Filed 3/14/14 P. v. Bourque CA5




                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication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
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,

         Plaintiff and Respondent,                                                      F065999

                   v.                                                     (Super. Ct. No. BF141478A)

AARON THOMAS BOURQUE,                                                               OPINION

         Defendant and Appellant.


                                                   THE COURT
         APPEAL from a judgment of the Superior Court of Kern County. Michael E.
Dellostritto, Judge.
         Michael B. McPartland, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, and Kathleen A. McKenna,
Deputy Attorney General, for Plaintiff and Respondent.
                                                        -ooOoo-



        Before Levy, Acting P.J., Cornell, J., and Poochigian, J.
       A jury convicted appellant, Aaron Thomas Bourque, of misdemeanor assault (Pen.
Code,1 § 240) and two felonies: attempted first degree robbery (§§ 211, 212.5, subd. (a),
664) and making criminal threats (§ 422). In a separate proceeding, the court found true
allegations that appellant had suffered a prior felony conviction that qualified as both a
prior serious felony conviction (§ 667, subd. (a)) and as a “strike,”2 and that he had
served a prison term for that prior felony conviction (§ 667.5, subd. (b)). The court
imposed a total prison term of 10 years, consisting of two years on the attempted robbery
conviction, doubled pursuant to the three strikes law to four years, five years for the prior
serious felony enhancement, and one year for the prior prison term enhancement. The
court imposed, and stayed pursuant to section 654, a four-year term on the section 422
conviction.
       On appeal, appellant contends (1) the court abused its discretion in admitting
evidence of prior uncharged acts of criminal conduct, and (2) the court erred in imposing
a prior prison term enhancement based on the same prior conviction used to impose a
prior serious felony enhancement. Respondent concedes the second point. We reject
appellant’s first contention, find merit in the second, modify the judgment accordingly,
and affirm the judgment as modified.




1      Except as otherwise indicated, all statutory references are to the Penal Code.
2      We use the term “strike” as a synonym for “prior felony conviction” within the
meaning of the “three strikes” law (§§ 667, subds. (b)-(i), 1170.12), i.e., a prior felony
conviction or juvenile adjudication that subjects a defendant to the increased punishment
specified in the three strikes law.


                                              2
                  FACTUAL AND PROCEDURAL BACKGROUND
Facts - The Instant Offenses
       Judy Beggs is appellant’s mother.3 On April 8, 2012 (April 8), at approximately
3:30 a.m., she was awakened by a noise. She got up and, hearing appellant and someone
else talking, concluded that appellant had brought a friend to her house. She decided to
stay up and she began making a cake to take to her granddaughter’s house for an Easter
celebration later that day.
       At some point thereafter, Beggs was in the kitchen when appellant entered. He
was angry. He yelled at Beggs, pounded on the counter tops and said he wanted to
destroy the kitchen. He complained that Beggs was going to spend Easter with his
(appellant’s) daughter, and that he was not invited.
       Frightened, Beggs went into the garage to feed her dogs. Appellant followed her
and “grabbed [her] necklace,” “held it tight against [her] neck,” and said Beggs “needed
to go to the bank and get him $20 and he wish[ed] he could kill [her].” He also said, “I
should kill you now.” This frightened Beggs because appellant “had threatened to do that
before and [she] figured he was just going to follow through.” She walked back into the
house and “heard a loud crash.” At that point, she went to her room, got her purse and
keys, went to her car, and drove to a gas station, where she pulled into the parking lot and
called the Kern County Sheriff’s Department.
       Kern County Deputy Sheriff Kenneth Young testified to the following: On April
8, he went to a residence where he made contact with Beggs who was standing outside.
She was “shaking” and she “appeared scared.” The deputy observed “redness” on her
neck. Approximately one hour later, the redness had “dissipated.”


