1 Filed 10/28/20 P. v. Durel CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.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 str ikes 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 becaus e 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

sent ence must be modified because the court ordered him to participa te in a drug counseling program in priso n when it was only authorized to make a recommendation for the same

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

. W e 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 , Steph a nie N., who worked at Safeway and was on a brea k sitting
in her car and ta l king 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.
A ppellant did not appear to notice that Stephanie N. was watching

. Appellant was also observed by two men delivering beer , Jo seph P. and Nicholas B ., who saw appellant “ going car b y car

a nd 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
fin g er and became aggressive, pulling out a knife and asking the

men , “ [W] hat are you going to do?” and , “Do you want to get your3

ass kicked?” Ste phanie N. saw the confrontation, although she
could not hear what was be ing 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. W hen 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 , subd s

. (b)(1) & (c)), attempted second degree burglary of a vehi cle (§ § 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 convicted4

of a serious felony within the meaning o f 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 rem aining 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 s tation 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 o ffense , whi ch was ultimately dismissed. Appellant admitted the three strike s allegation , which had been
b i furcated from the charges

. T he 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 suppor t his conviction of attempted vehicle burglary because t here was no
evidence he intended to steal from a locked vehicle

. We disagree. In reviewing the conviction for substantial evidence , w e review the record in the light most favorable to the conviction to5

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.4 th 4 68, 478 ( Weddington ) .)
Vehicle burglary is defined by s ection 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 p etit larceny or any felon y

. . . . ” “The key element of auto burglary is that the doors be locked.” ( In re James B. (2003) 109 Cal.App.4 th 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.4 th at p. 478 .) 2 Here, appellant attempted to open the doors of several
locked cars while carrying shaved key s tha t 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 m ust 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 pa rt: “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 attempt ed 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.4 th at p. 47 9 [sufficient evidence of attempted burglary where defendants drove through neighborhoods knocking on doors] ; People v. Prince (2007) 40 Cal.4 th 1179, 1257 [sufficient evidence of attempte d 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 wa s 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 o ne. 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 d efendant 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 a ttempt 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 attempte d 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.4 th 1171, 1174 , defendant and his cohort s knocked on doors of homes and moved on if they were occupied The court
held that w hile 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 in terrupt 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 crim e and made appellant’s actions in walking through the parking lot pulling on door handles ineffectual acts done toward the comm ission of a vehicle burglary

. The jury could h ave 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 in to 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

. H e became con f

ron t ational with t hose 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

conc l usion that he intended to commit a theft from the parked
cars whose handles he was t esting , even if he did not take steps

to do s o under the gaze of onlookers

. We note that d efense 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 t he locked cars when it
convicted him of the charged offe nse. Th at it c ould have opted for
a lesser cri me does not render the evidence of attempted vehicle burglary insufficient , particularly in light of the evidence that appellant possessed shaved key s 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 indi vidually 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

cra wling out the back window with a backpack in his hand , he was confronted by a witness . H e ran away and was apprehen ded
a short time later

. The trial court ruled that evidence of this prior incident was admissible under Evidence Code section 1101 , s ubdivision (b) , to prove intent and common scheme and plan, and was not unduly prejudicial under Evidence Code section 3 52. It gave th e 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 in volved 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 dissuad ing 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 deciding10

have been admit ted and that he was prejudiced by having the jury consider it. We disagr ee 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 a ct.” (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

w hich 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 defe ndant 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 f or 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 conside r 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’ [citation s ], 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.4 th 1385, 1393

– 1394.) Here, appellant put his intent at issue by suggesting hi s 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 thi s cl aim

. 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.4 th 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 s o unusual and
distinctive as to c onstitute a signature , as i s t rue 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 th e prior vehicle burglary w as admissible does not end the inquiry. A trial court admitting12

evidence of uncharged crimes must also conclude that the

p rejudicial 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 (20 11) 51 Cal.4th 1040, 1048.) We review the admission of other act evidence against a n Evidence Code section 352 objection for abuse of discretion. ( People v.
Merchant (2019) 40 Cal.App.5th 1179, 1192.) Appellan t claims the trial court should have exclude d 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 appell ant was outweighed by the probative value of the evidence , and t he 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 est ablish 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 to13

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.4 th at p. 478) , his action in trying to open the handles of locked cars was not undetermine d

. 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. Wa tson (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.4 th 1301, 1329 [evidence of prior acts admissible to prove intent and plan; unnecessary to decide whether it was also admissible to prove identity ] .) Se cond, the jur ors w ere 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

. ( I d. at p. 1332. ) Third, the ju rors

ac quitted appellant of one charge and w ere unable to reach a
verdict on an other , 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 the14

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. 4 th 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 conced e t he point and

w e agree. At the sentencing hearing, the trial court ordered appellant to participate in a counseling or education program having a substance abuse componen t “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) , itali cs 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, i t was appropriate for the trial court to recommend such counseling rather than order it. W e 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.