Filed 6/4/14 P. v. Studer CA5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent,

v. TRAVIS STUDER, Defendant and Appellant. F066340
(Super. Ct. No. TF006044A)



### OPINION

THE COURT * APPEAL from a judgment of the Supe rior Court of Kern County. Cory Woodward, Judge. James Johnson, under appointment by th e Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Atto rney General, Louis M. Vasquez, Leanne LeMon and Lewis A. Martinez, Deputy Attorneys Ge neral, for Plaintiff and Respondent.
-ooOoo-

* Before Levy, Acting P.J., Peña, J. and Sarkisian, J.† † Judge of the Superior Court of Fr esno County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.2 Appellant, Travis Studer, was charged wi th committing the following offenses on July 12, 2012: 1 attempted first degree robbery (P en. Code, §§ 212.5 subd. (a), 664), 2 first degree burglary (§§ 459, 460, subd. (a)), and assault with a d eadly weapon (§ 245, subd. (a)(1)). It was also alleged that in committing the count 1 offense, appellant personally inflicted great bodily injury (§ 120 22.7, subd. (a)). A jury convicted appellant on counts 1 and 2, found the enhancement allegation true, and acquitted appellant on count 3. The court imposed a prison term of five years. On appeal, appellant conte nds the court erred prejudici ally in admitting evidence that the victim’s house was burglarized on July 11. We affirm.
FACTUAL AND PROCED URAL BACKGROUND
Facts - Prosecution Case In July 2012, Roberto Ruiz owned a hous e and was in the process of selling it and moving out. 3 On July 11, when appe llant was not at the house, someone had entered the garage attached to the house and stolen a generator and some batteries located in the garage that were part of the solar-pow ered electrical syst em of the house. Because of the burglary th at had occurred earlier that day, Ruiz was staying overnight at the house on the night of July 11- 12, along with his nephew, Joel Gonzalez. Because of the theft of the generator and batteries, the hous e had no electricity. Gonzalez testified to the following: At so me point “in the middle of the night,” he
“heard a door smash.” He went to the window and saw, parked in the driveway, a station wagon “that didn’t belong [on] the property.” He went to the room where Ruiz was sleeping and asked his uncle if he was expecting anyone.

1 All references to dates of events are to dates in 2012.
2 All statutory references are to the Penal Code unless otherwise indicated.
3 Except as otherwise indicated, our factual summary is taken from Ruiz’s testimony.3 Ruiz testified that he woke when Gonzal ez entered the room and told him to get up because “‘a car drove in.’” Ruiz “sent [Gonzalez] outside,” opened the door that
connected the kitchen and the garage, entered the garage, a nd saw appellant standing in front of the “solar boxes.” Appella nt was holding a “drill” in his hand. 4 Ruiz was carrying a flashlight but he did not have a “weapon.” Ruiz yelled at appellant, “‘What are you doing here?’” At that point, appellant “came at” Ruiz and the two fought . Appellant hit Ruiz one or two times in th e head with the drill and Ruiz hit appellant with the flashli ght. Appellant struck Ru iz first. There was a hammer in the garage, and at some point appe llant “had it in his hand.” Ruiz was able to take the hammer from appellant. Gonzalez testified to the following: Afte r he woke Ruiz and Ruiz went to the garage, Gonzalez remained in the house. When Gonzalez heard Ruiz “screaming for help,” he picked up a shotgun that was kept in the house a nd went into the garage, where he saw appellant hitting Ruiz in the head with an “object” he could not identify. Ruiz was saying, “‘He is going to kill me. Just shoot him.’” Gonzalez fired a shot as a warning, and when appellant continued hittin g Ruiz and Ruiz “moved to the side,” Gonzalez fired a second shot, aiming at appellant ’s shins. At that point appellant “went outside.” Gonzalez followed. He saw appellant ’s hand move in the area of his waist and, thinking that appellant might be “pulling a gun, ” Gonzalez fired a third shot at appellant’s right leg. At that point, both appellant and Ruiz were calling for help, so Gonzalez called
911. He then went into th e garage to look for Ruiz. Ruiz testified that when appellant “started hitting [Ruiz] in the head,” Ruiz “yelled out for [Gonzalez],” and Gonzalez “came to the garage” and “fired at” appellant.

