NOT TO BE PUBLISHED IN OFFICIAL REPORTS IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO A113497

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1 Filed 8/16/07 P. v. Colombo CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule (a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule (b). This opinion has not been certified for publication or ordered published for purposes of rule IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO THE PEOPLE, Plaintiff and Respondent, v. RICHARD MICHAEL COLOMBO, Defendant and Appellant. A (San Mateo County Super. Ct. No. SC059409A) I. INTRODUCTION Defendant and appellant Richard Michael Colombo was convicted of second degree burglary (Pen. Code, 460, subd. (b) 1 ). Because the trial court erred in admitting, under Evidence Code section 1101, subdivision (b), evidence of three prior theft-related convictions, and this error was prejudicial, we reverse and remand for a new trial. II. FACTUAL AND PROCEDURAL BACKGROUND Sean Lozada, a loss prevention investigator at the Home Depot store in Colma testified that on the morning of August 18, 2005, while he was on duty on the Home Depot sales floor, he observed a man, later identified as Colombo, standing alone at the end of the aisle in the electrical department with a shopping cart. Lozada saw Colombo pick up an electrical power strip from the shelf, look at it and place it back on the shelf. 1 All further statutory references are to the Penal Code, unless otherwise noted. 1

2 Lozada noticed that there was a lot of merchandise in the shopping cart and that the merchandise was from a number of departments in the store. He thought this was suspicious because, in his experience at Home Depot, a shoplifter often tends to have merchandise from a variety of departments in the store. Colombo then pushed the shopping cart fifteen to twenty feet towards the paint department, which was forty feet from the electrical department. Lozada saw Colombo with another individual, later identified as Mr. Ho, in the paint department. He did not remember seeing the two men speak to each other. Ho selected a can of paint thinner and another paint product and put these items into the shopping cart. While this was happening, Colombo was standing in the vicinity of the shopping cart. Ho put other products into the shopping cart, but Lozada did not remember if Colombo was still by the cart while he did so. Lozada observed the two men for a total of three to five minutes. Lozada moved away to the front of the store, by the registers, not wanting the men to see him. About fifteen or twenty minutes later, from his vantage point at the front of the store, he saw Ho in the tool department. While there, Ho put several products into the shopping cart. Colombo was not with Ho. A few minutes later, Lozada saw Colombo in front of the store, looking at the register and the exit doors. At no time did Lozada see Colombo put anything into the shopping cart. Ho took the cart to a register. Concerned that Ho might be engaged in illegal activity, Lozada notified the line manager that, if Ho used a credit card or check, she should get a photo identification from Ho and bring it to Lozada for verification. Ho presented the merchandise for purchase, and the cashier brought Lozada the credit card he was using to buy the merchandise. The credit card was in the name of Augustines Blas. After learning that Ho had told the cashier he d left his identification in his car, Lozada checked with Home Depot s credit card service and learned the card had been reported as lost or stolen earlier that morning. Lozada then called the Colma Police Department, and gave them a physical description of both Ho and Colombo. 2

3 During this time, Lozada could not see Colombo. However, he reported him to the police as well as Ho because Lozada had seen the two men together in the store. After Lozada made this phone call, he saw Ho exit the store without the merchandise and without the credit card. Lozada told the dispatcher this and learned that an officer was on his way to the store. Lozada walked outside, and told the dispatcher the direction in which he observed Ho walking. He saw a Colma police car come into the parking lot. Lozada pointed at Ho, and the officer in the car followed Ho into the parking lot. Lozada observed Ho make a movement as though he was throwing an object under a parked car. The officer asked Lozada to retrieve the object, which turned out to be a wallet containing numerous credit cards. The officer placed Ho in the police car, and Lozada filled out a citizen arrest form and then returned to the store. A short while later, Lozada was called back out to the parking lot to meet another Colma police officer. Lozada was asked to identify an individual who had been detained by this officer. Lozada identified this man, later identified as Colombo, as being the one he d seen with Ho in the store. He did not fill out another citizen arrest form for Colombo. Lozada also testified that he had retrieved the store s surveillance tapes for the period in which Ho was in the store and recorded them on a CD ROM. The tapes record the entire time period Ho was in the hardware department and also the time he was at the register. There are no cameras in the electrical and paint departments where Lozada observed Ho and Colombo. Excerpts of these tapes were shown to the jury. 2 2 While the tapes played, Lozada identified Ho and Colombo turning down an aisle in the store and looking at merchandise on a shelf. The tapes do not depict the paint department, where Lozada testified he had seen Ho put merchandise into the cart. Colombo is seen walking past the front of the camera, and looking at the register and the doors. Colombo is also seen pushing the cart a little bit -- a couple of feet -- and then stopping, going around the cart and continuing walking. On several of the frames, Colombo is seen in the vicinity of Ho, standing by him or walking past him. However, 3

