Filed 10/29/14 P. v. Firestone CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D064875

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD248479)

JOHN PAUL FIRESTONE,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Robert F.

O'Neill, Judge. Affirmed.

         Jill Kent, under appointment by the Court of Appeal, for Defendant and Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

William M. Wood, Meagan J. Beale and Felicity Senoski, Deputy Attorneys General, for

Plaintiff and Respondent.

         John Paul Firestone appeals from a judgment convicting him of vandalism. He

argues the trial court erred by (1) admitting evidence of his uncharged misconduct, and
(2) imposing overbroad conditions of mandatory supervision. We reject his contentions

of reversible error and affirm the judgment.

                   FACTUAL AND PROCEDURAL BACKGROUND

       The vandalism incident giving rise to defendant's conviction occurred around 1:30

a.m. on June 2, 2013, when a man (later identified as defendant) threw an object and

shattered a large glass front window of a store located next to a bar. Two witnesses

(William Reaves and Jason Bue) observed defendant at the scene and watched him flee

after the glass shattered.

       Reaves and Bue, who were at the bar next to the store, noticed defendant earlier

that night because defendant had been escorted from the bar after "causing problems" and

defendant kept trying to get back into the bar. When the bar's security guard first asked

defendant to leave, defendant put up "a little argument" but did eventually leave. A short

time later, defendant returned to the sidewalk by the bar and tried to grab a drink from a

table on the patio. The security guard again asked defendant to leave. In another attempt

to enter the bar, defendant tried to get past the security guard by flashing something and

claiming he was "a special agent, FBI officer."

       At the time the object was thrown at the window, Bue was standing outside the

bar's entrance. Bue saw defendant walk by and then saw him standing "directly in front

of the [store] window." Bue looked at defendant's face, and then saw his arms swinging,

as if he was throwing something forward. Although Bue could not discern what, if

anything, defendant had in his hand, the next moment there was a loud shatter and Bue



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saw "glass going everywhere." Bue and defendant made eye contact; defendant started

running away; and Bue chased after him, yelling "Stop."

       Meanwhile, Reaves, who was still inside the bar, heard the sound of glass

shattering, and when he came outside to investigate, "there was only one person there,"

defendant. Reaves saw defendant start to run away; he called 911; and he joined Bue in

the chase after defendant.

       Bue was able to briefly detain defendant, but let him go when he continued to

struggle. Shortly after, the police arrived; Bue directed them in the direction defendant

was running; and the police detained defendant. Bue identified defendant as the person

he had seen swinging his arms by the storefront window when the glass shattered.

Likewise, Reaves spoke to the police about what he had seen.

       Reaves and Bue testified that when they observed defendant that night, he seemed

drunk or high; he was "saying a bunch of gibberish and mumbling a lot"; and his

behavior was "not something you would see from an everyday person in public."

Jury Verdict and Sentence

       Defendant was charged with felony vandalism, and the jury convicted him as

charged. The court sentenced him to a four-year prison term (three years for vandalism

and one year for a prior prison term enhancement). The court ordered that his prison

term be served as a split sentence consisting of two years in jail followed by release under

mandatory supervision for two years.




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                                       DISCUSSION

               I. Admission of Evidence of Defendant's Prior Acts of Vandalism

                                      A. Background

       Prior to trial, the prosecution filed a motion requesting that the court allow

admission of defendant's two prior convictions for vandalism to prove defendant's

identity and intent. The prosecutor told the court that in the first incident defendant

kicked out the window of a patrol car; in the second incident he kicked and broke the

glass front door of a business; and during at least one of the incidents he had been

drinking. The prosecutor argued the prior incidents were similar to the current charged

incident because they both involved defendant breaking glass. Defense counsel objected

to admission of the evidence, arguing the prior incidents were not sufficiently similar and

were more prejudicial than probative. The court ruled the evidence was admissible,

stating it was highly probative and that it had weighed the evidence under Evidence Code

section 352.

