People v. Jones, A149431
| Citation | 28 Cal.App.5th 316,239 Cal.Rptr.3d 109 |
| Decision Date | 17 October 2018 |
| Docket Number | A149431 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Eric A. JONES, Defendant and Appellant. |
Victor S. Haltom, under appointment by the Court of Appeal, Sacramento, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Rene A. Chacon, Supervising Deputy Attorney General, Nanette Winaker, Deputy Attorney General, for Respondents
A jury found defendant Eric A. Jones guilty of multiple counts of second degree burglary of a vehicle and additional offenses arising from a series of car break-ins throughout San Francisco that occurred over a 17-month period.
The trial court instructed the jury that if it found Jones committed one or more of the charged auto burglaries (along with one uncharged auto burglary) by a preponderance of the evidence, it could consider that evidence in deciding identity and intent to commit theft for the other charged crimes. The instruction reminded the jury that the prosecution had to prove each charge beyond a reasonable doubt.
Jones contends this instruction had the effect of lowering the prosecution’s burden of proof, and was structural error requiring automatic reversal under People v. Cruz (2016) 2 Cal.App.5th 1178, 206 Cal.Rptr.3d 835 ( Cruz ). We conclude the challenged instruction should not have been given, but there was no structural error. We further conclude any error in giving the instruction was harmless, and therefore we affirm.
On the afternoon of September 24, 2014, William Tam parked and locked his car in a Best Buy parking lot in San Francisco. In the back seat of the car was a backpack containing a medium-size black North Face jacket. When he later returned to his car, Tam found the rear side window was smashed and his backpack was missing.
Surveillance video of the Best Buy parking lot recorded that afternoon showed a black Mercedes Benz SUV parked in a parking space, and then a man in a black Nike sweatshirt getting into the back seat of the SUV on the passenger side. The SUV drove to a different parking aisle and backed into a parking space next to a parked car with intact windows. The doors on the passenger side of the SUV opened, and the backseat passenger got out of the SUV and then got back in. The SUV pulled away, and at that point, surveillance video showed that the rear passenger side window of the nearby parked car was broken. At trial, a Best Buy asset protection employee who had seen defendant Jones inside the store the day of the break-in identified Jones as the man in the black Nike sweatshirt seen in the surveillance video getting in the back seat of the black SUV. Two San Francisco police officers also identified Jones as the man in the black Nike sweatshirt in the surveillance video.
The day after the auto burglary, the black SUV (identified by its license plate number) was found parked on Turner Terrace within a few yards of Jones’s residence.1 Police also found a Nike sweatshirt and Tam’s North Face jacket in Jones’s residence.
On the morning of August 1, 2015, Mabel Zhen parked and locked her van in the parking lot of the Alemany Farmer’s Market, leaving her purse, containing about $2,000 in cash, on the floor of the van. When she returned to the parking lot after a few minutes, she saw Jones standing by her van. She ran to her vehicle and discovered that the window was smashed and her purse was gone. Jones—holding Zhen’s purse—hid behind a tree, then ran to a silver car and got in the driver’s seat.
Jason Albertson also witnessed Jones, who had dreadlocks and was wearing an orange high visibility vest, break the window of Zhen’s vehicle. Albertson saw Jones drive away and memorized the getaway car’s license plate number. He called 911.
Officer Patick Faye was familiar with Jones from previous contacts and knew Jones was often in the Turner Terrace area. When he heard the report of the farmer’s market auto burglary involving a late model silver vehicle with license 7LSD919, Faye recalled that he had stopped Jones in a vehicle that almost matched the description. Faye drove to Turner Terrace, where he found Jones parking a silver Acura with license 7LFD919. Jones had over $1,000 in cash in his pockets, and there was an orange high visibility vest in his car. In a cold show conducted the day of this auto burglary, Zhen and Albertson both identified Jones as the person who had broken into Zhen’s van.
On the afternoon of September 7, 2015, Officer Steven Spagnuolo was conducting auto burglary surveillance in the Twin Peaks area. Spagnuolo, in plainclothes and in an unmarked police vehicle, noticed Jones crouched down against the side of a parked car. He recognized Jones from prior contacts and investigations. Jones placed something against the driver’s side rear window of the parked car and pressed forward, and the glass shattered. Jones reached into the car and pulled out three bags.