3     Except as otherwise indicated, our factual summary of the instant offenses is taken
from Beggs’s testimony.


                                             3
       After speaking to Beggs, Deputy Young searched the backyard where he found
Nicole Villines, “squatt[ing] down” behind a pole. She told the deputy that she was
hiding because “her boyfriend” had been attempting to kill his mother by strangling her,
and she (Villines) was scared.
       Villines testified to the following: On April 8, she was with appellant, her
boyfriend, at the home of appellant’s mother. She did not tell Deputy Young that
appellant was attempting to kill his mother. She did not see appellant “lay a hand” on
her. She was in the backyard waiting for Beggs to “give [her] a ride.”
Facts - Uncharged Acts
       Beggs testified to the following: One day in 1997, at her home, appellant
“demanded money” from Beggs. She refused his demand, and he “hit [her] a few times,”
“slapped” her, threatened to kill her, and said “he wanted to chop [her] up and put [her] in
a body bag like Jeffrey Dahmer had done.” Thereafter, Beggs, “terrified” by appellant’s
conduct, “went to the front door to go out,” but appellant, who was standing on the porch,
told her to “get back in the house.” Beggs went back inside and approximately two to
four hours later, appellant came into Beggs’s bedroom and asked if he could lie down on
the bed. Beggs consented, and also agreed, on appellant’s request, to rub his back.
Appellant lay down on the bed; Beggs, though afraid, rubbed his back. When it appeared
he was “drifting off to sleep,” Beggs told him she had to use the bathroom. She then left
the house, got in her car, drove to the police department, and reported “what had
happened.” Police went to Beggs’s house and arrested appellant. Beggs suffered bruises
on her arm and chest. Appellant’s conduct “terrified” her.4




4      We refer to this incident, as described by Beggs in her testimony, as the 1997
incident.


                                             4
Procedural Background
         Over appellant’s objection, the court ruled the evidence of the 1997 incident
admissible to prove appellant’s intent and motive to commit the attempted robbery and
the criminal threats offense, and to show that when he committed both the uncharged acts
and the instant offenses, he was acting pursuant to a common plan.
         The court instructed the jury:
         “If you decide that the defendant committed the uncharged offenses, you may, but
are not required to, consider that evidence for the limited purpose of deciding whether or
not:
         “The defendant acted with the intent to permanently deprive Judy Beggs of her
property;
         “The defendant intended that his statements to Judy Beggs be understood as a
threat; or
         “The defendant had a motive to commit the offenses alleged in this case.
         “In evaluating this evidence, consider the similarity or lack of similarity between
the uncharged offenses and the charged offenses.
         “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.
         “If you conclude that the defendant committed the uncharged offenses, that
conclusion is only one factor to consider along with the other evidence. It is not
sufficient by itself to prove that the defendant is guilty of the crimes charged in this
case.”




                                               5
                                      DISCUSSION
                                     Uncharged Acts
       Appellant argues that in admitting the evidence of the 1997 incident, the court
violated Evidence Code sections 1101 and 352 and appellant’s due process rights under
the Fourteenth Amendment to the United States Constitution. We disagree.
Legal Background
       The admission of uncharged misconduct evidence is governed by Evidence Code
section 1101. “Subdivision (a) of [Evidence Code] section 1101 prohibits admission of
evidence of a person’s character, including evidence of character in the form of specific
instances of uncharged misconduct, to prove the conduct of that person on a specified
occasion. Subdivision (b) of section 1101 clarifies, however, that this rule does not
prohibit admission of evidence of uncharged misconduct when such evidence is relevant
to establish some fact other than the person’s character or disposition,” such as identity,
motive, intent or common plan. (People v. Ewoldt (1994) 7 Cal.4th 380, 393, fn. omitted
(Ewoldt).)
       The determination of the admissibility of uncharged conduct evidence to prove
such facts is a two-step process. (People v. Armstead (2002) 102 Cal.App.4th 784, 793-
794.) First, a trial court must “carefully review each count in light of the alleged ‘other
crimes’ evidence to determine its probativeness to prove a material fact other than
criminal disposition ….” (Ibid.) Probativeness, in turn, depends on (1) “the materiality
of the facts sought to be proved” (People v. Kelly (2007) 42 Cal.4th 763, 783) and (2)
whether “the charged and uncharged crimes are sufficiently similar to support a rational
inference” of such facts (People v. Kipp (1998) 18 Cal.4th 349, 369 (Kipp)).
       The degree of similarity that is necessary to establish relevance varies depending
upon the type of fact the uncharged acts evidence is being offered to prove. “The greatest
degree of similarity is required for evidence of uncharged misconduct to be relevant to

