before and learned to adjust like he didn't wear gloves one time and now he's wearing them because he knows that gloves [do not] leave fingerprints." She also told the jury that it could "use it to decide whether or not he had the intent to commit the crime in this case" and "that it's not a mistake that the defendant was charged in this case. It's not a mistake. It's not an accident. It is the defendant who is responsible here." Defendant's trial counsel did not object to this argument. The prosecutor argued that the 2015 case was "very similar to what he's doing in this case." She argued that the 2012 case involving the scooter showed that "defendant has a history of disassociating with the crimes and that's what he's doing in this case." Finally, she contended that the 2008 incident was "[v]ery similar to the case here" because defendant had "stolen property inside a car he was driving" and the property had been taken from "a construction location." The prosecutor again told the jury that it could consider the prior-acts evidence as to motive, knowledge, intent, and "whether or not it is a mistake that the defendant is here." At this point, defendant's trial counsel objected, and the court told the jury "if anything the attorneys say conflicts with my instructions on the law, you must follow my instructions on the law." The prosecutor continued: "You can consider it in making your determination as to whether or not there's an absence of mistake here." The prosecutor did not mention the prior-acts evidence in her closing argument.
Defendant's trial counsel argued to the jury that "the evidence" showed that "someone" "stole the vehicle" and burglarized the Miller Avenue property, but "all that evidence . . . doesn't show who these someone's [sic] were." He directly addressed the prior-acts evidence. "[I]t can be used in four ways in this instance: Intent, knowledge, motive, and mistake. Now I'll get to what that mistake part means in just a few minutes." He pointed out that the prior-acts evidence could not be used "to prove the identity of the individual or individuals" who had committed the theft and burglary. When defendant's trial counsel returned to the prior-acts evidence near the end of his closing argument, he rebutted the prosecutor's claim that defendant had learned to wear gloves to avoid fingerprints. He pointed out that there was no evidence of fingerprints being left in any of the prior incidents. Defendant's trial counsel also addressed the "mistake" argument made by the prosecutor. "376 [(the CALCRIM instruction addressing the prior-acts evidence)], the defendant's alleged actions in this case were not the result of mistake or accident. Not that he's here is not a mistake or accident, but the actions in this case were a mistake or accident."
2. Analysis
Defendant claims that the prior-acts evidence was not admissible under Evidence Code section 1101, subdivision (b) because "[t]here was no open question about the perpetrator's intent, knowledge, absence of mistake, or motive" since "[n]o one breaks into a trailer and takes the tools from within, or steals a company car, by mistake or otherwise without a criminal mens rea." He also contends that the trial court abused its discretion in overruling his Evidence Code section 352 objection because the prior-acts evidence had little or no probative value and was "highly prejudicial."
Evidence Code section 1101 provides: "(a) Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, 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) is inadmissible when offered to prove his or her conduct on a specified occasion. [¶] (b) Nothing in this section prohibits 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, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act." (Evid. Code, § 1101.)
"Evidence Code section 1101, subdivision (a) generally prohibits the admission of evidence of a prior criminal act against a criminal defendant 'when offered to prove his or her conduct on a specified occasion.' Subdivision (b) of that section, however, provides that such evidence is admissible when relevant to prove some fact in issue, such as motive, intent, knowledge, identity, or the existence of a common design or plan. [¶] 'The admissibility of other crimes evidence depends on (1) the materiality of the facts sought to be proved, (2) the tendency of the uncharged crimes to prove those facts, and (3) the existence of any rule or policy requiring exclusion of the evidence.' [Citation.] Evidence may be excluded under Evidence Code section 352 if its probative value 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.' [Citation.] 'Because substantial prejudice is inherent in the case of uncharged offenses, such evidence is admissible only if it has substantial probative value.' " (People v. Lindberg (2008) 45 Cal.4th 1, 22-23.) " 'On appeal, the trial court's determination of this issue, being essentially a determination of relevance, is reviewed for abuse of discretion.' " (People v. Whisenhunt (2008) 44 Cal.4th 174, 203.)
