Filed 7/17/15 P. v. Lopez CA3
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




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



THE PEOPLE,                                                                                  C074522

                   Plaintiff and Respondent,                                            (Super. Ct. Nos.
                                                                                        CR-F-12-2836 &
         v.                                                                              CR-F-10-5556)

JOEY ALFREDO LOPEZ,

                   Defendant and Appellant.




         Defendant Joey Alfredo Lopez appeals his convictions for robbery, with personal
use of a firearm; two counts of assault with a firearm, with personal use of a firearm;
burglary, with personal use of a firearm; and possession of a firearm by a felon. He
contends the trial court abused its discretion in admitting evidence of a prior bank
robbery to prove identity and common scheme or plan. We affirm.
                                                  BACKGROUND
         In the early evening of June 20, 2012, a man entered the Cigarette Stop tobacco
store armed with a shotgun. He cocked the shotgun and pointed it at the store’s owner
Hiteshwar Nahal and an employee Mohammad Yassar. The gunman demanded money
from Nahal, saying, “money, money . . . I need more money.” Nahal went to the register,

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gave the gunman all the cash inside, about $100, and said, “I give you money . . . [d]on’t
kill me.” The gunman also took a number of T-shirts, including several extra-large Pro
Cali shirts, and Nahal’s cell phone. As he left the store, he told Yassar and Nahal to lie
down. Yassar was so frightened he stopped thinking. He put his hands up and lay down
on the floor. He did not understand the man, but was afraid he would be shot. He stayed
prone on the floor until the gunman left the store. Nahal described the gunman’s clothing
as wearing a long-sleeved T-shirt, black and red shorts, and white shoes. He also noticed
the robber had a zigzag tattoo on the back of one leg below the knee; he thought it looked
like a snake.
       Dino Clark was in his car in the parking lot behind the store. He saw a man with a
limp walking toward him from the rear of the tobacco store. Clark saw the man had a
shotgun or rifle tucked under his clothing; the barrel was poking through the bottom of
his pants leg. The man appeared to be Hispanic and in his late 20’s. He was wearing a
baseball hat, white T-shirt, and shorts. The man went to a dark colored Chevrolet with
faded dark paint, opened the door, and tossed his gun and a bag of shirts inside. Another
man was in the driver’s seat, the gunman got into the passenger seat and they drove away.
Clark noticed the first two characters of the license plate were “6-V.” Clark went into the
store and Nahal told him the store had been robbed, so they called 911.
       Nahal’s store had multiple surveillance cameras. The surveillance tapes showed
the gunman was wearing a long-sleeved T-shirt, an Oakland Raiders baseball cap, black
shorts, and white shoes. Yassar, Nahal, and Clark each identified defendant in a photo
lineup as the man who robbed the store. Each also identified defendant in court as the
perpetrator of the robbery. Yassar was only 60 to 70 percent certain of his identification.




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        The day after the store robbery, defendant entered a River City Bank and
approached a teller.1 He was wearing a baseball cap with a black brim and a Raiders
emblem, a gray long-sleeved shirt, and jeans. He handed the teller a note and said,
“Don’t give me any funny money.” The teller took about $100 or $200 from the till and
put it on the counter. Defendant put the money in his pockets and walked out of the
bank. He got into the passenger seat of a charcoal gray Chevrolet. The car had no rear
license plate. The bank’s operations supervisor Angela Casey described the robber as
being about five feet seven inches tall and either White or Hispanic. At trial, Casey
identified defendant as the bank robber.
        In investigating the bank robbery, Sacramento Police Officer Emily Griffin went
to an impound lot to photograph a gray Chevrolet with the license plate number
6VAV094. Law enforcement believed the car had been involved in the bank robbery and
was “associated” with defendant’s ex-girlfriend. Inside the car was a folder that
contained a photocopy of defendant’s driver’s license. Casey identified this as the car
defendant got into after the bank robbery.
        On July 10, 2012, Sacramento police officers located defendant in an apartment.
He was wearing a pair of red and black shorts that matched those on the surveillance
video of the store robbery. Defendant also has a tattoo on his right calf with wings
depicted by sharp horizontal and vertical lines. In their search of the apartment, officers
found a shotgun in a bedroom closet. Nahal identified the shotgun found in defendant’s
apartment as being similar to the one used in the robbery. They also found a pair of light
colored basketball shoes and an extra-large Pro Cali T-shirt.




