Filed 10/16/19
                       CERTIFIED FOR PARTIAL PUBLICATION*




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                             THIRD APPELLATE DISTRICT
                                       (Sacramento)
                                             ----




    THE PEOPLE,                                                       C079382

                 Plaintiff and Respondent,                   (Super. Ct. No. 13F07431)

         v.

    JOVAN JERMAINE FELIX,

                 Defendant and Appellant.


      APPEAL from a judgment of the Superior Court of Sacramento County,
Robert M. Twiss, Judge. Affirmed.

        Victor S. Haltom, Retained Counsel for Defendant and Appellant.

       Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and
Carlos A. Martinez, Supervising Deputies Attorneys General, for Plaintiff and
Respondent.



* Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified
for publication with the exception of Part II of the Discussion.

                                              1
       Defendant Jovan Jermaine Felix contends the trial court abused its discretion in his
trial for attempted murder by introducing evidence of a prior crime and by denying his
motions for retrial and to reopen the evidence. We disagree and affirm the judgment.

                            FACTS AND LEGAL PROCEEDINGS
       Defendant and his girlfriend went to the Level Up Lounge in midtown Sacramento
late on August 17, 2013. Defendant ordered a Long Island Iced Tea. The bartender,
Daniel Petty, made and served the drink. Without tasting the drink, defendant refused it,
saying he would not enjoy it. He wanted Petty to make him another drink. His girlfriend
said the drink needed more alcohol. Petty said he could add more alcohol, but it would
cost more. After the two pushed their drinks away, Petty asked Scott Nguyen, the other
bartender on duty, to take over, and he went outside.
       Defendant told Nguyen the drink was too sweet. Nguyen offered to make it sourer
or to make a different drink, but defendant did not like either suggestion. He and his
girlfriend soon left the bar.
       Outside, Joleen Esquivel, the bar’s general manager, was seated with some
friends. Petty was informing her of a conflict in the bar when defendant came out and
interrupted them. He said Petty had a “bootsy” or messed-up attitude. Petty explained to
Esquivel what had happened, and Esquivel offered to make defendant another drink.
Defendant refused the offer. He said he came to the bar a lot and was not coming back.
       Commenting on the customer service, defendant said, “This is how places get
burned down.” Shocked, Esquivel asked, “Are you threatening us?” Defendant replied,
“No, but I’m just saying that’s how stuff like that happens.” He said his girlfriend was a
bartender. Addressing the girlfriend, Esquivel explained that as a bartender, she would
know that someone who wants more alcohol in a drink must pay for it. Defendant and
his girlfriend left.

                                             2
       Around 1:30 or 2:00 a.m., Petty and Nguyen began closing the bar along with
another bar employee, Angelo Stowers. The bar’s DJ, Aaron Jacobson, began packing up
his equipment. While they were closing, Stowers had about six ounces of whiskey but
did not appear intoxicated. Jacobson had four to six drinks that evening.
       As the group was leaving, Nguyen and Stowers noticed defendant around the
corner. He was wearing a fisherman’s hat pulled over his face. Defendant was with
another man, later identified as Cornelius Jones. Jones wore glasses. He appeared
disgruntled and had clenched fists. He peered into the building’s windows. Nguyen
heard Jones ask, “Are these the guys?” Petty heard Jones say, “They both have glasses.”
Nguyen said to the two men, “What’s up?” Stowers told the group to walk away.
       As Nguyen was leaving, Jones punched him in the head from behind. Nguyen
went to the ground. Stowers grabbed Jones with both arms and body-slammed him to the
sidewalk. Jacobson kicked Jones in the back of the head. Defendant lunged at Jacobson
and tried to hit him with his fist, but Jacobson kept his distance as defendant chased him.
       Jones stood up and brandished a knife. Stowers yelled, “Knife!” and everyone
started to disperse. Stowers jumped backward into the street and ran to the other side as
Jones chased him. He slipped and lost his footing on the curb. He landed against a wall
of a restaurant. He turned, and Jones was almost on top of him. He grabbed Jones’s
wrist, but Jones stabbed him in the stomach. Stowers pulled out his own knife and
slashed Jones across the face. Jones put his left hand up to his face, and Stowers yelled
“Cops!” Jones immediately bolted off. A GMC SUV pulled up. Defendant and Jones
got in, and the car went away.
       Stowers was transported to the hospital, where he underwent surgery to ligate a
small artery that had been cut by the stabbing. During the surgery, Stowers’s heart
stopped beating. Various measures were taken, and his heart restarted within minutes.




