Opinion
G055435
01-28-2020
THE PEOPLE, Plaintiff and Respondent, v. CESAR XAVIER MORALES, Defendant and Appellant.
Nancy Susan Brandt, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Charles C. Ragland and Marilyn L. George, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16CF2934) OPINION Appeal from a judgment of the Superior Court of Orange County, W. Michael Hayes, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed in part and remanded with directions. Nancy Susan Brandt, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Charles C. Ragland and Marilyn L. George, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
A jury convicted Morales Morales of burglary on a theory of aiding and abetting. Morales raises several issues on appeal. First, he contends the trial court abused its discretion under Evidence Code section 352 in admitting evidence of prior uncharged offenses. We discern no abuse of discretion because the probative value of the prior offense evidence was not outweighed substantially by its prejudicial effect.
Second, Morales contends insufficient evidence supported his burglary conviction. We disagree because, among other reasons, the evidence showed Morales aided his brother while the burglary was still ongoing.
Third, Morales contends he was denied his constitutional rights to due process and a fair trial because admission of other stolen property found in his vehicle was unduly prejudicial. We conclude the trial court did not abuse its discretion in admitting the evidence, and in any event, any error was harmless.
Fourth, Morales contends the trial court should have granted his counsel's request to instruct the jury with CALCRIM No. 376 to clarify CALCRIM No. 375. We find no instructional error because the proposed instruction likely would have confused the jury and would not have corrected the problem Morales alleges is present in CALCRIM No. 375.
Finally, Morales contends we should remand the matter to allow the trial court to exercise its newly granted discretion under Senate Bill No. 1393 to strike his five-year prior enhancement under Penal Code sections 667, subdivision (a) and 1385. The Attorney General concedes remand is warranted. We agree and will remand the matter for the limited purpose of allowing the trial court to exercise its newly granted discretion. In all other respects, we affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
A. Burglary
On February 1, 2016, Josephine U. and her family were living in a house on North Hartman Street in the City of Orange. At 8:20 a.m., Josephine was the last person to leave the house. Later that morning, her husband called and told her their house had been burglarized. She returned home and found most of her jewelry was missing.
After the police left, Josephine stayed home to clean up. Later that afternoon, Josephine heard a knock on the front door. She peered through the window but did not see anyone, so she did not open the door. When she heard what sounded like someone running on the roof, she immediately called 911.
After speaking to the 911 operator, she grabbed her dog and ran across the street to her neighbor George M.'s house. Josephine stayed at George's house for 15 to 20 minutes before a police officer escorted her home. When she returned home, she saw debris beneath the open attic access panel. After the police left this second time, Josephine noticed a red suitcase in a room next to the attic access panel. She found inside her missing jewelry and her husband's watches. She also found "a metal scooper" that looked like the head of a hammer.
George M., a retired law enforcement officer, testified that on the morning of February 1, 2016, he observed a pickup truck parking in front of Josephine's home. George saw a male passenger exit the truck, walk to the front door of the house, and then walk toward the gate to the backyard before disappearing from George's sight. George suspected the man was burglarizing the home so he called 911.
Orange Police Officer Colten Ivans arrived on the scene and detained the truck's driver, Ruben Gomez. Ivans searched the truck and found a credit card in the name of Heather Y. The police conducted a perimeter search of the Hartman residence and Ivans's partner observed "an unsecured window with a chair underneath it." Ivans and his partner conducted an interior search, and found the master bedroom had been ransacked. The officers also observed "paint chips on the floor where the attic access was, leading us to believe that there was possibly somebody hiding in the attic." The officers peered into the attic, but were not able to see anyone. They did not physically enter the attic space due to safety concerns.
Later that afternoon, Ivans was informed that Jose Morales had been detained as a burglary suspect. Jose is the brother of appellant Cesar Morales. Ivans returned to the Hartman neighborhood, took custody of Jose and transported him to the police station. Ivans performed an inventory search of Jose and recovered a cell phone.
The data on Jose's cellphone showed that on the day of the burglary, Jose had called and sent text messages to a contact named "Jokes," whose phone number was that of a cellphone found later that same day in Morales's possession. Morales previously had told a police officer his nickname was "Joker."
At 11:23 a.m., Jose sent Jokes a text message: "Hey, this is a F'in emergency. Answer. [####] North Hartman . . . I'm stuck in house. Cops . . . r outside." Jokes responded, "On my wa[y]." At 2:09 p.m., Jose sent: "Hey, I'm in the attic. I need you to roll by and see if it's clear. The people are home. I can hear the[m]." At 2:34 p.m., Jose sent a text message asking, "What happened?" Jokes responded: "Almost there. Was just taking precarious t[u]rns." At 2:48 p.m., Jokes sent Jose a text that said: "Hold up. Non [sic] cops in front or back. Just let me know where you're going to run, to front or backyard." At 2:51 p.m., Jokes texted, "Let me know" and "so I be ready for you [sic] jump." At 2:52 p.m., Jokes sent Jose a text message that said, "I'm in front one out to the left."