Defendant maintains that the prior-acts evidence was not material in this case because there was no dispute about the intent, knowledge, or motive of the person who drove or took the Fiesta, burglarized the trailer, and stole the tools from the trailer, and no dispute that the taking or driving of the Fiesta, the burglary of the trailer, and the theft of the tools was not a mistake. It is true that it was not disputed at trial that the taking of the Fiesta, the burglary of the trailer, and the theft of the tools were committed by someone who harbored the requisite mental states. Nor was there any dispute about the "motive" for these theft offenses or any claim that the person who did these acts acted by mistake—the person who did these acts obviously did not mistakenly drive or take the Fiesta, mistakenly cut open the trailer, or mistakenly steal the tools inside the burglarized trailer.
The Attorney General contends that the prior-acts evidence was material to prove that defendant "knew the Ford and power tools were stolen, whether he intended to receive stolen property, and whether he[] harbored larcenous intent." Although defendant was not convicted of the two alternative receiving stolen property counts, defendant's not guilty pleas put at issue the knowledge element of those counts. (People v. Whisenhunt, supra, 44 Cal.4th at p. 204 ["a defendant's plea of not guilty puts in issue all the elements of the charged offense."].) In the abstract, it could have been argued that a person in possession of the stolen Fiesta containing the stolen tools might not have been aware that both were stolen if someone else lent to him the already crammed full Fiesta. Since the Fiesta was apparently taken along with its keys, there was no outward sign that it was a stolen vehicle. And a person driving the Fiesta for a short period of time might not have looked closely at its contents. Consequently, we cannot say that prior-acts evidence relevant to knowledge would not have been material in this case.
The fact that the prior-acts evidence was material does not mean that it was admissible. The admissibility of the prior-acts evidence depended on whether it had substantial probative value to support a non-propensity-based inference relevant to defendant's knowledge that the Fiesta and the tools were stolen. " '[U]ncharged offenses are admissible only if they have substantial probative value.' " (People v. Foster (2010) 50 Cal.4th 1301, 1331.) The Attorney General argues that the prior-acts evidence that defendant "had previously stolen items—including tools—from both construction sites and locked storage containers and had been in possession of a stolen vehicle" and that he had, on those prior occasions, "attempted to frame his possession of stolen items . . . as accidental or innocent, and thus lacking in larcenous intent" was probative on the issue of whether defendant knew that the Fiesta and the tools were stolen.
The Attorney General's argument does not identify any non-propensity-based inference from the prior-acts evidence that could support a finding that defendant knew the Fiesta and the tools in it were stolen. While the fact that defendant previously stole items might show that he has a propensity for possessing stolen items, it does not independently support any relevant non-propensity-based inference regarding his knowledge that the Fiesta and the tools were stolen. "In order to be admissible to prove intent [or knowledge], the uncharged misconduct must be sufficiently similar to support the inference that the defendant ' "probably harbor[ed] the same intent [or knowledge] in each instance." [Citations.]' " (People v. Ewoldt (1994) 7 Cal.4th 380, 402.) The requisite similarity is lacking here.
Defendant made prior claims that he did not know stolen items were stolen, but he made no such claims in the current case. The stolen scooter in the 2012 case had an etched VIN, and defendant fled when the police pursued him, but the Fiesta did not bear any sign that it was stolen and was not involved in a police pursuit. The fact that the barbeques in the 2015 case were brand new and were near the hardware store from which they had been taken was a fairly obvious sign that they were stolen, but neither the Fiesta nor the tools in the current case were new or found near where they had been stolen. The 2008 case had some factual similarities to the current case, but none of those similarities support a relevant non-propensity-based inference. Like the current case, the 2008 case involved stolen equipment found in a car possessed by defendant. But the car in the 2008 case was not stolen, so evidence of the 2008 prior acts provided no support for an inference that defendant knew the Fiesta was stolen. Nor did the prosecution identify any facts about the 2008 case that could have provided a basis for any non-propensity-based inference that defendant knew the tools in the Fiesta were stolen. The similarity between the two cases was that stolen equipment was found in a car associated with defendant on both occasions. Yet no relevant inference could be drawn from this similarity other than the propensity-based inference that defendant carried stolen items in cars. Had the prosecution adduced some evidence that the equipment in the 2008 case bore some sign of its stolen nature that was similar to something about the tools in the current case, then evidence of the 2008 prior act could have been admissible under Evidence Code section 1101, subdivision (b). No such evidence was ever identified by the prosecutor, and the Attorney General fails to identify any.
