Filed 12/29/23 P. v. Keller CA1/4

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

JUSTIN WADE KELLER,

Defendant and Appellant.

 A155572

 (Contra Costa County

 Super. Ct. No. 5-180748-6)

A jury found Justin Wade Keller guilty of second degree burglary. On 

appeal, Keller claims the trial court violated his constitutional rights by 

failing to dismiss jurors who were “tainted” by his counsel’s mention of a 

prior burglary conviction during voir dire. He also contends the trial court 

committed prejudicial error by admitting evidence of the conduct underlying 

his prior conviction to prove intent (Evid. Code,1 § 1101, subd. (b)). Finally, he 

claims trial counsel failed to provide effective assistance by incorrectly 

conceding that intent was at issue in his case. We disagree with these 

contentions and affirm Keller’s conviction.

1 Undesignated statutory references are to the Evidence Code.
2

BACKGROUND

At around 1:00 a.m. on April 9, 2018, an alarm sounded at TJ’s Cafe in 

Martinez. One of the cafe’s glass front doors was shattered and its cash 

register was emptied. Cash was “thrown about inside.” An officer found 

Keller walking nearby. Keller had blood on his hands and shirt, shards of 

glass on his hands and shoes, and a set of keys at his feet. He had $127 in $1, 

$5, and $10 bills in his pocket. Two bloody bills were in some bushes nearby. 

The cafe owner met responding officers at the scene and recognized the keys 

as belonging to the cafe. The $127 was the same amount of cash in the same 

denominations typically left in the register at closing.

Keller was charged with the burglary of TJ’s Cafe and pled not guilty.

Keller claimed that he was walking to a 7-Eleven store on the night of the 

burglary and saw another person get out of a car and break into the cafe.

This person got back in the car and departed. Keller then approached the cafe 

because he “figured that maybe [he] would find something . . . where the 

person was running,” and he picked up a few bills along with the keys. He 

“made off for it like a fool” and was promptly detained. But he “[a]bsolutely 

[did] not” cross the threshold of TJ’s Cafe.

A. The Trial Court’s Rulings Concerning a 2017 Burglary

During motions in limine, the trial court made two rulings regarding a 

June 2017 commercial burglary and Keller’s October 2017 conviction for that 

offense. The first was a denial of the People’s motion to use the conviction to 

impeach Keller’s credibility. The court recognized that a felony conviction for 

burglary constituted an offense involving moral turpitude and was 

appropriate material for impeachment, but considered the factors under 

section 352 and found that “it’s too similar [to the conduct alleged in the 
3

instant case]” and “would lead the jury to convict Mr. Keller, in part, based 

on the fact that he [had] this conviction in the past.”2

The People also sought to introduce Keller’s conduct underlying the 

2017 burglary conviction as part of its case-in-chief pursuant to section 1101, 

subdivision (b), to prove intent as to the burglary of TJ’s Cafe. Keller’s 

counsel acknowledged that “intent may be is an issue,” but argued that the 

prejudicial impact of this evidence would be “substantial,” referring back to 

the court’s “concern about the prejudicial impact of the conviction.” The trial 

court acknowledged the evidence was “prejudicial,” but stated that Keller’s 

“not-guilty plea puts at issue all of the elements in the crime,” including 

intent. The court ruled that the evidence would be admissible pursuant to

section 1101, subdivision (b). The court reminded counsel that evidence 

Keller was convicted of the 2017 offense would not be permitted. 

B. Keller’s Counsel Raises the Burglary Conviction During Voir 

Dire

During voir dire, Keller’s counsel told prospective jurors that “you’re 

going to hear in this case that Mr. Keller was involved in another incident 

about a year ago[,] . . . and I want to ask you if that would have any effect on 

your thoughts of this case.” Counsel explained it was a “similar” incident 

“involving a burglary of a business,” then despite the court’s in limine ruling 

that the conviction would not be admissible, volunteered that Keller “was 

convicted for it, as well” and asked prospective jurors if that “ma[d]e a 

2 Keller had a second felony conviction, for a violation of Vehicle Code 

section 10851, subdivision (a), which the trial court also recognized involved 

moral turpitude. The court ruled that should Keller take the stand, the 

People could impeach his credibility by introducing evidence of his conviction 

for this violation, which the court referred to as for “auto theft.”
4

difference” to them. Several prospective jurors gave responses suggesting 

that it might.

