Filed 3/16/16 P. v. Mayes CA1/2
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A140982
v.
JAMES ARTHUR MAYES,                                                  (Contra Costa County
                                                                     Super. Ct. No. 5-121622-5)
         Defendant and Appellant.


         Defendant James Arthur Mayes was convicted by jury of one count of first degree
residential burglary. The question before us is whether the trial judge erred by informing
the jury that the court was taking judicial notice that the two individuals arrested with
defendant immediately after the alleged incident had pled guilty to felony burglary
arising from the same incident. We conclude that the court erred in admitting this
evidence, which was overwhelmingly more prejudicial than probative, but that the error
was harmless under any standard. We will affirm the judgment.
                         FACTUAL AND PROCEDURAL BACKGROUND
         Defendant was charged by information filed September 18, 2012, with a violation
of Penal Code section 459/460, subdivision (a), first degree residential burglary. Trial
began on November 18, 2013.
         Opening Statements
         We summarize the opening statements, since the trial court relied on them in
making the key evidentiary ruling in this case.




                                                             1
       In a very brief opening statement, the prosecution described what the evidence
would show. A neighbor spotted defendant breaking into a home in Kensington with two
“accomplices;” he was arrested less than a half mile away, and about 15 minutes later,
with two other individuals; he was identified at the scene by the neighbor; he was found
with the victim-homeowner’s debit card in his pocket; the sliding door of the victim’s
home was found open, and one of defendant’s fingerprints was on the open door. The
prosecutor told the jury that Breedlove, one of the young men defendant was arrested
with, had a backpack containing screwdrivers, a razor scraper, and gloves.
       In his equally brief opening statement, defense counsel said the evidence would
show that there was a lack of evidence to show his client’s specific intent to break and
enter into a building, and a lack of evidence to show he facilitated, assisted, or
encouraged others to break in. Defense counsel offered a version of events he
“believe[d] happened that evening”: “my client was with these two other guys and . . . he
was near the scene,” and the three men went “up high” in this “nice area with a nice view
over the bay” in the hills “to get high, to get stoned.” Defense counsel told the jury they
would not hear any evidence that defendant was “ever in the place,” nor any evidence as
to how the debit card “ended up in my client’s pocket.”
       Evidence
       Glenn Christ was at his home on Purdue Avenue in Kensington on January 14,
2012, at about 3:30 p.m. when he saw three young black men walking very slowly across
the street and stopping in front of the house across the street that belonged to his
neighbor, Dr. Steven Rauch. The three men caught Mr. Christ’s attention because they
were walking very slowly and inspecting Rauch’s house, and because he rarely saw
strangers walk on his street, which was a private road and a dead end. He saw one of the
men (later identified as defendant) walk up to the front door, appear to ring the door bell
or knock, and then peer into the house. This person was wearing a pullover shirt that had
horizontal black or dark blue and white stripes across the shirt. The two other men
walked down the street out of Mr. Christ’s view.



