Filed 3/29/13 P. v. Laird CA1/4
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                 DIVISION FOUR


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A135134
v.
JEREMY LEE LAIRD,                                                    (Solano County
                                                                     Super. Ct. No. FCR289508)
         Defendant and Appellant.


                                                             I.
                                                INTRODUCTION
         In the middle of the night, someone hot-wired a car, and then crashed it into
another car parked nearby. Awakened by a banging noise, a neighbor saw a shadowy
male figure, possibly wearing a backpack, running toward a nearby golf course. Police
arrived moments later. One of them glimpsed someone disappearing into the woods next
to the golf course. At the spot where the person was seen, police found a recently
dropped backpack. The backpack contained shaved car keys, other car theft-related
equipment, and a methamphetamine pipe. The police searched the adjoining woods with
a dog, and found appellant there half an hour later, standing in a creek.
         Two years earlier, another car theft occurred in the same neighborhood, also
during the night. Later the following day, police found appellant and another man sitting
in the stolen car. Inside the car, police found a backpack containing shaved car keys and
appellant‟s identification. Appellant also had a methamphetamine pipe in his pocket.
Appellant pleaded no contest to the charges arising from this earlier incident.


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       At appellant‟s trial in the present case, evidence of his prior car theft was admitted
on the issue of common plan or scheme. Appellant argues the admission of this evidence
was reversible error. We disagree, and affirm.
                                             II.
                           PROCEDURAL BACKGROUND
       On December 27, 2011, an information was filed charging appellant with felony
vehicle theft (Veh. Code, § 10851, subd. (a)) and possession of a device used for smoking
a controlled substance (Health & Saf. Code, § 11364).1 The information also alleged,
with respect to the vehicle theft count, that appellant had prior convictions for vehicle
theft (Pen. Code, § 667.5), and had served prior prison terms without remaining free from
custody for five years between convictions (Pen. Code, § 667.5, subdivision (b)).
       Jury trial commenced on February 15, 2012. At the conclusion of the trial, the
jury found appellant guilty on both counts. Appellant waived jury trial with regard to the
prior conviction allegations, and the trial court found the prosecution had proven that
appellant had one prior car theft conviction and had served three prior prison terms. On
March 16, 2012, appellant was sentenced to the mid-term of three years on the vehicle
theft count, plus one year for the Penal Code section 667.5, subdivision (b) enhancement,
with the sentence for the paraphernalia count and the other enhancements stayed under
Penal Code section 654. The court ordered that appellant serve one year in custody, to be
served in the county jail under Penal Code section 1170, subdivision (h), and stayed the
remaining three years, with the proviso that appellant remain under supervision during
that period pursuant to Penal Code section 1170, subdivision (h)(5). This timely appeal
followed.




       1
         The information included several other counts, but they were dismissed on the
prosecution‟s motion prior to trial, and are irrelevant to the issues on this appeal.


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                                            III.
            EVIDENCE AT TRIAL REGARDING CHARGED CRIMES
       On August 22, 2011, Brandon Kannier, who lived near the Paradise Valley Golf
Course in Fairfield, heard a large bang on the side of his house sometime during the
night. He immediately got up and went outside, where he saw a person run across the
street and over the lawn of the house directly across the street from his. It was very dark,
and all Kannier could see was that the person was about six feet two inches tall and
weighed between 220 and 240 pounds; from the person‟s height and build, Kannier
assumed it was a man. The person appeared to be wearing dark clothing, and had
something bunched against his back, like a sweatshirt hood or possibly a backpack, and
possibly also a hood or hat.
       When the person reached the nearest intersection, he turned onto the cross street
and headed north toward the golf course, and Kannier lost sight of him. Kannier then
went back inside, and learned that his wife had called 911. She handed him the phone,
and asked him to speak with the police dispatcher. Kannier told the dispatcher that he
thought the person he saw might have been Black, but that he was not sure, and gave the
dispatcher his best estimate of the person‟s height and weight. Kannier did not see the
person well enough to identify him, but based on appellant‟s silhouette, it could have
been appellant.
       During the early morning hours on the same night, John Certeza, who lived on the
same street as Kannier, was awakened by his girlfriend‟s brother, who informed Certeza
that his car, a 1988 or 1990 Honda CRX, was underneath another car two or three houses
down the street. Certeza went out and looked at the car, and saw that the ignition switch,
which had previously been intact, was now broken, and looked as though someone had
tampered with it. Wires were dangling from the steering column. Certeza did not see
how the collision occurred, and did not see anyone leaving the area afterwards.
       Khoi Hoang, who also lived on the same street, was awakened early that morning
when Certeza rang his doorbell. Hoang emerged onto a balcony, from which he could
see that Certeza‟s CRX had been driven into the rear of Hoang‟s Honda Accord, so that


