Filed 11/27/19
                 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                        DIVISION EIGHT



THE PEOPLE,                            B289456

       Plaintiff and Respondent,       (Los Angeles County
                                       Super. Ct. No. MA072690)
       v.

DAVAREO STEVON
ANDERSON,

       Defendant and Appellant.



      APPEAL from a judgment of the Superior Court of Los
Angeles County, Kathleen Blanchard, Judge. Affirmed as
modified.
      Maura F. Thorpe, under appointment by the Court of
Appeal, for Defendant and Appellant.
      Xavier Becerra, Attorney General of California, Lance E.
Winters, Senior Assistant Attorney General, Noah Hill, Deputy
Attorney General, Blythe J. Leszkay, Deputy Attorney General,
for Plaintiff and Respondent.
                           *******
       A jury convicted Davareo Anderson of attempted first
degree burglary. On appeal, Anderson argues the trial court
erroneously admitted bad character evidence, should have
stricken two prior convictions, and gave him the wrong number of
presentence custody credits. In supplemental briefing, Anderson
requests we vacate or reverse fines and fees under People v.
Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). We modify the
trial court’s oral pronouncement of judgment to reflect a
presentence custody credit of 269 days rather than 156 days. We
otherwise affirm. Unmodified references are to the Penal Code.
                                 I
       Starla Knutson lived next door to Anderson. Knutson was
home alone one evening when she heard the burglar alarm. She
turned the alarm off and heard a noise from a bedroom. She
walked into the bedroom and saw Anderson shaking the window
forcefully from outside the house. Anderson was leaning into the
window frame and had a hand on each side. He wore dark
gloves, a gray hoodie, and a backpack. Knutson feared Anderson
was breaking in. She and Anderson made eye contact. Anderson
ran off and jumped a six-foot fence back into his own yard.
       The window was damaged. There were pry marks and the
top and bottom were “punched in.” A piece was missing from the
frame. Deputies found a plastic bag on the ground near the
window containing clothes and other items. Knutson and her
husband found a backpack, a jacket, and other items in the yard.
       Knutson did not see Anderson after he jumped the fence,
but saw a woman standing by the gas meter on the side of the
house. Knutson called the police. She told the 911 operator the
woman standing outside and Anderson were “at the side of the
house” and she was “afraid to go out.”




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       Deputies found Anderson and arrested him.
       Knutson was scared because Anderson had threatened her,
her husband, and her dogs in the past. He had a “violent temper”
and had followed the Knutsons and watched their house.
       Anderson broke Knutson’s glass sliding window about a
year earlier. He told Knutson she and her husband “would be
harmed” if she told anyone he broke that window. Anderson’s
mother left Knutson notes that said “keep your mouth shut” and
“don’t talk about my children.”
       About six months after the glass sliding window incident,
Anderson stole a concrete bunny and a string of solar lights from
her yard. Knutson banged on a window from inside the house “to
let him know [she had] seen him take those things.” Anderson
looked at Knutson, took the bunny and the lights, and left. The
Knutsons put up a fence and security lights on account of
Anderson.
       The jury convicted Anderson of attempted first degree
burglary. Anderson had three prior strike convictions under the
“Three Strikes” law. (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–
(d), 1385, subd. (a).) The trial court thus sentenced him to 25
years to life under the Three Strikes law and 15 years—three
consecutive five-year terms—under section 677(a), for a total of
40 years to life.
                                   II
       The trial court properly admitted evidence of Anderson
stealing Knutson’s lawn ornaments and his threats against
Knutson.
       We review evidentiary rulings for abuse of discretion.
(People v. Scott (2011) 52 Cal.4th 452, 491.)