                                              2
       The person in the striped shirt then went back down the walkway and down the
driveway, and nodded his head towards the direction the other two men had walked. All
three men then walked back up the driveway under the carport and to the back part of
Rauch’s house, out of Mr. Christ’s view. Thinking there was something suspicious, Mr.
Christ called 911.
       Kensington Police Officer Kevin Hui was dispatched to respond to the 911 call.
No one was home at Rauch’s house, and he found the sliding rear door of the house was
partially open. The house backs up to an East Bay Regional Park area, and there is a dirt
pathway behind it. Officer Hui asked a person doing some gardening along the pathway
if he had seen three black male juveniles in the area; the neighbor said he had seen them
running southbound down the trail and away from the location. Hui radioed for support
from El Cerrito police officers to go to the trailheads to search for the suspects.
       Responding to the call, Sergeant David Wentworth arrived at one of the trailheads
at about 3:43 p.m. Wentworth saw the three suspects, including defendant, who was
wearing a black and white striped shirt and white hat that matched the description on
dispatch. In short order, three suspects were detained: defendant, Curtis Breedlove, and
Johnte Carter.
       During a pat-down search, officers found a debit card in the name of Dr. Steven
Rauch in defendant’s wallet, along with an identification card with defendant’s
photograph and personal information. Breedlove was carrying a backpack, in which
Officer Hui found two flathead screwdrivers, a razor blade scraper, a pair of gray fleece
gloves, a pair of red knit gloves, and a single glove. Hui, who had previous experience
investigating at least 75 or 80 residential burglaries, testified that the items in the
backpack were consistent with items that would be used to commit a burglary.
       The defense attorney cross-examined Hui about the tools seized from Breedlove’s
backpack and Breedlove’s car. Hui testified that Breedlove had a 2002 Camaro, with
more than 129,000 miles on it, and with scratches and dents. Asked whether the
screwdrivers found in Breedlove’s backpack are also commonly used to work on an old
car, Hui agreed they are. Defense counsel further elicited testimony that nothing of value


                                               3
was recovered from Breedlove’s car, but “some green leafy substance” was recovered in
the car.
       On redirect examination of Hui, the prosecution offered in evidence photographs
of Breedlove and Carter, and then followed up with questioning about Breedlove’s
backpack, asking whether anything found in the backpack was “inconsistent with using
those items for a vehicle [repair].” Hui responded, “What was inconsistent was that the
gloves were all fairly clean. Typically, gloves that are used while working on an engine
compartment get very, very greasy and dirty. None of these gloves exhibited any type of
physical grease markings or anything of that matter.”
       On recross-examination, defense counsel established that defendant was arrested
in January, and then asked whether “[i]t’s generally fairly cold in January.” Eventually,
Officer Hui gave the unremarkable answer that “typically the winter months would be
colder than summer months.”
       Officer Hui was later recalled to the stand, and through his testimony the
prosecution offered in evidence the contents of Breedlove’s backpack. On cross-
examination, defense counsel elicited testimony from Hui that two of the pairs of gloves
weren’t typically the kind of gloves used for working on cars, but that one glove, had
some stains on it that might “possibly” be grease. Hui answered “yes” to the question
that the screwdrivers “could as equally be used on a car as they could be used to break
into a home.”
       The police drove Mr. Christ to the location where the suspects were apprehended,
about a half mile from his house, where he positively identified defendant as the person
he saw knocking at the front door of Rauch’s house. As to the two other people, he could
state only that they were the same size and ethnicity as the two others he had seen at his
neighbor’s property, and they had backpacks. Defendant was wearing a “white striped
shirt.” Defendant was placed under arrest at the scene.
       Dr. Steven Rauch testified that he lived in the house in Kensington where the
crime had occurred. When he returned home on January 14, 2012, he saw the back
sliding door at his patio was open, and it shouldn’t have been. Rauch looked around the


                                             4
house and saw that it was not in the same condition as when he had left it. The house
was in disarray; drawers had been opened and things taken out of them. A debit card in
Rauch’s name had been taken from his desk in the house. The desk was a half floor up
from the open sliding back door; there was no way that anyone could have gotten the card
without actually entering the house. Rauch did not know defendant, and defendant did
not have Rauch’s permission to be at the house that day, nor should he have had any of
Rauch’s property in his possession.
       Sergeant Rickey Hull from the Kensington Police Department collected 19
fingerprints on the rear sliding glass door of Rauch’s home. Kathryn Novaes, a latent
fingerprint examiner with the Contra Costa Criminalistics Laboratory testified that there
was no question in her mind that one of the fingerprints collected at the scene was
matched to defendant’s known fingerprint.
       Judicial Notice of Guilty Pleas of Co-arrestees Breedlove and Carter
       At the end of the first day of trial testimony, the prosecutor asked the trial court to
take judicial notice of records of convictions showing that the two men detained with
defendant had pled guilty to felony burglary of the same residence on the same date. The
prosecutor argued the evidence was relevant “[b]ecause if you have two subjects who
were contacted at the scene, the only issue here is that all three men were engaged in a
common scheme or plan. They were all working together. That’s the issue.” He further
argued, “So the reason this is relevant now especially is because defense counsel has
worked to develop the insinuation that Mr. Breedlove’s conduct was entirely innocent
and Mr. Breedlove wasn’t committing a crime. And the tools that he had in his backpack
could have been used for innocent purposes, well, we all know that Mr. Breedlove
admitted that he was involved in a burglary. . . . The fact that another codefendant pled to
a burglary on that same day and both men were identified with the defendant would tend
to show that these men were engaged in a common scheme.”
       Defense counsel objected strenuously that this was an attempt to “taint my client
unfairly,” that there were “huge [Evidence Code section] 352 issues with this,” that
defendant had not been charged with conspiracy, and that defendant’s case was not joined


