Filed 11/12/13 P. v. Sardinha CA2/8
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


THE PEOPLE,                                                          B243935

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. SA075116)
         v.

JOSHUA SARDINHA,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County.
Kathryn A. Solorzano, Judge. Affirmed.

         Lenore De Vita, under appointment by the Court of Appeal, for Defendant and
Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and
Timothy M. Weiner, Deputy Attorneys General, for Plaintiff and Respondent.


                                       __________________________
       Defendant Joshua Sardinha appeals from his conviction of two counts of second
degree robbery (Pen. Code, § 211; counts 1 & 2), two counts of assault (§ 245,
subd. (a)(1), (2); counts 3 & 4), and the associated firearm enhancements (§§ 12022.53,
subd. (b), 667.5, subd. (c), 1192.7, subd. (c) & 12022.5). Defendant contends the trial
court erroneously admitted evidence of an uncharged crime, and, alternatively, failed to
instruct the jury on the limited permissible use of this evidence. He contends the errors
amount to a constitutional violation of his due process rights by rendering his trial
fundamentally unfair. Finding no merit in any of defendant’s contentions, we affirm.
                 FACTUAL AND PROCEDURAL BACKGROUND
       Aram Arutyunyan testified at trial that on January 23, 2009, he found an
advertisement on Craigslist for a MacBook laptop computer for $2,300. He told his
brother, Gamlet, that he wanted to buy the computer, and asked to borrow $1,300.
Gamlet gave Aram the money, and insisted he go with Aram to make the purchase,
because he was concerned that it was “not safe.” Aram contacted defendant by email,
and received a text message response that the computer was “available, but it’s not with
me and just wait one day. It’s by my friend.” The following day, Aram received a text
message from “Derrick” asking if he was still interested in the laptop. Aram indicated
that he was, and defendant replied that he might have to wait until January 25 to sell the
computer. Aram asked defendant to save the computer for him, and defendant replied,
“Okay. I’ll let you know.” Later that day, defendant texted that he could sell the
computer before 9:00 that evening. Aram told him he had the cash, and they agreed to
meet at defendant’s Culver City apartment on Redwood Boulevard at 9:00 p.m.
       Aram and Gamlet drove to defendant’s apartment complex. Aram got out of the
car to meet defendant. Defendant was carrying a dark-colored duffel bag. Gamlet
parked, and he and Aram walked with defendant toward the apartment building.
Defendant then said, “Let’s go [behind the building], because my kids are sleeping, and
it’s in the trunk of my car.” Gamlet became concerned and asked Aram in Armenian,
“You -- is everything -- is it cool? We’re going behind the building.” Aram replied, also
in Armenian, “Yeah. I talked to him all day today. It’s fine.”

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       The three walked to a parking area behind the apartment complex. Defendant
opened the duffel bag, which contained “fake-ish” Apple boxes. Aram and Gamlet asked
to inspect the laptop, but defendant told them he wanted to see the money first. Aram
handed the money to defendant, who counted it.
       Aram noticed someone hiding behind a nearby car, and asked defendant “Who
you got behind the car?” Defendant responded, “Let’s just count really fast and go,
because the whole building thinks that I do drugs, like I’m a trap star,” which is slang for
a drug dealer. Aram saw the person behind the car pop up again, and asked “Why is that
guy doing that again?” He told defendant “something’s wrong. Who is spying on us?
He is going to rob you, and I’m scared, because that’s my money.” Defendant handed
the money to Aram, walked around the car and reported that no one was there. He
walked back to Aram and asked for the money. Aram handed it back to defendant, and
then saw that the person was still behind the car.
       After defendant finished counting the money, he put it in his pocket and pulled out
a semi-automatic handgun, which he held against Aram’s forehead. He told Aram to “get
on the f------ floor.” Aram placed his hands behind his head and said, “Just take the
money. Don’t kill me.” Defendant hit Aram with the handgun, knocking him to the
ground. Defendant and another person began kicking and punching Aram.
       At least three African-American men ran toward Gamlet. One of them struck him
in the right eye with a handgun. He started bleeding and fell to the ground, where the
men repeatedly punched and kicked him, and rifled through his pockets. Eventually,
defendant and his cohorts ran away.
       Aram helped Gamlet walk to the car. Gamlet began driving home, and Aram
called their family and the police. When they arrived home, their mother fainted when
she saw Gamlet’s injuries. Friends took Gamlet to a nearby hospital for treatment. He
was in the emergency room for two days, and the ICU for one week. Gamlet’s eye
socket was broken, requiring major surgery.
       Both Aram and Gamlet identified defendant in court. In March 2010, Gamlet also
identified defendant in a photographic lineup, but Aram was unable to do so.

