Filed 10/8/14 P. v. Rith CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E058922

v.                                                                       (Super.Ct.No. RIF1203465)

SAVADY RATHY RITH,                                                       OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of Riverside County. Dennis A. McConaghy,

Judge. Affirmed.

         Wayne C. Tobin, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, and Charles C. Ragland and

Alastair J. Agcaoili, Deputy Attorneys General, for Plaintiff and Respondent.




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       A jury convicted defendant and appellant Savady Rathy Rith of one count of

vehicular burglary. (Pen. Code, § 459.) The trial court sentenced defendant to two years

in county jail, but directed that execution of one year be suspended and that defendant

instead be granted mandatory supervision under various terms and conditions. (Pen.

Code, § 1170, subd. (h)(5).)

       In this appeal, defendant maintains the trial court erred in admitting evidence of

his prior felony conviction for vehicular theft on the issue of identity because the

uncharged offense was not sufficiently similar to the charged offense to shed light on the

perpetrator’s identity. Defendant additionally maintains the trial court violated his

constitutional right to confront and cross-examine three of the prosecution’s witnesses

when the court incorrectly sustained objections to defense questions that would have

elicited testimony relevant to defendant’s alleged lack of culpability. Finally, defendant

contends these alleged errors cumulatively prejudiced his defense.

       We reject defendant’s contentions and conclude no error occurred. Accordingly,

the judgment will be affirmed.

                               I. FACTUAL BACKGROUND

       On the afternoon of December 7, 2011, Dan Williams parked his blue 2000 Honda

Civic in his Moreno Valley driveway. Williams closed the vehicle’s windows and locked

its doors. The following morning, Williams discovered that his car had been burglarized.

The driver’s side window was forced open, the window pane was off its track, and a sun

visor was broken off and had fallen to the ground. A panel underneath the vehicle’s


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steering column had been removed, exposing the ignition and wiring. The car’s radio and

climate control had been stolen from the vehicle. Speakers had also been removed from

the trunk.

       Law enforcement officials investigated and concluded that someone had been

trying to steal the vehicle; however, the thief was thwarted by the car’s “kill switch,” a

device that breaks the circuit of the ignition system when the vehicle is not started in the

proper manner. Two of defendant’s fingerprints were found on the sun visor that had

been removed from the driver’s side of the vehicle. Williams had never met defendant

before and did not give him permission to enter his car.

       Defendant testified and denied committing the offense. According to defendant,

he would have known how to start a vehicle possessing a “kill switch” system from his

experience working on cars. Defendant stated he would not have gone through a window

visor if he had wanted to burglarize the victim’s vehicle. Defendant admitted to having

suffered two prior felony convictions in San Bernardino County. In November 2011,

defendant was convicted of vehicular theft. In July 2012, defendant was convicted of

being in possession of a stolen vehicle.

       With respect to defendant’s prior vehicle theft conviction, the following evidence

was presented. On October 13, 2011, defendant stole a red 2000 Honda Civic in San

Bernardino. Defendant stripped the car, and later sold some of the stolen parts on Craig’s

List. Police found what remained of the stolen vehicle in a vacant lot, and followed the

tire tracks to defendant’s apartment 150 feet away. Following a search of the property,


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police found the stolen vehicle’s engine under a tarp outside the apartment, in addition to

other car parts and tools. Defendant admitted he had stolen the vehicle and sold its parts.

                                    II. DISCUSSION

A. Prior Offense Evidence

       1. Background

       Before trial commenced, the prosecution requested the court’s permission to

introduce evidence relating to defendant’s 2011 automobile theft conviction in order to

prove the identity of the perpetrator in the charged offense, as well as to demonstrate

defendant’s common plan, motive, and intent, as permitted under Evidence Code section

1101, subdivision (b). Following a hearing, the trial court granted the prosecution’s

motion, admitting evidence of defendant’s prior offense for the purpose of proving

common scheme and plan, motive, intent, and identity (Evid. Code, § 1101, subd. (b)),

and found the evidence to be more probative than prejudicial within the meaning of

Evidence Code section 352.

