People v. Perry
| Docket Number | A167369 |
| Decision Date | 15 April 2024 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. DARRIAN LEONDRE PERRY, Defendant and Appellant. |
| Court | California Court of Appeals |
NOT TO BE PUBLISHED
(Alameda County Super. Ct. No. 20-CR-016563)
Defendant Darrian Leondre Perry appeals from his conviction of one count of attempted burglary. (Pen. Code, §§ 459, 664.) He contends the trial court abused its discretion in admitting evidence of a 10-year-old prior conviction for burglary. Defendant also contends his credits must be corrected on the abstract of judgment. We agree the abstract must be corrected and otherwise affirm.
In the early morning, A.S. was asleep in her bed when she was awakened by a noise coming from the window near the foot of her bed. The noise sounded like something was scratching against the window. A.S. was scared. She grabbed her cell phone and shoes and went to the back of the house where she crawled out the kitchen window and called 911 from her backyard.
Oakland Police Officer Vince Morado responded to A.S.'s 911 call regarding a burglary in progress. From his patrol car, Morado saw defendant coming out of an open window in A.S.'s house. Morado illuminated the window and watched from his patrol car. As defendant emerged from the window, Morado saw his pants and shirt get stuck on the window frame and watched defendant fall to the ground.
Officer Morado told defendant to "get down to the ground" but defendant briefly looked at Morado and ran away. Morado followed in his patrol car. Morado did not lose sight of defendant. Defendant tripped on a pothole and fell about one block away from A.S.'s house.
Another officer, Rodney Kirkland, arrived to assist, and Officer Morado handcuffed defendant. Kirkland did a preliminary search of defendant but did not locate any burglary tools or gloves. Kirkland saw damage on the right elbow sleeve of defendant's jacket. Defendant was put in Morado's patrol car and Officer Kirkland went to A.S.'s house.
Officer Kirkland took a statement from A.S. and they walked through her home together. When A.S. went to sleep the night before both of her bedroom windows and the blinds were closed. When she went back inside, one of the windows was open but the blinds were still closed. A.S. normally kept her computer either in bed with her, or on the dresser next to her bed but she found it on the floor at the foot of her bed near the window. Nothing was missing.
A.S told Officer Kirkland she sleeps with the window cracked. Kirkland saw no damage to the window, no palmprints or fingerprints on the window, no footprints in the dirt beneath her window, and no dirt inside her home.
Defendant's ex-girlfriend was living with him at the time of the A.S. burglary. Around 3:30 a.m. on the morning of the burglary, he was playing a loud video game that woke her up. She and defendant argued; then he "walked off to cool down." She did not know where he went, but defendant left the house and did not come back that night.
Defendant testified he went for a walk after the argument with his exgirlfriend. During the walk, he approached the side of A.S.'s house to urinate. He did not open a window or enter her home. He accidentally kicked a trash can which made some noise. While he was urinating, he saw a spotlight. He ran away because he was scared of the police and knew it did not look good that he was in the wrong place at the wrong time. He ripped his jacket when he fell while running from the police.
The jury found defendant not guilty of first degree burglary, but guilty of the lesser included offense of attempted first degree burglary. The court sentenced him to the midterm of two years in prison.
Admission of Prior Burglary[1]
Defendant contends the trial court erred in admitting evidence of his 2012 burglary conviction to prove his intent to commit the charged offense.
Generally "evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion." (Evid. Code, § 1101, subd. (a).)[2] Evidence of prior criminal conduct may be admissible, however, to prove some fact at issue, such as identity, opportunity, intent, knowledge, or the existence of a common plan or scheme. (Id., subd. (b).)" '" 'Because evidence of other crimes may be highly inflammatory, its admissibility should be scrutinized with great care.'" '" (People v. Jones (2013) 57 Cal.4th 899, 930.)
The prosecutor made a motion in limine to introduce evidence of defendant's prior burglary conviction. The prosecutor argued the crimes were factually similar because in both crimes defendant moved laptops, indicating an intent to take them.
Defense counsel objected, stating "[the] defense will not claim [defendant] mistakenly but innocently climbed through [A.S.'s] bedroom window at 4:00 a.m." Instead, defendant argued his defense at trial would be that he did not enter A.S.'s house at all, and both Officer Morado and A.S. were mistaken. Defendant also argued the prior crime was insufficiently similar to the present offense.
The trial court allowed the prosecution to introduce evidence of the prior burglary, finding it was relevant and material to intent. The court observed the evidence was highly probative because "intent is probably the most challenging of the facts of the elements that need to be proved." The crimes were sufficiently similar because in both cases the victims were women, the entry was to bedrooms, and the target was a laptop. The court concluded the probative value was not substantially outweighed by potential for prejudice because the prior crime was "less egregious," the court had already ruled the prior conviction was admissible for impeachment, and the jury would not be misled because the offenses were separated in time and location and different witnesses would testify.
J.W. testified at trial regarding the burglary of her room at her sorority house at the University of California, Berkeley.
One evening in April 2011, J.W. and a friend returned to the sorority house around 10:00 p.m. J.W. intended to go to her own room but became suspicious when she saw an unfamiliar young man standing in front of her room. She and her friend went to the friend's room first and then decided to approach J.W.'s room together.
When J.W. and her friend returned to her room, J.W. saw the same man in the hallway and another man inside her room, holding her laptop and "poking through" things in her room. J.W. "got pretty upset" and asked the man holding her laptop who he was and what he was doing. She told him to put her stuff down and moved toward him. The man seemed frustrated, put her things down, and asked to leave. J.W. could not tell if he was being truthful about not having taken any of her things, so she made him empty his pockets and "felt around a little bit to make sure." He was not violent and did not try to get away, but asked the women to" 'let [him] go'" and said he was" 'just looking for someone.' "
When the men tried to leave, "a little bit of a scuffle" ensued. J.W.'s friend tried to block them from leaving, but they gave her a push to squeeze through the door, ran down the stairs, and walked quickly up the street. J.W. and her friend chased them and J.W. called the police. The police arrived quickly and detained both men.
When J.W. returned to her room, she noticed her laptop had been moved.
During his testimony at trial on the current offense, defendant stated he had moved J.W.'s laptop because he intended to steal it.
Defendant first contends the trial court erred by admitting evidence of his 2012 burglary because in this case the issue of intent was not actually in dispute. Not so.
Defendant's not guilty plea placed all the elements of the burglary offense, including his intent, in dispute. (People v Chhoun (2021) 11 Cal.5th 1, 29 []; People v. Scott (2011) 52 Cal.4th 452, 470 []; People v. Rowland (1992) 4 Cal.4th 238, 260 [ ].)
Defendant acknowledges his intent "generally became 'disputed' through his not guilty plea" but contends it did not remain so because it was "resolved" at the in limine hearing. (Italics added.) Defendant asserts his defense was that he did not commit the act at all, not that he lacked intent, and accordingly, evidence of the prior burglary was not admissible to prove or disprove a material fact.[3] Contrary to defendant's contention, however, his counsel's willingness to concede the issue of intent did not render the issue undisputed. The prosecution is generally entitled to prove its case even in the face of a defendant's failure to contest an element. (People v. Jones (2011) 51 Cal.4th 346, 372 (Jones) [...
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