4 Appellant testified with the aid of a Sp anish-language interpreter. The transcript indicates that initially Ruiz identified the tool appellant was holding as, “[l]ike a screwdriver to remove the screws,” and Ruiz referred to the tool several times thereafter as a screwdriver. The interpreter later indicate d that Ruiz had testified the tool was a drill and that the interpreter had made a translation mistake.4 Appellant then stopped hitting Ruiz, and Gonzal ez fired another shot. Appellant then ran outside. At that point, Ruiz ra n to the end of the dr iveway to open the gate for the police, “because we had already called the police.” On his way back to the house, Ruiz saw the station wagon drive off. Kern County Deputy Sheriff Roy Haislip te stified to the followi ng: Upon arriving at the house on July 12, he made contact w ith Ruiz, who was bleeding from his face and head, and had “a severe cut to the side of his face.” Ruiz led Haislip to the garage, where the deputy saw, on the floor directly beneath the “solar system control panel” on the wall, a power drill, a power screwdriver, and a tool ca se. Ruiz told Haislip he had “never seen [these items] before.” Haislip also foun d a hammer and a broken 18-volt Craftsman flashlight on the floor in th e garage. The flashlight “app eared to be the weapon that struck [Ruiz].” Kern County Deputy Sheriff Stephen We lls testified to the following: At approximately 7:00 a.m., on July 12, he was dispatched to Kern Me dical Center, where, in one of the emergency rooms, he made c ontact with appellant. Wells observed that appellant had suffered a gunshot wound to hi s right thigh and what appeared to be a broken arm. Wells conducted a tape-record ed interview of appellant. The tape was played for the jury an d a transcript of the recording indicates appellant stated the following: “[A] couple of Mexican gentleme n” shot him because he was “trespassing on their property.” He had gone there “[l]ooking fo r trouble.” He intended to “steal stuff.” They “grabbed ahold” of appellant. A ppellant had brought an 18-volt Craftsman flashlight with him and at some point he “s wung back with [it] and it fell out of [his] hand.” Appellant “was trying to get away from them, and [the man was] hitting [him] with a flashlight[,] ... at which point [appella nt] grabbed a hold of a hammer” and he and the other man “wrestled for [it] .” As appellant was “trying to get away,” “the second guy came in and shot [appellant].” When asked what he was “trying to steal,” appellant answered, “I was trying to get a hold of a charging system fo r ... a solar system.”5 Facts - Defense Case Appellant testified he ha d heard about a house that was “in escrow” and was “empty,” so “real early in the morning” on Ju ly 12, he drove there “to see ... if anything
was left.” 5 He was “looking for trouble.” He brou ght with him a flashlight and a batterypowered drill. He opened the large roll-up garage door, entered, closed the door behind him and saw, on the wall, some “solar control panels.” However, at that point he discovered his drill was inoperative and decided to leave. He turned off his flashli ght and “started for the back door of the garage,” at which point he saw a man holding a flashlight enter the garage through the door that connected the garage to the house. The light blinded appellant and he “froze.” Appellant and the other man “met” at a spot between the door to the house and a door to the outside, a nd the man grabbed appellant’s left arm and “started to hit [appellant]” with the flashlight. Appellant hit him back with his flashlight. The two men “wrestl[ed]” and both dropped th eir flashlights, at which point another man entered the garage. Appellant, who was “trying to get out the door,” fell backwards. As he did so, he “saw a flash and heard a loud bang.” He found he could not control his right arm. Appellant, who soon realized he was s hot, exited the garage through the “back door,” and as he stood with his hands in the air and said “‘I’m done,’” and “‘I give up,’” he was “shot again in the thigh. ” Thinking that “they were trying to kill [him],” appellant moved toward his car, at which point he wa s shot a third time, in both calves, with
birdshot. Appellant, lying on the ground, implored the shooter to shoot again and “‘put [him] out of [his] misery.’” One of the men—either Ruiz or Gonzalez, appellant did not

