Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 07F07863
RAYE, P.J.A jury convicted defendant Gregory Summers of robbery, and the court found true allegations that he had two prior serious felonies and strikes. (Pen. Code, §§ 211, 667, subds. (a), (b)-(i), 1170.12) The trial court sentenced him to prison for 10 years plus 25 years to life. Defendant timely filed this appeal.
Defendant contends the trial court improperly allowed the introduction of uncharged conduct evidence, and failed to instruct on an included offense. We shall affirm.
FACTS
The victim, Belinda S., testified she took a friend to a medical office in downtown Sacramento for a counseling session. She waited upstairs, on a bench by a bay window, by herself. A man walked up and asked her where the reception area was, and they spoke for a couple of minutes. She thought the man was “slow and retarded” based on his speech. The man thanked her and went downstairs. About 30 seconds later, he returned, “using profanity and said he had a gun, he was gonna kill me.” He sounded deranged, speaking “in a low tone, angry[, ] almost possessed.” He walked up to her until his groin was in her face and he put his hand, covered in a white cloth, against her neck, “saying that that was the gun that he was going to kill me with and he was hitting me.” She felt an object she took to be a weapon pressed against her. He smelled of alcohol. The man asked if she had money, and after she told him to take “whatever he wanted” he grabbed her bag, exhibit 12, and ran downstairs. She screamed and someone called 911. Her checkbook and about $150 to $200 were in her bag. The victim identified defendant in court, and had made a “very confident” field identification. She identified exhibit 20-A-1 as depicting a cap similar to the one the man wore, and exhibit 20-B-1 as a shirt similar to the one the man wore.
A marriage and family counselor testified that on August 14, 2007, he was counseling a patient at his office at 820 18th Street when he heard screaming. He opened the door and saw his patient’s companion, distraught and screaming, and she said, “he took my purse” and “he just left.” The counselor ran outside and found a cap in the alley, depicted in exhibit 20-A-1, which he turned over to the police.
A woman taking out some trash in the alley saw a man “curled up underneath the stairwell, and he was holding a purse.” Exhibit 8 depicted the stairs. After she deposited her trash, the man had left, leaving a purse, exhibit 12, behind. She recognized exhibit 20-B-1 as the man’s shirt.
Officer Larry Borja testified the victim was crying and shaking when he arrived. She told him the man took “about $40, ” “some twenties and some ones.”
Officer Jeffrey Babbage responded on horseback and detained defendant. Officer Jacob Casella found a cocaine pipe in defendant’s pocket, and Officer Casella attended a field identification where the victim “positively” identified defendant. Exhibit 20-B-1 was the shirt defendant wore, and Exhibit 20-A-1 depicted a hat Officer Casella was given at the scene. California Highway Patrol Officer James Mann found the victim’s purse under the stairwell depicted in exhibit 8. The purse had scissors and a white cloth that were not the victim’s.
Doris M. testified that on July 17, 1999, she took her grandson to the IMAX theater in downtown Sacramento, and parked in a garage. When she got out of her car, a man grabbed her, and although she fought back, he took her purse. Later that day she identified the man. A peace officer testified the garage was at 13th and I Streets, and that Doris M. identified a man about a half-hour later. A fingerprint expert established that defendant was the man arrested for Doris M.’s robbery.
In the middle of Doris M.’s testimony, the trial court instructed the jury that it could, but need not, use the evidence to show defendant’s intent or plan in the current case, and in doing so the jury should consider the similarity or dissimilarity between the uncharged and charged incidents. The trial court reminded the jury of this limited use of the evidence at the end of the case.
Dr. Albert Globus testified defendant had a mental illness consisting of a memory defect that induced him to self-medicate with drugs and alcohol, leading to “a primary diagnosis of some type of psychosis aggravated by his drug use.”
Defense counsel argued the evidence did not show defendant intended to take the purse “until after using the force or fear, ” and thus was not guilty of robbery. Defendant may have hit the victim, but he did not demand money while doing so. Counsel argued, “here we just had an assault and battery go on. Maybe a threat to kill. I don’t know. But stuff that’s not charged.” Counsel argued the prior incident did not speak to defendant’s intent on this occasion, nor show a common plan.
DISCUSSION
I.
