1

Filed 10/28/20 P. v. Durel CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for 

purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

 Plaintiff and Respondent,

v.

ERIC ANTHONY DUREL,

 Defendant and Appellant.

 

 A158409

 (Napa County Super. Ct. 

 No. 19CR001457)

Appellant Eric Anthony Durel was convicted by jury of 

felony attempted vehicle burglary, misdemeanor possession of 

burglary tools, and misdemeanor petty theft. He admitted a prior 

felony conviction under the three strikes law. (Pen. Code, 

§ 664/459, 466, 484, subd. (a), 667, subd, (b)–(i).)

1 He contends 

his attempted vehicle burglary conviction must be reversed 

because the evidence was insufficient to prove he intended to 

enter a locked vehicle, as is required for a completed vehicle

burglary, and because the court should not have admitted 

1 Further statutory references are to the Penal Code unless 

otherwise indicated.
2

evidence of a prior vehicle burglary incident under Evidence Code 

section 1101, subdivision (b). Appellant also argues that the 

sentence must be modified because the court ordered him to

participate in a drug counseling program in prison when it was 

only authorized to make a recommendation for the same.

(§ 1203.096.) We agree with this final contention. We will order 

the sentence modified, but otherwise affirm.

I. BACKGROUND

On May 22, 2019, appellant stole some liquor from the 

Safeway in American Canyon. On the morning of May 23, 2019,

Stephanie N., who worked at Safeway and was on a break sitting 

in her car and talking to her husband on her cell phone, saw 

appellant testing the handles of parked cars in the Safeway 

parking lot by pulling on them. She saw appellant try to open 

the doors of at least three or four cars. When a car door did not 

open—which none of them did—he moved on to the next car. 

Appellant did not appear to notice that Stephanie N. was 

watching.

Appellant was also observed by two men delivering beer, 

Joseph P. and Nicholas B., who saw appellant “going car by car

and grabbing door handles, one after the other,” to see if they 

were open. When a door was locked, appellant would move on to 

the next one. When Joseph P. tried to record a video of appellant 

with his phone, appellant flipped the men off with his middle 

finger and became aggressive, pulling out a knife and asking the 

men, “[W]hat are you going to do?” and, “Do you want to get your 
3

ass kicked?” Stephanie N. saw the confrontation, although she 

could not hear what was being said from inside her car.

Later that morning, Jeanne C. was dropping off a package 

at the UPS Store located in the same strip mall as the Safeway. 

When she started to walk out of the store, she noticed appellant 

standing in front of her car carrying a knife. Scared, she

retreated into the UPS Store and tried to tell the employees at 

the counter in the back to call 911. Appellant made eye contact 

with Jeanne C. through the window and then stuck his head 

inside the store and said “hi” a few times. When one of the store 

employees said “hi” back, appellant indicated that he had been 

talking to Jeanne C. Appellant left the store and Jeanne C. 

called 911. 

Officers responded and appellant was arrested near the 

UPS Store. A patdown search revealed that appellant was 

carrying a knife and two shaved keys, which were a common tool 

of car burglars that could be used to either unlock a car door or 

start an ignition. 

Appellant was charged with two counts of assault with a 

deadly weapon (§ 245, subd. (a)(1)), two counts of dissuading a 

witness from reporting a crime (§ 136.1, subds. (b)(1) & (c)),

attempted second degree burglary of a vehicle (§§ 664/459), 

possession of burglary tools (§ 466) and petty theft (§ 484, subd. 

(a)). It was alleged that appellant had personally used a 

dangerous and deadly weapon in connection with the dissuading 

counts (§ 12022, subd. (b)(1)) and had been previously convicted 
4

of a serious felony within the meaning of the three strikes law 

and the five-year serious felony enhancement (§667 subd. (a)(1)). 

The assault charges were dismissed after a successful 

motion under section 995. Appellant proceeded to a jury trial on 

the remaining charges. In addition to the evidence concerning 

the current offenses, the jury heard evidence of two prior 

incidents under Evidence Code section 1101, subdivision (b): an 

auto break-in that occurred in August 2017 and an altercation 

inside a gas station mini-mart that occurred in November 2017. 