                                              5
with the two other men at that point. He continued, “The jury can determine what they
can. They can adduce what they want from the evidence as produced at trial but to start
adding this inflammatory material at this point is highly prejudicial and a violation, I
believe, of 352 and so I have a real problem with that especially since the DA said that’s
exactly why he wants to do it.”
       The trial judge responded that “it appears to be relevant that the two people
arrested with Mr. Mayes were convicted of burglary for this incident,” and the court
could take judicial notice that “each one of them was convicted of burglaries from
January 14, 2012.”
       Defense counsel also argued that the two men had pleaded guilty, and not been
convicted, and the court at least should be truthful to the jury that the men pled to second-
degree burglaries, which were not strikes. The court responded, “Well, the Court needs
to balance the prejudice and the probative value. It’s clearly probative that the two
people arrested with Mr. Mayes were convicted of something from this case.” Defense
counsel noted that Breedlove and Carter entered pleas, but “[c]onviction implies they
went through a jury trial and the evidence was adduced against them.” The court replied,
“That’s fine but the point is that it is probative that they suffered a consequence. They
got a conviction for this case. So I am going to take judicial notice. However, I can’t do
exactly what the prosecutor wants which is to say that they pled guilty to a burglary of
this house because that’s not what the court record reflects. On the other hand, to just say
it was—to say it was a second-degree burglary, in the Court’s mind it will confuse the
jury as to why it is that your client is charged with first-degree burglary and cause the
jury to speculate. And on balance I’m going to tell the jury that these two gentlemen pled
guilty to a burglary for this incident on January 14th of 2012 and it looks like— . . .
[¶] . . . both of them pled on February 16, 2012.”
       The following day the court announced outside the jury’s presence that “[t]he only
thing we’re going to talk about . . . is if you have some case authority that tells me that I
cannot take judicial notice.” Defendant said he did, and again raised Evidence Code
section “352 grounds.”


                                              6
       The court responded that it was “already exercising 352 so I’m well aware of 352
and that’s why I am—my tentative ruling yesterday was that I would say that they . . .
pled guilty to a burglary for the incident occurring on January 14th, 2012.”
       Defense counsel then raised an objection that the admission of the evidence would
violate his client’s rights under the Confrontation Clause and Crawford v. Washington
(2004) 541 U.S. 36. The trial court responded: “Well, the problem, Mr. Dombois, is the
defense has made this evidence relevant. The defense made an opening statement which
in essence said that Mr. Mayes had nothing to do with the burglary, he was in that area
with two friends smoking dope. I mean, that’s the essence. I know you said some other
things but that’s the essence of your opening statement. And your cross-examination of
the prosecution witnesses so far has been for the purpose of trying to establish that Mr.
Breedlove, who possessed the gloves and the screwdriver, possessed them for an innocent
purpose i.e. working on his car. So it’s the defense that has made this evidence relevant
to begin with and the People are going to be allowed to bring in evidence of these
convictions.”
       Defense counsel continued to object that the evidence was not relevant to whether
or not his client committed a crime. Further, defense counsel disputed that he had made
the evidence relevant, pointing out that the prosecution had offered the photographs of
Carter and Breedlove in evidence, and that given the evidence in the case (eyewitness
testimony that there were three young men at Rauch’s house), the presence of the three
men would have come out at trial, regardless of what defense counsel did.
       Rejecting defense counsel’s arguments, the court stated it had “already considered
Evidence Code Section 352 in my balancing,” and the court ruled that the convictions
were admissible. The court stated that the defense had made this information relevant
because of the defense strategy: “Because the defense has chosen to present through
cross-examination an innocent explanation for why co-participant, Mr. Breedlove,
possessed screwdrivers and gloves that innocent explanation clearly being that they were
for work on his old battered-up high mileage car. The jury now is entitled to hear that