       At the conclusion of trial, the court instructed the jurors pursuant to a modified

version of CALCRIM No. 375 that they “may, but are not required to,” consider the

evidence of defendant’s prior vehicle theft conviction for the “limited purpose” of

deciding whether: “The defendant was the person who committed the offense alleged in

this case; or [¶] The defendant acted with the intent to commit theft in this case; or [¶]

The defendant had a motive to commit the offense alleged in this case; or [¶] The

defendant had a plan or scheme to commit the offense alleged in this case . . . .”


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       2. Applicable Law

       Character evidence in the form of prior uncharged offenses is inadmissible to

prove criminal character or disposition. However, such evidence is admissible to prove a

material fact such as identity, common design or plan, or intent. (Evid. Code, § 1101,

subds. (a), (b); People v. Lenart (2004) 32 Cal.4th 1107, 1123; People v. Kipp (1998) 18

Cal.4th 349, 369; People v. Ewoldt (1994) 7 Cal.4th 380, 393, superseded by statute on

other grounds, as stated by People v. Britt (2002) 104 Cal.App.4th 500, 505.) To be

admissible for this purpose, the charged and uncharged offenses must be sufficiently

alike to support a rational inference of identity, common design or plan, or intent.

(People v. Kipp, supra, at p. 369.) The actual degree of similarity required depends upon

the material facts to be established.

       The highest degree of similarity between charged and uncharged crimes is

required to establish the uncharged crime’s relevancy to prove identity. (People v.

Ewoldt, supra, 7 Cal.4th at p. 403.) “For identity to be established, the uncharged

misconduct and the charged offense must share common features that are sufficiently

distinctive so as to support the inference that the same person committed both acts.

[Citation.] ‘The pattern and characteristics of the crimes must be so unusual and

distinctive as to be like a signature.’ [Citation.]” (Ibid.) A lesser degree of similarity is

required to show intent than identity or common plan, because the recurrence of similar

conduct tends to negate the possibility that it occurred by accident or inadvertence. (Id.

at p. 402.)


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       On review of such evidentiary rulings, we examine the trial court’s decision for

abuse of discretion, examining the evidence in the light most favorable to the court’s

ruling. (People v. Kipp, supra, 18 Cal.4th at p. 369; People v. Catlin (2001) 26 Cal.4th

81, 120.) In the absence of a showing of such an abuse, we must affirm the lower court’s

ruling. (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)

       3. The Trial Court Properly Admitted Evidence of Defendant’s Prior Offense

       Defendant argues there were insufficient similarities between the current offense

and the prior offense for the court to admit evidence of the uncharged car theft on the

issue of identity under Evidence Code section 1101, subdivision (b). In a related

contention, defendant argues the court erred in instructing the jury it may consider the

prior offense evidence on the issue of identity. Finally, defendant maintains the improper

admission of the prior offense evidence prejudiced the defense in this case. We disagree

with defendant’s assertions, and find the trial court did not abuse its discretion in

admitting evidence of defendant’s prior offense concerning the issue of identity. For the

same reasons, discussed below, the trial court’s instruction to the jury that it may consider

the prior offense evidence to decide the identity of the perpetrator of the charged offense

was properly given. (CALCRIM No. 375.)

       The similarities between the uncharged and the charged offense are striking. In

both crimes, defendant targeted vehicles of precisely the same year, make, and model,

2000 Honda Civics. The offenses occurred within two months of each other, and took

place in the same county at the same general time of day during the early morning hours.