The People moved in limine to introduce evidence of the 1999 incident to prove intent and common plan or scheme. Defendant opposed the motion, in part seeking a hearing to clarify the similarity, if any, between the prior conduct and the charged offense (see Evid. Code, § 402), and in part arguing the evidence was irrelevant and unduly prejudicial.
At the hearing on the motion, the prosecutor represented that the current victim was in a doctor’s waiting room, an alcove off a staircase in an old Victorian house. Her purse was on a chair next to her, and defendant threatened to kill the victim, then took her purse. This was a few blocks from the 1999 robbery location.
The trial court noted that in both cases the victims were women in confined places, and in both cases defendant attacked the victim first, and took the purse “after enough fear [had] been used. [¶] I don’t know why he does it that way, but it would appear it’s [a] little unusual in that sense.” The trial court noted that the similarity needed to show intent was less than to show a common plan. The trial court found the evidence would not take much time and would not be confusing. After a recess to review some cases, the trial court found there was a plan, albeit “not necessarily a good plan” that defendant used in both cases, the evidence was admissible to show a common plan and intent, and found that the evidence was not unduly prejudicial.
The prosecutor argued defendant’s intent could be shown in part by Doris M.’s case, where defendant also used the plan of selecting a vulnerable victim, applying force first, and then taking property. Defense counsel argued defendant lacked the intent to steal, and argued the prior case was too dissimilar to be relevant.
On appeal, defendant contends the trial court should not have allowed the introduction of the uncharged conduct evidence.
Evidence Code section 1101, subdivision (a), generally bars the use of character evidence against a person “when offered to prove his or her conduct on a specified occasion.” However, Evidence Code section 1101, subdivision (b), provides an exception for evidence of a prior act when relevant to prove, inter alia, intent or a common plan.
“The relevance of uncharged misconduct to show identity, intent, or the existence of a common design or plan is determined by the nature and degree of the similarity between such misconduct and the charged crime. ‘Evidence of uncharged crimes is admissible to prove identity, common design or plan, or intent only if the charged and uncharged crimes are sufficiently similar to support a rational inference of identity, common design or plan, or intent.’ [Citation]. ‘The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent.’ (People v. Ewoldt (1994) 7 Cal.4th 380, 402.) ‘A greater degree of similarity is required in order to prove the existence of a common design or plan.’ (Ibid.) ‘The greatest degree of similarity is required for evidence of uncharged misconduct to be relevant to prove identity.’ (Id. at p. 403.)” (People v. Scheer (1998) 68 Cal.App.4th 1009, 1018 (Scheer).)
“Besides relevancy to a matter other than the defendant’s bad character or criminal disposition, ‘[t]here is an additional requirement for the admissibility of evidence of uncharged crimes: The probative value of the uncharged offense evidence must be substantial and must not be largely outweighed by the probability that its admission would create a serious danger of undue prejudice, of confusing the issues, or of misleading the jury.... On appeal, a trial court’s resolution of these issues is reviewed for abuse of discretion.’ (People v. Kipp [(1998)] 18 Cal.4th 349, 371, citation omitted.)” (Scheer, supra, 68 Cal.App.4th at p. 1018.)
Defendant contends the evidence was cumulative, because the victim’s testimony established intent, but elsewhere in his brief defendant states his intent was disputed or ambiguous. Because the prosecutor could not know what quantum of evidence was sufficient to persuade the jury on this issue, the evidence was not cumulative. (See People v. Steele (2002) 27 Cal.4th 1230, 1243-1244 (Steele).) Nor was the prior incident, from 1999, so remote as to preclude its use to show intent, as defendant asserts.
People v. Balcom (1994) 7 Cal.4th 414, cited by defendant on the issue of cumulativeness, is distinguishable. In that case the victim testified Balcom put a gun to her head and raped her, and his defense was that he did not put a gun to her head and they had consensual intercourse. (Id. at p. 422.) The California Supreme Court concluded, “because the victim’s testimony that defendant placed a gun to her head, if believed, constitutes compelling evidence of defendant’s intent, evidence of defendant’s uncharged similar offenses would be merely cumulative on this issue. [Citation.] Accordingly, we conclude that the limited probative value of the evidence of uncharged offenses, to prove intent, is outweighed by the substantial prejudicial effect of such evidence.” (Id. at p. 423.)
