Filed 9/9/13 P. v. Vasquez CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,                                                          B242986

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. YA082903)
         v.

MARLON M. VASQUEZ et al.,

         Defendants and Appellants.



         APPEAL from judgments of the Superior Court of Los Angeles County. Steven
R. Van Sicklen, Judge. Affirmed.
         Maureen L. Fox, under appointment by the Court of Appeal, for Defendant and
Appellant Marlon M. Vasquez.
         Joy A. Maulitz, under appointment by the Court of Appeal, for Defendant and
Appellant Jorge Luis Chavez.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters Senior Assistant Attorney General, Eric E. Reynolds and
Esther P. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
                                ___________________________________
       Marlon M. Vasquez and Jorge Luis Chavez appeal from judgments entered
following a jury trial in which they were convicted of grand theft auto and burglary of a
vehicle. Vasquez contends admission of evidence that he was arrested on a prior
occasion for an identical offense was unduly prejudicial within the meaning of Evidence
Code section 352. Chavez identifies no error but requests that we independently review
the record pursuant to People v. Wende (1979) 25 Cal.3d 436. We affirm both
convictions.
                                       BACKGROUND
       On October 24, 2011, police observed defendants standing near a minivan parked
in front of a stolen Acura Integra. The license plate of the van was obscured by a
newspaper that had been folded over it. The emblem on the Integra was missing, as were
the stereo and rear seat, and the glove compartment appeared to have been ransacked.
Police searched defendants and the minivan and found the missing parts, along with an
                       1
extra steering wheel, several flashlights, a bag of tools, and a key that had been shaved
in such a way as to allow access to the ignition of different vehicles.
                                                                                     2
       Defendants were charged with receiving a stolen motor vehicle (Pen. Code, 496d,
subd. (a); count one), second degree burglary of a vehicle (§ 459; count two), receiving
                                              3
stolen property (§ 496, subd. (a); count four ), possession of burglar’s tools (§ 466; count
five), and grand theft auto (§ 487, subd. (d)(1); count six).
       Vasquez presented no evidence at trial. Chavez testified he had no fixed address
and was planning to sleep in the minivan when he found the Integra’s parts on the
sidewalk. He was putting them in the minivan when police arrived.


       1
        When a vehicle’s steering wheel has been secured by a “club” or similar lock, a
person stealing the vehicle will remove the steering wheel altogether and replace it with a
spare.
       2
           Undesignated statutory references will be to the Penal Code.
       3
           There was no count three.


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       The jury found Vasquez guilty of second degree burglary of a vehicle, possession
of burglar’s tools, and grand theft auto. He was sentenced to four years in county jail,
two of which were stayed.
       Chavez was found guilty of second degree burglary of a vehicle, receiving stolen
property, possession of burglar’s tools, and grand theft auto. He was sentenced to three
years probation, ordered to serve one year in county jail, and given 126 days of
presentence custody credit.
       Defendants timely appeal.
                                       DISCUSSION
Vasquez
       Vasquez contends the trial court erred in admitting evidence of a prior, uncharged
offense because the probative value of the evidence was substantially outweighed by its
unduly prejudicial effect. We disagree.
       Officer Anthony Ariaz of the Los Angeles Police Department testified over
defendant’s objection that while on patrol on March 18, 2011, seven months before the
instant offense, he saw Vasquez emerge from a stripped Honda (the doors, wheels,
engine, hood and seats were missing) and enter a nearby truck and drive away. A license
plate check on the Honda revealed it was stolen. Ariaz followed Vasquez, who jumped
out of the truck while it was moving and ran away. He was subsequently arrested. The
Honda’s registration and one of its seats were found in Vasquez’s truck.
       At the close of evidence the trial court admitted Officer Ariaz’s testimony for the
limited purpose of proving intent, knowledge, or the existence of a common plan, and
instructed the jury it could consider the evidence only for this purpose, and only if the
prosecution proved by a preponderance of the evidence that Vasquez committed the prior
offense. The court admonished the jury not to conclude from the evidence that Vasquez
had a bad character or was disposed to commit crime and instructed that the evidence was
“not sufficient by itself to prove that the defendant is guilty of receiving stolen property
or grand theft.”