                                             7
Mr. Breedlove pled guilty to a burglary in relationship to this case. So that is the end of
the story. It is coming in.”
       Defense counsel objected that the court “presuppose[d] my strategy in my
questioning” and that it was not his strategy to exculpate Breedlove.
       At another conference outside the presence of the jury later that morning, defense
counsel objected again based on Crawford and defendant’s right to a fair trial. Invoking
Evidence Code section 352, the court responded that it balanced the probative value
against the prejudicial value, and would allow the prosecution to introduce evidence that
the two men were convicted of felony burglary.
       Over the objection of defendant, the trial court then informed the jury it was taking
judicial notice “of the Contra Costa County Superior Court records” regarding the two
men who were detained that day with defendant. The trial court told the jury that “[i]n
the case of Mr. Breedlove, on February 16th of 2012, he pled guilty to a felony burglary
that involved the same date in question here, January14th of 2012, for the events
occurring on that day. [¶] Mr. Johnte Carter, on February 16th of 2012, pled guilty to a
felony burglary for the events occurring on January 14th of 2012 arising from the same
incident we’re talking about here. [¶] So because I’ve taken judicial notice of those facts,
no other evidence need to be shown to prove those facts.”
       This was the last evidence the jury heard before jury instructions and closing
arguments, which followed immediately thereafter.
       Guilty Verdict and Sentencing
       The jury found defendant guilty as charged, after deliberating for about 20
minutes.1 Imposition of sentence was suspended, and defendant was placed on three




       1
         The jury received instructions and was taken to the deliberation room at 4:15
p.m. on November 21, 2013, and retired for the day 7 minutes later, presumably after
selecting a foreperson as they had been instructed to do by the trial judge. They came
back the following day at 9:14 a.m., and notified the deputy at 9:35 a.m. that they had
reached a verdict.


                                             8
years of formal probation with 210 days of county jail time to be served on home
detention. Defendant was also ordered to pay certain fines and fees.
       This appeal followed.
                                        DISCUSSION
       Defendant argues that there were multiple reasons why it was error for the trial
court to take judicial notice of the guilty pleas of the two suspects with whom defendant
was arrested for burglary: the evidence was irrelevant, it was more prejudicial than
probative under Evidence Code section 352,2 it was hearsay evidence without any
exception, it was not properly the subject of judicial notice, it violated defendant’s rights
under the Confrontation Clause, and the error was prejudicial.
       We conclude that even if the evidence was relevant, and even if it was properly the
subject of judicial notice, it was an abuse of discretion to admit the testimony under
section 352. We further conclude, however, that although the error was clear, the
admission of the evidence was harmless under any standard because the evidence
overwhelmingly pointed to defendant’s guilt.
I.     Relevance and Section 352
       Only relevant evidence is admissible at trial (§ 350), and relevant evidence means
“evidence, including evidence relevant to the credibility of a witness or hearsay declarant,
having any tendency in reason to prove or disprove any disputed fact that is of
consequence to the determination of the action.” (§ 210.) “There is no precise and
universal test by which relevancy may be determined. [Citations.] The general test of
relevancy in a criminal case is whether the evidence ‘tends logically, naturally, and by
reasonable inference to establish any fact material for the People or to overcome any
material matter sought to be proved by the defense.’ [Citations.] . . . Evidence tends ‘in
reason’ to prove a fact when ‘the evidence offered renders the desired inference more
probable than it would be without the evidence.’ ” (People v. Warner (1969) 270
Cal.App.2d 900, 907.)