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the CRX ended up underneath the Accord. Like Certeza, Hoang did not see how the
collision occurred, and did not see anyone sitting in, or running from, the CRX.
       Fairfield police officer Tyler Quinn investigated the incident, arriving at about
2:20 a.m. in response to a dispatch that initially referred to a suspicious person, possibly a
Black male adult, and then changed to a vehicle collision. Once on the scene, Quinn
spoke to Kannier about the person Kannier had seen. Kannier initially told Quinn it was
a Black male adult, but when Quinn questioned him further, Kannier stated that he could
not confirm the person‟s race. For that reason, Quinn first told the other responding
officers by radio that the suspect was Black, but updated that soon thereafter to say the
person‟s race was not known. At trial, Quinn testified that appellant appeared to him to
be White. After appellant was later found and arrested, Quinn did not ask Kannier to
look at appellant to see whether appellant was the man Kannier saw running away,
because Kannier had not seen the person well enough to be able to identify him.
       After Quinn arrived, he saw that the CRX appeared to have hit the back of the
Accord, which was parked at the curb in front of Hoang‟s house. The hood of the CRX
was warm, but that of the Accord was cold. The driver‟s door of the CRX was wide
open; the bottom part of the steering column had been removed and was lying on the
floorboard; and the ignition switch and some wires were dangling down from the steering
column, in a manner consistent with one possible method of stealing a car.
       Inside the CRX, Quinn found a shaved-down Volkswagen key on the floorboard
below the dangling ignition switch. Such shaved keys are used by car thieves to enter
and start cars; typically, people who have them carry more than one. The key Quinn
found did not belong to Certeza or his girlfriend, and was not in the CRX when Certeza
last saw it before the incident.
       Fairfield police officer Dale Golez was also dispatched to investigate what was
reported as a hit-and-run collision involving a black male suspect. At about 2:25 a.m.,
Golez arrived at the Paradise Valley Clubhouse, which is adjacent to the main road
leading into the neighborhood where the incident occurred. While there, Golez spotted
the backlit outline or silhouette of a person, apparently male, near the landscaped area


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around the clubhouse. Golez could not see the person‟s clothes, race, or coloring, and
could not tell if the person was holding a backpack.
       Soon after Golez spotted him, the person disappeared into some trees and shrubs.
Golez turned on all his lights, including a spotlight, and made an announcement over his
patrol car‟s PA system identifying himself as a police officer and directing the person to
come out, but no one emerged. Instead, Golez heard rustling noises that sounded like the
person was moving away, further into the trees. Golez relayed what he had seen to the
other officers who were nearby, and they took steps toward establishing a perimeter to
confine the person in the wooded area so that an officer with a dog could find him.
       Police officer John Divine soon arrived with his German Shepherd police dog,
Cargo. Golez, Divine, and Cargo went to the spot where Golez had last seen the person.
Once there, they found a backpack, which was dry despite the fact that the nearby
sprinklers were on. Because it was dry and free of dirt and debris, the backpack did not
appear to have been there very long.
       Officer Divine then made a loud announcement to the effect that a canine unit was
there, and that the dog would be sent in and would bite the person if the person did not
come out. There was no response, so the officers and Cargo proceeded into the heavily
wooded area nearby. A creek, at the bottom of a three- to five-foot deep ravine, runs
through that area in a north-south direction. Cargo, who was off leash, appeared to be
trying to pick up and follow a scent trail. After about half an hour, Golez heard yelling,
from which he concluded (correctly, as he soon found) that Cargo had found and bitten
appellant.
       When Golez reached the source of the yelling, he saw appellant standing in the
middle of the creek, even though the ambient temperature was “kind of cold . . . at that
hour.” Appellant‟s hand was bleeding where Cargo had bitten him, and he was also wet
from the creek water. Divine and another officer got appellant out of the creek, and
Golez then handcuffed appellant and searched him for weapons. Golez did not find
anything related to car theft, such as shaved keys, on appellant‟s person. Appellant was
taken to the hospital due to the injury to his wrist.