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                                  A
       We begin with the lawn ornaments. Evidence of this theft
was admissible to show Anderson’s intent to steal from Knutson
when he attempted to break into her home.
       The prosecution had to prove, beyond a reasonable doubt
and to the unanimous satisfaction of 12 jurors, that Anderson
intended to steal from Knutson when he tried to break into her
house. (§ 459.) A possible explanation for a neighbor at your
window is the benign purpose of being neighborly, of a friendly
visit. Another possible explanation, as Anderson argues, is to
harass or scare your neighbor. If accepted, either would be a
winning defense. Evidence that Anderson took the bunny and
lights from Knutson’s yard would show Anderson had stolen from
Knutson in the past. This properly could create an inference
probative of criminal intent.
       The trial court gave the jury a limiting instruction, stating
the evidence “may be considered by you only for [the] limited
purpose of determining it tends to show the existence of the
intent which is a necessary element of the crime charged.”
       Anderson argues the trial court improperly admitted the
lawn ornament theft evidence under Evidence Code section 1101,
subdivision (b), because the two incidents—stealing the lawn
ornaments from Knutson’s yard and attempting to break into
Knutson’s home — “bore almost no similarity or connection.”
       This argument fails because the incidents were similar in
the relevant way: the earlier theft tended to support the
inference Anderson intended to steal from Knutson both times.
(See People v. Ewoldt (1994) 7 Cal.4th 380, 402 (Ewoldt).) A visit
seems less neighborly, less benign, when the visit is by the one
who has stolen from you just months before. This is common




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sense. (Cf. People v. Carter (2005) 36 Cal.4th 1114, 1148–1149
[despite differences between the incidents, the trial court
properly determined the offenses were sufficiently similar to infer
the defendant harbored the same intent to kill and to steal, after
considering the shared characteristics].)
       Anderson also argues the trial court should have excluded
the evidence under Evidence Code section 352. The trial court
has broad discretion to assess whether evidence is more
prejudicial than probative. We do not disturb the ruling unless
the court did something arbitrary, capricious, or patently absurd.
(People v. Rodrigues (1994) 8 Cal.4th 1060, 1124–1125.) This
decision was correct.
                                 B
       We turn to Anderson’s threats against Knutson. Evidence
of these threats was admissible as to Knutson’s credibility as a
trial witness.
       Knutson testified Anderson had threatened her, her
husband, and her dogs in the past. She also testified Anderson
broke her glass sliding window about a year before the attempted
burglary in this case. Anderson told Knutson she and her
husband “would be harmed” if she told anyone what he did.
Anderson’s mother left Knutson notes that said “keep your mouth
shut” and “don’t talk about my children.”
       At an Evidence Code section 402 hearing, defense counsel
objected to these threats as “random things that I don’t believe
are relevant or material.” The parties also discussed the
recording of Knutson’s 911 call after Anderson forcefully shook
her window. Knutson told the operator Anderson had broken one
of her windows before, but “I was afraid to say anything because
I’m scared of [Anderson].” The trial court ruled the threats




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admissible because they were relevant as to Knutson’s credibility
as a witness. Citing People v. Burgener (2003) 29 Cal.4th 833,
869 (Burgener) and People v. Olguin (1994) 31 Cal.App.4th 1355,
1368–1369 (Olguin), the trial court stated it had discretion to
admit this evidence to explain Knutson’s fear and to show she
was testifying despite fear of recrimination.
      Evidence of the threats was admissible under Burgener and
Olguin. It was unnecessary to corroborate the threats before
admitting evidence of them. And it was not essential the threats
emanate directly from Anderson himself. (Burgener, supra, 29
Cal.4th at p. 869.) The jury was entitled to evaluate Knutson’s
testimony knowing she testified under these circumstances.
(Olguin, supra, 31 Cal.App.4th at p. 1369.) Admitting the threats
was proper under Evidence Code section 352. (Ibid.)
      The trial court thoughtfully considered the prejudicial
nature of the threats and did not want “the People to get into the
specifics of all of those prior threats, mostly under 352 in terms of
an undue consumption of time, and a confusion of the issue.”
The court endeavored “to sanitize this for the defense by allowing
this general testimony” and limited the prosecution, “in general,
to ask her if she is afraid.” If Knutson said yes, the prosecution
could ask her why and let her “very generally testify about that,
without getting into the specifics of, on this day, this happened
and on this day, this happened.” Then the trial court added,
“Unless the defense wants to explore it on cross and opens the
door to it.”
      Defense counsel did decide to open the door. Knutson did
not give context to Anderson’s threats until defense counsel
directly asked, “And over the next year, he made threats to you?”
after Knutson testified that Anderson broke her sliding glass