In this case, as stated, there was some question about defendant’s intent, because the victim did not testify he made a demand for money, only that he asked if she had money. A rational jury could believe the victim’s testimony but still have a doubt about defendant’s intent; therefore the evidence of the prior robbery was not cumulative on the issue of intent.
Defendant contends only “striking” similarities qualify to show a common plan. We disagree.
Defendant correctly observes that, in the course of discussing the effect of motive on the existence of a common plan, one court made the general statement that “a common plan or scheme depends on the existence of striking similarities between the prior misconduct and the charged crime[.]” (Scheer, supra, 68 Cal.App.4th at p. 1020.) However, the California Supreme Court has not so limited the required similarity:
“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. For example, evidence that a search of the residence of a person suspected of rape produced a written plan to invite the victim to his residence and, once alone, to force her to engage in sexual intercourse would be highly relevant even if the plan lacked originality. In the same manner, evidence that the defendant has committed uncharged criminal acts that are similar to the charged offense may be relevant if these acts demonstrate circumstantially that the defendant committed the charged offense pursuant to the same design or plan he or she used in committing the uncharged acts. Unlike evidence of uncharged acts used to prove identity, the plan need not be unusual or distinctive; it need only exist to support the inference that the defendant employed that plan in committing the charged offense.” (People v. Ewoldt (1994) 7 Cal.4th 380, 403.)
Thus, the fact defendant’s method was not particularly complex nor particularly original or “striking” does not answer the question whether the two crimes were sufficiently similar to show a common plan. The trial court could rationally find the fact defendant attacked the female victims first and then took their purses was sufficiently similar to show a common plan.
Defendant also contends the uncharged conduct evidence was unduly prejudicial. We disagree.
“‘The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence.’ [Citations.] ‘Rather, the statute uses the word in its etymological sense of “pre-judging” a person or cause on the basis of extraneous factors.’” (People v. Zapien (1993) 4 Cal.4th 929, 958.) Here, contrary to defendant’s assertion, neither incident was particularly inflammatory when compared to the other. He points out the uncharged offense was an attack on a grandmother in the presence of a child. But in the current offense defendant walked towards a woman sitting down, pressing his groin into her face, then he held an object against her neck, said he would kill her and he hit her. The uncharged offense, while deplorable, was not inflammatory in comparison to the charged offense. Further, the uncharged act evidence did not consume much trial time, and the trial court properly instructed the jury as to its limited purpose, thereby eliminating any likelihood the jury would be confused, or would consider the evidence to show defendant’s general character or propensity to do evil, as defendant speculates. Accordingly, we see no abuse of discretion by the trial court.
Finally, contrary to defendant’s view, the erroneous introduction of evidence does not rise to a federal due process violation unless “‘“there are no permissible inferences the jury may draw”’” therefrom. (Steele, supra, 27 Cal.4th at p. 1246; see People v. Kelly (2007) 42 Cal.4th 763, 787.) In this case, the evidence was susceptible of permissible inferences, and therefore if we found any error, we would find it harmless unless it was reasonably probable the exclusion of this evidence would have changed the result. (People v. Samuels (2005) 36 Cal.4th 96, 113-114 [state law prejudice standard applied to improper admission of character evidence]; People v. Marks (2003) 31 Cal.4th 197, 226-227 [state law prejudice standard applied to Evid. Code, § 352 error].)
The current victim identified defendant in court and had identified him shortly after he was captured. The victim described being accosted by defendant, who threatened her with a knife and asked about money, although she did not testify he explicitly demanded money. Defendant then took her purse and fled. A witness saw a man hiding nearby under some stairs, where the victim’s purse was found, and identified defendant’s shirt. Although the evidence of how much money was taken was in conflict, the evidence strongly shows the victim was robbed and that defendant was the robber. Accordingly, it is not reasonably probable the exclusion of the prior act evidence would have changed the result, and any error was harmless.
II.
The trial court instructed on petty theft, but declined defendant’s request to instruct on battery. Nevertheless, defense counsel argued that defendant battered the victim, then took the purse after she began to scream. In reply, the prosecutor argued a battery and theft close in time equated to a robbery.