                                              6
prove identity.” (Ewoldt, supra, 7 Cal.4th at p. 403.) The uncharged crimes must be
“highly similar” to the charged offenses. (People v. Lenart (2004) 32 Cal.4th 1107
(Lenart).) 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 and motive. (Id. at p.
1123; Ewoldt, at p. 402; People v. Demetrulias (2006) 39 Cal.4th 1, 18 (Demetrulias).)
       The second step in the process of determining the admissibility of uncharged acts
evidence is to determine whether the admission of such evidence would “‘contravene
other policies limiting admission, such as those contained in Evidence Code section
352.’” (Ewoldt, supra, 7 Cal.4th at p. 404.) Thus, it must be determined “whether the
probative value of the evidence of defendant’s uncharged offenses is ‘substantially
outweighed by the probability that its admission [would] ... create substantial danger of
undue prejudice, of confusing the issues, or of misleading the jury.’ (Evid. Code,
§ 352.)” (Ibid.) “Evidence of uncharged offenses ‘is so prejudicial that its admission
requires extremely careful analysis. [Citations.]’ [Citations.] ‘Since “substantial
prejudicial effect [is] inherent in [such] evidence,” uncharged offenses are admissible
only if they have substantial probative value.’ [Citation].” (Ibid.)
       “[O]ther crimes evidence need be proven only by a preponderance of the
evidence.” (People v. Steele (2002) 27 Cal.4th 1230, 1245, fn. 2.) On review of a trial
court’s ruling on these issues, we view the evidence in the light most favorable to the trial
court’s ruling and we uphold the ruling unless the court has abused its discretion. (Kipp,
supra, 18 Cal.4th at pp. 369-371.) “A court abuses its discretion when its ruling ‘falls
outside the bounds of reason.’” (Id. at p. 371; accord, People v. Linkenauger (1995) 32
Cal.App.4th 1603, 1614 [section 352 ruling reversible only if “arbitrary, whimsical, or
capricious as a matter of law”].)




                                              7
Contentions and Analysis
       Appellant challenges each of the court’s rulings on the admissibility of the
uncharged acts evidence, i.e., the court’s rulings that this evidence was properly admitted
to show (1) appellant’s intent in committing the attempted robbery and the criminal
threats offense, (2) his motive in committing the offenses charged in the instant case, and
(3) that when he committed both the uncharged acts and the instant offenses, he was
acting pursuant to a common plan. We address the challenged rulings in that order.
Intent - Attempted Robbery
       “[The California Supreme Court has] long recognized ‘that if a person acts
similarly in similar situations, he probably harbors the same intent in each instance’
[citations], and that such prior conduct may be relevant circumstantial evidence of the
actor’s most recent intent…. [¶] … ‘[T]he recurrence of a similar result ... tends
(increasingly with each instance) to negative accident or inadvertence or self-defense 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....’” (People v. Robbins (1988) 45 Cal.3d 867, 879.) “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.)
       The crime of robbery requires a specific intent to permanently deprive the victim
of their property. (People v. Anderson (2011) 51 Cal.4th 989, 994.)
       Appellant argues that the uncharged acts evidence had “limited probative value”
on the question of whether he had the specific intent to permanently deprive Beggs of
property because in the 1997 incident, “he ultimately received no money from his
mother.” We disagree. Notwithstanding that appellant did not complete the robbery he
began, the court reasonably could conclude, viewing the evidence in the light most

                                              8
favorable to the prosecution, that appellant initially had the intent to permanently deprive
his mother of her property but simply did not follow through, giving his mother the
opportunity to escape. The recurrence of strikingly similar conduct in the instant case
“‘tends … to negative … [any] innocent mental state’” and provides ample support for
the conclusion that, in the instant case, appellant had the same intent and again failed to
follow through. (Ewoldt, supra, 7 Cal.4th at p. 402.)
Intent - Criminal Threat
       Section 422 requires that the threat be made “with the specific intent that the
statement … is to be taken as a threat, even if there is no intent of actually carrying it
out….” (§ 422, 1st par.) Appellant argues the uncharged acts evidence had “limited
probative value” on the intent element of the criminal threats offense because in the 1997
incident, appellant did attempt to carry out his threat to kill Beggs. Again, we disagree.
       The question before us is not whether appellant actually intended to carry out his
threat. Rather, the question is whether the court reasonably could have concluded that
appellant intended that Beggs believe he would carry out his threat. From the evidence
that in the 1997 incident, appellant struck Beggs multiple times and made a gruesome
reference to a notorious murder case, the court reasonably could conclude appellant
intended that Beggs believe he would kill her as threatened to do. And, again, the
similarity between appellant’s conduct in 1997 to his conduct in the instant case supports
the conclusion that appellant had the same intent in the instant case as well.
Motive
       Appellant argues the uncharged misconduct evidence had “little, if any, probative
value in demonstrating a motive for the charged offenses.” Specifically, he argues that
the uncharged conduct “did not give him a motive” to either rob or threaten his mother.
This contention too is without merit.