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       Los Angeles Police Sergeant Blanca Lopez investigated the case and also testified
at trial. She obtained the call records for “Derrick’s” phone. Through those records, she
was able to locate Alex Luu, who had contacted defendant through Craigslist about the
purchase of some iPhones, and who told the Sergeant how he had narrowly escaped harm
at defendant’s hands. The prosecution introduced Alex Luu’s testimony under Evidence
Code section 1101, subdivision (b). Luu had identified defendant in a photographic
lineup. Luu also identified defendant in court.1
       Luu testified that in January 2009, he had responded to a Craigslist posting
advertising Apple iPhones for $425. When he went to meet the seller at a supermarket
parking lot, the seller did not show up, saying he was having car trouble. On January 24,
2009, Luu responded to a similar ad that he believed was posted by the same seller. Luu
and defendant, who called himself “Derrick,” corresponded by text message. Defendant
told Luu to meet him at defendant’s apartment building. Later that day, Luu and a friend
of his arrived to meet defendant, and Luu asked defendant to see the phones. Defendant
showed Luu a black duffel bag and said, “The phones are in here.” When Luu asked to
inspect one of the phones, defendant told Luu to “get out of [the] car.” Luu felt
uncomfortable, so he did not get out of the car. Defendant told Luu he was the apartment
manager and there were cameras that could see them, so defendant suggested they should
move behind a nearby tree that was “covering everything.” Luu told defendant he was
wasting his time, and that if defendant did not show him the iPhones, Luu would leave.
When defendant asked Luu for a cigarette, Luu drove away. Defendant texted Luu to
come back and “Grab these phones.” Luu offered to pay for defendant’s gas money if
defendant would drive to Orange County with the phones. Defendant replied that he
would get a ride out there, but never contacted Luu again.
       The prosecutor also offered evidence of an uncharged February 22, 2009 robbery.
Defendant was not the assailant in that robbery, but his fingerprint was found on one of
the iPhone boxes the assailant left at the scene. The prosecutor initially offered the

1     Defendant does not challenge the admission of the uncharged crime against Luu
on appeal.
                                             4
evidence to show a “common plan and/or scheme” based upon the common elements of
the robberies of people responding to Craigslist ads for Apple products. The court found
the evidence was not necessarily admissible under Evidence Code section 1101,
subdivision (b), but that it was relevant circumstantial evidence that defendant was
involved in these scams because his fingerprint showed he had been in possession of the
duffel bag at some point. The court concluded that all of the robberies took place within
a short distance of each other, and involved a perpetrator with a duffel bag who lured
victims to a location under the ruse that they were selling Apple products. Defendant
objected under section 352. The trial court overruled the objection, finding the evidence
more probative than prejudicial.
       Consequently, an uncharged victim, Krystle Rae Papa, testified that on
February 22, 2009, she and her then-boyfriend Trevor Gentry went to a McDonald’s on
Lincoln Boulevard to purchase iPhones that had been advertised for sale on Craigslist. A
“young guy,” who was not defendant, approached them. He was carrying a black
backpack, and asked if they were there for the iPhones. The “young guy” suggested that
the sale take place in Papa and Gentry’s car. He got in the back seat of their car, and
asked if they had the money. When Gentry handed over the money, the perpetrator
counted it and then “maced” Gentry’s face. Papa tried to grab the perpetrator’s sweater,
and he sprayed her as well. The perpetrator got out and ran away, but left the backpack
behind. It contained several iPhone boxes, on one of which the police found defendant’s
left middle fingerprint.
       Los Angeles Police Detective Noah Stone interviewed defendant. Defendant
admitted to placing “numerous ads on Craigslist” for the sale of iPhones. He claimed that
he placed the ads for his friend, and received $100 for each sale. He posted the ads with
a contact phone number, and would answer calls concerning the iPhones, telling the
caller where to meet to buy the phones.
       A defense witness testified she had paid defendant to paint her apartment in New
York, and he was there between January 21, 2009, and January 26, 2009.