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Both cases involved similar conduct with defendant stripping the cars of their interior

components. Both offenses featured physical evidence linking defendant to the crime

scene—tire tracks leading to defendant’s home in the uncharged offense, and defendant’s

fingerprints found in the interior of the victim’s car in the charged offense. This evidence

supports the trial court’s determination that the two incidents were sufficiently and

uniquely similar, and that evidence of the earlier offense would be probative of

defendant’s intent to enter the victim’s locked vehicle and commit theft in this case.1

       Defendant maintains the prosecution failed to establish that theft of 2000 Honda

Civics was a rare event in Southern California, and that this omission undermines any

unique aspect of the charged and uncharged offenses in this case. Theft of Honda Civics,

and indeed cars of all makes and models, may lamentably be rampant, but this reality

does not weaken the basis for the trial court’s conclusion that evidence of the uncharged

offense was admissible for purposes of showing identity. “[T]he likelihood of a


       1  Even if the foregoing evidence could be construed as inadequately “unusual and
distinctive” for evidence of the uncharged offense to have been properly admitted on the
question of the perpetrator’s identity, the similarities between the uncharged and charged
offenses were clearly sufficient to meet the requirements for the trial court’s alternate
bases of admission (e.g., to prove intent, motive and common plan). (See, e.g., People v.
Kelly (2007) 42 Cal.4th 763, 784 [unlike evidence of uncharged acts to prove identity,
such evidence used to prove a common plan need not be unusual or distinctive, but need
only exist to support the inference that the defendant employed the same plan in
committing the charged offense that he used in the previous offense]; see also People v.
Earley (2004) 122 Cal.App.4th 542, 547 [Fourth Dist., Div. Two] [least degree of
similarity between charged and uncharged acts required to show a defendant’s intent].)
Defendant has not challenged any of the alternate grounds for admission, apparently
conceding that evidence of the uncharged offense was properly admitted on all the trial
court’s stated bases for its ruling, save for identity.

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particular group of geographically proximate crimes being unrelated diminishes as those

crimes are found to share more and more common characteristics.” (People v. Miller

(1990) 50 Cal.3d 954, 988 [noting the fact that uncharged crimes occurred in

predominantly gay area did not diminish significance of fact that uncharged offenses and

charged crime both involved attacks against gay people in close proximity to gay bars];

see also People v. Reza (1984) 152 Cal.App.3d 647, 655-656 [although majority of

commonalities could be true for “several dozen similar Santa Ana burglaries in the same

general time frame,” fingerprint evidence was sufficiently unique to allow admission of

prior offense on issue of identity].) As previously set forth, both the charged and

uncharged offenses were geographically and temporally proximate, involved similar

conduct and the exact same target, and in both cases defendant left physical evidence at

the scenes that linked him to the crimes.

       Even if the trial court’s ruling could be construed as error, defendant was not

prejudiced as a result. Errors in the admission of uncharged offenses are prejudicial only

where it is reasonably probable that the defendant would have received a more favorable

trial outcome if the disputed evidence had been excluded. (People v. Malone (1988) 47

Cal.3d 1, 22, citing People v. Watson (1956) 46 Cal.2d 818, 836.)

       It is not reasonably probably defendant would have received a more favorable trial

outcome in the absence of the alleged error in this case because defendant’s fingerprints

were found in the interior of the victim’s vehicle. In California, it is established that

fingerprints are strong evidence of identity and ordinarily are sufficient, without more, to


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identify the perpetrator of a crime. (People v. Johnson (1988) 47 Cal.3d 576, 601,

overruled on other grounds as stated in People v. Hunter (2006) 140 Cal.App.4th 1147,

1153, fn. 2; see also People v. Tuggle (2012) 203 Cal.App.4th 1071, 1076.) Defendant

makes much of his argument that no evidence was presented concerning the age of the

fingerprints; however, such a detail is irrelevant here since the victim testified he had

never met defendant before and he did not give defendant permission to enter his car.

Defendant confirmed he had never met the victim prior to this case and had never been

inside the victim’s vehicle.

       Moreover, as previously set forth, defendant has not contested the admissibility of

the prior crimes evidence for purposes of common plan, motive, or intent, the alternate

bases of the trial court’s ruling. Accordingly, the jury would have heard this evidence

even if it had been deemed inadmissible on the issue of identity, additionally reducing the

chance of any prejudice here. (People v. Foster (2010) 50 Cal.4th 1301, 1332-1333.)