                                             3
       Back at the crime scene, Nguyen discovered that two of his car’s tires had been
slashed. He frequently parked in the same spot when he worked at the bar. Police
recovered a pair of glasses by where Jones stabbed Stowers.
       Jacobson positively identified Jones in a photo lineup. Police found a GMC
Yukon parked outside Jones’s residence. When authorities contacted Jones, he was not
wearing glasses, although some of his Facebook photos depicted him wearing glasses.
       Defendant and Jones were tried jointly before separate juries. Jones was convicted
of premeditated attempted murder and other serious crimes. (People v. Jones (2019)
32 Cal.App.5th 267, 269.) However, the court declared a mistrial in defendant’s case.
       After retrial, a jury found defendant guilty of attempted murder, assault with a
deadly weapon, and assault by means of force likely to produce great bodily injury. (Pen.
Code, §§ 664/187, subd. (a); 245, subds. (a)(1), (4), unless otherwise stated, statutory
section references that follow are to the Penal Code.) The court found that defendant
committed the assault by means of force likely to cause great bodily injury while released
from custody on a primary offense, and that he had a prior strike and serious felony
conviction for assault with a firearm. (§§ 12022.1; 245, subd. (a)(2); 667, subd. (a);
667.5, subd. (b)-(i); 1170.12.)
       The court sentenced defendant to a state prison term of 28 years four months as
follows: a doubled upper term of nine years for a total of 18 years for the attempted
murder; a one-third consecutive doubled term of two years for the assault with force; five
years for the prior serious felony enhancement, two years for the released from custody
enhancement, and, in a separate case, a one-third consecutive term of one year, four
months for possession of a firearm by a felon (§ 29800, subd. (a)(1)). The court stayed
its sentence on the assault with deadly weapon count under section 654.




                                             4
                                      DISCUSSION

                                             I

                                 Evidence of Prior Crime

       Defendant contends the trial court erred when it admitted evidence of an armed
robbery he committed with Jones in 1994. He claims the robbery was too dissimilar to
the current crime to be admitted. It was remote in time, it shared no characteristics with
the current crime other than the identity of the perpetrators, and it occurred when
defendant was a young teenager.
       Defendant argues that admitting the evidence was prejudicial error. The trial court
reached the opposite conclusion than the first trial court which had refused to admit the
evidence. Defendant claims prejudice is shown because the first trial ended in a hung
jury without hearing the evidence, yet the jury in the second trial which heard the
evidence convicted him.
       We disagree with defendant’s contentions.

       A.     Background
       The prosecution proceeded on two theories of attempted murder against defendant:
straight aiding and abetting, and aiding and abetting under the natural and probable
consequences doctrine. To prove defendant was guilty of attempted murder under a
straight aiding and abetting theory, the prosecution had to establish defendant knew that
Jones intended to commit murder. (CALCRIM No. 401.) To prove defendant was guilty
under the natural and probable consequences doctrine, the prosecution had to establish
that a reasonable person in defendant’s position would have known that Jones’s attempt
of murder was a natural and probable consequence under all the circumstances of their
common plan to commit assault. (CALCRIM No. 402; see People v. Vasco (2005)
131 Cal.App.4th 137, 161-162 [defendant’s knowledge that perpetrator was a dangerous,