                                              9
       “Other crimes evidence is admissible to establish two different types or categories
of motive evidence. In the first category, ‘the uncharged act supplies the motive for the
charged crime; the uncharged act is cause, and the charged crime is effect.’ [Citation.]
‘In the second category, the uncharged act evidences the existence of a motive, but the
act does not supply the motive.... [T]he motive is the cause, and both the charged and
uncharged acts are effects. Both crimes are explainable as a result of the same motive.’
[Citation.] [¶] California case law allows the admission of other crimes evidence to
prove this second kind of motive. [Citations.]” (People v. Spector (2011) 194
Cal.App.4th 1335, 1381.)
       Appellant’s argument addresses only the first category of motive evidence, and we
agree with appellant that the 1997 incident does not supply the motive for the instant
offenses. However, because of the similarity between the 1997 incident and appellant’s
conduct upon which his convictions in the instant case are based, the 1997 incident was
relevant to show that appellant had the same motive in both instances: to attempt to get
money from his mother. (Cf. Demetrulias, supra, 39 Cal.4th at p. 15 [evidence of prior
assault and robbery of different victim tended to show defendant had motive to rob victim
killed in current case]; People v. Walker (2006) 139 Cal.App.4th 782, 803 [in trial for
murdering a prostitute, evidence of prior sexual assaults tended to show defendant’s
“‘common motive of animus against prostitutes resulting in violent batteries interrupting
completion of the sex act’”].)
Common Plan
       Appellant also argues that the evidence of the 1997 incident “had little, if any,
probative value in demonstrating a common plan to rob his mother of her property on
April 8, 2012,” because in the 1997 incident, his robbery attempt was unsuccessful. We
disagree.



                                             10
       To establish the existence of a common scheme or plan, the prior and current
crimes must be sufficiently similar, but they need not be distinctive or unusual. (Ewoldt,
supra, 7 Cal.4th at p. 403.) The evidence must demonstrate “‘“not merely a similarity in
the results, but 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.]” (People v. Catlin (2001) 26 Cal.4th 81, 111.)
       In both the 1997 incident and in the commission of the instant offenses, appellant
(1) accosted his mother in her home, (2) demanded money, (3) threatened to kill her, and
(4) committed one or more violent acts. We recognize that a greater degree of similarity
is necessary to show a common plan than is required to show motive or intent. (Ewoldt,
supra, 7 Cal.4th at p. 402.) Taking this factor into account, we conclude the 1997
incident and the instant offenses shared so many common features the court reasonably
could conclude all these offenses were committed pursuant to a common plan.
Evidence Code Section 352
       We turn now to the second step in determining the admissibility of uncharged acts
evidence. As indicated above, in this part of the analysis we must determine if the
uncharged acts evidence had “substantial probative value that is not greatly outweighed
by the potential that undue prejudice will result from admitting the evidence.” (Lenart,
supra, 32 Cal.4th at p. 1123.)
       “‘The principal factor affecting the probative value of an uncharged act is its
similarity to the charged offense.’” (People v. Hollie (2010) 180 Cal.App.4th 1262, 1274
(Hollie).) As discussed above, appellant’s acts in the 1997 incident were strikingly
similar to his conduct underlyling his convictions in the instant case. In our view, this
factor makes the uncharged acts evidence highly probative as to intent, motive, and
common plan.



                                             11
       On the other side of the scale, appellant cites two factors which, we agree, militate
against admission of the uncharged acts evidence: there was no evidence before the jury
that appellant was convicted of any crimes based on the uncharged acts, and these acts
occurred more than 15 years prior to the instant offenses. We acknowledge that where
“uncharged acts [do] not result in criminal convictions,” a jury “might [be] inclined to
punish [the] defendant for the uncharged offenses, regardless whether it considered him
guilty of the charged offenses,” thus “increas[ing] the likelihood of ‘confusing the issues’
(Evid. Code, § 352)” (Ewoldt, supra, 7 Cal.4th at p. 405), and the remoteness in time of
the uncharged acts evidence favors its exclusion (People v. Harris (1998) 60 Cal.App.4th
727, 739). However, although both of these factors are properly considered in an
Evidence Code section 352 analysis, neither compels exclusion. (See, e.g., People v. Ing
(1967) 65 Cal.2d 603, 612, impliedly disapproved on another point in People v.
Thompson (1980) 27 Cal.3d 303 [evidence of uncharged misconduct held admissible
even though prior offense was committed 15 years before charged offenses committed].)
       Moreover, we reject appellant’s contention that his conduct during the 1997
incident was “much more inflammatory” (italics added) than his conduct in committing
the instant offenses. (See Hollie, supra, 180 Cal.App.4th at p. 1274 [factors affecting the
prejudicial effect of uncharged acts include whether the uncharged acts resulted in
criminal convictions and whether the evidence of uncharged acts is stronger or more
inflammatory than the evidence of the charged offenses].) Given that appellant struck
Beggs multiple times in the 1997 incident whereas his violent conduct in the instant
offenses was limited to grabbing her necklace and holding it tight against her neck, his
conduct in 1997 was marginally more egregious. But, on both occasions, he committed
acts of violence and threatened to kill Beggs. In our view, the uncharged acts evidence
was not significantly more inflammatory than the evidence of the instant offenses.