       2
           All further statutory references are to the Evidence Code unless otherwise noted.


                                               9
       Under section 352, even if evidence is relevant, a trial court may exclude it when
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.”
       We review claims regarding the trial court’s admissibility of evidence for abuse of
discretion. (People v. Goldsmith (2014) 59 Cal.4th 258.) The same standard applies to
rulings on admissibility under section 352. (People v. Lee (2011) 51 Cal.4th 620, 642.)
A trial court abuses its discretion “ ‘when its ruling “falls outside the bounds of reason.”
[Citations.]’ ” (People v. Carter (2005) 36 Cal.4th 1114, 1149.)
       Defendant argues on appeal that the fact that Breedlove and Carter pleaded guilty
was irrelevant to the question of defendant’s guilt. It was not relevant as to whether the
neighbor correctly identified defendant, whether it was defendant’s fingerprint on the
door, or whether defendant’s acts contributed to the commission of the burglary.
       Implicitly conceding that the evidence was neither relevant nor admissible under
section 352, the Attorney General does not disagree. Instead, she argues that
“[p]rosecution evidence that would normally be irrelevant or inadmissible under section
352 can become admissible if the defendant opens the door to it.” The Attorney General
contends defendant opened the door to the evidence by acknowledging that defendant,
Breedlove, and Carter were together near Rauch’s house on the day of the burglary, and
“then consistently us[ing] his cross-examination questions to try to elicit testimony in
support of a defense theory that the three men were there for reasons unrelated to the
burglary. In doing so, defense counsel put the activities of Mr. Breedlove and Mr. Carter
at the time of the robbery squarely at issue and opened the door to the prosecution to
refute the defense theory by showing that Mr. Breedlove and Mr. Carter did in fact
participate in a burglary.”
       In support of the proposition that a defendant can “open the door” to inadmissible
evidence, the Attorney General cites three cases, none of which is persuasive on the facts
of this case. People v. Rowland (1992) 4 Cal.4th 238, simply establishes that a defendant
can “ ‘open the door’ ” to testimony, but in Rowland there was no appellate review of the


                                             10
issue because the trial court never ruled whether the proposed cross-examination would
“ ‘open the door’ ” to challenged other crimes evidence and, thus, the issue was not
preserved for appeal. In People v. Marghzar (1987) 192 Cal.App.3d 1129, 1136-1137,
where defendant was charged with presenting a false or fraudulent insurance claim about
an allegedly stolen car with intent to defraud, the court repeatedly admonished and
instructed police officer witnesses outside the presence of the jury as to how to handle
questions regarding another investigation that defense counsel contended was irrelevant,
and conducted “numerous sidebar[s]” on the subject. The witnesses “exhibited caution
and strict adherence to the court’s admonition” as to how far they could go in answering
questions. The trial court warned defense counsel that he might be opening the door by
continually questioning witnesses as to the contents of various reports, and the questions
could not be answered accurately without referring to unrelated criminal activity. “Only
after defense counsel acknowledged the risk in the sidebar conference,” and stated his
position that “[i]f I ask something that opens the door, that’s what is going to happen[,]
[t]he door is open. . . . [¶] . . . then they are entitled to pursue that,” did the court admit
the evidence. (Id. at pp. 1136-1137, fn. 2.) Marghzar is thus nothing like this case,
where the prosecutor made a sudden request for judicial notice, and there was no
admonition or warning by the court. Finally, People v. Wharton (1991) 53 Cal.3d 522,
591-592, is also factually inapposite; when defense counsel there cross-examined a police
officer about a confession that had previously been ruled inadmissible, the defendant
opened the door for the prosecution to elicit the balance of the confession pursuant to
section 356 and the rule of completeness.
       Defendant contends that the line of questioning was relevant to show that
defendant did not know, simply from the presence of the items in Breedlove’s backpack,
that they were burglary tools, and that an inference could be drawn from the presence of
marijuana that he was up in the hills to smoke marijuana. Defendant contends that this
testimony was not a sufficient basis to conclude that he had opened the door to evidence
of Breedlove’s and Carter’s guilty pleas.