                                             5
violent paranoid sociopath was relevant to natural and probable consequence
determination].)
       In the first trial, the prosecution made an in limine motion under Evidence Code
section 1101, subdivision (b), to present evidence of two crimes defendant and Jones
previously committed together. It argued that the evidence of these crimes would
establish that defendant knew Jones well and at the time of the assault knew he had a
violent nature and even knew his intent.
       One incident occurred on February 12, 1993, when a security guard broke up a
fight in a shopping mall. Defendant and Jones were involved. A juvenile found with a
gun said defendant gave him the weapon. Defendant was arrested, and Jones was
released.
       The second incident occurred on January 25, 1994. Defendant, Jones, and two
other juveniles robbed a coin store. Aiming a handgun at a customer, Jones said, “Give
me all your mother fucking money!” The customer complied. Another juvenile took all
the money from the register and a handgun found in a desk drawer. Jones forced an
employee at gunpoint to open a watch case, and the juveniles took a tray of Rolex
watches. The next day, authorities arrested defendant at a pawn shop with $325 in cash.
Defendant and Jones sustained adjudications for this offense and were committed to the
California Youth Authority in April 1994.
       The first trial court denied the prosecution’s motion to admit evidence of these
prior crimes. It found the crimes were too remote from, and dissimilar to, the current
offenses to qualify for admission under Evidence Code section 1101, subdivision (b).
The evidence was also unduly prejudicial under Evidence Code section 352.
       In the second trial, the prosecution again asked to admit evidence of the 1993
police incident and the 1994 armed robbery, and it made the same offers of proof. This
time, a different trial judge granted the motion as to the 1994 robbery evidence. The
court found that whether defendant and Jones associated in 1994 was relevant and highly

                                             6
probative, as was defendant’s knowledge of Jones’s proclivity for violence. The
significance of the evidence, the court stated, “is that they knew each other. They knew
each other well enough to engage in this joint—assuming the facts as stated by the
People, this joint venture to rob the store.” The court reasoned that from the 1994
incident and the facts of the current incident, the jury could find that after defendant left
the bar, he contacted Jones to help inflict pain on the people at the bar with the intent to
kill, or he contacted Jones knowing that, with Jones’s background and history of
violence, a possible consequence of the planned assault would be that Jones would
attempt to kill.
       At trial, the prosecution presented oral and documentary evidence concerning the
armed robbery consistent with its offer of proof on the in limine motion. Defendant did
not testify in the first trial, but he did in the second. He admitted he participated in the
1994 robbery with Jones and two others when he was approximately 14 years old.
       The prosecutor mentioned the armed robbery at least twice in her closing
argument. She argued the robbery demonstrated that defendant was not credible. She
also argued the robbery showed that Jones’s attempt to murder was a natural and
probable consequence. Defendant and Jones had such an intimate relationship, they
committed a crime when they were in junior high and “they are willing to engage in very
dangerous, very violent conduct together.”

       B.      Analysis

       Evidence that a person committed a crime is admissible when it is relevant to
prove a material fact other than the person’s disposition to commit an act. (Evid. Code,
§ 1101, subd. (b).) The evidence may be used to establish a person’s knowledge as well
as motive, opportunity, intent, preparation, plan, identity, and the absence of mistake or
accident. (Ibid.)