Outside the jury’s presence, the trial court expressed “bewilderment as 

to why the defense counsel would mention that the jury would hear that 

Mr. Keller was convicted of the commercial burglary.” The court reiterated its 

rulings that the conviction would not come in to evidence and the underlying 

conduct alone would be introduced under section 1101, subdivision (b). The 

court expressed concern as to whether Keller could receive a fair trial and

asked counsel, “you realize that I can declare a mistrial right now based on

what I believe happened?” 

In light of the trial court’s concerns, the court reporter read back the 

exchanges between Keller’s counsel and the prospective jurors. The court 

concluded that only two prospective jurors said they could not be fair. The 

court continued, “I remember more people expressing more concern. So to 

that extent, I stand corrected. [¶] I am open to bringing the jury back and

questioning them as to whether they can be fair if there’s no evidence of any 

conviction.” Keller’s counsel responded that he was concerned about 

“highlighting” the prior offense. The People proposed instructing the 

prospective jurors as to the limited purpose for which they could consider the 

prior offense using CALCRIM No. 375 and asking them if they could follow 

that instruction. Keller’s counsel did not object to this approach or ask the 

court to dismiss all of the prospective jurors who had heard his comments.

C. The Court Admonishes the Jury Regarding the 2017 Burglary

The prospective jurors returned to the courtroom for further voir dire 

and the court excused several of them, including the two the court had 

concluded could not be fair. The court read CALCRIM No. 375 and asked if 
5

there was “anyone that cannot be fair to Mr. Keller . . . based on what they 

learned regarding the 2017 commercial burglary?”

3 No one responded. 

Voir dire continued. Counsel for both sides declined to challenge 

additional prospective jurors for cause. Counsel exercised peremptory 

challenges, but neither side exhausted its allotment of ten challenges. A jury 

was impaneled and neither side objected to its composition. 

D. Evidence of the 2017 Burglary Is Presented at Trial

At trial, a responding officer testified about Keller’s conduct during the 

2017 burglary. Keller took the stand and volunteered that he was convicted 

for that offense. After the close of the evidence, the trial court instructed the 

jury using CALCRIM No. 375 again, including the instruction that that the 

jury not consider the 2017 burglary “except for the limited purpose of 

determining whether the defendant had the intent required to find him guilty 

of burglary as charged” and not consider the 2017 burglary to conclude “that 

the defendant has a bad character or is disposed to commit crime.”

The jury convicted Keller and this appeal followed. 

3 The trial court explained that if the jury found by a preponderance of 

evidence that the defendant committed the prior offense they may, but were 

not required to, consider that evidence for the limited purpose of deciding 

whether the defendant acted with a required intent in this case. The court 

also told the prospective jurors, “Do not consider this evidence for any other 

purpose except for the limited purpose of determining whether in this case he 

acted with the required intent. [¶] . . . [I]f you receive this evidence, do not 

conclude from this evidence the defendant has a bad character or is exposed 

[sic] to commit crimes. [¶] If you conclude that the defendant committed the 

uncharged offense last year, that . . . conclusion is only one factor to consider 

along with all the other evidence. It is not sufficient by itself to prove that the 

defendant is guilty of this charge here. [¶] The People must still prove the 

charge here beyond a reasonable doubt, which is a different standard.” 
6

DISCUSSION

1. Keller Forfeited Any Challenge to the Composition of the Jury

Keller argues the trial court erred when it failed to dismiss all 

prospective jurors who heard about his 2017 burglary conviction, or at least 

to question all of them about it, including those who were not sitting in the 

jury box when the court addressed the issue. Keller has forfeited these 

arguments.