                                                11
       In our view, neither defense counsel’s opening statement nor his cross-
examination of Officer Hui opened the door. However, we need not resolve this issue
because we conclude the trial court clearly abused its discretion in admitting the
testimony under section 352. Whatever slim, if any, probative value the evidence had
was vastly outweighed by the danger of substantial prejudice of guilt by mere association.
       Defendant was the only person on trial in this case. There was no charge of
conspiracy. The prosecution chose to introduce testimony about what was found in
Breedlove’s backpack, including testimony from Officer Hui that in his experience
screwdrivers can be used as burglary tools. There was no evidence that the screwdrivers
or anything found in Breedlove’s backpack had been used in the charged robbery.
Defense counsel asked a handful of follow-up questions to prosecution witnesses in
cross-examination as to whether screwdrivers and gloves could be used to work on cars
as well as for burglary tools, whether the glove looked like it had a grease stain, and
whether the weather in January is typically colder than in winter (presumably to explain
why one of the pairs of recovered gloves was fleece). It was fair cross-examination. At
best, these questions were innocuous, and were more rhetorical than anything else; the
average juror knows without the necessity of witness testimony that screwdrivers aren’t
always burglary tools, and the weather is colder in January in Alameda County than in
the summer.
       From the incidental amount of defense elicited testimony that we have described,
the trial court made the decision to admit the convictions because “[i]t’s clearly probative
that the two people arrested with Mr. Mayes were convicted of something from this
case.” Although the trial court paid lip service to “352,” the court never explicitly
addressed the actual section 352 analysis, that is, weighing the prejudicial impact of
informing the jurors that Breedlove and Carter had been convicted of residential burglary.
Instead, it focused more on how to inform the jury about the guilty pleas and not whether
to inform the jury about them at all.
       The court’s ruling was an abuse of discretion. The prejudicial impact clearly
outweighed any slight probative value. The prosecution was concerned that defendant


                                             12
was developing a theory that he had an innocent purpose for being present near Dr.
Rauch’s house. But no witness ever testified that there was an innocent purpose for
defendant’s presence near the scene of the crime. The unremarkable answers elicited in
cross-examination (or suggested by defense counsel’s questions) would be grist for a
defense closing argument that the prosecution hadn’t proven its case, including
defendant’s specific intent, beyond a reasonable doubt. Defense counsel had adduced
featherweight evidence about screwdrivers, fleece gloves, and scenic views in the East
Bay hills.
       Courts have long recognized the risk of guilt by association. “The general rule is
that evidence regarding the guilty plea or conviction of a co-participant in a crime is not
admissible to prove guilt of a defendant. (People v. Cummings (1993) 4 Cal.4th 1233,
1322; People v. Leonard (1983) 34 Cal.3d 183, 188-189.) The rationale for the rule is
that a guilty plea or conviction of a participant is irrelevant to whether another person
was positively and correctly identified as a co-participant, and merely invites the
inference of guilt by association.” (People v. Neely (2009) 176 Cal.App.4th 787, 795
(Neely).)3
       By acquiescing to the prosecutor’s unexpected request4 to take judicial notice that
Breedlove and Carter had pled guilty, the court swatted down the defense evidence with a