                                               7
       The California Supreme Court has explained “that ‘[t]he 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.’ (People v. Carpenter (1997) 15 Cal.4th
312, 378-379.) The main policy that may require exclusion of the evidence is the
familiar one stated in Evidence Code section 352: Evidence may be excluded if its
prejudicial effect substantially outweighs its probative value. Because substantial
prejudice is inherent in the case of uncharged offenses, such evidence is admissible only
if it has substantial probative value. ([People v.] Ewoldt [(1994) 7 Cal.4th [380,] 404
[(Ewoldt)].) This determination lies within the discretion of the trial court. (People v.
Carpenter, supra, at p. 380.)” (People v. Kelly (2007) 42 Cal.4th 763, 783.)
       “To be admissible, there must be some degree of similarity between the charged
crime and the other crime, but the degree of similarity depends on the purpose for which
the evidence was presented.” (People v. Jones (2011) 51 Cal.4th 346, 371.) This court
has held that “[w]hether similarity is required to prove knowledge and the degree of
similarity required depends on the specific knowledge at issue and whether the prior
experience tends to prove the knowledge defendant is said to have had in mind at the time
of the crime.” (People v. Hendrix (2013) 214 Cal.App.4th 216, 241 (Hendrix).)
       In some cases, only a general similarity may be required, because the knowledge
at issue can be derived from different experiences. “For example, knowledge of the
dangers of driving while under the influence can be obtained through the general
experience of having suffered a driving under the influence (DUI) conviction (People v.
Brogna (1988) 202 Cal.App.3d 700, 709), from the knowledge obtained in [driving under
the influence] classes (People v. Garcia (1995) 41 Cal.App.4th 1832, 1848-1850,
disapproved on other grounds in People v. Sanchez (2001) 24 Cal.4th 983, 991, fn. 3;
People v. Murray (1990) 225 Cal.App.3d 734, 746; People v. McCarnes (1986)
179 Cal.App.3d 525, 532) or from the admonition required by Vehicle Code section

                                             8
23593 upon a DUI-related conviction. While prior similar driving conduct and other
similar circumstances would enhance the probative value, other crimes evidence may be
admissible even though similar only in a general way, i.e., the prior events involve prior
DUI offenses. This is so because in any of these examples, the evidence supports an
inference that the defendant was aware of the dangers of driving while under the
influence at later times when he or she drove.” (Hendrix, supra, 214 Cal.App.4th at
p. 241, fn. omitted.)
       In other cases, more similarity is required between the prior and current incidents
to establish knowledge. “When the knowledge element is akin to absence of mistake or
innocent intent, an inference that defendant learned from his experiences and obtained
information that establishes the requisite knowledge requires that the previous
experiences be similar to the circumstances presented in the charged case. As our high
court has noted, ‘ “[T]he recurrence of a similar result . . . tends (increasingly with each
instance) to negative accident or inadvertence . . . or good faith or other innocent mental
state, and tends to establish (provisionally, at least, though not certainly) the presence of
the normal, i.e., criminal, intent accompanying such an act . . . .” [Citation.] In order to
be admissible to prove intent, the uncharged misconduct must be sufficiently similar to
support the inference that the defendant “ ‘probably harbor[ed] the same intent in each
instance.’ [Citations.]” ’ (Ewoldt, supra, 7 Cal.4th at p. 402, italics added; see [United
States] v. Miller (9th Cir.1989) 874 F.2d 1255, 1269 [‘when prior crimes are used to
establish “. . . absence of mistake or accident,” such evidence simply lacks probative
value unless it is sufficiently similar to the subsequent offense’]; 1 Imwinkelried,
Uncharged Misconduct Evidence (rev. ed. 2009) § 5:33, pp. 99-100, [fns. omitted].)
Likewise, to establish knowledge when that element is akin to absence of mistake, the
uncharged events must be sufficiently similar to the circumstances of the charged offense
to support the inference that what defendant learned from the prior experience provided



                                              9
the relevant knowledge in the current offense.” (Hendrix, supra, 214 Cal.App.4th at
pp. 242-243.)
       Applying these standards, we conclude the trial court did not abuse its discretion
by admitting evidence of the 1994 robbery. Because defendant could obtain his
knowledge of Jones’s violent nature from various experiences with him, the prosecution
needed only to establish a general similarity between the 1994 robbery and the current
crimes. The court did not abuse its discretion in finding that similarity, because in both
criminal incidents, Jones, in the presence of defendant, did not hesitate to criminally
threaten and assault the victims with a weapon. Defendant thus knew of Jones’s violent
background and his likelihood to employ violence in this incident. And defendant’s long
relationship with Jones reduced the potential for undue prejudice arising from the length
of time between the two incidents. The two had been friends for many years. Thus, the
specific facts of the incident are not as relevant as the common knowledge defendant
gained about Jones while participating in the 1994 crime with him.
       Other factors support the evidence’s probative value over its prejudicial effect.
Those factors include the extent to which the source of the uncharged offense evidence is
independent of the charged offenses, whether the uncharged offense resulted in criminal
convictions, and whether the evidence of the uncharged offense is stronger or more
inflammatory than the evidence of the charged offenses. (People v. Tran (2011)
51 Cal.4th 1040, 1047; People v. Zepeda (2001) 87 Cal.App.4th 1183, 1211.)
       These factors are present here. The 1994 robbery resulted in a juvenile
adjudication against defendant. The evidence of the robbery was derived from sources
independent of the charged offense. In addition, the evidence of the robbery was not
stronger or more inflammatory than the evidence of the charged offenses. These factors
decreased the potential for the jury to punish defendant for the robbery regardless of its
verdicts on the current offenses. They also decreased the likelihood of the jury confusing