Criminal defendants are constitutionally entitled to a trial before an 

impartial jury. (U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, § 16; In 

re Hamilton (1999) 20 Cal.4th 273, 293–294 (Hamilton).) Jurors’ receipt of 

information about the case outside the trial evidence may establish bias.

(People v. Nesler (1997) 16 Cal.4th 561, 578.) However, “[v]oir dire is the 

crucial means for discovery of . . . juror bias.” (Hamilton, supra, 20 Cal.4th at 

p. 295.) Defendants have the right during jury selection “to challenge and 

excuse candidates who clearly or potentially cannot be fair.” (Ibid.)

To preserve a claim of juror bias, a defendant must exhaust all 

peremptory challenges and express dissatisfaction with the jury as finally

constituted. (People v. Westerfield (2019) 6 Cal.5th 632, 665.) Keller did not 

meet these requirements. He raised no challenges for cause after the trial 

court admonished the potential jurors about the 2017 burglary. He did not 

exhaust his peremptory challenges, and he did not express dissatisfaction 

with the final composition of the jury. Keller’s claim that jurors were biased

is accordingly forfeited. (People v. Romero and Self (2015) 62 Cal.4th 1, 44.)

Any argument that the trial court had a sua sponte duty to excuse 

potentially biased jurors or was bound to do so because it expressed concern 

at defense counsel’s statements is also without merit. (People v. Bolin (1998) 

18 Cal.4th 297, 315–316.) Here, “the court questioned the jurors . . . and 
7

admonished them. At no time did defense counsel propose additional 

questions, object to any juror’s continued service,” or request that all 

potential jurors who heard about the 2017 conviction be dismissed.

4 (People v. 

Foster (2010) 50 Cal.4th 1301, 1341.) Keller forfeited any claim of prejudice 

due to jurors’ exposure to this information. (People v. Johnsen (2021) 

10 Cal.5th 1116, 1169–1170.)

Even if Keller had preserved the issue for appeal, we would reject the 

claim on the merits. After Keller’s lawyer disclosed the prior burglary 

conviction to the prospective jurors, the trial court properly admonished them 

by reading CALCRIM No. 375 and asked them to notify the court if they had 

any doubt about following that instruction. No one responded. Keller’s 

counsel had ample opportunity to ask further questions of the panel and to 

excuse jurors using peremptory challenges. The record does not reveal any 

lingering “taint” warranting reversal. 

2. The Trial Court Properly Admitted Evidence of the 2017 

Burglary

Keller contends the trial court erred by admitting evidence of the 2017 

burglary to prove intent. He claims intent was not at issue because his 

defense was based on identity, and any probative value this evidence had was 

outweighed by the prejudice it caused. Keller contends the court’s error 

violated his constitutional right to due process because evidence of the 2017 

burglary was not admissible for any statutory purpose. He further claims

trial counsel was ineffective because, although he objected that the evidence

4 The trial court’s comment that Keller’s counsel “cannot voir dire any 

of the other jurors about the word conviction with respect to other conduct” 

was merely a warning not to raise the issue again after the court gave the 

contemplated admonishment. Keller’s counsel had not requested and did not 

request permission to voir dire any prospective jurors about this issue.
8

was prejudicial, he conceded that intent was an issue in the case.

Section 1101 states that although evidence of a person’s character is 

inadmissible to prove conduct on a specific occasion, “evidence that a person 

committed a crime” is admissible “when relevant to prove some fact . . . other 

than his or her disposition to commit such an act,” including intent. (§ 1101, 

subd. (b).) Still, the court may exclude such evidence under section 352 if its 

probative value is substantially outweighed by the probability that its

admission will create a substantial danger of undue prejudice, among other 

factors. (§ 352.) We review a trial court’s decision to admit evidence under 

sections 1101 and 352 for abuse of discretion. (People v. Thomas (2023) 

14 Cal.5th 327, 358.)

As to relevance, the trial court correctly determined that Keller’s “notguilty plea puts at issue all of the elements in the crime,” including intent.