Finally, the jury was instructed that the evidence of defendant’s uncharged offense “is not

sufficient by itself to prove that the defendant is guilty of second degree burglary. The

People must still prove the charge beyond a reasonable doubt.” (CALCRIM No. 375.)

We presume the jury understood and followed this instruction. (People v. McDermott

(2002) 28 Cal.4th 946, 999.) Based on the foregoing, any error that occurred in the trial

court’s ruling in this case was harmless under any standard. (Chapman v. California

(1967) 386 U.S. 18, 24 [17 L.Ed.2d 705; 87 S.Ct. 824]; People v. Watson, supra, 46

Cal.2d at p. 836.)


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B. There Was No Improper Limitation on Cross-examination

       Defendant contends the trial court improperly restricted the defense cross-

examination of three prosecution witnesses in violation of his Sixth Amendment

constitutional right to confront and cross-examine witnesses. As set forth below,

defendant’s arguments relate exclusively to the court’s restrictions on defense efforts to

elicit evidence supporting arguments intended to disprove defendant’s involvement in the

charged offense, as opposed to any restrictions on exploring the credibility of the

witnesses’ testimony. Accordingly, defendant has not asserted an alleged error of

constitutional magnitude. Following our review of the record, we find no constitutional

violation or any other prejudicial error in the challenged rulings.

       1. Applicable Law

       A criminal defendant has the right to a reasonable opportunity to effectively cross-

examine the witnesses against him. (Delaware v. Van Arsdall (1986) 475 U.S. 673, 680

[89 L.Ed.2d 674, 106 S.Ct. 1431].) “‘However, not every restriction on a defendant’s

desired method of cross-examination is a constitutional violation. Within the confines of

the confrontation clause, the trial court retains wide latitude in restricting cross-

examination that is repetitive, prejudicial, confusing of the issues, or of marginal

relevance. [Citations.] California law is in accord. [Citation.] Thus, unless the

defendant can show that the prohibited cross-examination would have produced “a

significantly different impression of [the witnesses’] credibility” [citation], the trial

court’s exercise of its discretion in this regard does not violate the Sixth Amendment.


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[Citation.]’ [Citations.]” (People v. Virgil (2011) 51 Cal.4th 1210, 1251, citing

Delaware v. Van Arsdall, supra, 475 U.S. at p. 680; see also People v. Frye (1998) 18

Cal.4th 894, 946 [same].) When the alleged error focuses on the exclusion of evidence

rather than the credibility of the witness, the Watson standard of harmless error review

applies. (People v. Hillhouse (2002) 27 Cal.4th 469, 494-495; see also People v. Bacon

(2010) 50 Cal.4th 1082, 1104, fn. 4 [standard of review for “garden-variety evidentiary

questions” is the Watson standard], citing People v. Boyette (2002) 29 Cal.4th 381, 427-

428; People v. Watson, supra, 46 Cal.2d at p. 836.)

       2. Cross-examination of Officer James Helm

       California Highway Patrol Officer James Helm testified concerning defendant’s

prior conviction for automobile theft. Defendant maintains the trial court unduly

restrained defense counsel during her cross-examination of this officer, and that the trial

court’s rulings prevented her from distinguishing the prior offense from the charged

offense, as well as corroborating defendant’s testimony.

       During cross-examination, defense counsel asked questions concerning the

previously stolen vehicle’s security system. The court sustained the prosecution’s

objection on relevance, hearsay, and foundation grounds to this line of questioning.

Defense counsel then asked Officer Helm if he believed defendant had used a key to start

the stolen car. The court sustained the prosecutor’s relevance objection.

       Defense counsel next posed a series of questions concerning the officer’s

knowledge about whether or not defendant performed work on cars. Over the


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prosecutor’s objection, the court allowed the officer to testify that he did not know if

defendant had worked with or installed parts on cars. The court thereafter sustained the

prosecutor’s hearsay and relevance objections to further questioning in this area.