Officer Mike Robbins testified he also responded to George's 911 call. At around 1:30 p.m., Robbins was leaving Josephine's house to respond to another call when he noticed a 2001 black Ford Escape SUV heading in the opposite direction. The SUV was going unusually slow, traveling at about 10 miles an hour when the speed limit was 20 to 25 miles per hour. It also had paper plates, which Robbins considered "odd" for a used vehicle. There was a "Taxi" sign on the vehicle's roof, but no taxicab name or phone number on the door.
Robbins stopped his patrol vehicle to observe the SUV. As the SUV passed him, Robbins saw that Morales was driving the SUV and an adult Hispanic female was sitting in the back seat. Upon seeing Robbins, Morales and the female had a look of "surprise" and "dread." Robbins watched as the SUV stopped in front of a house. The female passenger got out and appeared to pay the driver. When she walked up the driveway of the house, Robbins drove away. Later that afternoon, at around 2:52 p.m., Robbins returned to the Hartman neighborhood in response to a call for backup. When he arrived, he observed that officers had detained a black Ford Escape SUV. Morales and the same female were sitting inside.
Officer Robert Thorsen testified he was one of the officers who initially responded to George's 911 call, and he returned to the neighborhood at 2:52 p.m., in response to Josephine's 911 call reporting hearing footsteps on the roof. When Thorsen arrived, he established a four-block perimeter around the house and utilized a helicopter and a police dog to search for the suspect. After learning some neighbors reported seeing someone running eastbound through their backyards, Thorsen drove southeast to intercept the suspect. About three blocks from Josephine's home, Thorsen saw a black SUV without a front license plate being driven southbound. Morales was the driver and Yvette Sanchez was the front seat passenger. Thorsen stopped the vehicle and noticed Morales looked "very nervous." The officer drew his weapon, ordered Morales to turn off the engine, and called for backup. When backup arrived, Morales was arrested.
Officer Keith Short searched the Ford Escape and found a large quantity of female and male jewelry, and United States and foreign collectible coins. The items were found under the driver's seat, inside the driver's side compartment, inside the armrest compartment, and inside the dashboard. A taxi sign and a crowbar were on the floorboard of the front passenger seat. In addition, there were six magnetic signs, one of which read, "The Hills General Contracting." Officer Short also recovered two sets of binoculars, a driver's license for Morales's brother Jose, and four cell phones, including a black Alcatel cell phone.
Officer Andrew Evans testified he was one of the officers Thorsen assigned to a perimeter position while other officers searched for the suspect. At around 3:30 p.m., Evans was called to assist the search team, which had located Jose hiding in some bushes in front of a house two blocks away from the Hartman home. At trial, the parties stipulated Jose committed a first degree residential burglary when he entered the North Hartman Street home with the intent to commit larceny. B. Uncharged Offenses
The parties stipulated that on September 13, 2015, Huntington Beach police officer James Martin lawfully searched Morales's vehicle. Officer Martin testified he was patrolling a hotel parking lot when he observed two open bottles of beer on a blue SUV. Martin detained Morales and Yvette, who were standing next to the vehicle, and searched the vehicle. He found Jose hiding inside, under a car cover. Martin also found collectible coins in a booklet and numerous envelopes, including an envelope with the name Donald [B.] written on it. Because there was an active arrest warrant for Jose, Martin took him into custody.
Donald B. testified his Fullerton home was burglarized on September 4, 2015. The burglars had ransacked the master bedroom and stolen collectible U.S. and foreign coins and jewelry Donald had stored in the bedroom closet. Donald later received a phone call from a Huntington Beach police officer who said they found his name on some papers. He went to the police department where he identified some of the stolen coins.
Heather Y. testified her Cerritos home was burglarized on January 28, 2016. The burglars ransacked the master bedroom and bathroom and stole her jewelry, including a male and female pair of Omega watches. The week following February 1, 2016, Heather received a phone call from an Orange police officer that her credit card had been recovered. Heather later went to Orange police department and identified the stolen Omega watches. C. Defense Case
Joseph Sierra, the custodian of records for T-Mobile U.S., testified about the cell site location information (CSLI) for the black Alcatel phone with the phone number (562) 781-5872. According to T-Mobile U.S. cell tower records, on February 1, 2016, prior to 11:39 a.m., the phone was in Whittier. Around noon, the phone was in Brea and at 1:01 p.m., the phone was in the City of Orange.