       3
         In People v. Leonard, supra, 34 Cal.3d 183, our Supreme Court held that it was
prejudicial error under section 352 to admit a co-participant’s guilty plea in the trial of a
defendant for robbery where the link between the two men, except for being arrested at
the same time, was tenuous, and the case turned on the credibility of the witness
identifications of the defendant. The Attorney General attempts to distinguish Neely and
the cases it cites by noting that the defendants in those cases did not “open the door” to
the admission of the guilty pleas, and each of these cases also involved an “especially
great risk of guilt by association” because, unlike here, the associates’ guilt did not
directly support the guilt of defendants. We find this unpersuasive, expressly because the
“opening the door” rationale was weak at best in the matter before us, and with no limits
placed on the guilty plea evidence, the prejudicial effect was so great.
       4
         We say “unexpected” because it does not appear on the record before us that the
issue of the co-participants’ guilty pleas was raised at any time before the prosecutor
requested judicial notice at the end of the trial day on November 20, 2013. There was

                                             13
sledgehammer. There was a substantial danger that a jury hearing evidence of Breedlove
and Carter’s guilty pleas at the end of this relatively short case—and with no instruction
limiting its use—would draw the inference that Mayes was guilty by association. Indeed,
the trial court told defense counsel that had he not treaded into these waters, the judge
had planned to instruct the jury with CALCRIM No. 373, which instructs the jury not to
speculate about whether other persons, who may have been involved in the commission
of the crimes charged, had been or would be prosecuted, but only to decide whether the
defendant on trial committed the crimes charged. Unmoored by any such instruction, the
jurors were told that Breedlove and Carter had pleaded guilty to burglary of Rauch’s
house, and were free to consider these facts in connection with whether defendant also
committed the crimes charged.
       We have no difficulty in concluding that the probative value of the evidence was
substantially outweighed by the danger of prejudice, and it was an abuse of discretion to
admit the evidence.
II.    The Error Was Harmless Under Any Standard.
       We next address whether there was prejudice as a result of the admission of this
evidence that requires reversal.
       The erroneous admission of evidence under section 352 is reviewed under People
v. Watson (1956) 46 Cal.2d 818 (Watson), which asks the question whether the error was
harmless. In determining whether it was, we ask whether “it is reasonably probable that a
result more favorable to the appealing party would have been reached in the absence of
the error.” (Id. at p. 836.) A reasonable probability “does not mean more likely than not,
but merely a reasonable chance, more than an abstract possibility.” (College Hospital,
Inc. v. Superior Court (1994) 8 Cal.4th 704, 715.) A “reasonable probability is a
probability sufficient to undermine confidence in the outcome.” (Strickland v.
Washington (1984) 466 U.S. 668, 694.)

nothing in the record to suggest that the prosecution had ever objected that defense
counsel was heading down a path of opening the door to this testimony, or that the court
admonished defense counsel that he was at risk of doing so.


                                             14
          If we were to reach defendant’s constitutional claim and conclude that the
admission of the same evidence violated defendant’s Sixth Amendment rights, our
analysis of prejudice would be federal harmless error analysis under Chapman v.
California (1967) 386 U.S. 18 (Chapman). (People v. Geier (2007) 41 Cal.4th 555, 608.)
“Since Chapman, we have repeatedly reaffirmed the principle that an otherwise valid
conviction should not be set aside if the reviewing court may confidently say, on the
whole record, that the constitutional error was harmless beyond a reasonable doubt.”
(Delaware v. Van Arsdall (1986) 475 U.S. 673, 681.) The harmless error inquiry asks:
“ ‘Is it clear beyond a reasonable doubt that a rational jury would have found the
defendant guilty absent the error?’ (Neder v. United States (1999) 527 U.S. 1, 18.)”
(People v. Geier, supra, 41 Cal.4th at p. 608.) The burden is on the prosecution to prove
the error “ ‘did not contribute to the verdict obtained.’ ” (People v. Neal (2003) 31
Cal.4th 63, 86 (Neal).) As our Supreme Court explained in Neal, this means we must
“ ‘find that error unimportant in relation to everything else the jury considered on the
issue in question, as revealed in the record.’ [Citation.] Thus, the focus is what the jury
actually decided and whether the error might have tainted its decision. That is to say, the
issue is ‘whether the . . . verdict actually rendered in this trial was surely unattributable to
the error.’ (Sullivan v. Louisiana (1993) 508 U.S. 275, 279.)” (Neal, supra, 31 Cal.4th at
p. 86.)
          The Attorney General argues that “[w]hatever standard applies, any error in
admitting evidence of the pleas was harmless because the remaining evidence against
defendant was overwhelming.” We agree. Whether under Watson or Chapman
(assuming for this discussion we had found constitutional error), the error was harmless.
          The prosecutor did not mention the guilty pleas in his brief initial closing
argument. He did refer to them three times in his rebuttal closing argument.5



