Filed 12/29/23 P. v. Keller CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

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 we re “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 ev idence 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 i ncorrectly 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 Caf e in
Martinez. One of the cafe’s glass front door s was shattered and its cash register was empt ied

. Cash was “thrown about inside.” An officer found
Keller wal king 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

. H e had $127 in $ 1, $5, and $10 bills in his pocket. Two bloody bills were in som e 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 le ft in the register at closing

. Keller was charged with the burglary of TJ’s Cafe and pl e d not guilty.
Keller claimed that he was walking to a 7

- Eleven store on the night of the burglary and saw a nother 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

. T he court recognized that a felony conviction for burglary constituted an offense involving moral tur p i t ude and was appropriat e material for impeachment , but considered the factors under
section 352 and found that “it’s too similar [to the conduct alleged in the3

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 , subd ivision (b) , to prove intent as to the burglary of TJ’s Cafe

. Keller ’s

couns el 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 evide nce 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 th e 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 , ” th en 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 tur pitude. The co urt 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 suggesti ng 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 ruling s that t he 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 dec lare 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 cour t 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 cons ider 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 J ury R egarding the 2017 Bur glary
T he 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 if5

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

. C ounsel 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, t he 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 burglar y to conclude “that the defendant has a bad character o r is disposed to commit crime

. ” The jury convicted Keller and t his appeal followed.

3 The trial co urt 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 tol d the prospective jurors , “Do not consider this evidence for any other purpose except for the limited purpose o f determining whether in this case he acted with the required intent

. [¶]

. . . [I] f you receive this evidence, do not conclude from this evidenc e the defendant has a bad character or is e xposed [ 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 su fficient by itself to prove that the defendant is guilty of this c harge 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 faile d to dismiss all prospective jurors who heard about his 2017 burglary conviction , or at least to question all of them about it , i ncluding 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 ) .) Juror s’ 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.) D efe ndants 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

. H e 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 bias ed
is accordingly forfeited. ( People v. Romero and Self (2015) 62 Cal.4th 1, 44 .)
A ny 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.) H ere , “t he court questioned the jurors

. . . and7

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 t hat 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 Prop erly 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 w as ineffective because, although he objected t hat the evi dence

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

w as prejudicial, he conceded that intent was an issue in the case. S ection 1101 states that although evidence of a person ’ s character is inadmissible to prove conduct on a specific occasion, “e vidence 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 prejudic e, among other factors

. (§ 352.) We review a trial court ’ s deci sion to admit evidence under
sections 1101 and 352 for abuse of discretion. ( People v. Thomas (2023)
14 Cal.5th 327, 358 .) As to relevance, t he trial court correctly determined that Keller’s “not

guilty plea puts at issue all of the elements in the crime, ” including intent. O ur high court “ha[s] repeatedly noted ” this point: W hile 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 (201 1)
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 ’ ” ]. ) H ere, 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, 40 2 ( Ewoldt ) [least degree of similarity between the uncharged act and the charged offens e 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 s ection 352 . Section 352 gives the trial court
discretion t o 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. Th at probative
value was enhanced becaus e 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

– 40 5.)
Keller ’s contrary argument is based on Ewoldt , which held that evidence of p rior 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

– 40 6 .) Ewoldt explained that e vidence of prior act s must have substantial probative value to be admitted and can not be “ merely cumulative regarding an issue that was not reasonably subj ect 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
cumulativ e 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 c ourt 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 i t. (See Jones , supra , 51 Cal.4 th at pp. 371

– 372 .)

5 We are unpersuaded by Keller’s cita tion 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 charge d 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 o n appeal that only identi ty was at issue at trial , circumstances of the charged offense tend ed 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, t he trial court read limiting instructions direct ing 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 misle d

. 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 fail s

. ( Chhoun , supra , 11 Cal.5 th at

p. 26 .) And s ince intent was clearly a t 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.4 th 1083, 1140 [ failure to make an objection that would have been unavailing does not cons titute ineffective assistance of
counsel ]

. ) 6 Finally, even if the court abused its discretion i n 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 th e evidence been excluded. ( People v. Johnson (2022) 12 Cal.5 th 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.4 th 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 reas ons, 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. R esponding officers testified
that Keller had wet blood on his h ands , glass on his hands and shoes , keys from the cafe, and ov er 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

m y 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. T he 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 th e 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.