On January 28, 2016, the phone "pinged" cell towers in Agoura Hills and Thousand Oaks. At no time that day did it ping a cell tower in or near Cerritos. The defense did not request CSLI for September 4, 2015, the date of the Fullerton burglary. D. Charges, Jury Verdict and Sentence
Morales was charged with committing a first degree residential burglary on February 1, 2016. (Pen. Code, §§ 459-460, subd. (a); all further statutory references are to the Penal Code, unless otherwise stated.) It was alleged that a nonaccomplice was present during the commission of the burglary. It was further alleged that Morales was released from custody on bail in a separate felony matter at the time of the burglary. (§ 12022.1, subd. (b).) Finally, a prior strike conviction and eight prior prison term commitments also were alleged.
The jury convicted Morales of first degree burglary and found true the allegation a nonaccomplice was inside the residence during the burglary. Morales admitted as true the allegation that he was released from custody in another felony matter on the day of the burglary. He also admitted the prior strike allegation and seven of the prior prison term commitment allegations.
The trial court denied Morales's request to strike the prior strike conviction and instead imposed the related five-year enhancement. It sentenced Morales to four years (low term of two years doubled by strike), stayed the two-year sentence for committing a crime while released from custody on another felony, and struck the punishment on the prior prison term allegations.
II
DISCUSSION
A. Evidence of Prior Uncharged Acts
Under Evidence Code section 1101, character evidence "is inadmissible when offered to prove his or her conduct on a specified occasion." (Evid. Code, § 1101, subd. (a).) However, Evidence Code section 1101 does not prohibit "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, . . .) other than his or her disposition to commit such an act." (Evid. Code, § 1101, subd. (b).) "[T]o be admissible, evidence of other crimes must be relevant to some material fact in issue, must have a tendency to prove that fact, and must not contravene other policies limiting admission, such as Evidence Code section 352." (People v. Malone (1988) 47 Cal.3d 1, 18.) Under Evidence Code section 352, the trial court "in its discretion may 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."
Here, the prosecutor moved to admit evidence of three prior uncharged offenses. Over defense objections, the trial court partially granted the motion, allowing the prosecutor to admit evidence of the burglaries of the homes of Donald B. and Heather Y. to prove Morales's intent to aid his brother's burglary of the Hartman residence or his knowledge of his brother's purpose on the day of that burglary. Morales contends the trial court abused its discretion in admitting evidence of the two prior uncharged offenses under Evidence Code section 1101, subdivision (b), because the evidence was more prejudicial than probative under Evidence Code section 352. Morales argues the prosecution failed to prove by a preponderance of the evidence that he burglarized Donald's and Heather's homes, arguing that his possession of Donald's collectible coins and Heather's watches only shows he committed the crime of receiving stolen property, not burglary. Morales further argues the prior uncharged offenses were not probative of his intent or knowledge in the instant matter. We disagree on both points.
As our Supreme Court has held, "[t]he threshold admissibility of uncharged crimes evidence does not require proof that the defendant was the perpetrator in both sets of offenses." (People v. Leon (2015) 61 Cal.4th 569, 599.) Rather, it is the factfinder - here the jury - who must find by a preponderance of the evidence that Morales committed the prior offenses before relying on those offenses to determine Morales's guilt in the instant matter. (Ibid. ["'a fact finder properly may consider [section 1101(b)] evidence to prove intent, so long as (1) the evidence is sufficient to sustain a finding that the defendant committed both sets of crimes [citation], and further (2) . . . "the factual similarities . . . tend to demonstrate that in each instance the perpetrator harbored" the requisite intent.'"])
The probative value of the prior uncharged offenses is high because the prior offenses tended to show Morales was aware of Jose's intent to burglarize the Hartman residence on February 1, 2016. The evidence of the burglary of Heather's home showed Morales and Jose recently participated together in a home burglary. The burglary of Heather's home occurred the week before the instant burglary. Items stolen from Heather's home were found in the vehicles used by Morales and Jose. A set of watches stolen from Heather was found in Morales's vehicle when he was apprehended in the instant matter. Heather's credit card was found in the truck that dropped Jose off in front of the Hartman residence. Thus, when Jose informed Morales he was in the attic of a house with police outside and the homeowners inside, a reasonable jury could rely on the prior Heather burglary to conclude Morales intended to aid Jose in another home burglary or knew that Jose was committing another home burglary when Morales drove to the crime scene.