                                              3
       This was proper. Under Evidence Code section 1101, evidence of other offenses
or misconduct is inadmissible to prove criminal propensity, but may be admitted if
relevant to prove a material fact such as intent. (Evid. Code, § 1101, subds. (a) & (b);
People v. Kelly (2007) 42 Cal.4th 763, 783.) But to be admissible the evidence “must not
contravene other policies limiting admission, such as those contained in Evidence Code
section 352.” (People v. Thompson (1988) 45 Cal.3d 86, 109.) Because evidence of
uncharged offenses is highly prejudicial, it must have substantial probative value, and the
trial court must carefully analyze it under Evidence Code section 352 to determine if its
probative value outweighs its inherent prejudicial effects. (People v. Ewoldt (1994) 7
Cal.4th 380, 404.)
       Under Evidence Code section 352, the trial court “in its discretion may exclude
evidence if its probative value is substantially outweighed by the probability that its
admission will (a) necessitate undue consumption of time or (b) create substantial danger
of undue prejudice, of confusing the issues, or of misleading the jury.” The court’s ruling
on the admission or exclusion of evidence under Evidence Code section 352 will not be
disturbed on appeal “except on a showing that the court exercised its discretion in an
arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of
justice.” (People v. Jordan (1986) 42 Cal.3d 308, 316.)
       Burglary is a specific intent crime (§ 459), and the jury was instructed that to find
Vasquez guilty of burglary it had to find he entered a locked vehicle intending to commit
theft. “Mental state and intent are rarely susceptible of direct proof and must therefore be
proven circumstantially.” (People v. Thomas (2011) 52 Cal.4th 336, 355.) Vasquez’s
trial counsel argued to the jury that Vasquez did not intend to steal any property.
       The probative value of testimony about Chavez’s uncharged March 18, 2011
conduct stems from the similarity between that conduct and his conduct on October 24.
“[I]f a person acts similarly in similar situations, he probably harbors the same intent in
each instance.” (People v. Thompson (1980) 27 Cal.3d 303, 319, overruled on another
ground as stated in People v. Scott (2011) 52 Cal.4th 452, 470.)



                                              4
       The unduly prejudicial impact of the evidence arises from its tendency to persuade
jurors to infer Vasquez had a propensity to commit crime. But the risk of undue
prejudice was reduced by the trial court’s instruction to consider the evidence only for the
limited purpose of determining whether defendant’s actions were knowing and
intentional, and admonished it not to consider it for any other purpose. The court
specifically admonished the jury not to infer from the evidence that Vasquez was
disposed to commit crime.
       Weighing these factors, we conclude the probative value of the evidence of
Vasquez’s uncharged offense, in establishing intent and the absence of mistake,
outweighed its unduly prejudicial effect. Accordingly, the trial court committed no error
in admitting the evidence.
Chavez
       Chavez’s appointed counsel filed an opening brief raising no issues and asking this
court to review the record independently. (People v. Wende, supra, 25 Cal.3d at pp. 441-
442.) Counsel declared she has attempted without success to make contact with Chavez
and was informed he is in El Salvador. On February 15, 2013, we sent a letter to counsel
and two letters to Chavez (at two different correctional facilities), directing counsel to
forward the appellate record to him and advising him that within 30 days he could
personally submit any contentions or issues he wished us to consider. Both letters to
Chavez were returned as undeliverable, and to date he has not responded. We have
examined the entire record and are satisfied that defendant’s appointed counsel has fully
complied with her responsibilities and that no arguable issues exist. (People v. Kelly
(2006) 40 Cal.4th 106, 109-110; People v. Wende, supra, at p. 441.)




                                              5
                                   DISPOSITION
     The judgments are affirmed.
     NOT TO BE PUBLISHED.




                                                 CHANEY, J.

We concur:



     MALLANO, P. J.



     ROTHSCHILD, J.




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