Our high court “ha[s] repeatedly noted” this point: While the defense might 

focus on identity, this does not eliminate the prosecution’s burden to 

establish all elements of a crime, including intent, beyond a reasonable 

doubt, and the prosecution has the right to introduce all relevant and 

admissible evidence towards that end even when other evidence is present. 

(People v. Chhoun (2021) 11 Cal.5th 1, 29 (Chhoun); People v. Jones (2011) 

51 Cal.4th 346, 372 (Jones) [“ ‘[T]he prosecution’s burden to prove every 

element of the crime is not relieved by a defendant’s tactical decision not to 

contest an essential element of the offense’ ”].) Here, the 2017 burglary was 

similar enough to the charged offense to support the inference that Keller 

probably harbored the same intent in each instance—which Keller does not 

dispute. (People v. Ewoldt (1994) 7 Cal.4th 380, 402 (Ewoldt) [least degree of 

similarity between the uncharged act and the charged offense is required to 

prove intent].)
9

However, even though prior conduct may be relevant under 

section 1101, subdivision (b), the trial court must still weigh the probative 

value of the evidence under section 352. Section 352 gives the trial court 

discretion to exclude evidence “if 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 find no abuse of discretion in the trial court’s ruling under 

section 352. The 2017 burglary had probative value because intent was 

disputed and had to be proven by circumstantial evidence. That probative 

value was enhanced because its source—testimony by an officer uninvolved 

in investigating the charged crime—was wholly independent of the evidence 

of the charged offense, and the prior offense occurred not long before the 

charged one. (Ewoldt, supra, 7 Cal.4th at pp. 404–405.) 

Keller’s contrary argument is based on Ewoldt, which held that 

evidence of prior misconduct was admissible to show a common design or 

plan, but not to prove lewd intent that could not reasonably be disputed given 

the facts of the charged crime (involving molestation of a child). (Ewoldt, 

supra, 7 Cal.4th at pp. 404–406.) Ewoldt explained that evidence of prior acts

must have substantial probative value to be admitted and cannot be “merely 

cumulative regarding an issue that was not reasonably subject to dispute.” 

(Id. at pp. 404, 406.)

Here, the evidence of the 2017 offense was not cumulative because the 

intent of the person who broke into TJ’s Cafe was not beyond dispute. There 

was no concession by Keller’s counsel as to intent, and the jury would have to 

infer intent from the circumstances of the break-in, including the missing 

cash. (See Chhoun, supra, 11 Cal.5th at p. 29; People v. Scott (2015) 
10

61 Cal.4th 363, 399–400 [evidence of other burglaries by defendant was not 

cumulative of evidence wallet went missing during the charged crime]; Jones,

supra, 51 Cal.4th at p. 372 [evidence of prior robbery by defendant admissible 

to prove intent despite other undisputed evidence that perpetrator meant to 

rob residence].)5 

The trial court did not abuse its discretion by concluding that the 

probative value of this evidence was not outweighed by a danger of undue 

prejudice or confusion. Prejudice was not undue because both the 2017 

burglary and the instant offense were thefts from unoccupied commercial 

establishments. There were no allegations of use of weapons, threats or 

bodily injury to a third party, or assault. The evidence of the uncharged 

offense was no stronger or more inflammatory than the evidence of the 

charged offense. (Ewoldt, supra, 7 Cal.4th at p. 405.) And there was little 

danger that the jury would be inclined to punish Keller for the prior offense 

since it knew the testifying officer had investigated it and Keller later 

volunteered that he had been “convicted” for it. (See Jones, supra, 51 Cal.4th

at pp. 371–372.) 