          5
         In rebuttal closing argument, the prosecutor asked rhetorically, “How many sets
of gloves did the police find?. . . [¶] . . . Three. How many guys are we dealing with
here? Two guys who were convicted for this crime and their guy who, you know, acted

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       But even without the guilty plea evidence (and any argument referring to it), much
of the trial evidence connected defendant to Breedlove and Carter, since the three men
were seen together approaching Rauch’s house, and were arrested together shortly
thereafter. And defense counsel never denied the three men were together; his opening
gambit was that the three were together in the hills enjoying the view and smoking
marijuana.
       The other evidence against defendant was overwhelming: Rauch’s debit card in
defendant’s pocket (which the prosecutor referred to in rebuttal closing argument as “the
central piece of prosecution evidence”), defendant’s fingerprint on the back door, Mr.
Christ’s testimony and his field identification of defendant only about 15 minutes after
the incident, and the screwdrivers and multiple pairs of gloves found in Breedlove’s
backpack. This evidence was more than enough to support a conviction for residential
burglary beyond a reasonable doubt. The guilty pleas of Carter and Breedlove were not
necessary to reach that verdict.
       Defendant points out the jury deliberated only for about 20 minutes. This is not
sufficient to persuade us that the error was not harmless beyond a reasonable doubt.
Given the overwhelming amount of evidence against defendant, the shortness of the trial,


as the initiator, the guy who cleared the way, the guy that gave the signal, the guy who
opened the door for them.”
       And later, “Ultimate question. Why did those convictions for the other
accomplices what did those have to do anything at all with this case? Well, because it
comes down to whether or not—whether or not circumstantial evidence of intent and
circumstantial evidence generally, whether you’re asked to draw reasonable or
unreasonable conclusions, those things never—the other convictions never would have
been relevant in this case. Except for then somebody decided to play the game of, oh,
well, maybe Breedlove had the screwdrivers and the three sets of gloves, maybe he was
going to fix a car with those two screwdrivers . . . .”
      And again: “Those guys were every bit as involved as the defendant was. They
acknowledged they’re guilty. The defendant is guilty. Let’s move on.”
       In his final summary, stressing defendant’s intent, the prosecution referred to the
“criminal plan between three people.” “Two of those people have acknowledged, yes, I
burglarized that place. Yes, I was involved in this burglary and pled guilty.”


                                            16
and the straightforward testimony and evidence, we cannot say on this record that 20
minutes of deliberation was insufficient time for the jury to find defendant guilty in this
case, even without the admission of the guilty pleas.
       Concluding as we do that the error in admitting the evidence was harmless under
any standard, we do not need to address defendant’s other arguments regarding the
admission of the evidence, including judicial notice and Confrontation Clause issues.
                                      DISPOSITION
       The judgment of conviction is affirmed.




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                                 _________________________
                                 Miller, J.


We concur:


_________________________
Kline, P.J.


_________________________
Stewart, J.




A140982, People v. Mayes




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