The jury convicted appellant of attempted vehicle burglary, 

possession of burglary tools and petty theft. It acquitted 

appellant of one count of dissuading a witness and deadlocked on 

the second count of that offense, which was ultimately dismissed.

Appellant admitted the three strikes allegation, which had been 

bifurcated from the charges. The court dismissed the weapon use 

enhancements and prior serious felony enhancement. Appellant

was sentenced to prison for the one-year middle term for 

attempted vehicle theft, doubled to two years under the three 

strikes law, and was given concurrent sentences for the 

misdemeanor counts.

II. DISCUSSION

A. Substantial Evidence

Appellant contends the evidence was insufficient to support 

his conviction of attempted vehicle burglary because there was no 

evidence he intended to steal from a locked vehicle. We disagree.

In reviewing the conviction for substantial evidence, we 

review the record in the light most favorable to the conviction to
5

determine whether there is evidence from which a rational trier 

of fact could find the elements of the crime beyond a reasonable 

doubt. That a rational trier of fact may have also found to the 

contrary does not justify reversal. (People v. Weddington (2016) 

246 Cal.App.4th 468, 478 (Weddington).)

Vehicle burglary is defined by section 459 as occurring 

when a “person . . . enters any. . . vehicle as defined by the 

Vehicle Code when the doors are locked . . . with intent to commit

grand or petit larceny or any felony. . . .” “The key element of 

auto burglary is that the doors be locked.” (In re James B. (2003) 

109 Cal.App.4th 862, 868.) An attempt to commit a crime has 

two elements: a specific intent to commit the crime, and a direct 

but ineffectual act done toward its commission. (§ 21a; 

Weddington, supra, 246 Cal.App.4th at p. 478.)2

Here, appellant attempted to open the doors of several 

locked cars while carrying shaved keys that could be used to open 

2 The jury in this case was instructed with a version of 

CALCRIM No. 460 regarding attempt, which provided in part: 

“The defendant is charged in Count Three with attempted car 

burglary. [¶] To prove that the defendant is guilty of this crime, 

the People must prove that: [¶] 1. The defendant took a direct 

but ineffective step toward committing a car burglary; [¶] AND 

[¶] 2. The defendant intended to commit car burglary.” It was 

also instructed with a version of CALCRIM No. 1700, which 

provided in part: “The defendant is charged in Count Three with 

attempted car burglary. [¶] To prove that the defendant is guilty 

of this crime, the People must prove that [¶] 1. The defendant 

attempted to enter a locked vehicle; [¶] AND [¶] 2. When he 

attempted to enter a locked vehicle, he intended to commit theft.” 

Appellant does not challenge either of these instructions on 

appeal.
6

a locked door. He had previously committed vehicle burglary. A 

reasonable trier of fact could conclude appellant had committed a 

direct but ineffectual act to enter a locked car and did so with an 

intent to commit a theft. (See Weddington, supra, 246

Cal.App.4th at p. 479 [sufficient evidence of attempted burglary 

where defendants drove through neighborhoods knocking on 

doors]; People v. Prince (2007) 40 Cal.4th 1179, 1257 [sufficient 

evidence of attempted burglary where defendant examined 

backyards of residences in area before knocking on front door and 

asking resident about person who did not reside there].) 

Appellant argues that he was merely testing the handles of 

the cars hoping to find one that was unlocked, and that the 

evidence that he moved on after discovering a car was locked 

could only be interpreted to mean that he did not intend to enter 

any car that was locked.

3 We disagree. While this was one view 

of the evidence, it was not the only one. In People v. Zaun (2016) 

3 We assume, without deciding, that attempted vehicle 

burglary requires a specific intent to enter a locked car, and that 

the elements of the crime are not satisfied when the defendant 

intends to enter an unlocked car. Section 459 does not require 

that a defendant have knowledge that a car is locked to be 

convicted of completed vehicle burglary. (See People v. Parker

(1985) 175 Cal.App.3d 818, 823 [defendant need not know he is 

entering a residence to be convicted of first degree burglary].) 