4 Peter Renois, a police officer employed by the City of Colma, responded to a report of criminal activity at the Colma Home Depot. He observed a man, later identified as Colombo, near the Home Depot. Renois, who was not wearing a uniform, and was driving an unmarked police car, showed Colombo his gun and badge and asked him to approach. Colombo complied. Renois asked him who he was with at the store and what he was doing there. Colombo told Renois he was doing some shopping, but decided not to buy anything. Colombo said he was alone. Colombo identified himself to Renois. After Renois spoke to another officer at the scene, who told him that Colombo was with another man, Renois confronted Colombo and asked him why he had lied. Colombo told me he didn t want to get in trouble. He told me that he wasn t doing anything wrong. Colombo was taken into custody and handcuffed. Amanda Parks, who had several felony conviction for possession of a controlled substance testified under a grant of use immunity. She testified that she had lived in an apartment on Ellis Street from May until mid-september For about a month before Colombo s arrest, he was her boyfriend. She described Colombo as basically liv[ing] in her studio apartment. The apartment was furnished with a bunk bed. The morning of August 18, 2005, between 6:00 a.m. and 7:30 a.m., Ho came to her apartment, looking for Colombo. Colombo was not there. Parks went to the store, and when she returned she saw Colombo near her apartment. She waved to him and he came over, meeting Ho as he was coming down the stairs from the apartment. Parks testified that, when she spoke to a police officer on the telephone that same day, she told him that Ho may have or may not have told her directly that he had found a credit card that morning. She also recalled telling the police officer that Ho had come to her apartment at about 7:30 a.m. while she was there with Colombo. She told the officer that she heard Ho say he had found some credit cards and she also heard Ho ask Colombo to go to Home Depot with him. When this conversation took for the majority of the tapes, Colombo is not in view. Lozada testified that he could not remember what time period the tapes recorded. 4

5 place, she was in the kitchen area of the studio apartment, Colombo might have been in the bathroom, although she was not sure, and Ho was standing in the front of the studio. When Ho asked her if she needed anything, she jokingly said, a vacuum. Colombo was there when she told Ho this. Parks stated that she could not remember if Colombo was in the room when Ho told her that he had found a credit card that morning, although she recalled telling the officer that Colombo was in the house that morning. Eight days later, two police officers searched Parks s apartment. Parks testified that a day planner found on the top bunk in her apartment had been left there by Ho s girlfriend. Parks stated that the day planner was inside Ho s girlfriend s belongings, which were on the top bunk bed. Parks testified that Ho s girlfriend kept a bunch of clothes... scattered and stuff on the top bunk, like scattered everywhere. She did not know whether Colombo was aware that the day planner was there. Colombo usually slept on the bottom bunk, with her. When the police searched her apartment, Parks gave them a leather zippered brief case, which she had found on the top bunk before they came. Inside the brief case were numerous papers in the name of Augustines Blas. Parks recognized this was probably stolen property. Parks testified that the day planners were brought to her house by Ho s girlfriend a few days after Colombo was arrested. Colombo had his clothes at her house. Ho and his girlfriend brought things there that Parks thought were probably stolen. The apartment was small, a mess, and looked like a storage unit. A lot of people stored things there. Parks testified that she told the police that she had nothing to do with the theft, but she received drugs for her services. She also testified that she did not tell the police that Colombo, Ho and a woman were storing stolen items at her apartment and using her computer to purchase items through the Internet. Ho s girlfriend, Alexis Silver, was receiving mail and using the computer at Parks s house. Renois of the Colma Police Department testified that he spoke by telephone to Amanda Parks on August 18, 2005, after Colombo and Ho s arrest. He also served her 5