                                             12
       To summarize, our examination of the record reveals that the uncharged acts
evidence was highly probative, and, although the uncharged acts were remote in time and
there was no evidence those acts resulted in any convictions, the evidence of those acts
was not significantly more inflammatory than the evidence of the charged offenses. On
this record, the court’s conclusion that the evidence was not made inadmissible by
Evidence Code section 352 was well within the bounds of reason. Accordingly, we will
not disturb that conclusion on appeal.
Due Process
       Appellant argues that the uncharged acts evidence constituted evidence that
“appellant had a propensity to threaten his mother and ask her for money,” thereby
reducing the prosecution’s burden of proof in violation of appellant’s right to due process
of law under the United States Constitution. There is no merit to this contention.
       To prevail on a claim that he was denied a fair trial or due process of law by the
admission of uncharged acts evidence, appellant must show “admission of the evidence
was erroneous, and that the error was so prejudicial that it rendered his trial
fundamentally unfair.” (People v. Garcia (2008) 168 Cal.App.4th 261, 275.) “‘Only if
there are no permissible inferences the jury may draw from the evidence can its
admission violate due process. Even then, the evidence must “be of such quality as
necessarily prevents a fair trial.” [Citations.] Only under such circumstances can it be
inferred that the jury must have used the evidence for an improper purpose.’ [Citation.]
‘The dispositive issue is ... whether the trial court committed an error which rendered the
trial “so ‘arbitrary and fundamentally unfair’ that it violated federal due process.”
[Citation.]’ [Citation.]” (People v. Albarran (2007) 149 Cal.App.4th 214, 229-230, fn.
omitted (Albarran).)
       Here, as demonstrated above, there were “‘permissible inferences’” (Albarran,
supra, 149 Cal.App.4th at p. 229), the jury could have drawn from the uncharged acts

                                             13
evidence, viz., appellant’s motive and intent in committing the instant offenses and that
he committed both the uncharged and charged acts pursuant to a common plan. Indeed,
the court instructed the jury it could not consider the uncharged acts evidence for any
purpose other than intent, motive or common plan, and specifically that the evidence
could not be considered to show a propensity to commit crime. We ordinarily presume
jurors are able to understand and follow instructions. (People v. Yeoman (2003) 31
Cal.4th 93, 139.) Nothing in the record here rebuts that presumption.
         Moreover, admission of the uncharged acts evidence in compliance with Evidence
Code section 352 did not prevent a fair trial. (Cf. People v. Gurule (2002) 28 Cal.4th
557, 620 [ordinary rules of evidence generally do not infringe on the right to present a
defense; rejecting argument that restricted cross-examination violated rights to
confrontation, due process, and a fair trial].) Admission of the uncharged acts evidence
thus did not violate appellant’s due process rights.
                                     Sentencing Error
         The court here found true allegations that appellant was convicted of attempted
robbery in 1997 and that he served a prison term for that conviction. The court imposed
both a five-year prior serious felony enhancement (§ 667, subd. (a)) and a one-year prior
prison term enhancement (§ 667.5, subd. (b)) based on these findings. As appellant
argues, and the People properly concede, this was error: “[W]hen multiple statutory
enhancement provisions are available for the same prior offense, one of which is a
section 667 enhancement, the greatest enhancement, but only that one, will apply.”
(People v. Jones (1993) 5 Cal.4th 1142, 1150.) Thus, the one-year prior prison term
enhancement imposed under section 667.5, subdivision (b) must be stricken. (Jones, at p.
1153.)




                                             14
                                     DISPOSITION
       The judgment is modified as follows: The prior prison term enhancement (Pen.
Code, § 667.5, subd. (b)) is stricken. The trial court is directed to prepare an amended
abstract of judgment that reflects this modification and to forward a certified copy to the
Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.




                                             15