However, an attempt to commit a crime requires a specific intent 

to commit the completed crime, even if the completed crime 

requires a lesser intent. (People v. Fontinot (2019) 8 Cal.5th 57, 

68.) Because the Attorney General’s respondent’s brief assumes 

that attempted vehicle burglary requires an intent to enter a 

locked car, and because the evidence is sufficient to support such 

a finding, we do not need to decide whether such a finding was 

required.
7

245 Cal.App.4th 1171, 1174, defendant and his cohorts knocked 

on doors of homes and moved on if they were occupied The court 

held that while the jury could have determined they never 

intended to burglarize a home that was occupied, it could have 

also determined they had the “specific intent to commit burglary 

in each case, and the appearance of the [occupants] at their 

respective doors served to interrupt the intended crimes, making 

the actions up to that point ineffectual acts done toward the 

commission of burglaries.” Similarly, it was reasonable to infer 

that as appellant was testing the door handles of the locked cars, 

he also was viewing their interiors through the windows and

decided to move on when he saw nothing of value. This “served 

to interrupt” the intended crime and made appellant’s actions in 

walking through the parking lot pulling on door handles

ineffectual acts done toward the commission of a vehicle 

burglary.

 The jury could have also determined that although 

appellant preferred to find an unlocked car if one was available, 

he was willing to use the shaved keys he possessed or break into 

a locked car if he could only find locked cars. Although appellant 

claims in his reply brief that there was no evidence that he was 

“casing” the cars to determine which ones were locked, the jury 

could have inferred that the only reason appellant did not use the 

shaved key he was carrying was because he realized he was being 

observed by the men who were delivering the beer to Safeway. 

He became confrontational with those two men upon discovering 

that they had caught him in the act of testing the door handles. 
8

Appellant had a criminal history that included vehicle burglary,

and as we shall discuss infra, this reasonably led to the 

conclusion that he intended to commit a theft from the parked 

cars whose handles he was testing, even if he did not take steps 

to do so under the gaze of onlookers.

We note that defense counsel secured an instruction on 

auto tampering under Vehicle Code section 10852 as a lesser 

included offense of attempted vehicle burglary and argued below 

that appellant was guilty only of this offense.

4 The jury rejected 

appellant’s claim that he was only looking for an unlocked car 

and did not intend to enter one of the locked cars when it 

convicted him of the charged offense. That it could have opted for 

a lesser crime does not render the evidence of attempted vehicle

burglary insufficient, particularly in light of the evidence that 

appellant possessed shaved keys and had previously burglarized 

a car. (See People v. Hill (1998) 17 Cal.4th 800, 849, overruled on 

another ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 

1069, fn. 13. [court's opinion that evidence could be reconciled 

with a finding of innocence, or of guilt of a lesser crime, does not 

warrant reversal of judgment].) The evidence was sufficient to 

support the conviction of attempted vehicle burglary.

4 Vehicle Code section 10852 provides, “No person shall 

either individually or in association with one or more other 

persons, willfully injure or tamper with any vehicle or the 

contents thereof or break or remove any part of a vehicle without 

the consent of the owner.” (See People v. Mooney (1983) 145 

Cal.App.3d 502, 504–507 [instruction on tampering required 

when there was evidence from which jury could find that car was 

not locked].) 
9

B. Other Acts Evidence

Over defense objection, the prosecution was allowed to 

present evidence that on August 16, 2017, appellant had forced 

entry into a locked car in San Francisco by breaking a window 

and crawling inside.5 When appellant emerged from the car by 

crawling out the back window with a backpack in his hand, he 

was confronted by a witness. He ran away and was apprehended 

a short time later. 

The trial court ruled that evidence of this prior incident 

was admissible under Evidence Code section 1101, subdivision 

(b), to prove intent and common scheme and plan, and was not 

unduly prejudicial under Evidence Code section 352. It gave the 

jury CALCRIM No. 375 advising it to consider the evidence only 

for these purposes.6 Appellant contends the evidence should not 

5 The prosecution also presented evidence under Evidence 

Code section 1101, subdivision (b) of a 2017 incident in which 

appellant was involved in an altercation with the people who 

worked at a gas station mini mart when he asked them to 

exchange his change for bills and was told to wait in line. This 

incident was offered as being relevant to the intent necessary for 

the charges of dissuading a witness under section 136.1, of which 

appellant was not convicted. Appellant does not challenge the 

introduction of this evidence on appeal. 