6 with a subpoena on the same day at her apartment. He apparently also searched her apartment on August 26 and testified that on that day he found a black leather daytimer on the top bunk bed in the apartment. It could have been inside a backpack or in plain view. He testified that on top of the bunk bed there were many items, maybe four or five women s purse on there, backpacks, couple similar type day planners on top as well. And also an item that look similar, but actually held CD or computer software disk. The apartment was very small -- maybe five square feet at the most. He also found a nylon briefcase in the same general area. He recognized the name Blas as the name of the victim in the case they were investigating. The black daytimer, contained deposit slips with Blas s name on them. Renois testified that on August 26 Parks told him, with regard to the origin of some of these items, that they brought them to the apartment. She made this comment after we were specifically talking about Mr. Ho and Mr. Colombo. The People also elicited, from Colma police officer Pfotenhauer, the information that, after he was arrested, Colombo told him he was currently unemployed but that Colombo had $400 in cash with him when he was arrested. The court admitted into evidence certified copies of complaints and docket sheets that showed (1) Colombo pled no contest to the charge of commercial burglary of a J.C. Penny s in San Bruno; (2) a complaint had been filed against Colombo for receiving the stolen property of one Peter Aspoy in violation of section 496, subdivision (a) and (3) a judgment of conviction showing that Colombo had been convicted of theft at a Rite Aid in San Mateo. Ho and Colombo were tried jointly. As to Colombo, the jury was instructed that this evidence could be used for the limited purpose of determining if it tends to show the existence of intent, which is a necessary element of the crime charged. The existence of knowledge as to the nature of the Home Depot credit card, that is whether it was a lost or stolen card, the absence of mistake. For the limited purpose for which you may consider such evidence, you must weigh it in the same manner as you do all other evidence. 6

7 Colombo was convicted of second degree burglary on the basis that he aided and abetted Ho. This timely appeal followed. III. DISCUSSION A. Other Crimes Evidence Before the trial began, the People moved in limine to admit evidence that Colombo had been convicted of four theft-related crimes. The People s motion contained very little information about two of these prior crimes, and no information at all about the third. The motion stated that in the 1998 commercial burglary conviction the victim was J.C. Penney, a big store, similar to Home Depot. In the most recent prior, the 1999 Penal Code section 666 charges, for which he was given the upper term of three years in prison, the victim was also a big store, Rite Aid. The court did not seek any additional information about the two convictions involving big store(s), nor did it seek any information at all about the additional conviction, which from the record, was not a conviction for a crime at a big store, but for receiving stolen property, a violation of section 496, subdivision (a), and for petty theft with priors, a violation of section 666. During a brief argument on this motion in limine, the People stated that because [of] the ambiguous nature of Mr. Colombo s behavior at the store, I think this is a case where anything that relates to anything that would show his intent to steal and or knowledge of the lost or stolen issue of the credit card is crucial to the jury to accurately determine what is in his mind at the time, considering his statements or his movement are a little ambiguous. So therefore, I think the priors are important to come in there, not unduly prejudicial. And I think they re close in time. Counsel for Colombo objected on the ground that the convictions were not relevant. Counsel pointed out that the fact that he was convicted of 496, receiving stolen property in 1998, did that have a tendency and reason to prove that he had intent to steal when he entered the store today. The trial court admitted the evidence, reasoning that all of the uncharged crimes that the people are seeking to admit the prior convinces [sic] contained the similar element of either intent to steal or knowledge of the property was stolen, something to 7