5 The “Defense Case” portion of our fact ual statement is taken from appellant’s testimony.6 know which—approached him, “chanted some thing at [appellant] in Spanish ... and then disappeared.” Appellant then “managed to scoot over to [his car],” get in and drive off. As a result of being shot on July 12, appe llant lost two fingers and half of a thumb,
and he suffered a broken el bow and gunshot wounds to his thigh and calves. Procedural Background Prior to trial, appellant moved to exclud e evidence that the house was burglarized on July 11, on the grounds, as stated in his written moti on that such evidence was irrelevant, “more prejudicial than probative, ” and its admission woul d violate appellant’s rights to a fair trial and due process of law, under the Sixth and Fourteenth Amendments
to the United States Constitution. At the hearing on the motion, defense counsel argued: “I think that the jurors will come to the logical conclusion or what they believe to be a logical conclusion, that [appellant] also burglarized the same residenc e the day before. And that the person that burglarized the night before knew that the h ouse was vacant and, therefore, the person [who] knew that the house was va cant went back the next day to obtain some more stolen property.” The prosecutor responded that the evid ence “would be ... o ffered to put into perspective the conduct of the victim and the witness in this case, why they were on high alert, the fact that their house ha d been burglarized the day before.”
The court asked defense counsel if “there [was] any issue as to the identity of the person committing the [charged] crimes.” Counsel responded identity was “still an
issue” because “it was in the dark in the garage, according to reports,” but counsel
conceded that “the fact that ... two and a half of his digits were blown off by one of the
victims ... makes it difficult ... to challenge identity.”
The court ruled as follows:
“THE COURT: The Court is trying to determine what the prejudicial impact would be.7 “Assuming that the jurors discu ss the fact that [appellant] was the person there the night before, then the danger would be the conclusion that he was the person who committed the bur glary the second time. That’s what I am trying to determine if th ere is some real prejudicial impact. “It doesn’t appear to the Court th at it would be; so the Court would certainly find it probative that the victim s would be on a status of high alert based upon the burglary the night before. “And I do not find that the prej udicial impact is greater than the probative value; so it would be allowed.”
DISCUSSION Appellant contends the court committed pr ejudicial error in ad mitting evidence of the July 11 burglary. We assume without deciding that, as appellant suggests, the challenged evidence was irrelevant, and th erefore inadmissible under Evidence Code sections 210 and 350, 6 and that even if it had some degree of relevance, its probative value was substantially outweig hed by the probability that its admission would create a substantial danger of undue prejudice, and therefore it was inadmiss ible under Evidence
Code section 352. 7 We turn now to the question of wh ether such error requires reversal. The challenged evidence was prejudicial, appellant argues, because it “invite[d] the jury to specu late that appellant had committed th e crime on July 11.” Appellant invokes the principle that “[u]ncharged acts evidence carries great danger that the jury
will conclude the defendant has a criminal disposition, and thus probably committed the presently charged offense.”

6 Evidence Code section 210 defines re levant evidence as “evidence, including evidence relevant to the credib ility of a witness or hearsay de clarant, having any tendency in reason to prove or dispro ve any disputed fact that is of consequence to the determination of the action.” Evidence Co de section 350 provides: “No evidence is admissible except relevant evidence.”
7 Evidence Code section 352 provides, in re levant part: “The court in its discretion may exclude evidence if its probative value is substantially outwei ghed by the probability that its admission will ... create substa ntial danger of undue prejudice ....”8 We note first that there was no tes timony that appellant committed the July 11 burglary and the prosecutor did not argue that such an inference co uld be drawn from the evidence presented. However, even assuming that the jury drew the inference that appellant burglarized the house the day prior to the day of the offe nses charged in the instant case, any error in ad mitting evidence of the July 11 burgla ry was harmless. First, there was no dispute appellant ente red the garage attached to the house; Deputy Wells testified appellant stated he went to the house with the intention of stealing “stuff”; and appellant testified to essentially the same thing. Thus, the jury heard compelling evidence, in the form of Deputy Wells’s test imony of appellant’s statements and appellant’s own testimony, that appellant entered the garage attached to the house with the intent to steal prop erty located within, and thus that he committed the instant burglary. (See § 459 [burglary consists of entr y into, inter alia, any “house,” “with intent to commit grand or petit larceny”]. ) Therefore, to the extent th e evidence of the July 11 burglary showed appellant had a propensity to commit burglary and other criminal acts, the overwhelming and properly admitted eviden ce that appellant burglarized the garage the next day showed exactly the same thing. The challenged evidence added virtually nothing to the prosecution case. And becaus e the purported uncharged act evidence and the evidence of the July 12 burglary related to the sa me kind of act—a burglary—the former evidence was “no stronger and no more inflammatory than the testimony concerning the char ged offenses.” ( People v. Ewoldt (1994) 7 Cal.4t h 380, 405.) 