                                             10
the issues, as the jury had to separately determine whether the uncharged robbery
occurred.
        Moreover, the trial court further reduced the potential for undue prejudice when it
instructed the jury on the evidence’s limited purpose. It instructed the jurors that they
could consider evidence of the 1994 robbery solely on the issues of how long defendant
had known Jones, how well he knew Jones as of the date of the current offense, and how
familiar defendant was with Jones’s prior behavior as of the date of the current offense.
The jury could consider the evidence for no other purpose. The court specifically
directed the jury not to conclude from the evidence that defendant had a bad character or
was disposed to commit crime. We presume the jury followed the court’s instruction.
(People v. Mooc (2001) 26 Cal.4th 1216, 1234.)
        Under these circumstances, we cannot say the trial court abused its discretion
when it determined that Jones’s behavior, and the knowledge defendant gained about
Jones from his behavior in the 1994 robbery were sufficiently similar to the current
offense for the court to admit the evidence for the limited purpose of establishing
defendant’s knowledge at the time of the crime.
        Even if the court abused its discretion in admitting the evidence of the 1994
robbery, the error was harmless. We review evidentiary errors for prejudice by
determining whether it was reasonably probable that a jury would have returned a more
favorable verdict for defendant had the court not admitted the evidence. (People v.
Watson (1956) 46 Cal.2d 818, 836.) Here, it was not reasonably probable because the
jury received other evidence concerning defendant’s knowledge of Jones’s violent nature.
The jury learned that defendant told a detective investigating the current offense that he
knew Jones “is an ex-felon” who “did ten years for cutting his girl.” At trial, Deidre
Young, Jones’s former girlfriend, testified that Jones stabbed her during an attack in
2001. Asked if Jones was a “little hothead,” defendant told the same detective that Jones
“ ‘has a little Pitbull, like, just a half breed in him . . . .’ ”

                                                  11
       The jury also viewed a video clip extracted from defendant’s cell phone. In the
video, Jones bragged to defendant about repeatedly striking a woman in the jaw. The
video recorded defendant saying, “Corki [Jones]. Blow that bitch out.” The jury thus
heard more than enough evidence about defendant’s knowledge of Jones’s violent nature
to find defendant guilty of attempted murder under the natural and probable
consequences theory. It is not reasonably probable the jury would have returned a more
favorable verdict had it not heard evidence of the 1994 robbery.
       There was also sufficient evidence of defendant’s intent to kill. He threatened the
bar manager saying, “This is how places get burned down.” He slashed Nguyen’s tires
and waited by the bar for the employees to leave. He wore a hat to disguise himself.
Jones asked, “Are these the guys?” suggesting Jones was trying to determine who
defendant wanted him to attack. There also was testimony from Avery Houston, a
marijuana seller, who testified that defendant shot him in the back in 1998 during a drug
deal. This evidence was ample evidence of defendant’s intent to kill in the current
offense even if the 1994 robbery evidence had not been admitted.
       Defendant contends the alleged error was prejudicial because the first jury that did
not receive evidence of the 1994 robbery hung, while the second jury that heard the
evidence found him guilty. This point, however, was not the only difference between the
two trials. The first jury also did not hear from Jones’s prior girlfriend about his stabbing
her, nor did it hear from the marijuana seller whom defendant shot in the back.
Defendant was not convicted merely because the second court admitted the 1994 robbery
evidence. Thus, any error in admitting the evidence was harmless.