8 that effect. The courts have long recognized if a person acts similar in similar situations, he probably harbors the same intent in each instance. In their opening statement, the People told the jury, [W]e re going to hear a couple things about Mr. Colombo s background that could only be considered against him and only can be used for a limited purpose, not to prove he s a bad person or that he has a disposition to commit thefts, but the judge will instruct you, you can consider these things on the issue of Mr. Colombo s knowledge of the lost or stolen credit card Mr. Ho and you can consider it on Mr. Colombo s intent to commit theft and on the issue of absence and mistake. And those things are three certified records of convictions that Mr. Colombo has suffered in this county for these kind of crimes, specifically in You will see that he was convicted of the same charge, commercial burglary as a misdemeanor, in this county, the victim in that case was JC Penny s. In 1998 he was convicted of a felony, receiving stolen property. And in 1999 he was convicted of a felony, petty theft with a prior. The prior being the stolen, the stolen property offense. That s a felony. The victim in that case was Rite-Aid. And those things are for you to consider if you chose, with regard to issues of his intent and knowledge about what was going on on August 18th at Home Depot. Thank you very much. The People ended their case in chief with the introduction of the three priors. During closing argument, the People stated: [T]here s three prior convictions for theft related offenses.... I m not asking you to convict Mr. Colombo just because he s got three prior convictions. However, the law is such that you don t have to abandon your common sense, when a man is engaging in ambiguous movements by Mr. Colombo and the fact that on three prior times in the recent future, recent future, recent past, he s acted with 192 intent. You can consider that, if that helps you explain his intent in this case. You don t have to ignore it. You can consider it on, only three reasons you can t consider it to prove he s a bad person, or that he has a disposition to be a thief. You can consider as to his intent as his knowledge of the stolen credit card and his absence of mistake. So I m not asking you to convict him because he s got a bad record. I m just saying you don t have to ignore his record. And it s one of the factors you should 8

9 consider in deciding what his intent was in this case. And before you can consider those convictions, you have to find those prior crimes occurred in this case. That s easy, because he s actually been convicted of these prior crimes. So it s not like you have to prove that he was involved in this prior commercial burglary in Okay. So it is proper to consider these things. And but you can t. You got to consider them this correct way and that s the way the judge has advised you. B. Applicable Law The rules governing the admissibility of evidence of other crimes are well settled. Evidence of the defendant s commission of a crime other than one for which the defendant is then being tried is not admissible to show bad character or predisposition to criminality but it may be admitted to prove some material fact at issue, such as motive or identity. (Evid. Code, 1101.) Because evidence of other crimes may be highly inflammatory, its admissibility should be scrutinized with great care. [Citation.] [Citation.] In cases in which the prosecution seeks to prove the defendant s identity as the perpetrator of the charged offense by evidence he had committed uncharged offenses, admissibility depends upon proof that the charged and uncharged offenses share distinctive common marks sufficient to raise an inference of identity. (People v. Medina (1995) 11 Cal.4th 694, 748.) A somewhat lesser degree of similarity is required to show a common plan or scheme and still less similarity is required to show intent. (People v. Ewoldt (1994) 7 Cal.4th 380, ) On appeal, we review a trial court s ruling under Evidence Code section 1101 for abuse of discretion. (People v. Lewis (2001) 25 Cal.4th 610, 637.) (People v. Roldan (2005) 35 Cal.4th 646, 705 (Roldan).) As the Roldan court put it, other crimes evidence is relevant to the issue of intent because 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. (Roldan, supra, 35 Cal.4th at p. 705.) In Roldan, for example, the court found that other crimes evidence had been admitted properly both on the issue of identity and intent where the uncharged crime and the charged crime both involved the defendant s participation in a swap meet robbery in 9