1   By the time of trial, defendant had pled guilty to the bank robbery.

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                                PROCEDURAL HISTORY
        An information charged defendant with two counts of armed robbery of a tobacco
store (Pen. Code, § 211--counts 1 & 2), two counts of assault with a firearm (Pen. Code,
§ 245, subd. (a)(2)--counts 3 & 4), burglary (Pen. Code, § 459--count 5), and being a
felon in possession of a firearm (Pen. Code, § 29800, subd. (a)(1)--count 6). The
information also alleged defendant had personally used a firearm in counts 1 through 5.
(Pen. Code, §§ 12022.53, subd. (b) & 12022.5, subd. (a), respectively.) The information
also alleged defendant had a prior serious felony conviction. (Pen. Code, §§ 667, subd.
(e)(1), 667, subd. (a)(1).)
        The trial court dismissed count 2 on the People’s motion for lack of evidence. The
jury found defendant guilty on the remaining counts and found all the firearm allegations
true. In bifurcated proceedings, the court found the prior conviction allegation true. The
trial court sentenced defendant to an aggregate term of 31 years in state prison.
                                      DISCUSSION
        Defendant contends the trial court abused its discretion by admitting evidence of
the bank robbery under Evidence Code section 1101, subdivision (b)2 to prove identity in
the store robbery. He contends the evidence had limited probative value and “enormous”
“prejudicial potential,” “because it exposed the jury to the fact that [defendant] had
committed an armed robbery of a nearby bank just one day after the robbery” of the store.
We agree the trial court erred in admitting the evidence, but find the error harmless.
        Background
        The People moved in limine to introduce evidence of defendant’s bank robbery
under section 1101, subdivision (b). The People offered the evidence to prove identity
and common plan and scheme. The proffered evidence was that a light-skinned Hispanic




2   Undesignated statutory references are to the Evidence Code.

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man in his early 20’s with a thin moustache and goatee entered the cigarette shop
carrying a shotgun. The man was wearing a white baseball cap with a black NFL Raiders
emblem; gray sweatshirt; red, black, and white athletic shorts; and white tennis shoes.
He pointed the gun at Nahal, racked the pump, and demanded money. He also pointed
the gun at Yassar and demanded money. Nahal gave him money from the register. The
man then grabbed several Pro Cali T-shirts. The man ordered Yassar and Nahal to get on
the ground. The man was seen leaving the scene in a black or gray Chevrolet sedan with
a license plate beginning with 6V and with an eight elsewhere in the sequence.3
       As to the bank robbery, the People proffered that a 26- to 27-year-old Hispanic
man with a moustache and goatee entered the bank wearing a white Raiders hat with a
black emblem, gray sweatshirt, and white shoes. He handed the teller a note saying,
“ ‘This is a robbery and don’t pass that wha-cha-ma-call-it.’ ” The man told the clerk to
“ ‘hand over the top drawer, 20s, 50s and 100s.’ ” The clerk handed over the money.
Casey saw the man leave the scene in a gray Chevrolet.
       Defendant filed a written objection and argued the points of similarity between the
two robberies were “virtually non-existent and woefully inadequate for the purposes of
establishing identity and completely non-existent to establish common plan and scheme.”
       The People argued the bank robbery was not inflammatory, as it was less violent
than the store robbery; in the store robbery defendant cocked the shotgun and pointed it at
Nahal’s face. They also argued it was highly probative because defendant was wearing
“exactly the same hat, he’s wearing the same shirt, he’s identified as the robber. [¶] . . .
He’s of the same height. He’s of the same physical description.” The People contended




3 In assessing the trial court’s evidentiary ruling, we must consider the facts known to
the court at the time the ruling was made. (People v. Hartsch (2010) 49 Cal.4th 472, 491;
People v. Hernandez (1999) 71 Cal.App.4th 417, 425.) Accordingly, these facts are
taken from the prosecution’s motion, not the trial testimony.

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the bank robbery was committed in much the same way as the store robbery in that
defendant walked into the premises, contacted a worker and took money from the worker,
albeit using a different means of fear. The People also argued as to each offense,
defendant left in an identical car, which was tied to him. Thus, in each offense he
“executes the same crime, by using the same getaway driver, same means of hiding his
face [(baseball cap)], where it’s within 24 hours and within 15 miles, it helps establish his
identity, and it also helps establish, um, the way he executes those crimes.”
       The court noted in viewing the proffers, “there are similarities and differences . . .
the similarities appear to be that [in] both instances the person was wearing a gray or
lighter color shirt or covering that was long sleeved. [¶] As I understand it, at least the
gray shirt, the hat, was similar. It was also reported that the defendant left, in both
instances, in a sedan which had a license plate with the letters 6V on it. There was also a
similarity in the person that committed both offenses: Hispanic male, of a certain age,
with a goatee, um, and height and weight being similar.” The court noted the differences
that in the store robbery a shotgun was used as opposed to a note in the bank robbery, the
perpetrator of the store robbery wore shorts, whereas the bank robber wore pants. Also in
the store robbery, bills of smaller denomination were acquired.
       The court ruled there were sufficient similarities between the two crimes to
establish “a plan or process of a robbery, as well as most importantly, identification” to
render the evidence admissible.
       Analysis
       “Character evidence, sometimes described as evidence of propensity or disposition
to engage in a specific conduct, is generally inadmissible to prove a person’s conduct on
a specified occasion. (. . . § 1101, subd. (a).) Evidence that a person committed a crime,
civil wrong, or other act may be admitted, however, not to prove a person’s
predisposition to commit such an act, but rather to prove some other material fact, such as
that person’s intent or identity. (. . . § 1101, subd. (b).) We review the trial court’s