       At trial, the parties agreed that the prior misconduct evidence would be presented

to the jury by means of a stipulation. The jury was provided with the following

stipulation: " 'On two previous occasions in 2012, the defendant was convicted of

vandalism arising out of incidents where he damaged or destroyed property. [¶] Incident

One: Defendant damaged a metal door lever. [¶] Incident Two: Defendant damaged a

police car window.' " (Italics added.) Concerning the use of the prior misconduct

evidence, the jury was instructed that, if it found the defendant committed the uncharged

offenses, it could consider the "evidence for the limited purpose of deciding whether or

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not the defendant was the person who committed the offense alleged in this case or the

defendant had a motive to commit the offense alleged in this case or the defendant knew

what would happen when he allegedly acted in this case."

                                     B. Governing Law

       Evidence of the defendant's misconduct that is not charged in the current case is

generally inadmissible for purposes of showing the defendant's bad character or

propensity to commit crimes. (Evid. Code, § 1101, subd. (a); People v. Kipp (1998) 18

Cal.4th 349, 369.) However, uncharged misconduct evidence may be admitted for the

limited purpose of proving material facts apart from criminal disposition, such as identity,

intent, or motive. (Evid. Code, § 1101, subd. (b); People v. Kipp, supra, at p. 369.) For

the evidence to be admissible, the conduct during the uncharged and charged acts must be

sufficiently similar to support a rational inference of facts such as identity, intent or

motive. (People v. Kipp, supra, at p. 369.) To be relevant on the issue of identity, the

uncharged and charged misconduct must be highly similar; i.e., they must share common

marks that are sufficiently distinctive to be like a signature that sets them apart from

crimes of the same general variety, thereby suggesting the offenses were committed by

the same perpetrator. (Id. at p. 370; People v. Miller (1990) 50 Cal.3d 954, 987.) A

lesser degree of similarity is required on the issues of intent or motive, but the uncharged

misconduct must be sufficiently similar to support the inference that the defendant

probably harbored the same intent or had a common motive in each instance. (Miller,

supra, at p. 987; People v. Demetrulias (2006) 39 Cal.4th 1, 15.)



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       Further, because of the prejudice inherent in uncharged misconduct evidence, the

evidence must have substantial probative value, and the trial court must evaluate under

Evidence Code section 352 whether the probative value is outweighed by the probability

of undue prejudice, confusing the issues, or misleading the jury. (People v. Ewoldt

(1994) 7 Cal.4th 380, 404; People v. Kipp, supra, 18 Cal.4th at p. 371.) We review the

trial court's rulings for abuse of discretion. (Kipp, supra, at pp. 369, 371.)

                                         C. Analysis

       Defendant argues the court abused its discretion in admitting the evidence of his

prior vandalism convictions because there was an insufficient showing of similarity

between his prior offenses and the current charged offense to support relevancy, and the

inaccuracy and sparseness of information concerning the prior offenses did not allow for

a proper balancing of probative value against prejudicial effect. We agree, but find the

error harmless.

       At the pretrial hearing, the prosecutor told the court that both of the uncharged

offenses involved defendant breaking glass, but the stipulation submitted to the jury

described only one offense as involving damage to glass, whereas the other offense

involved damage to a metal door lever. Also, the details provided by the prosecutor

concerning the offense involving damage to glass were sketchy, indicating that defendant

kicked out the window of a patrol car. Without greater specificity concerning the facts of

the prior offenses, there was not enough information for the trial court to determine

whether the past acts were sufficiently similar to the current vandalism to support rational

inferences of intent, identity, or motive and that the probative value of the evidence

                                              6
outweighed the potential for prejudice. This conclusion is particularly apropos to the

issue of identity, which requires a high degree of similarity akin to a signature.

       However, reversal is not warranted because there is no reasonable probability the

verdict would have been more favorable to defendant absent any error. (People v. Carter

(2005) 36 Cal.4th 1114, 1152).1 Two eyewitnesses saw defendant throughout the

evening, as he repeatedly tried to gain access to the bar. After defendant was refused

entry a final time, Bue saw him walk by the entry to the bar and stop in front of the

storefront. He then saw him wave his arms in front of the window, as if throwing

something, and seconds later the window shattered. When Bue and defendant made eye

contact, defendant fled the scene.