6 CACRIM No. 375 provided in relevant part: “The People 

presented evidence that the defendant committed other offenses 

that were not charged in this case. [¶] You may consider this 

evidence only if the People have proved by a preponderance of the 

evidence that the defendant in fact committed the uncharged 

offenses. . . . [¶] . . . [¶] If you decide that the defendant 

committed the uncharged offenses, you may, but are not required 

to, consider that evidence for the limited purpose of deciding 
10

have been admitted and that he was prejudiced by having the 

jury consider it. We disagree that reversal is required.

Evidence Code section 1101, subdivision (a) prohibits courts 

from admitting evidence of a defendant’s prior act “to prove. . . 

his or her disposition to commit such an act.” Evidence Code 

section 1101, subdivision (b) allows the introduction of other act 

evidence “when relevant to prove some fact (such as motive, 

opportunity, intent, preparation, plan, knowledge, identity, 

absence of mistake or accident . . .) other than [the defendant’s] 

disposition to commit such an act.” (Evid. Code, § 1101, subd. 

(b).) A trial court’s decision to admit such evidence is “essentially 

a determination of relevance” and is therefore “reviewed for 

abuse of discretion.” (People v. Kipp (1998) 18 Cal.4th 349, 369.)

“To be relevant, an uncharged offense must tend logically, 

naturally and by reasonable inference to prove the issue(s) on 

which it is offered.” (People v. Robbins (1988) 45 Cal.3d 867, 

879.) Our Supreme Court has “long recognized ‘that if a person 

whether: [¶] a. The defendant acted with the intent to commit 

vehicle burglary . . . [¶] OR [¶] b. The defendant had a plan or 

scheme to commit the offenses alleged in this case. [¶] In 

evaluating this evidence, consider the similarity or lack of 

similarity between the uncharged offenses and acts and the

charged offenses. [¶] Do not consider this evidence for any other 

purpose. [¶] Do not conclude from this evidence that the 

defendant has a bad character or is predisposed to commit crime. 

[¶] If you conclude that the defendant committed the uncharged 

offenses, 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 the offenses charged or that the 

allegation has been proved. The People must still prove the 

charge and allegation beyond a reasonable doubt.” 
11

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.” (Ibid.; see People v. Rocha (2013) 221 Cal.App.4th 

1385, 1393–1394.) 

Here, appellant put his intent at issue by suggesting his 

conduct did not satisfy the elements of vehicle burglary because 

he was simply testing the doors of parked cars to find one that 

was unlocked and he did not intend to enter any of the locked 

cars. The prior vehicle burglary incident tended to refute this 

claim. 

Appellant contends the uncharged vehicle burglary was not 

sufficiently similar to the charged offense to render it admissible 

under Evidence Code section 1101, subdivision (b). But “[t]he 

least degree of similarity . . . is required in order to prove intent.” 

(People v. Ewoldt (1994) 7 Cal.4th 380, 402.) The uncharged 

misconduct must only be sufficiently similar to support an 

inference that the defendant probably harbored the same intent 

in each instance. (Ibid.) It need not be so unusual and 

distinctive as to constitute a signature, as is true when an 

uncharged act is introduced to prove identity. (Id. at p. 403.)

Although the 2017 vehicle burglary differed from the charged 

offense in that it involved forced entry and a completed crime, the 

jury could infer that appellant had the same intent—to enter and 

steal items from a car—when he committed each crime. 

Our conclusion that the prior vehicle burglary was

admissible does not end the inquiry. A trial court admitting 
12

evidence of uncharged crimes must also conclude that the 

prejudicial impact of the evidence does not exceed its probative 

value within the meaning of Evidence Code section 352. (Ewoldt,

supra, 7 Cal.4th at p. 404.) The prejudice that Evidence Code 

section 352 is designed to avoid is not the damage that naturally 

results from highly probative evidence, but rather the prospect of 

leading the jury to prejudge a person or focus on extraneous 

factors. (People v. Tran (2011) 51 Cal.4th 1040, 1048.) We 

review the admission of other act evidence against an Evidence 

Code section 352 objection for abuse of discretion. (People v. 

Merchant (2019) 40 Cal.App.5th 1179, 1192.)