The Attorney General's reliance on People v. Davidson (2013) 221 Cal.App.4th 966 (Davidson) is misplaced. In Davidson, the defendant was charged with driving or taking a vehicle after he was found in possession of a new motorcycle that had wires hanging out of its ignition switch. The defendant also had in his possession a flat head screwdriver. He claimed to have found the motorcycle in the bushes. The court admitted into evidence to show the defendant's knowledge, intent, and common plan that he had previously possessed a stolen car that contained a flat head screwdriver and had had its ignition "punched out . . . ." (Davidson, at pp. 969, 973.) In Davidson, the prior act of possession of a stolen vehicle under such similar circumstances did support a non-propensity-based inference that the current act was not the innocent possession of an abandoned motorcycle, which was the proffered defense. The key fact was that both of the items possessed by defendant had damaged ignitions, an obvious sign that they were stolen rather than abandoned. That similarity is lacking in this case.
"Because this type of evidence can be so damaging, '[i]f the connection between the uncharged offense and the ultimate fact in dispute is not clear, the evidence should be excluded.' " (People v. Daniels (1991) 52 Cal.3d 815, 856.) Since no material, non-propensity-based inference with substantial probative value could be drawn from the facts as presented by the prosecutor to the court during in limine motions, when the trial court made its ruling, we hold that the trial court abused its discretion in admitting evidence of the prior acts.
A trial court's error in admitting prior-acts evidence under Evidence Code section 1101, subdivision (b) does not require reversal unless it meets the standard set forth in People v. Watson (1956) 46 Cal.2d 818 (Watson). (People v. Malone (1988) 47 Cal.3d 1, 22.) Reversal is required "only when . . . it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (Watson, at p. 836.) " ' " '[A] "probability" in this context does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility.' [Citation.]" ' [Citation.]" (People v. Wilkins (2013) 56 Cal.4th 333, 351.)
Defendant claims that the prosecution's case was "weak," but that is not true. The undisputed evidence showed that shortly after the Fiesta was stolen it was taken to defendant's home, and it returned to defendant's home again in the middle of the night. Later that night, the Fiesta was used to travel to the site of the burglary, and the stolen tools were loaded into it. The Fiesta subsequently traveled to the location of defendant's motorhome, where it remained for a lengthy period of time. Three days later, with the tools still in the Fiesta, the Fiesta crashed. Defendant's DNA on the air bag, the presence of the fruit cups and the receipt in the Fiesta, and the 7-Eleven surveillance footage unerringly established that defendant was driving the Fiesta when it crashed.
Although this was a circumstantial evidence case, it was a very strong one. The prior-acts evidence played only a minor role at trial, and the jury was explicitly instructed not to use the evidence for propensity purposes. The defense offered at trial was that someone else had taken the Fiesta, burglarized the trailer, and stolen the tools. That defense was virtually inconceivable in light of the evidence that the Fiesta spent its time at defendant's home and motorhome shortly after it was stolen and that defendant was driving the Fiesta, with its cargo of stolen tools, three days later, when he abandoned it after crashing into a tree. No explanation can even be imagined for why a person other than defendant who stole the Fiesta and the tools would have taken all of the loot to defendant's home and motorhome and then entrusted all of the loot to defendant.
Defendant claims that we must apply a harmless-beyond-a-reasonable-doubt standard of review because, he claims, the trial court's error violated his federal constitutional rights. He relies solely on McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378 (McKinney). In McKinney, a large quantity of evidence showing that McKinney possessed and was fascinated by knives and death was admitted at his trial for killing his mother with an unidentified knife. The Ninth Circuit found that the admission of this evidence violated due process because there were no permissible inferences that could be drawn from it and it formed a significant part of the prosecution's case, which was wholly circumstantial. Although this case too was a circumstantial evidence case, the erroneously admitted evidence was not inflammatory and did not form a significant part of the prosecution's case. The prosecution's case was founded on the DNA and GPS evidence and the 7-Eleven surveillance footage, which established that defendant was the person associated with the taking and driving of the Fiesta, the burglary of the trailer, and the theft of the tools in the trailer.