Likewise, the burglary of Donald's house showed Morales, Jose and Yvette were aware of Jose's participation in home burglaries. Both Morales and Yvette were present when a police officer found Donald's collectible coins in Morales's vehicle and apprehended Jose, who was hiding in the same vehicle. Thus, when Morales and Yvette arrived in another SUV at the instant crime scene, a reasonable jury could find they were aware Jose was committing another home burglary and intended to aid Jose.
In contrast, there was no risk of undue prejudice because evidence of the prior offenses was not particularly inflammatory. Although the prior offenses were home burglaries, there was no contact between the burglaries and homeowners. Unlike in the instant case, Donald and Heather were not present when the burglar was present. We also find the testimony on the prior offenses occasioned no substantial consumption of time or likelihood of jury confusion. Because the probative value of the evidence of prior uncharged offenses was not substantially outweighed by its prejudicial effect, the trial court did not abuse its discretion in admitting the prior uncharged offenses. B. Sufficiency of the Evidence
The trial court's proper application of the rules of evidence did not render Morales's trial fundamentally unfair. Thus, there was no federal due process violation. --------
Morales was charged with burglary on an aiding and abetting theory. "'A person aids and abets the commission of a crime when he or she, (i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating or encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime.' [Citations.]" (People v. Campbell (1994) 25 Cal.App.4th 402, 409.) "'When the offense charged is a specific intent crime, the accomplice must "share the specific intent of the perpetrator"; this occurs when the accomplice "knows the full extent of the perpetrator's criminal purpose and gives aid or encouragement with the intent or purpose of facilitating the perpetrator's commission of the crime." [Citation.]' [Citation.]" (People v. McCoy (2001) 25 Cal.4th 1111, 1118.)
Morales contends his burglary conviction must be reversed because the evidence was insufficient to prove he shared his brother Jose's specific intent to commit larceny. Morales argues he did not share Jose's intent because when Jose texted him for assistance, the crime of burglary already was complete. Accordingly, Morales argues that although he may have committed the crime of being an accessory after the fact, he did not aid and abet Jose's burglary. He also contends the evidence shows he did not know what Jose was doing or planning to do when Jose texted him for assistance.
In considering a claim of insufficiency of evidence, a reviewing court must determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Marshall (1997) 15 Cal.4th 1, 34; People v. Johnson (1980) 26 Cal.3d 557, 578 (Johnson).) We "'"presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence."'" (People v. Rayford (1994) 9 Cal.4th 1, 23, quoting Johnson, supra, 26 Cal.3d at p. 576.)
In People v. Montoya (1994) 7 Cal.4th 1027, our Supreme Court held that "for the purpose of assessing the liability of an aider and abettor, a burglary is considered ongoing during the time the perpetrator remains inside the structure." (Id. at p. 1045.) The Montoya court reasoned that "one who happens to be at home during a burglary and becomes aware not only of the entry itself, but of the burglar's continued presence, would not agree the offense was completed once the entry was accomplished, but rather would conclude the burglary ceased only when the burglar departed from the structure and the danger was past. One happening to arrive home after the burglar's entry but while he or she still is present in the residence would reach the same conclusion." (Ibid.) Thus, Morales is liable if he aided and abetted any time before Jose left the Hartman residence. The record shows that while Jose was inside the premises, Morales helped Jose by acting as a lookout to inform Jose about the presence of police outside the residence.
The evidence also was sufficient to prove Morales knew the full extent of Jose's criminal purpose. Jose's text messages asking for assistance and expressing concern about the presence of the police and homeowners informed Morales that Jose was inside the residence for an illicit purpose. Morales's deceptive conduct in pretending to be a taxi service showed Morales was aware of the clandestine nature of Jose's presence in the Hartman residence. Morales's knowledge the Hartman residence was in the City of Orange, despite Jose's failure to mention the city in his text messages, indicated Morales knew Jose's plans. Finally, the evidence of the prior uncharged offenses shows Morales and Jose had participated together in prior burglaries. In sum, there was substantial evidence to support Morales's burglary conviction. C. Evidence of Personal Property in Morales's Vehicle
Morales moved to exclude under Evidence Code section 352 evidence of all coins and jewelry found in the Ford Escape that were not connected to the prior uncharged offenses, such as the watches belonging to Heather. The trial court denied the motion. Morales contends the court abused its discretion because the probative value of evidence of other personal property was substantially outweighed by its prejudicial effect.