       Reaves heard the window shatter from inside the bar, and then he, too, saw

defendant fleeing the scene. Reaves did not see anyone else in the vicinity of the store

when the window shattered. Also, there was no suggestion that defendant was doing

anything in the area that could support that his act of breaking the window was

unintentional. Further, defendant's flight immediately after the breakage created a strong

inference of a guilty conscience. The record firmly established that defendant was the

person who broke the window, and that his conduct was volitional. Given the

overwhelming evidence of guilt, there is no reasonable probability the jury would have




1      Defendant's contention that the erroneous admission of uncharged misconduct
evidence should be evaluated under the harmless beyond a reasonable doubt standard for
federal constitutional error is unavailing. (See People v. Jandres (2014) 226 Cal.App.4th
340, 357.)
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reached a verdict more favorable to defendant had it not heard about his prior vandalism

convictions.

                           II. Mandatory Supervision Conditions

       Defendant's mandatory supervision conditions include a term stating: "Obtain

[Probation Officer] approval as to . . . residence [and] . . . employment." Defendant

argues that these conditions are unconstitutionally overbroad because they allow the

probation department unlimited authority to refuse to approve his residence or job

without guidelines for the exercise of that authority, and because they impair his already

limited ability to find housing and work. Although defendant did not object to these

conditions before the trial court, we will exercise our discretion to consider his contention

to the extent it presents a constitutional challenge on undisputed facts and involves pure

questions of law. (See In re Sheena K. (2007) 40 Cal.4th 875, 887, & fn.7.)

       A trial court has broad discretion to select probation conditions. (People v. Olguin

(2008) 45 Cal.4th 375, 379.) Generally, a probation condition that regulates noncriminal

conduct is not an abuse of discretion if it is reasonably related to (1) the crime of which

the defendant was convicted or (2) the goal of preventing future criminality. (Id. at pp.

379-380; People v. Balestra (1999) 76 Cal.App.4th 57, 65.) To avoid unconstitutional

overbreadth, a " 'probation condition that imposes limitations on a person's constitutional

rights must closely tailor those limitations to the purpose of the condition . . . .' " (People

v. Olguin, supra, 45 Cal.4th at p. 384.) Further, all probation conditions are subject to a

general requirement of reasonableness. (See People v. Welch (1993) 5 Cal.4th 228, 233.)



                                               8
       At sentencing, the trial court noted that defendant is an alcoholic, and although he

is only 25 years old, he has accumulated 31 arrests and convictions. Defendant told the

court that his past probation violations arose from situations in which he "didn't have a

probation officer . . . [to] . . . check in with to kind of guide [him] . . . along," and that he

"would like to make the best of the situation." Thus, defendant recognized that he would

benefit from monitoring by a probation officer to help him maintain sobriety and stop his

repetitive criminal conduct.

       When a defendant suffers from alcoholism and has incurred numerous criminal

convictions, it is not unreasonable to impose conditions that allow the probation officer to

approve the defendant's place of residency and employment to ensure that he or she is not

in an alcohol-conducive or criminally-oriented environment. Likewise, because lifestyle

choices related to work or housing can heighten the risk of alcohol use or criminality, a

probation approval requirement for residence and employment selections is closely

tailored to meet the goals of sobriety and crime avoidance.

       Defendant requests that we change the employment and residency approval

requirements to a notification requirement so that he does not lose a job or housing

opportunity because he first has to get probation approval. Assuming that the probation

department requires that a defendant obtain approval before he or she accepts a job or

housing offer and/or starts working or living at a particular site, this type of monitoring

system does not as a matter of law rise to the level of constitutional overbreadth or an

abuse of discretion. For example, there may be cases where preapproval is imperative

because the defendant has a tendency to quickly succumb to substance abuse or a

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criminal lifestyle in certain types of environments. Because defendant did not ask the

trial court to confine the approval condition to a postselection notification system, his

request to narrow the condition in this manner is not reviewable in the first instance at the

appellate level.

       Finally, defendant's citation to People v. Bauer (1989) 211 Cal.App.3d 937, 944

does not alter our conclusion. The Bauer court struck a residency approval requirement

in a case that raised a concern that the condition was designed to keep the defendant from

living with his parents, which the court did not view as reasonably related to his crime or

prevention of future criminality. (Id. at p. 944.) This circumstance is not present here.



       Defendant has not shown that his conditions of mandatory supervision are

constitutionally overbroad.

                                      DISPOSITION

       The judgment is affirmed.




                                                                                HALLER, J.

WE CONCUR:



MCCONNELL, P. J.



AARON, J.

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