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decision whether to admit evidence, including evidence of the commission of other
crimes, for abuse of discretion. (See People v. Jones (2011) 51 Cal.4th 346, 371
(Jones).)” (People v. Harris (2013) 57 Cal.4th 804, 841.) “The greatest degree of
similarity is required for evidence of uncharged misconduct to be relevant to prove
identity. 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.]” (People v. Ewoldt (1994) 7 Cal.4th 380.) “Past crimes are probative of
identity when they share with the charged offense a set of distinctive marks.” (People v.
Felix (1993) 14 Cal.App.4th 997, 1005.) The offenses must be so similar to each other
that they “serve as a signature or fingerprint.” (People v. Barnwell (2007) 41 Cal.4th
1038, 1056.) “ ‘To establish the existence of a common design or plan, the common
features must indicate the existence of a plan rather than a series of similar spontaneous
acts, but the plan thus revealed need not be distinctive or unusual’; rather it ‘need only
exist to support the inference that the defendant employed that plan in committing the
charged offense.’ [Citation.]” (People v. Edwards (2013) 57 Cal.4th 658, 712.)
       We do not find the descriptions of the offenses to be sufficiently similar to
establish identity. Here, the similarities between the two offenses are that a Hispanic man
in his early 20’s, with a goatee and moustache, entered an establishment and demanded
money. In both offenses, the man was wearing a white baseball cap with a Raiders
emblem and a gray sweatshirt. In both offenses, defendant left the scene in a dark
colored Chevrolet sedan. These are not sufficiently distinctive characteristics to support
an inference that the same person committed both acts. Raiders clothing and gray
sweatshirts are neither unique, distinctive, or unusual particularly not in Northern
California. Nor are the physical descriptions of the perpetrator or the vehicle involved
distinctive. The fact that in each instance defendant entered an establishment and

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demanded money is not at all distinctive in the commission of a robbery. These features
in no way “ ‘set the charged and uncharged offenses apart from other crimes of the same
general variety.’ ” (People v. Felix, supra, 14 Cal.App.4th at p. 1005.) Moreover, the
crimes themselves are quite different. The type of establishments robbed were different;
a store versus a bank. The method of accomplishing the robberies was different, in one a
gun was used and in the other a note.
       Prejudice
       Despite the error in admitting the evidence of the uncharged offense, we find the
admission to be harmless error. (People v. Watson (1956) 46 Cal.2d 818.) Defendant
relies on our decision in People v. Hendrix (2013) 214 Cal.App.4th 216 to support his
claim the error here is not harmless. Here, unlike Hendrix, the evidence against
defendant was overwhelming. There was surveillance video of the robbery taking place.
This was shown to the jury and admitted into evidence. Defendant was photographed by
surveillance cameras committing the store robbery. Those photographs were admitted
into evidence. Nahal described a tattoo on the robber’s calf similar to the tattoo on
defendant’s calf. A photograph of that tattoo was also admitted into evidence. All three
witnesses at the scene identified defendant both in a photo lineup and at trial. The
robbery was committed with a shotgun similar to the shotgun law enforcement found at
defendant’s apartment. The perpetrator of the robbery also took a number of extra-large
Pro Cali shirts from the store. Law enforcement found an extra-large Pro Cali shirt in
defendant’s apartment. Clark saw defendant leave the scene in a dark Chevrolet, with a
license plate number with the first two digits of 6V. Defendant’s ex-girlfriend owned a
dark Chevrolet, with a license plate starting with 6V. Law enforcement found a
photocopy of defendant’s identification in the car. When he was arrested, defendant was
wearing black and red shorts similar to the ones depicted in the surveillance images. On
this record, there is no reasonable probability that but for the error the outcome of the
trial would have been different.

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                                    DISPOSITION
     The judgment is affirmed.



                                           BLEASE   , J.


We concur:


        RAYE                     , P. J.


        MURRAY                   , J.




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