                                               5
        Another officer found the backpack that Golez had seen, and gave it to officer
Quinn. Inside it, Quinn found a metal file; two large key rings with 15 to 20 car keys
apiece, many of them shaved; and a “computer tutor” device that could be used to alter
the settings on the computers of Honda vehicles.
        The backpack also contained a glass pipe, three to four inches long, wrapped in a
rolled up handkerchief inside a camera case. The pipe had a bulbous end, inside which
was a white crystalline residue, and burn marks on the outside of the bottom. Quinn was
familiar with this type of pipe, which in his experience was commonly used to ingest
methamphetamine. The burn marks were consistent with the pipe having been used for
that purpose. Quinn did not field test the white crystalline substance or send it to the lab
in order to find out what it was.
                                             IV.
                                       DISCUSSION
        A. Evidence Admitted Concerning Prior Crime by Appellant
        Prior to trial, the prosecution moved to introduce evidence of the facts underlying
appellant‟s 2009 conviction car theft (the prior crime evidence) under Evidence Code
section 1101, subdivision (b) (section 1101(b)). Appellant‟s trial counsel opposed the
motion. After considering the parties‟ written submissions, including an offer of proof by
the prosecution, the trial court granted the motion.
        Later during the prosecution‟s case in chief, and after appellant‟s objection to the
prior crimes evidence was overruled, , the prosecution introduced the following evidence:
        On July 20, 2009, Enrico Dalida, who lived near the Paradise Valley Golf Course,
awoke to find that his 1989 Toyota Land Cruiser SUV was missing from his driveway
where he had parked it the night before. Later that morning, Fairfield police officer
Jimmie Williams saw the stolen Land Cruiser parked near an apartment complex.
Appellant and another man were sitting inside the vehicle; appellant was in the driver‟s
seat.
        Williams directed appellant and the other man to put up their hands, and they did
so, but then drove away. In his effort to evade Williams‟s pursuit, appellant ended up


                                              6
crashing the vehicle into the wall of a nearby parking lot. Appellant left the car and ran
away into an open field, where the police caught up with him.
       The police searched the Land Cruiser, and found inside it a backpack containing
appellant‟s identification and five shaved keys, along with a file that could be used to
shave keys. Appellant admitted the backpack belonged to him. There was a shaved key
in the ignition of the Land Cruiser, and its steering column was undamaged.
       When the police arrested appellant, he had a methamphetamine pipe in his pants
pocket. It had black burn marks on it, and white crystalline residue inside, which tested
positive for methamphetamine. The parties stipulated that appellant pleaded no contest to
charges arising out of the incident on July 20, 2009.
       With regard to the prior crime evidence, the trial court instructed the jury that if it
found by a preponderance of the evidence that appellant committed the prior car theft, it
could, but was not required to, “consider that evidence for the limited purpose of deciding
whether or not [¶] [appellant] had a plan or scheme to commit the offense alleged in this
case.” The instruction continued as follows: “In evaluating this evidence, consider the
similarity or lack of similarity between the uncharged offense and the charged offense.
[¶] Do not consider this evidence for any other purpose. [¶] Do not conclude from this
evidence that the defendant has a bad character or is disposed to commit crime.” Finally,
the instruction reminded the jury that the prior crime evidence was “only one factor to
consider,” and was not sufficient by itself to prove that appellant was guilty.
       B. Admissibility of Prior Crime Evidence
       Evidence of a criminal defendant‟s prior criminal activity cannot be introduced to
show that the defendant has a propensity to commit crimes or a bad character. (Evid.
Code, § 1101, subd. (a); People v. Lindberg (2008) 45 Cal.4th 1, 22 (Lindberg); People v.
Ewoldt (1994) 7 Cal.4th 380, 393 (Ewoldt), superseded in part by statute on another
ground as stated in People v. Britt (2002) 104 Cal.App.4th 500, 505-506.) However,
section 1101(b) permits the introduction of evidence of prior criminal acts for various
purposes, including the existence of a common scheme or plan. (Lindberg, supra, 45
Cal.4th at p. 22.) Here, the trial court admitted the prior crime evidence on the basis of