                                             12
                                              II

                            Motions for Mistrial and to Reopen

       Defendant argues the trial court abused its discretion when it denied his motions
for mistrial and to reopen the evidence after the prosecutor appeared to have argued a fact
that the trial court had earlier precluded defendant from raising on the ground of hearsay.
       We disagree.

       A.      Background

       Defendant requested to testify that he told Jones on the evening of the attack to
call police. The court denied his request. It ruled that the out-of-court statement was
self-serving hearsay and less reliable than asking defendant on the witness stand what his
state of mind was that night. Defendant had already testified a dozen times that he did
not intend to use Jones to commit the assault. The court would not admit any hearsay
statements that sought to raise an inference as to his state of mind when there was already
direct testimony and circumstantial evidence on that issue.
       In her closing argument, the prosecutor stated defendant, Jones, and Jones’s wife,
the driver of the getaway vehicle, did not call 911.
       Defendant sought a mistrial, claiming the prosecutor took an unfair advantage of a
fact the court excluded. The trial court denied the motion. It was “surprised” by the
prosecutor’s argument, and it told her she was “extraordinarily close to the line” and “a
very dangerous place for [her] to be.” However, it ruled against a mistrial because the
prosecutor argued that defendant did not call the police, not that he did not tell Jones to
call the police.
       The court mentioned that one of its remedies, if it felt the prosecutor had crossed
the line, was to reopen the case and let the excluded evidence be presented. The
defendant followed up on the court’s statement by requesting to reopen the evidence.
The court denied the request for the reasons it set forth earlier.


                                              13
        B.     Analysis

        “ ‘A mistrial should be granted if the court is apprised of prejudice that it judges
incurable by admonition or instruction. [Citation.] Whether a particular incident is
incurably prejudicial is by its nature a speculative matter, and the trial court is vested with
considerable discretion in ruling on mistrial motions. [Citation.]’ (People v. Haskett
(1982) 30 Cal.3d 841, 854.) A motion for a mistrial should be granted when ‘ “ ‘a
[defendant’s] chances of receiving a fair trial have been irreparably damaged.’ ” ’
(People v. Ayala (2000) 23 Cal.4th 225, 282.)” (People v. Collins (2010) 49 Cal.4th 175,
198.)
        The trial court did not abuse its discretion by denying the motion for mistrial. The
prosecutor’s statement did not irreparably damage defendant’s chance of receiving a fair
trial. Defendant testified several times regarding his state of mind, and the prosecutor’s
statement did not introduce evidence the court had excluded from trial.
        The trial court also did not abuse its discretion by denying the motion to reopen.
“ ‘A “motion to reopen [is] one addressed to the [trial] court’s sound discretion.”
[Citation.] In determining whether an abuse of discretion occurred, the reviewing court
considers four factors: “ ‘(1) the stage the proceedings had reached when the motion was
made; (2) the defendant’s diligence (or lack thereof) in presenting the new evidence; (3)
the prospect that the jury would accord the new evidence undue emphasis; and (4) the
significance of the evidence.’ ” [Citation.]’ [Citations.]” (People v. Masters (2016)
62 Cal.4th 1019, 1069.)
        On balance, these factors weigh in favor of the court’s ruling. The motion was
made after both sides rested and the court instructed the jury. Defendant did not lack
diligence in bringing the motion, as he raised it after the prosecutor argued. However,
there was a possibility the jury would accord the new evidence undue emphasis as the
statement was self-serving hearsay. And the new evidence was not significant. The court



                                              14
had admitted numerous statements by defendant regarding his state of mind. It thus did
not abuse its discretion when it refused to reopen the evidence.

                                      DISPOSITION
       The judgment is affirmed.




                                                 HULL, J.



We concur:




BLEASE, Acting P. J.




MURRAY, J.




                                            15