5 We are unpersuaded by Keller’s citation of dicta in Ewoldt suggesting 

that in most cases where it is undisputed a burglary occurred and the main 

issue is the perpetrator’s identity, evidence of uncharged offenses should not 

be admitted unless those offenses were similar enough to the charged offense 

to establish identity. (Ewoldt, supra, 7 Cal.4th at p. 406.) More recent 

opinions by our high court clarify that the People’s burden to prove intent 

may justify admitting evidence of uncharged offenses even where the defense 

argues on appeal that only identity was at issue at trial, circumstances of the 

charged offense tended to show intent, and the defense chose not to contest 

intent at trial. (See Jones, supra, 51 Cal.4th at p. 372.)
11

In addition, the trial court read limiting instructions directing the jury 

not to use the evidence for an improper purpose, including bad character. We 

presume the jury followed these instructions. (Chhoun, supra, 11 Cal.5th at 

p. 30.) Thus, we do not find that there was a danger that the jury would be 

confused or misled. 

In sum, the trial court did not abuse its discretion by admitting 

evidence of the 2017 burglary. Because the court made no error under state 

law, Keller’s constitutional claim also fails. (Chhoun, supra, 11 Cal.5th at 

p. 26.) And since intent was clearly at issue in the case, Keller’s counsel was 

not ineffective in acknowledging that intent “may be” at issue. (See People v. 

Gutierrez (2002) 28 Cal.4th 1083, 1140 [failure to make an objection that 

would have been unavailing does not constitute ineffective assistance of 

counsel].)

6

Finally, even if the court abused its discretion in declining to exclude 

evidence of the 2017 burglary under section 352, such error was harmless 

under People v. Watson (1956) 46 Cal.2d 818 because it was not “ ‘reasonably 

probable’ ” Keller would have received a more favorable result had the

evidence been excluded. (People v. Johnson (2022) 12 Cal.5th 544, 611.) The 

6 Keller asserts that his trial counsel committed ineffective assistance 

of counsel by “conceding” that intent was at issue. This argument 

mischaracterizes the record. At most, defense counsel acknowledged that 

intent “may be” an issue and failed to offer a stipulation to intent. But even if 

defense counsel had offered a stipulation to preclude the prosecution from 

presenting the 2017 burglary, our Supreme Court has ruled that a trial court 

may not forbid the prosecution from offering uncharged misconduct by

requiring it to accept a stipulation. (People v. Rogers (2013) 57 Cal.4th 296, 

329 [“A trial court cannot compel a prosecutor to accept a stipulation that 

would deprive the state’s case of its evidentiary persuasiveness or 

forcefulness.”].) For these reasons, the claim of ineffective assistance of 

counsel fails.
12

evidence tying Keller to the burglary was strong, and it was inconsistent with 

his testimony that he never entered the cafe. Responding officers testified 

that Keller had wet blood on his hands, glass on his hands and shoes, keys 

from the cafe, and over a hundred dollars in small bills when he was 

apprehended. Keller offered several different, improbable explanations for 

the blood (he had just been in a fight), the cash (he had collected money from 

his friend’s girlfriend, a Coinstar machine, and elsewhere to bail his friend

out of jail, all in small denominations), and his presence in the area (he 

wanted to buy a portable charger for his phone because the power was out).

He admitted he told an officer at the scene “I wish I knew why glass was on 

my hands,” but claimed he was being “sarcastic.” He admitted he had the 

keys from the cafe and said he did not know why he had picked them up. The 

People properly impeached Keller’s testimony with evidence of his recent 

conviction for driving a stolen vehicle. Given the strong evidence that Keller 

did break into the cafe and his unimpressive testimony on his own behalf, we 

see no reasonable probability that the jury would have reached a different 

outcome had the trial court excluded evidence of the 2017 burglary.

DISPOSITION

The judgment is affirmed.
13

HIRAMOTO, J.*

WE CONCUR:

STREETER, ACTING P. J.

GOLDMAN, J.

People v. Keller (A155572)

 Judge of the Superior Court of California, County of Contra Costa, 

assigned by the Chief Justice pursuant to article VI, section 6 of the 

California Constitution.