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door. Defense counsel also asked, “His mom also made some
threats to you, right?” and asked about the statements
Anderson’s mother made. Knutson did not otherwise testify
about the specific threats Anderson and his mother made against
her.
       The trial court properly limited the prosecution’s
introduction of Anderson’s threats into evidence. Defense counsel
decided to ask many specific questions about the threats. This
may well have been a sound tactical decision for many reasons,
but Anderson was not improperly prejudiced when his counsel
tested the evidence beyond the trial court’s parameters.
       The trial court correctly admitted evidence of the lawn
ornament theft and Anderson’s threats. These holdings obviate
the need to discuss alternative arguments.
                                  III
       The trial court did not abuse its discretion by denying
Anderson’s request to strike two prior convictions under the
Three Strikes law.
       Anderson argues the trial court should have stricken two of
his three prior strikes because (1) his proposed alternate sentence
of 19 years was sufficiently harsh, and (2) his conviction for
attempted burglary “clearly” fell outside the spirit of the Three
Strikes law.
       The first argument is irrelevant. The pertinent question is
whether Anderson was outside the spirit of the Three Strikes law
and therefore should be treated as though he were not previously
convicted of a serious or violent felony. (People v. Williams (1998)
17 Cal.4th 148, 161.)




                                 7
       Anderson’s second argument fails because the nature of the
attempted burglary and his extensive criminal history place him
within the Three Strikes law’s spirit.
       The trial court properly considered Anderson’s current and
prior convictions, background, character, and prospects. (People
v. Williams, supra, 17 Cal.4th at p. 161.) After Anderson’s first
burglary in 2005, he committed misdemeanors in 2006, 2010, and
2011 before his first strike for residential burglary in 2011.
Anderson stole items worth about $1,600 from a neighbor’s
house. His second and third strikes in 2013 and 2014 were for
making criminal threats. In 2013, he threatened to burn down a
building. In 2014, he threatened to shoot his mother.
       The attempted burglary conviction in this case was
Anderson’s fourth strike. The trial court noted the facts here
were “strikingly similar to the facts of the first residential
burglary.” The court described Anderson as “the poster child for
the Three Strikes law in that he has a history of just conviction
after conviction of criminality.” The purpose of the Three Strikes
law is to deter repeat felony offenders and protect society. (See
Ewing v. California (2003) 538 U.S. 11, 26–27.) Anderson’s
continuous criminal conduct, which includes threats of violence
and burglarizing his neighbors, places him within the law’s spirit.
       Anderson makes an irrelevant argument. He says we
should strike two prior convictions because he did not physically
harm anyone. But the Three Strikes law does not require
physical injury. (People v. Cooper (1996) 43 Cal.App.4th 815,
826.) It is not only physical injury that crime victims fear.
       A repeat criminal falls outside the spirit of the Three
Strikes law only in extraordinary circumstances. (People v.
Carmony (2004) 33 Cal.4th 367, 378.) The trial court’s decision




                                8
was not so arbitrary or irrational that no reasonable person could
possibly agree. (Id. at p. 377.) The court considered the
circumstances and reasonably concluded it would not be in the
interest of justice to strike Anderson’s prior convictions. There
was no abuse of discretion.
                                  IV
       Anderson is entitled to 269 days of presentence custody
credit.
       The parties agree the trial court erroneously gave Anderson
156 days of presentence custody credit at sentencing. They also
agree the sentencing minute order and abstract of judgment
correctly provide Anderson 269 days of presentence custody
credit.
       We thus modify the trial court’s oral pronouncement of
judgment to reflect a presentence custody credit of 269 days
rather than 156 days.
                                   V
       Anderson forfeited his Dueñas claims.
       He concedes he did not challenge the fines and fees in the
trial court. He thereby forfeited these arguments. (People v.
Frandsen (2019) 33 Cal.App.5th 1126, 1153–1155.)
                               DISPOSITION
       The oral pronouncement of judgment is modified to reflect a
presentence custody credit of 269 days rather than 156 days. The
judgment is affirmed in all other respects.

                                          WILEY, J.
I concur:
            GRIMES, J.




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People v. Anderson
B289456

      BIGELOW, P.J., Concurring:

      I concur. I write separately to add that I believe the
imposition of the assessments and restitution fine did not violate
appellant’s Due Process rights, as articulated in People v. Hicks
(2019) 40 Cal.App.5th 320.




                                    BIGELOW, P. J.




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