                                              7
“strong indications of common plan or scheme.” We review the court‟s decision for
abuse of discretion. (People v. Roldan (2005) 35 Cal.4th 646, 705, disapproved on
another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 2.)
       At the outset, we note that appellant‟s brief on appeal argues that the prior crime
evidence was admitted to show identity. This mischaracterizes the record. The trial
court‟s ruling and the jury instructions are unequivocal on this point: the prior crime
evidence was admitted to show common plan or scheme, and only for that purpose.
“This distinction, between the use of evidence of uncharged acts to establish the existence
of a common design or plan as opposed to the use of such evidence to prove intent or
identity, is subtle but significant.” (Ewoldt, supra, 7 Cal.4th at p. 394, fn. 2.) “For
example, in a prosecution for shoplifting in which it was conceded or assumed that the
defendant was present at the scene of the alleged theft, evidence that the defendant had
committed uncharged acts of shoplifting in a markedly similar manner to the charged
offense might be admitted to demonstrate that he or she took the merchandise in the
manner alleged by the prosecution.” (Ibid.)
       We recognize that the only disputed issue at trial was whether appellant was in
fact the person who started up and then crashed the CRX. The prior crime evidence was
not introduced to prove that fact, however. Rather, the prior crime evidence was
introduced to show that the two crimes were committed under sufficiently similar
circumstances and in a sufficiently similar manner to raise an inference that both were
committed according to a common scheme or plan. Obviously, the prosecution wanted
the jury to draw the further inference that appellant was the culprit in both cases;
nonetheless, the evidence was not admitted to prove identity directly.
       “ „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.




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[Citation.]”2 (Lindberg, supra, 45 Cal.4th at p. 22; accord, People v. Kelly (2007) 42
Cal.4th 763, 783 (Kelly).) In the present case, evidence tending to cast light on the
identity of the person who crashed the CRX was obviously material, and, as already
noted, proof that the theft was conducted in accordance with a common scheme or plan
was probative on that issue. Thus, the first issue we must decide is whether the trial court
abused its discretion in concluding that the manner and circumstances of appellant‟s prior
car theft were sufficiently similar to the manner and circumstances of the current crime to
raise an inference of common scheme or plan.
       Different degrees of similarity between the prior crime and the charged one are
required for admissibility, depending on the purpose for which the evidence is
introduced. “When the prosecution seeks to prove the defendant‟s identity as the
perpetrator of the charged offense with evidence he had committed uncharged offenses,
the admissibility of evidence of the uncharged offenses turns on proof that the charged
and uncharged offenses share sufficient distinctive common features to raise an inference
of identity. A lesser degree of similarity is required to establish the existence of a
common plan or scheme and still less similarity is required to establish intent.
[Citations.]” (Lindberg, supra, 45 Cal.4th at p. 23, citing Ewoldt, supra, 7 Cal.4th at
pp. 402-403.)
       “[E]vidence of a defendant‟s uncharged misconduct is relevant where the
uncharged misconduct and the charged offense are sufficiently similar to support the
inference that they are manifestations of a common design or plan.” (Ewoldt, supra, 7
Cal.4th at pp. 401-402.) “The existence of . . . a design or plan . . . may be proved
circumstantially by evidence that the defendant has performed acts having „such a
concurrence of common features that the various acts are naturally to be explained as
caused by a general plan of which they are the individual manifestations.‟ [Citation.]”

       2
         Evidence Code section 352 (section 352), which gives trial courts the discretion
to exclude evidence that is more prejudicial than probative, is one such “rule or policy.”
(See Lindberg, supra, 45 Cal.4th at pp. 22-23.) We discuss appellant‟s argument based
on section 352 in the next section, post.


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(Id. at pp. 393-394.) “[T]he plan need not be unusual or distinctive; it need only exist to
support the inference that the defendant employed that plan in committing the charged
offense. [Citation.]” (Id. at p. 403.)
       For example, in People v. Shea (1995) 39 Cal.App.4th 1257, a rape prosecution in
which the defense was consent, the court upheld the admission of evidence regarding the
defendant‟s previous rape on the ground that “the rape of [the prior victim] was
sufficiently similar to the rape of the charged victim to be admissible.” Sufficient
similarity was found in that in both cases, “appellant was in a bar, drank with the victim,
took her to a private place, violently struck her, ripped her clothes off, and raped her. In
both, the victim fled, naked, to a nearby residence.” (Id. at p. 1269.)
       Here, two thefts of older model year Japanese automobiles occurred in the same
neighborhood within just over two years. Both cars were crashed shortly after they were
stolen—indicating, perhaps, that the thief was not a particularly adept driver. In both
instances, a shaved car key was found in the stolen car, and more shaved keys, as well as
a file that could be used to shave car keys, were found in a backpack at or near the scene.
Both cases involved the presence of a glass pipe of the type used to ingest
methamphetamine, which bore evidence of use in the form of burn marks and residue.
       As appellant points out, there were factual differences between the two cases. In
the earlier case, the stolen car was apparently started using a shaved key, so the steering
column was not damaged; in the present case, the shaved key was sitting on the floor of
the stolen car, which the thief had apparently started in a manner that involved damage to
the steering column and ignition switch. In the earlier case, the crash of the stolen car
resulted from an attempt to evade police pursuit; in the present case, there was no
evidence regarding how or why the CRX ended up rear-ending the Accord. In the earlier
case, the methamphetamine pipe was in appellant‟s pocket; in the present case, it was in
the backpack with the shaved keys. Nonetheless, there were sufficient similarities
between the two cases to create a distinct pattern. Accordingly, we are not persuaded that
the trial court abused its discretion in finding that the similarities evidenced a common
plan or scheme, and admitting the prior crime evidence for that purpose.


