Filed 4/4/14 P. v. Lopez CA2/8
               NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                    SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


THE PEOPLE,                                                                  B245820

          Plaintiff and Respondent,                                          (Los Angeles County
                                                                             Super. Ct. No. BA399073)
          v.

GABRIEL LOPEZ,

          Defendant and Appellant.




          APPEAL from a judgment of the Superior Court of Los Angeles County.
Michael D. Abzug, Judge. Affirmed as modified.

          James Koester, 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, Mary Sanchez
and Rene Judkiewicz, Deputy Attorneys General, for Plaintiff and Respondent.


                                       __________________________
         Gabriel Lopez appeals from the judgment entered after a jury convicted him
of burglarizing a car. We reject his contention that the trial court erred by
admitting evidence of his prior burglary conviction and affirm on the merits.
However, as conceded by respondent, the trial court committed certain sentencing
errors and we modify the judgment to correct those errors.

                     FACTS AND PROCEDURAL HISTORY

         At around 1 a.m. on June 2, 2012, James Martinez saw Gabriel Lopez
sitting inside Martinez’s car, which was parked in front of Martinez’s work place
at 57th and Bandera Streets in Los Angeles. Martinez recognized Lopez as
someone who frequented the area. Lopez appeared to be rummaging through the
car. He then left the car carrying Martinez’s sweatshirt and a book of business
cards.
         Martinez yelled “hey,” but Lopez began walking away quickly. Martinez
followed Lopez for about a block and a half and when he approached, Lopez
threw the book of business cards away and dropped the sweatshirt. Lopez then ran
away.
         Martinez said he had locked his car and that Lopez did not have permission
to be inside the car. There was no sign of forced entry or physical damage to
Martinez’s car, however.
         Lopez was charged with one count of burglarizing an automobile. (Pen.
Code, § 459.) Over a defense objection the jury heard evidence that Lopez was
convicted of residential burglary in 2006. The victim of that crime testified that he
saw Lopez pull out a floorboard on the building, which was where the victim both
lived and worked. He saw Lopez enter, and then exit, from the opening. The
victim then discovered that the money he kept inside his residence was missing.
That crime occurred on the same block where Martinez’s car was parked.




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       The trial court admitted the evidence under Evidence Code section 1101
because it was relevant to the issues of intent to steal and of acting pursuant to a
common plan or design. Lopez contends the trial court erred.

                                   DISCUSSION

1.     Evidence Of The Prior Conviction Was Admissible

       Although evidence that a criminal defendant committed other crimes is not
admissible to show his propensity to commit crimes (Evid. Code, § 1101,
subd. (a)), it may be admitted if relevant to show a material fact such as identity,
intent, or common plan, scheme, or design. (Evid. Code, § 1101, subd. (b); People
v. Jones (2011) 51 Cal.4th 346, 371 (Jones).)1
       There must be some degree of similarity between the charged crime and the
other crime, but the degree required depends on why the evidence was presented.
The least degree of similarity is needed when the evidence is offered to prove
intent. (Jones, supra, 51 Cal.4th 371.) Lopez concedes there is sufficient
similarity between the current and uncharged offenses to satisfy this test. He
contends that the evidence was inadmissible because he effectively conceded
intent and limited his defense to the issue of whether Martinez’s truck had been
locked when he entered it.2 Lopez argues that his intent to commit theft was so
obvious from the facts that evidence of his previous burglary conviction was
cumulative and should not have been admitted under section 1101. For the same
reason he contends that the evidence was more prejudicial than probative and
should have been excluded under section 352.




1      All further undesignated section references are to the Evidence Code.

2       In order to prove burglary, the prosecution had to show that, in addition to
the intent to commit larceny, the car was locked when Lopez entered it. (In re
James B. (2003) 109 Cal.App.4th 862, 868.)
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          Lopez cites three decisions to support this contention: People v. Balcom
(1994) 7 Cal.4th 414 (Balcom), People v. Ewoldt (1994) 7 Cal.4th 380 (Ewoldt),
and People v. Lopez (2011) 198 Cal.App.4th 698 (Lopez).
          In Balcom, the Supreme Court held that the trial court erred by admitting
evidence at defendant’s rape trial that he had committed a rape in Michigan
several weeks earlier. Even though the defendant’s not guilty plea placed in issue
all elements of the charged offense, evidence of his intent to rape was unnecessary
given the facts of the case: the victim testified she had been raped at gunpoint,
while the defendant contended they had consensual sex and no gun was involved.
Given the absence of a middle ground between these two divergent stories, the
jury could not possibly conclude that the defendant lacked the intent to rape if he
in fact held a gun to the victim’s head. (Balcom, supra, at p. 422.)
          In Ewoldt, the defendant was charged with committing lewd acts on a
young girl. The Supreme Court held that the trial court erred by admitting
evidence of uncharged sex offenses against the victim and her sisters because, if
the jury found defendant committed the acts charged, they were so sexually
explicit that his intent could not be reasonably disputed. (Ewoldt, supra, 7 Cal.4th
at p. 406.) Given the similarities between the charged and uncharged offenses,
evidence of the latter was more prejudicial than probative under section 352.
(Ibid.)
          In Lopez, the Court of Appeal held it was prejudicial error to permit
evidence of uncharged prior burglary offenses on the issue of intent at the
defendant’s trial on burglary charges based on the theft of two purses from the
victim’s home. Although the identity of the thief was hotly contested at trial,
evidence of the required intent to steal was a foregone conclusion as to whomever
was the thief. As a result, the trial court erred by allowing evidence of the earlier
burglaries. (Lopez, supra, 198 Cal.App.4th at pp. 715-716.)
          The key factor in all three of these cases is that intent was not an issue,
either because the defendant stipulated to that issue (Ewoldt, supra, 7 Cal.4th at