Spagnuolo, wearing his police department star on a chain around his neck outside his clothes, pulled his firearm and yelled, He grabbed Jones, but Jones broke free and headed toward a gray car with its passenger door open. Jones reached the car, Spagnuolo grabbed Jones’s leg, and Jones yelled, "go." The gray car took off, and Spagnuolo ended up with Jones’s shoe.
When Jones was later arrested for the Twin Peaks auto burglary, his cell phone was searched, and his own texts appeared to describe the Twin Peaks incident. Jones had texted, "I did some hot" "SHXT," "I had to fight one of them off me ..." "in the car," "The police almost broke my leg ...," and "I really had to fight him off me."
On November 6, 2015, Victor Konovalov parked and locked his car at a Taco Bell parking lot. Later, the rear window on the driver’s side was shattered, and his laptop bag was missing.
Taco Bell surveillance videos taken inside the restaurant and outside in the parking lot that day showed a person enter the parking lot in a white SUV, park, go into the restaurant, and order food. The person later walked out into the parking lot, crouched down, broke into a car, took items from the car, and then returned to the SUV.2 Three individuals—two San Francisco police officers familiar with Jones and Jones’s San Mateo County probation officer—identified Jones as the person seen in the Taco Bell surveillance video breaking into a car.
Another San Francisco police officer, Anthony Scafani, recognized the white SUV used in the Taco Bell break-in, and he later found the vehicle (a Ford Explorer) parked near Turner Terrace. Scafani noted the Ford Explorer had Texas plates, license number DFR6310. The officer previously had seen the Ford Explorer in late October or early November 2015 in same area near Turner Terrace.
On February 27, 2016, a couple reported their car had been broken into at Mel’s Drive-In. Surveillance video of the parking lot recorded on the day of the break-in showed a person break into a parked car and drive away in a silver Acura with license 7NJX123. Officer Louis Hargreaves, who had seen Jones more than 100 times, recognized Jones as the auto burglar in the surveillance video. He also recognized the Acura, and he had seen Jones driving the car five times. Another officer familiar with this car had seen Jones driving the car on two occasions.3
A district manager for a car rental agency in Oakland testified that Sonja Reid rented a Ford Explorer with Texas license DFR6310 on October 31, 2015, and the vehicle was returned on November 9, 2015. Careem Conley testified as an expert in the San Francisco African-American community. He said hoodies and graphic T-shirts are popular in the community, brands including North Face and Nike are popular, and "[p]robably the most popular [hairstyle] is dreadlocks, braids." Scott Fraser testified as an expert in eyewitness recognition and identification. He testified that studies show people "are less accurate in identifying members of another race than members of [their] own race." He also agreed that "poor quality video" would negatively affect a witness’s ability to identify a person seen in the video.
The jury found Jones guilty of five counts of second degree burglary ( Pen. Code, § 459 ; counts 1, 3, 6, 9, 15), one count of grand theft of property (id ., § 487, subd. (a); count 10), two counts of driving without a license ( Veh. Code, § 12500, subd. (a) ; counts 4 and 12), two counts of possession of burglary tools ( Pen. Code, § 466 ; counts 5 and 14), and one count of threatening an officer (id ., § 69; count 8). In a bifurcated proceeding, the trial court found that Jones had been on bail when he committed some of the later offenses (id ., § 12022.1, subd. (b) ).
The trial court imposed a 68-month sentence. Jones was ordered to serve the first 36 months of the sentence in county jail, and placed on mandatory supervision for the concluding 32 months.
Jones’s only contention on appeal is that the trial court erred in giving an instruction that permitted the jury to use evidence of the five charged auto burglaries, if proven by a preponderance of the evidence, to show intent and identity as to the other charged offenses. Jones claims the instruction had the practical effect of lowering the prosecution’s burden of proof, and the error was structural, meaning reversal is automatic. We disagree.
"Character evidence, sometimes described as evidence of a propensity or disposition to engage in a type of conduct, is generally inadmissible to prove a person’s...
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