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        C. Probative Value Weighed Against Prejudice
        While evidence of uncharged offenses is admissible under the appropriate
circumstances, our high court has cautioned that evidence of this kind “ „is so prejudicial
that its admission requires extremely careful analysis. [Citations.]‟ [Citations.]” (Ewoldt,
supra, 7 Cal.4th at p. 404.) Thus, not only must the probative value of other crimes
evidence be substantial, but that value must not be substantially outweighed by the
probability that the admission of the evidence would create a serious danger of undue
prejudice under section 352. (People v. Kipp (1998) 18 Cal.4th 349, 371.)
        Here, the trial court expressly found that the prior crime evidence was more
probative than prejudicial within the meaning of Evidence Code section 352. Appellant
challenges that conclusion. We review it for abuse of discretion. (People v. Cox (2003)
30 Cal.4th 916, 955, disapproved on another ground in People v. Doolin, supra, 45
Cal.4th at p. 421, fn. 22; People v. Paniagua (2012) 209 Cal.App.4th 499, 518.) That
means reversal is not appropriate unless we are compelled to conclude that the trial court
exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted
in a manifest miscarriage of justice. (People v. Williams (2008) 43 Cal.4th 584, 634-
635.)
        Appellant argues that the relevance of the prior crime evidence was “marginal.”
Like the trial court, we disagree. The prior car theft and the current one had sufficient
features in common, in a sufficiently distinctive combination, to indicate the two crimes
were committed in accord with a common design or plan. That, in turn, provided an
additional link between appellant‟s presence at the scene of the charged crime, and the
commission of that crime. Thus, the trial court did not abuse its discretion in finding that
the prior crime evidence had significant probative value.
        Nor was it severely prejudicial, in the sense in which that term is used in Evidence
Code section 352. Evidence is prejudicial within the meaning of Evidence Code section
352 if it uniquely tends to evoke an emotional bias against a party as an individual, or if it
would cause the jury to prejudge a person or cause on the basis of extraneous factors.
(People v. Foster (2010) 50 Cal.4th 1301, 1331 (Foster); People v. Cowan (2010) 50


                                             11
Cal.4th 401, 475.) Thus, in determining whether other crimes evidence is prejudicial, one
factor courts look to is whether that evidence is inflammatory, i.e., whether the evidence
is likely to inflame the jury‟s passions. (Ewoldt, supra, 7 Cal.4th at p. 405.) In the
present case, there was nothing inflammatory or emotionally charged about the prior
crime evidence. Nor did it carry any potential to cause confusion or mislead the jury.
       Moreover, a limiting instruction can ameliorate section 352 prejudice by
eliminating the danger the jury could consider the evidence for an improper purpose.
(Foster, supra, 50 Cal.4th at p. 1332 [“the jury was instructed not to consider the
evidence to prove that defendant was a person of bad character, thereby „minimizing the
potential for improper use‟ ”]; Lindberg, supra, 45 Cal.4th at pp. 25-26 [instructions
eliminated any danger of confusing issues or misleading jury].) Such an instruction was
given in this case, and appellant does not contend that it was incorrect, incomplete, or
inadequate.
       For all of the foregoing reasons, we are not persuaded that the trial court abused its
discretion in determining that the probative value of the prior crime evidence outweighed
its prejudicial effect. Accordingly, the admission of that evidence did not constitute
reversible error.
                                             V.
                                      DISPOSITION
       The judgment is affirmed.




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                                 _________________________
                                 RUVOLO, P. J.


We concur:


_________________________
RIVERA, J.


_________________________
HUMES, J.




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