The large amount and multiple locations of collectible coins and jewelry found in Morales's SUV, along with the binoculars and crowbar, suggests Morales was knowledgeable of or had participated in prior burglaries. Thus, the evidence was probative of Morales's intent to aid Jose in a burglary or Morales's knowledge of Jose's purpose in entering the Hartman residence. Additionally, the evidence of other personal property was not particularly inflammatory or likely to confuse the jury. The trial court did not abuse its discretion by admitting this evidence. In addition, the admission of the evidence did not render the trial fundamentally unfair. Thus, there was no constitutional due process violation. In any event, given the totality of the evidence discussed above, it is not reasonably probable Morales would have achieved a more favorable result had the jury not seen the photographs and learned about the other items found inside the SUV. (People v. Watson (1956) 46 Cal.2d 818, 836.) D. CALCRIM No. 376
Defense counsel requested the court instruct the jury with the following modified version of CALCRIM No. 376 in connection with the prior offense evidence. The requested instruction reads:
"If you conclude that the defendant knew he possessed property and you conclude that the property had in fact been recently stolen, you may not convict the defendant of First Degree Residential Burglary based on those facts alone. However, if you also find that supporting evidence tends to prove his guilt, then you may conclude that the evidence is sufficient to prove he committed First Degree Residential Burglary. [¶] The supporting evidence need only be slight and need not be enough by itself to prove guilt. You may consider how, where, and when the defendant possessed the property, along with any other relevant circumstances tending to prove his guilt of First Degree Residential Burglary. [¶] Remember that you may not convict the defendant of any crime unless you are convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt."
The prosecutor objected, arguing CALCRIM No. 376 only applies if the recently stolen property was related to the charged offense, not to the uncharged offenses. She noted CALCRIM No. 376 instructs the jury to "convict the defendant of any crime" on proof beyond a reasonable doubt, but consideration of prior offense evidence requires only a finding of proof by a preponderance of the evidence. The trial court declined to give the instruction, finding it not applicable.
Morales contends the trial court erred in denying his trial counsel's request to instruct the jury with CALCRIM No. 376. Morales argues CALCRIM No. 376 was required to clarify the court's CALCRIM No. 375 instruction, which provides: "The People have presented evidence that the defendant committed other offenses that were not charged in this case. You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant, in fact, committed the offense." Morales contends CALCRIM No. 375, as given, erroneously precluded the jury from finding Morales committed the prior uncharged offenses of receiving stolen property.
There was no instructional error. First, the proposed modified CALCRIM No. 376 would have confused the jury about the proper standard of proof in evaluating prior offense evidence. The proposed instruction suggests the proper standard is proof beyond a reasonable doubt, but it is axiomatic the proper standard is proof by a preponderance of the evidence. Second, the proposed instruction would not have clarified CALCRIM No. 375 in the manner requested by Morales because the proposed instruction did not explain the basis for determining whether the prior offenses were burglaries or other crimes.
Morales apparently contends CALCRIM NO. 376 is required to "address the conflict between the circumstantial evidence instruction set forth in CALCRIM No. 224, which requires each essential fact in the chain of circumstances to be proven beyond a reasonable doubt" and CALCRIM No. 375, which Morales argues lowers the burden of proof to a preponderance of the evidence. We discern no conflict because CALCRIM No. 375 sufficiently informs the jury that all elements of the current charge must be proven beyond a reasonable doubt. After informing the jury about the standard of proof for prior uncharged offenses (preponderance of the evidence), CALCRIM No. 375 ends with the following: "If you conclude that the defendant committed the uncharged offense, 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 First Degree Residential Burglary. The People must still prove the charge beyond a reasonable doubt." (Italics added.) No additional instruction was required because viewing CALCRIM No. 375 as a whole, it is unreasonable to think the jury would have interpreted the instruction to authorize conviction on the charged offense based on a lower standard than proof beyond a reasonable doubt. In sum, the trial court did not err in failing to instruct the jury with the proposed modified CALCRIM No. 376. E. Senate No. Bill 1393
Finally, Morales contends we should remand the matter for the trial court to exercise its newly granted discretion under Senate Bill No. 1393 (Sen. Bill No. 1393) to strike the five-year prior enhancement. The Attorney General concedes Sen. Bill No. 1393 applies and that remand is appropriate. We agree that Sen. Bill No. 1393 applies to Morales's case. Accordingly, we remand the matter to the trial court to exercise its discretion under Sen. Bill No. 1393.
III
DISPOSITION
The matter is remanded to the trial court for the limited purpose of allowing it to exercise its discretion pursuant to sections 667, subdivision (a), and 1385, as amended by Sen. Bill No. 1393. In all other respects, the judgment is affirmed.
ARONSON, J. WE CONCUR: O'LEARY, P. J. BEDSWORTH, J.