Appellant claims the trial court should have excluded the 

evidence of the prior vehicle burglary as unduly prejudicial under 

Evidence Code section 352. We disagree. Although the prior 

crime involved an actual break-in rather than an attempt, it was 

a relatively straightforward offense hardly likely to inflame the 

jury against appellant. Any prejudice to appellant was 

outweighed by the probative value of the evidence, and the trial 

court did not abuse its discretion in allowing evidence of the prior 

car burglary to prove intent.

It is a closer call as to whether the evidence should have 

been admitted to prove a common scheme or plan. “Evidence of a 

common design or plan is admissible to establish that the 

defendant committed the act alleged. Unlike evidence used to 

prove intent, where the act is conceded or assumed, ‘[i]n proving 

design, the act is still undetermined. . . .’ ” (Ewoldt, supra, 7 

Cal.4th at p. 394, fn. 2.) Although there was a question as to 
13

whether appellant’s actions constituted an attempt by going 

beyond “mere preparation” and becoming a “direct but ineffectual 

act” done toward the commission of the crime (Weddington, 

supra, 246 Cal.App.4th at p. 478), his action in trying to open the 

handles of locked cars was not undetermined.

Assuming the evidence was not admissible to prove a 

common plan or scheme, any error in this regard was harmless 

because it is not reasonably probable the jury would have reached 

a result more favorable to appellant had the evidence been 

excluded for this purpose. (People v. Malone (1988) 47 Cal.3d 1, 

22, 49–51; People v. Watson (1956) 46 Cal.2d 818, 835.) 

First, as we have already explained, the evidence was 

admissible to prove intent, so the jury would have learned about 

the incident anyway. (See People v. Foster (2010) 50 Cal.4th 

1301, 1329 [evidence of prior acts admissible to prove intent and 

plan; unnecessary to decide whether it was also admissible to 

prove identity].) Second, the jurors were instructed with 

CALCRIM No. 375, which advised them that the other crimes 

evidence was not enough to prove guilt, that it was only one 

factor for the jury to consider, and that it could not be used to 

prove criminal disposition. (Id. at p. 1332.) Third, the jurors 

acquitted appellant of one charge and were unable to reach a 

verdict on another, showing that they were not unduly prejudiced 

by the other crimes evidence. (See People v. Smith (2003) 30 

Cal.4th 581, 617 [acquittal of one count suggested jury’s 

deliberations were not affected by alleged prosecutorial 

misconduct].) “[T]hat defendant was acquitted of any of the
14

offenses suggests the lack of prejudice and the jury’s clear ability 

to consider each count on the evidence presented and nothing 

else.” (People v. Mendibles (1988) 199 Cal.App.3d 1277, 1312, 

overruled on another ground in People v. Soto (2011) 51 Cal. 4th 

229, 248, fn.12.) Reversal is not required.

C. Amendment of Sentencing Order

Appellant contends the court’s order that he participate in 

substance abuse counseling while in prison must be amended to 

show it is a recommendation. The People concede the point and 

we agree.

At the sentencing hearing, the trial court ordered appellant 

to participate in a counseling or education program having a 

substance abuse component “if one is available.” Section 

1203.096, subdivision (a), specifically provides that a trial court 

shall “recommend in writing that the defendant participate in a 

counseling or education program having a substance abuse 

component while imprisoned.” (§ 1203.096, subd. (a), italics 

added.) Case law finds that the appropriate authorities need not 

heed the recommendation. (People v. Peel (1993) 17 Cal.App.4th 

594, 599–600.) Accordingly, it was appropriate for the trial court 

to recommend such counseling rather than order it. We shall 

order that the minute order and abstract of judgment be modified 

to clarify that such participation is recommended, not ordered, by 

the trial court.
15

III. DISPOSITION

The judgment is modified to reflect that substance abuse 

counseling pursuant to section 1203.096 is recommended, not 

ordered. The superior court clerk is directed to prepare an 

amended minute order and abstract of judgment to state that 

substance abuse counseling is recommended. As so modified, the 

judgment is affirmed.
16

NEEDHAM, Acting P.J.

We concur.

BURNS, J.

REARDON, J. *

People v. Durel / A158409

* Judge of the Superior Court of Alameda County, assigned 

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

California Constitution.