10 which there were three participants, one who took the money, one who stood behind him with a gun and one who drove the get-away car. The court also considered the fact that in both incidents, the robbers stole readily available cash rather than merchandise, used an Uzi-like weapon that was obscured by clothing and used a getaway car that was owned by either a participant in the robbery or a friend. (Id. at p. 706.) In People v. Carter (1993) 19 Cal.App.4th 1236, 1246 (Carter), we explained that, in considering whether there is sufficient similarity between two situations to conclude that the evidence is admissible, a court must look behind the label describing the kind of similarity or relation between the [uncharged] offense and the charged offense; it must examine the precise elements of similarity between the offenses with respect to the issue for which the evidence is proffered and satisfy itself that each link of the chain of inference between the former and the latter is reasonably strong. [Citations.] Where the issue in question is intent, the similarity between the charged and uncharged offenses must be substantial, but need not reach the same quantum of similarity as when uncharged conduct is used to prove identity. [Citations.] In Carter, we upheld the use of uncharged crimes evidence to prove intent where the earlier murder and the charged murder both involved a victim who was homosexual, taken to a secluded place and shot in the head. In both of the crimes the victim s car was ransacked, his credit cards and other valuables taken, and the credit cards subsequently used. (Carter, supra, 19 Cal.App.4th 1236.) Here, in contrast, the People provided the trial court with no evidence of any similarity between the conviction for receiving stolen property ( 496, subd. (a)) with prior convictions ( 666), and the burglary for which Colombo was being tried. The trial court knew only that, at some unspecified place, defendant was charged and pled guilty to receiving stolen property. We are perplexed as to how the court could have concluded, based on the complete lack of information before it, that there was any similarity between the events under which defendant was convicted of receiving stolen property and the burglary with which defendant was charged in this case. Such an inquiry requires, as we stated in Carter that the court examine the precise elements of similarity between the 10

11 offenses with respect to the issue for which the evidence is proffered and satisfy itself that each link of the chain of inference between the former and the latter is reasonably strong.... (Carter, supra, 19 Cal.App.4th at p ) The court could not have performed such an inquiry, because it had no information about the prior crime. Accordingly, the court abused its discretion in admitting evidence that defendant had been convicted of receiving stolen property. With regard to the two prior burglary convictions, the court had only one piece of information about these crimes on which to base a finding that there was a similarity or relation between the [uncharged] offense and the charged offense : the name of the stores at which these two prior crimes were committed. (One was a J.C. Penny s and one was a Rite Aid.) Although the People argue that these crimes have in common that they occurred at big box stores, and the Home Depot is such a store, this is far from enough evidence on which to compare two events and determine whether Colombo had acted similarly in similar situations. In this matter, Colombo accompanied another person who possessed a stolen credit card to a large stand-alone store. While there, he was observed in the vicinity of the person who had the card, and was present while that person chose items to charge with this card. In determining whether this crime is similar to the two uncharged crimes, the court would need to know more than simply the identity of the stores at which Colombo was arrested on these occasions. Accordingly, the court s conclusion that the crimes were sufficiently similar to support an inference that the defendant s intent was the same in both cases was an abuse of discretion. 3 C. Prejudicial Error A trial court s erroneous admission of evidence is prejudicial when it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error. (People v. Watson (1956) 46 Cal.2d 818, Colombo also argues that the use of this evidence violates his federal constitutional rights. He acknowledges, however, that this contention has already been rejected by our Supreme Court in People v. Falsetta (1999) 21 Cal.4th 903, , a decision which we are, of course, bound to follow. 11