       Because the defense cross-examination did not seek to discredit Officer Helm’s

testimony, defendant’s Sixth Amendment rights were not implicated. (People v. Frye,

supra, 18 Cal.4th at p. 946.) Moreover, there is no reasonable probability that any

conceivable error in the trial court’s rulings on these collateral issues could have

prejudiced the defense because defendant’s own testimony addressed the disputed topics.

Defendant testified that he had 10 years of experience working with cars. He further

stated that he knew how to defeat a “kill switch,” inferring that he could have stolen the

victim’s car in this case if he had been so inclined. Defendant also testified he had used a

“shaved” key to steal the car in the uncharged offense. (See, e.g., People v. Harris

(2013) 57 Cal.4th 804, 846-847 [any error in exclusion of testimony not prejudicial

where jury heard evidence on same subject at other points during trial].)

       3. Cross-examination of Dan Williams

       Dan Williams, the victim in this case, testified that he parked his vehicle in front

of his house around 1:00 p.m. on the day of the burglary. The court sustained the

prosecution’s relevance objections to questions concerning where Williams was coming

from at the time he arrived home, whether he was a student at Moreno Valley College,

and whether he had taken his car for servicing. Upon further cross-examination, the




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victim testified he had driven his car to multiple locations, including school, while he

owned the vehicle.

       Defendant contends further inquiry was warranted into the whereabouts of the

victim’s vehicle in order to pursue a theory that some unknown third party may have

committed the offense, and defendant’s fingerprints had been imprinted on the vehicle

sometime prior to the crime. However, this theory was unsupported because the victim

testified he had never met defendant or given him permission to enter his vehicle.

Defendant confirmed he had never met Williams prior to this action.

       The court also sustained relevance objections to defense questions posed to the

victim concerning the cost of his vehicle’s tire rims and sun visors. Subsequently,

defendant testified that both the sun visors and tire rims on the victim’s car were

expensive. This testimony was sufficient to create the desired defense inference that if

defendant had burglarized the victim’s vehicle, he would surely have taken these valuable

components. (See, e.g., People v. Ervine (2009) 47 Cal.4th 745, 779-780 [no error in

exclusion of testimony where defendant testified to same subjects at trial, and “certainly

no prejudice under any standard.”].)

       4. Cross-examination of Deputy Robert Mills

       The investigating officer, Riverside County Deputy Sheriff Robert Mills, testified

concerning his discovery of defendant’s fingerprints on the vehicle’s sun visor. The trial

court sustained the prosecutor’s relevance objections to questions concerning the officer’s

knowledge of the sale of the vehicle, and origin and installation of its sun visors.


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Defendant maintains that this line of questioning could have elicited an explanation for

his fingerprints having been found on the car’s sun visor.

       First of all, it is doubtful that Deputy Mills could have had any personal

knowledge concerning the vehicle’s sun visors prior to his investigation of the charged

offense. Secondly, the victim testified that the sun visors came with the car when he

purchased it. Moreover, as previously noted, the notion that defendant’s fingerprints had

somehow inadvertently been placed on the vehicle’s sun visors during his previous

encounters with the victim and his vehicle was eviscerated after both parties testified they

had never met. To the extent defendant sought to introduce evidence of some mysterious

third party’s culpability, the trial court was not required to allow such evidence absent a

specific showing linking the alleged third party to the perpetration of the crime. (People

v. Panah (2005) 35 Cal.4th 395, 481.)

       Because defendant cannot show that the introduction of the excluded lines of

cross-examination would have produced any different impression of the witnesses’

credibility, the trial court’s rulings did not violate defendant’s rights under the Sixth

Amendment. (Delaware v. Van Arsdall, supra, 475 U.S. at p. 680.) Moreover, the trial

court properly exercised its discretion in limiting defense counsel’s cross-examination,

and there is no reasonable probability defendant would have received a more favorable

trial outcome in the absence of the court’s alleged erroneous rulings.




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C. There Was No Cumulative Error

       Because we have not found individual error on any of the issues defendant has

raised, a fortiori there is no cumulative error.

                                    III. DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                             RAMIREZ
                                                                                       P. J.


We concur:

McKINSTER
                           J.

CODRINGTON
                           J.




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