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                                       DISCUSSION
       Defendant contends the trial court erroneously admitted evidence of the uncharged
February 22 incident. Specifically, he contends the evidence was irrelevant and
prejudicial, and that the trial court erroneously concluded the evidence was not subject to
an Evidence Code section 1101, subdivision (b) analysis. Alternatively, defendant
contends the trial court failed to instruct the jury on the limited permissible use of this
evidence. Defendant claims the errors amount to a constitutional violation of his due
process and fair trial rights.
       “As a general rule, evidence the defendant has committed crimes other than those
for which he is on trial is inadmissible to prove bad character, predisposition to
criminality, or the defendant’s conduct on a specific occasion.” (People v. Williams
(2009) 170 Cal.App.4th 587, 607; see also Evid. Code, § 1101, subd. (a) [“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”].)
       However, Evidence Code section 1101, subdivision (b) permits evidence of a
defendant’s uncharged misconduct when relevant to prove “some fact (such as motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or
accident . . . ) other than his or her disposition to commit such an act.” “ ‘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.]” (People
v. Steele (2002) 27 Cal.4th 1230, 1243.)
       Admissibility under Evidence Code section 1101, subdivision (b) is also subject to
section 352 analysis. (People v. Ewoldt (1994) 7 Cal.4th 380, 404 (Ewoldt).)
Section 352 gives the trial court the discretion to “exclude evidence if its probative value
is substantially outweighed by the probability that its admission will (a) necessitate undue
consumption of time or (b) create substantial danger of undue prejudice, of confusing the
issues, or of misleading the jury.” “ ‘The “prejudice” referred to in . . . section 352

                                               6
applies to evidence which uniquely tends to evoke an emotional bias against defendant as
an individual and which has very little effect on the issues. In applying section 352,
“prejudicial” is not synonymous with “damaging.” ’ [Citation.]” (People v. Bolin (1998)
18 Cal.4th 297, 320 (Bolin).)
       A trial court’s ruling under Evidence Code sections 1101 and 352 is reviewed for
abuse of discretion. (People v. Lewis (2001) 25 Cal.4th 610, 637.)
       The trial court found that the evidence of the February 22 incident was probative
of defendant’s participation in a scam like the one for which he was on trial, yet
concluded that it “[didn’t] see an [Evidence Code section] 1101(b) issue.” We conclude
evidence of the February 22 incident was not “generally admissible” as circumstantial
evidence that defendant committed the charged robberies, independent of section 1101,
subdivision (b). The probative value of the evidence depended on the inference that
defendant’s fingerprint on the empty iPhone box established his participation in the
February 22 crime. Accordingly, the fingerprint was “evidence that [defendant]
committed a crime, civil wrong, or other act” within the meaning of section 1101,
subdivision (b). Other crimes evidence is not admissible to prove defendant committed
the charged offense, except under limited circumstances requiring a more stringent
analysis than relevance. (§ 1101, subds. (a), (b); see also Ewoldt, supra, 7 Cal.4th at p.
404 [“Evidence of uncharged offenses ‘is so prejudicial that its admission requires
extremely careful analysis.’ ”].)
       Nevertheless, any ruling that is correct in law will be sustained “ ‘ “regardless of
the considerations which may have moved the trial court to its conclusion.” [Citation.]’
[Citation.]” (People v. Zapien (1993) 4 Cal.4th 929, 976; see also People v. Jones (2012)
54 Cal.4th 1, 50.) Here, because the prosecution initially offered the evidence under
Evidence Code section 1101, subdivision (b), there is a full and complete record
demonstrating the evidence was admissible to establish defendant’s identity, as well as a
common plan or scheme.
       In assessing relevance under Evidence Code section 1101, subdivision (b), the
least degree of similarity between the uncharged and charged offenses is required to