12 (Watson).) There is a reasonable probability of a more favorable result within the meaning of Watson when there exists at least such an equal balance of reasonable probabilities as to leave the court in serious doubt as to whether the error affected the result. ([Watson], supra, 46 Cal.2d at p. 837.) (People v. Mower (2002) 28 Cal.4th 457, 484.) Colombo was tried on a theory of aiding and abetting the burglary of the Home Depot. Under this theory, the jury was required to find that (1) Colombo knew of Ho s unlawful purpose upon entering the Home Depot and (2) Colombo had the intent to encourage or facilitate the burglary. (People v. Beeman (1984) 35 Cal.3d 547, 560; CALJIC No ) Although there was quite a bit of evidence that Colombo knew of Ho s unlawful purpose upon entering the Home Depot, 4 there was very little evidence regarding whether Colombo intended to encourage or facilitate the burglary. The People acknowledged as much when they sought to have the other crimes evidence admitted. The People told the trial court, because [of] the ambiguous nature of Mr. Colombo s behavior at the store, I think this is a case where anything that relates to anything that would show his intent to steal and or knowledge of the lost or stolen issue of the credit card is crucial to the jury to accurately determine what is in his mind at the time, considering his statements or his movement are a little ambiguous. So therefore, I think the priors are important to come in there, not unduly prejudicial. And I think they re close in time. Other than a single push of the cart into the paint department and Lozada s observation that, on another occasion, Colombo was seen pushing the cart slightly and then walking by it, there is no evidence of any action Colombo took while at Home Depot to assist or encourage Ho to buy merchandise with a stolen credit card. Moreover, Colombo s behavior when he was arrested did not unambiguously indicate that he had 4 The testimony of Colombo s girlfriend, Parks, about Ho s request that Colombo go shopping with him at Home Depot with what appeared to be a stolen credit card evidenced knowledge on Colombo s part that Ho s intentions were hardly innocent. 12

13 entered the Home Depot with the intention of encouraging and facilitating the burglary. Colombo initially told the officer who stopped him that he was alone, doing some shopping, but decided not to buy anything. Colombo did not attempt to conceal his identity and when confronted about lying said he had done so because he didn t want to get in trouble. He told me he wasn t doing anything wrong. From this evidence, and the inferences it might have drawn from it, the jury might well have concluded that Colombo aided and abetted Ho in the Home Depot burglary. However, given the ambiguous nature of the evidence, it is equally probable that the jury would have found a reasonable doubt as to Colombo s intent. The jury, however, was impermissibly permitted to accept the People s clear invitation, stressed both during both its opening statement and closing argument that it might infer, from Colombo s past convictions for burglary and receiving stolen property, that Colombo had the same criminal intent on this occasion as he had had in the past. Therefore, the admission of evidence that Colombo had been convicted of theft-related crimes three times in the past was prejudicial. D. Evidence That Colombo was Unemployed at the Time of his Arrest To guide the parties in the event of a retrial, we also address the issue raised by Colombo regarding the admissibility of evidence that he was unemployed when he was arrested. The trial court erred in admitting this evidence, as the People concede. In People v. Carrillo (2004) 119 Cal.App.4th 94, , the court explains, [t]he law respecting the admission of evidence pertaining to the defendant s poverty is well established. Indeed, for over a century courts have recognized the potential unfairness of admitting such evidence. (See People v. Kelly (1901) 132 Cal. 430, 431.) In order to avoid that eventuality, the rule has developed that a defendant's poverty generally may not be admitted to prove a motive to commit a robbery or theft.... [Citations.] [ ] While lack of money is logically connected with a crime involving financial gain... [t]he trouble is that it would prove too much against too many. [Citations.] As the court explained in United States v. Mitchell (9th Cir.1999) 172 F.3d 1104, Lack of money gives a person an interest in having more. But so does desire for 13

14 money, without poverty. A rich man s greed is as much a motive to steal as a poor man s poverty. Proof of either, without more, is likely to amount to a great deal of unfair prejudice with little probative value. (Id. at pp [reversing robbery conviction because the prosecutor introduced evidence of defendant s impecunious financial circumstances ].) Because we have already concluded that the trial court s admission of evidence of Colombo s three prior convictions was prejudicial error, we need not consider whether the admission of evidence that Colombo was unemployed when he was arrested was prejudicial. We simply note that, upon retrial, such evidence should not be admitted. 5 IV. DISPOSITION The judgment is reversed and remanded for a new trial in accordance with the views set forth in this opinion. Haerle, J. We concur: Kline, P.J. Lambden, J. 5 We note, too, that defendant s contention that the trial court erred in admitting Ho s post-arrest statements (statements the jury was directed to consider only as they concerned Ho) at the joint trial need not be a concern in any retrial because Ho will not be a co-defendant at that point. 14