Filed 8/27/13 P. v. Guy CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE
STATE OF CALIFORNIA

THE PEOPLE, Plaintiff and Respondent,

v. MICHAEL GUY, Defendant and Appellant. D061686

(Super. Ct. No. SCN262049)

APPEAL from a judgment of the Superi or Court of San Diego County, Harry M. Elias, Judge. Affirmed. Carl Fabian, 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, Julie L. Garland, A ssistant Attorney General, Stev en T. Oetting and Michael P. Pulos, Deputy Attorn eys General, for Plaintiff and Respondent. A jury convicted defendant and appella nt Michael Guy of numerous counts of robbery arising out of three commercial armed robberies that took place in May 2009.2 (Pen. Code, 1 §211; counts 1-4, 9-11.) The jury al so convicted Guy of related counts of false imprisonment of employees at the stores. (§§ 236 & 237, subd. (a); counts 6-8, 13- 15.) As to each conviction, it was found true that Guy personally used a firearm within the meaning of sections 12022.5, subdivis ion (a) and 12022.53, subdivision (b). However, Guy was acquitted of two counts of kidnapping em ployees for robbery. (§ 209, subd. (b)(1); counts 5, 12.) After a court trial, all the prior convictio n allegations against Guy were found true. (§§ 667.5, subd. (b) & 668, prison priors; §§ 667, subd. (a )(1), 668 & 1192.7, subd. (c), serious felony priors & strike priors, §§ 667 , subds. (b)-(i), 668 & 1170.12.) The court sentenced Guy to a prison term of 10 5 years to life, and he appeals. At trial, the jury hear d evidence on the charged ro bbery offenses, and also a fourth, uncharged robbery. Guy presented a defense of duress by a fellow participant in three of the four robberies. On appeal, he contends the trial court prejudicially erred by admitting evidence of the uncharged robbery for purposes of proving his intent to rob and the existence of a common plan, as well as motive and identity. Guy contends that the claimed similarities between th e uncharged robbery and the charged offenses were not sufficiently distinctive to be admissible to prove identity, in tent, or a common plan. He further seems to argue the evid ence of the three sets of char ged offenses should not have been allowed cr oss-admissibility.

1 All further statutory references are to the Penal Code unless otherwise specified.3 Guy's claims are not supported by the record and we affirm the judgment of conviction.
I INTRODUCTION: MAY 16, 2009, ROBBERY OF EN CINITAS CVS PHARMACY On May 16, 2009, Guy was arrested in c onnection with a robber y at an Encinitas CVS pharmacy. Around 2:00 a.m. on May 16, 2009, he and another man entered the store and demanded that an employee open th e store safe. One man wore a mask and carried a silver gun. The employee opened the cash registers and the two robbers took money. They took two other employees to the back of the store and duct taped their hands and/or ankles, and then took the first employee there and restrained him. While leaving the store through the emergency exit, Guy and his companion triggered an alarm. Although Guy attempte d to escape, the car taking him from the scene crashed. Police apprehended Guy, but not hi s companion. Police searched the car and found a revolver, cash, a cell phone, and some CVS products with security devices on them. Guy told investigators that he and a fri end had entered the store to buy liquor, but decided to take it. When confronted, he decided to commit the robbery. After being in jail for a day, Guy called hi s family and asked them to call police to reinterview him, and he explained that he had been coerced by Lawrence Humes into participating in not only the Encinitas CVS robbery, but also another CVS robbery and an AutoZone robbery on May 15.4 Investigation disclosed that Guy's cell phone records plac ed him near the Encinitas CVS pharmacy around the time of the robbery. Guy's ce ll phone had a missed call from Humes. The police found Hume s about a week later and arrested him at a hotel room, where they found he had a silver revolver. At trial, none of the employees was able to identify Guy as one of the robbers. (Counts 9-15.)
II
ADDITIONAL CHARGED AN D UNCHARGED OFFENSES
A