                                              4
p. 387), or because the facts of the crime left no doubt that the perpetrator acted
with the requisite intent. This case is different because at the time of the trial
court’s evidentiary ruling, Lopez had not announced whether he would forego
testifying on his own behalf.
       At the same hearing where the admissibility of the prior conviction was
argued, the trial court also agreed to allow in evidence of other convictions Lopez
incurred in order to impeach him should he testify. Although defense counsel
objected that the prior conviction evidence was unnecessary on the intent issue,
she never went on to state that Lopez would not contest that issue, and did not
advise the court that Lopez would not testify. When the victim of the earlier
burglary was called to testify, she did not renew the objection and still did not
advise the trial court that Lopez would not be testifying. That did not become
clear until the end of the prosecution case, when the defense rested without calling
a witness. Finally, although defense counsel focused her jury arguments on the
locked door issue, she left open the possibility that Lopez challenged whether he
was the person seen in Martinez’s car, arguing that Martinez and other witnesses
“allegedly” saw Lopez in Martinez’s car, and also told the jury that the
prosecution had to prove “each and every element of the crime charged . . . .”
       In short, even though the primary issue was whether the car doors were
locked, when the trial court ruled on Lopez’s objection to the prior convictions
evidence, it was unclear whether Lopez might testify and offer an innocent
explanation for his behavior. This possibility persisted through the testimony of
the victim of the earlier burglary, while even during jury arguments defense
counsel made statements that sounded as if she were challenging the prosecution
on all elements of the auto burglary charge.
       We review the trial court’s rulings to admit the evidence under sections
1101 and 352 under the abuse of discretion standard. (People v. Harris (2013)
57 Cal.4th 804, 841 [§ 1101]; People v. Rocha (2013) 221 Cal.App.4th 1385, 1397


                                           5
[§ 352].) Based on these circumstances, we conclude the trial court did not abuse
its discretion by allowing in evidence of Lopez’s earlier, similar, burglary charge.
       We alternatively conclude that even if error occurred, it was harmless. As
Lopez contends, the true issue for the jury was whether the car doors were locked.
If not, then no burglary occurred. Even if the prior conviction evidence
impermissibly tilted the jury toward believing that Lopez was likely to have taken
items from Martinez’s car, evidence of his criminal propensity had no bearing on
whether the car had been locked. The evidence on this point was in doubt:
although Martinez swore he had locked the car doors, there was no evidence of a
forced entry to the car, or that Lopez possessed or knew how to use a car burglar’s
tools. In fact, because the prior burglary conviction involved gaining entry to a
structure by moving aside a loose board, the facts of that case were most unlikely
to lead the jury to conclude that Lopez was capable of gaining entry to a locked
car. Ultimately, the jury had to chose between Martinez’s repeated testimony that
the car doors were locked and the inference that they were not due to absence of
signs of forced entry. Defendant’s prior record could have had no bearing on the
jury’s task.
       We therefore hold that a result more favorable to Lopez was not reasonably
probable absent evidence of the prior burglary conviction. (People v. Lindberg
(2008) 45 Cal.4th 1, 26.)

2.     We Modify The Judgment To Correct Sentencing Errors

       After the jury reached its verdict, Lopez admitted the truth of three prior
convictions, one which served as a second strike under the “Three Strikes” law,
and two which qualified for the one-year sentence enhancement based on service
of prior prison terms. (Pen. Code, § 667.5, subd. (b).) The trial court imposed the
midterm sentence of two years for the auto burglary, which was doubled to four
years under Three Strikes. The trial court believed that was a sufficient sentence


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given Lopez’s troubled childhood, and decided to stay the separate one-year
enhancements under Penal Code section 667.5.
       As Lopez contends and respondent concedes, this was error. The trial court
could not stay the enhancement, but did have discretion to dismiss it under Penal
Code section 1385. (People v. Langston (2004) 33 Cal.4th 1237, 1241.) The
parties ask that we remand the matter for a new sentencing hearing so the trial
court can decide whether to impose or dismiss the two section 667.5
enhancements. However, the trial court was very clear that it did not want to tack
on those extra two years and we have no doubt that it would dismiss those
enhancements. Accordingly, we modify the judgment to dismiss them.
       Lopez also contends, and respondent also concedes, that the trial court used
the wrong formula for determining his presentence custody credits under a former
version of Penal Code section 4019. Respondent acknowledges that Lopez is
entitled to twice the number of custody credits awarded, but asks that we leave the
task to the trial court in light of its request that we remand for resentencing on the
prior prison term enhancements. Because no remand is required, we will correct
the error ourselves. Accordingly, we will order the abstract of judgment amended
to state that Lopez had earned 148 days of actual custody credits and 148 days of
credits under Penal Code section 4019, for a total of 296 days.

                                   DISPOSITION

       The judgment is modified to dismiss the two one-year enhancements (Pen.
Code, § 667.5, subd. (b)), that were erroneously stayed. It is also modified to state
that Lopez earned 148 days of actual custody credits and 148 days of Penal Code




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section 4019 credits, for a total of 296 days of credits. The modified judgment is
affirmed.




                                                RUBIN, J.
WE CONCUR:



             BIGELOW, P. J.



             FLIER, J.




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