Defendant claims that the prosecutor's argument to the jury concerning the prior-acts evidence "exacerbated the prejudicial effect" of the erroneously admitted evidence. The defense did not object to the prosecutor's arguments concerning the prior-acts evidence except for one instance, which resulted in a trial court admonishment to the jury. The prosecutor did mischaracterize the meaning of the "absence of mistake" portion of the limiting instruction, but the defense addressed this mischaracterization in its closing argument. In addition, the trial court's admonishment to the jury that the instructions prevailed over any arguments by the prosecution, and the limiting instruction's mandate that the prior-acts evidence not be used for propensity purposes blunted any risk of prejudice from the prosecutor's mischaracterization. We conclude that the erroneous admission of the prior-acts evidence was harmless.
B. Ability To Pay Fines, Fees, and Assessments
Defendant argues that the trial court violated his right to due process by imposing restitution fines and court assessments without finding that he had the ability to pay those fines and assessments.
At sentencing, the court "ordered [defendant] to report to the Department of Tax and Collections within 30 days of his release from custody for completion of a payment plan for fines and fees."
It was undisputed below that defendant "lacks employment history or job prospects." The court imposed the minimum restitution fine of $300 and a matching $300 suspended parole revocation restitution fine. The court also imposed various other fines, fees and assessments, including a court security fee of $120, a criminal conviction assessment of $90, a criminal justice administration fee of $259.50, a presentence investigation fee of $50 and a supervision fee of $50 per month.
In People v. Petri (2020) 45 Cal.App.5th 82 (Petri), we recently rejected the argument that a defendant's right to due process is violated by the imposition of these fines, fees, and assessments without an ability-to-pay finding. We continue to adhere to that analysis and therefore reject defendant's contention.
C. Prison Priors
Defendant contends that the two prison prior enhancements should be stricken due to the recent amendment of section 667.5, subdivision (b) to restrict the enhancement to only prior prison terms served for "sexually violent" offenses. (§ 667.5, subd. (b).) The Attorney General concedes that the amended statute applies retroactively to defendant, but he asserts that we should remand for resentencing rather than strike the enhancements ourselves.
In Petri, we agreed with the parties that the amendment to section 667.5, subdivision (b) applied retroactively and struck the prison prior enhancements. (Petri, supra, 45 Cal.App.5th at p. 94.) The only question here is whether we should strike the enhancements ourselves or remand for resentencing.
"[W]hen part of a sentence is stricken on review, on remand for resentencing 'a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances.' " (People v. Buycks (2018) 5 Cal.5th 857, 893.) "[T]he resentencing court has jurisdiction to modify every aspect of the sentence, and not just the portion subjected to the recall." (Ibid.) If, on the other hand, the trial court "imposed the maximum possible sentence, regardless of whether [an] enhancement was stricken, there is no need to remand the matter to the trial court to exercise its sentencing discretion anew." (Id. at p. 896, fn. 15.)
Here, the trial court did not impose the maximum possible sentence because it suspended one year of defendant's sentence and ordered that it be served on mandatory supervision. Since the trial court has discretion to modify its decision to suspend one year of defendant's sentence, it is appropriate for us to remand this matter for resentencing. (Cf. People v. Navarro (2007) 40 Cal.4th 668, 681.)
IV. Disposition
The judgment is reversed, and the matter is remanded with directions to strike the two prison prior enhancements and resentence defendant.
/s/_________
Mihara, J.
BAMATTRE-MANOUKIAN, J., Concurring.
I concur with Justice Mihara's resolution of Lindley's claim regarding the trial court's imposition of fines and fees and my colleagues' determination that Lindley is entitled to remand for the trial court to strike Lindley's prison priors. Assuming, without deciding, that the trial court erred when it admitted evidence of Lindley's prior misconduct pursuant to Evidence Code section 1101, subdivision (b), I concur with my colleagues' determination that admission of the evidence was harmless.
/s/_________
BAMATTRE-MANOUKIAN, J.
PREMO, Acting P.J., Concurring and Dissenting.
I concur with my colleagues' resolution of Lindley's claims with the exception of their rejection of People v. Dueñas (2019) 30 Cal.App.5th 1157. I respectfully dissent from their conclusion that Dueñas was wrongly decided. Accordingly, I would remand the matter to the trial court for a hearing on Lindley's ability to pay. (People v. Santos (2019) 38 Cal.App.5th 923, 933-934.)
/s/_________
Premo, Acting P.J.