The trial court in part instructed that the People had to prove “the defendant used force or fear to take the property or to prevent the person from resisting” and that “when the defendant used force or fear to take the property, he intended... to deprive the owner of it permanently. [¶] The defendant’s intent to take the property must have been formed before or during the time he used force or fear. [¶] If the defendant did not form this required intent until after using the force or fear, then he did not commit robbery.”
However, notwithstanding the trial court’s instructions, referring to “force or fear, ” the information alleged the two in the conjunctive, referring to “force and fear[.]”
Defendant contends that battery is a lesser included offense of robbery as charged by the information in this case, and the trial court should have instructed the jury thereon. We disagree, and find any error was harmless.
Two tests are used to determine whether an offense is necessarily included within another offense, the “elements” test, which is not at issue in this appeal, and the “accusatory pleading” test, under which the “court reviews the accusatory pleading to determine whether the facts actually alleged include all of the elements of the uncharged lesser offense; if it does, then the latter is necessarily included in the former.” (People v. Parson (2008) 44 Cal.4th 332, 349.)
In People v. Wright (1996) 52 Cal.App.4th 203 (Wright), we previously explained that the term “force” as used for robbery has a broader meaning than “force” as used for assault. We concluded assault was not a lesser included offense of robbery, even when the robbery is charged using the conjunctive “force and fear” language. Because we find our prior analysis is also relevant to defendant’s contention regarding battery as a lesser included offense of robbery, we reproduce it here, as follows:
“Generally, ‘the force by means of which robbery may be committed is either actual or constructive. The former includes all violence inflicted directly on the persons robbed; the latter encompasses all... means by which the person robbed is put in fear sufficient to suspend the free exercise of... will or prevent resistance to the taking.’ [Citation.] This ‘constructive force’ means ‘force, not actual or direct, exerted upon the person robbed, by operating upon [a] fear of injury....’ [Citation.] The Supreme Court has held that ‘force’ has no technical meaning which must be explained to jurors. [Citation.] Included within the common meaning of ‘force’ is ‘such threat or display of physical aggression toward a person as reasonably inspires fear of pain, bodily harm, or death.’ [Citation.]
“As we have noted, ‘force’ is not an element of robbery independent of ‘fear’; there is an equivalency between the two. ‘“[T]he coercive effect of fear induced by threats... is in itself a form of force, so that either factor may normally be considered as attended by the other.”’ [Citation.]
“Thus, in a case where the information pled robbery in the conjunctive and the defendant claimed there was insufficient evidence of both elements, we held that pointing a handgun at a victim and demanding money is direct evidence of force and is ‘inferably’ evidence of the victim’s fear. [Citation.] Notably absent from this statement of the evidence... is any indication of an attempt to apply physical force rather than frighten, or any indication the handgun was loaded (and thus had the present ability to apply force when used as a gun).
“Since the element of force can be satisfied by evidence of fear, it is possible to commit a robbery by force without necessarily committing an assault. Consequently, under the ‘accusatory pleading’ test, assault is not necessarily included when the pleading alleges a robbery by force.” (Wright, supra, 52 Cal.App.4th at pp. 210-211.)
Following Wright, we conclude battery is not a lesser included offense of robbery. “A battery is any willful and unlawful use of force or violence upon the person of another.” (Pen. Code, § 242.) “The word ‘violence’... has no real significance. It has long been established that ‘the least touching’ may constitute battery.” (1 Witkin & Epstein, Cal. Crim. Law (3d ed. 2000) Crimes Against the Person, § 12, p. 645.) “The force may be directly applied, as by punching, kicking, or tripping the victim. [Citations.] Or it may be indirectly applied, e.g., by forcing a person to jump from a window or vehicle.” (Id. § 13, p. 646.) Because a robbery can be committed without any touching whatsoever, battery is not a lesser included offense of robbery, regardless of whether the information alleges the use of force. Therefore, we conclude the trial court properly refused to instruct on battery.
Defendant contends Wright, supra, 54 Cal.App.4th 203 was wrongly decided. We adhere to the analysis we previously expressed in Wright.
DISPOSITION
The judgment is affirmed.
We concur: ROBIE, J. BUTZ, J.