### “[S]tate law error in admitting evidence is subject to the traditional Watson test: The reviewing court must ask whet her it is reasonably probable the verdict would have been more favorable to the defendant absent the error.” ( People v. Partida (2005) 37 Cal.4th 428, 439 ( Partida ).) On this record, it is not reasonably probable that the verdict would have been mo re favorable to appellant had the evidence of the July 11 burgla ry been excluded.9 Appellant argues to the contrary. Specifi cally, he argues the jury’s acquittal of appellant on the count 3 charge of assaulting Ruiz with a deadly we apon shows that “[i]n effect, the jury rejected the evidence of Mr. Ruiz as to who started the fight between appellant and Ruiz, and effectively ... believe d appellant that it was Ruiz who attacked him first, and not the other way around.” Having rejected Ruiz’s testimony, appellant argues further, appellant’s conviction on count s 1 and 2 can only be explained by the
evidence of the Ju ly 11 burglary, which, appellant a sserts, led the jury to conclude appellant had a propensity to comm it criminal acts. We disagree. During deliberations, the jury sent the court the following written questions: “Can the jury include [appellant’s] fl ashlight as a deadly weapon? Is the drill considered part of the flashlight? Are we required not to use the flashlight as a deadly weapon? Can the flashlight receive consideration as the d eadly weapon? Are we only limited to the hammer and drill as the use of a deadly weapon? Main question[:] Can we include the flashlight as a weapon used?” A short time la ter, the jury sent the court the following:

“ We agree there was an assa ult with a deadly weapon . If we can’t agree on what the weapon was (hammer, drill), is the ch arge dismissed?” (Italics added.) Later, the court summarized on the record its responses to the jury: “[The jury] was asking some specific questio ns about the flashlight bei ng used as a deadly weapon, whether that might serve as the basis for Count 3. And that was responded to. I indicated
that it could not be the basis of a conviction on Count 3, but could be considered for other
related issues such as self-defense a nd the verdict on the other two counts.” It is apparent from the foregoing that th e jury believed Ruiz’s account of the fight with appellant, and that the acquittal on th e count 3 assault was based not on the prosecution’s failure to prove appellant assaul ted Ruiz, but on the jury’s conclusion that appellant did not commit that as sault with a de adly weapon. Finally, appellant argues that the admissi on of the evidence of the July 11 burglary violated his due process rights. Th ere is no merit to this contention.10 

### “[T]he admission of evidence, even if error under state law, violates due process only if it makes the tr ial fundamentally unfair.” ( Partida , supra , 37 Cal.4th at p. 436.) “‘Only if there are no permissible inferences the jury may draw from the evidence can its admission violate due proce ss. Even then, the ev idence must “be of such quality as necessarily prevents a fair trial.” [C itations.] Only under such circumstances can it be inferred that the ju ry must have used the evidence for an improper purpose.’ [Citation.] ‘The disp ositive issue is ... whether the trial court
committed an error which rendere d the trial “so ‘arbitrary an d fundamentally unfair’ that it violated federal due process.” [Citation.]’ [Citation.]” ( People v. Albarran (2007) 149 Cal.App.4th 214, 229- 230, fn. omitted.) Even assuming there were no permissible in ferences the jury could draw from the challenged evidence, the admissi on of the evidence of the Ju ly 11 burglary did not violate due process. From our conclusion that an error in admitting the challenged evidence was harmless under state law standards, it follows that admission of this evidence did not render the trial fundamentally unfair.
DISPOSITION The judgment is affirmed.