                                              7
prove intent. (Ewoldt, supra, 7 Cal.4th at p. 402.) The uncharged misconduct need only
be sufficiently similar to support an inference that the defendant probably had the same
intent on each occasion. (Ibid.) To prove the existence of a common design or plan, a
higher degree of similarity between the uncharged and charged offenses is required.
(Ibid.) “To establish the existence of 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.” (Id. at p. 403.) Even plans
lacking originality are highly relevant. (Ibid.) “The greatest degree of similarity is
required for evidence of uncharged misconduct to be relevant to prove identity . . . . ‘The
pattern and characteristics of the crimes must be so unusual and distinctive as to be like a
signature.’ ” (Ibid., citations omitted.)
       The February 22 incident shared sufficient features common with the charged
offenses to support the inference that they were part of a common plan in which
defendant had a hands-on role, to rob victims by luring them with phony Craigslist ads
and to use violence to immobilize them while making the getaway. In the charged and
uncharged crimes, victims responded to Craigslist postings advertising the sale of Apple
products. The crimes occurred within a month of each other, at nearby locations. In
each, the perpetrator carried a dark bag containing “fake-ish” Apple boxes. The
perpetrator did not allow the victims to inspect the products, demanding the money in
advance. After the money was counted, the perpetrator violently immobilized the
victims, and made off with their money. Just as defendant was aided in the robbery of
the Arutyunyan brothers by several others, more than one perpetrator was involved in the
February 22 robbery (at least, the accomplice who arranged the transaction and the
assailant who pepper sprayed the victims). It is immaterial that defendant was not the
assailant in the February 22 incident; defendant’s fingerprint on one of the empty boxes
showed he had touched it at some point before it was put inside the bag, just as he
handled the duffel bag holding the fake Apple boxes involved in the other crimes.
Clearly, defendant handled the decoys in both crimes, having a pivotal role in the ruse.
Given these similarities, the February 22 incident was highly probative of defendant’s

                                             8
participation in the charged crimes. (See People v. Balcom (1994) 7 Cal.4th 414, 424-
425.)
        Moreover, the evidence was not unduly prejudicial. The February 22 incident was
significantly less violent than the charged crimes, and defendant did not take part in the
assault on the victims in the February 22 incident. Therefore, the evidence was unlikely
to “ ‘evoke an emotional bias against defendant.’ ” (Bolin, supra, 18 Cal.4th at p. 320.)
        Defendant contends that even if the evidence was admissible, the jury did not
receive a limiting instruction on the permissible use of the evidence.2 Defendant admits
that he did not request a limiting instruction at trial. Generally, a court is not required to
instruct sua sponte on the limited admissibility of prior crimes evidence. (People v.
Mendoza (2011) 52 Cal.4th 1056, 1094.) There is an exception where the uncharged
offense is a dominant part of the evidence against the defendant and is highly prejudicial
and minimally relevant. (Ibid.) The February 22 crime was not a dominant part of the
case. Moreover, as discussed ante, the evidence was highly probative and was not
unduly prejudicial.
        Even assuming, arguendo, that the evidence should have been excluded, any error
was necessarily harmless, even in the absence of the limiting instruction. The erroneous
admission of evidence requires reversal only if it is reasonably probable that defendant
would have obtained a more favorable result had the evidence been excluded. (Evid.
Code, § 353, subd. (b); People v. Earp (1999) 20 Cal.4th 826, 878; People v. Watson
(1956) 46 Cal.2d 818, 836.)3 The evidence against defendant was substantial, and the


2      CALCRIM No. 375 directs the jury to consider other crimes evidence only if the
People have proved by a preponderance of the evidence that the defendant committed it
and to consider it only for a specified limited purpose, such as identity, intent, motive,
knowledge, accident, common plan or consent.

3       We decline defendant’s invitation to apply the more stringent harmless error
analysis applicable to constitutional errors under Chapman v. California (1967) 386 U.S.
18. Defendant has attempted to put a “constitutional gloss” on the claimed error, arguing
the admission of the uncharged February 22 incident violated due process and rendered
his trial fundamentally unfair. Assuming this error was preserved by defendant’s
                                               9
February 22 incident was only a small part of the case. Aram, Gamlet, and Luu all
identified defendant in court, and Gamlet and Luu also identified him in a photographic
lineup. Defendant admitted to placing ads on Craigslist to sell iPhones for a “friend.” It
is not reasonably probable that defendant would have received a more favorable result
had the testimony regarding the February 22 incident been excluded.
                                     DISPOSITION
       The judgment is affirmed.


                                                 GRIMES, J.

We concur:

                     BIGELOW, P. J.



                     RUBIN, J.




Evidence Code section 352 objection (People v. Partida (2005) 37 Cal.4th 428, 435), we
find no due process error. The admission of evidence may violate due process if there is
no permissible inference a jury may draw from the evidence. (People v. Steele, supra, 27
Cal.4th at p. 1246.) Here, as discussed ante, there were clearly permissible inferences to
draw from the evidence. Moreover, “the admission of evidence, even if erroneous under
state law, results in a due process violation only if it makes the trial fundamentally
unfair.” (Partida, supra, at p. 439.) The evidence introduced here was limited and was
not so prejudicial as to render defendant’s trial unfair.

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