. May 4, 2009, Kragen Auto Store Charged Offense Evidence presented at trial showed th at at closing time on May 4, 2009, Guy entered the Kragen Auto Parts store on Convoy Street a nd asked for a product. One of the employees helped Guy while the other went to the store's back room. Suddenly, Guy pulled a gun on the employee who was help ing him and demanded money from the cash register. After obtaining $420 , Guy demanded that the empl oyee open the safe. When the employee said he did not have the combin ation, Guy left, telling the employee not to look at him. Guy was wearing a black h ooded sweatshirt. Neither employee looked outside or saw any accomplice. Both employees identified Guy in a line-up and in court. Investigation of cell phone records showed calls near the Kragen store were made from both Guy's cell phone and Humes's cell pho ne, at around the time of the robbery. (Count 1.)5 B. May 15, 2009, AutoZone Store Charged Offenses Evidence presented at trial showed th at at closing time on May 15, 2009, two armed robbers entered a Mira Mesa AutoZone store after it closed for the night. The robbers had a silver revolver and possibly a nother gun. They found three employees, tied up two of them with "zip ties" and duct ta pe, and then had the third employee open the safe. They took money and then tied up the third employee. At trial, the employee who had opened the safe was able to id entify the robbers as the same people in store surve illance photographs, but in cour t, he was unable to identify Guy as one of them. Another employee was ab le to identify Guy in court as one of the robbers. Cell phone records showed Guy's ce ll phone was active near the AutoZone store at around the time of the robbery. (Counts 2-8.) C. May 5, 2009, CVS Pharmacy in Murrieta (Uncharged Offenses) Evidence presented at trial showed that at around 2:00 a.m. on May 5, 2009, Guy and a companion arrived at a CVS pharmacy in Murrieta. Going insi de, they showed an employee a silver revolver, and told her to gi ve them money from the registers and a safe, which she did (approximately $6,000). As sh e cried, Guy tied her up with duct tape, next to another restrained employee. Guy and his companion left. Both women employees identified Guy in court, and said he had been wearing a black hooded sweatshirt. Telephone record s placed Guy's and Humes's cell phones near the Murrieta CVS pharmacy at arou nd the time of the robbery.6 III
PRESENTATION AT HEARING ON MOTION IN LIMINE Before the jury was sel ected, the court heard the pr osecutor's motion in limine seeking to introduce testimony about other robberies against different stores and employees, to prove a common scheme or plan, to show identity, and to establish intent. (Evid. Code, § 1101, subd. (b ).) This evidence would include the three charged offenses and also the uncharged robbery on May 5, 2009, at the Murrieta CVS pharmacy. 2
Because the trial court had to make a discretionary decision before trial on whether to admit such "other crimes" evidence, we evaluate its exercise of discretion by considering the record be fore the trial court when it made its ruling. ( People v. Lewis (2001) 25 Cal.4th 610, 637; People v. Lindberg (2008) 45 Cal.4th 1, 23 ( Lindberg ); see Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1220 ( Alcala ).) We examine the grounds offered by the prosecutor in the motion and at the argument. First, the prosecutor referred to the "striking similariti es" between the four sets of offenses, as establishing a common scheme or plan, showin g identity, and establishing intent. The prosecutor intended to argue to the jury that the entire body of evidence to be presented about both the charge d and uncharged crimes eviden ce was probative of the charged

counts. At the hearing, the prosecutor argued that both robberies of auto parts stores occurred around 9:00 p.m. at closing time, and both CVS robberies occurred a few hours

2 The Murrieta robbery was being prosec uted separately in Riverside County.7 later, around 2:00 a.m. on the following day. The robber's clothing (black hooded sweatshirt) appeared to be sim ilar in the security videos fro m the Kragen auto parts store and the Murrieta CVS pharmacy. Also, in the other two-person robberies, the perpetrators used the same modus operand i as in the Murrieta CVS robbery, by apprehending the employees, duct taping them , putting them in a certain place in the store, taking one to the register for pu lling money out, and then taking off. The prosecutor argued that the evid ence of the uncharged Murr ieta CVS robbery would not unduly consume court time, because only two witnesses were needed. The prosecutor also referred in argument to the cell phone data that placed both Guy and Humes at the site of the first auto parts store robbery, as well as near the next three robberies. At the hearing, defense counsel object ed to the admission of the uncharged Murrieta CVS robbery evidence, as creating a trial within a tria l, being highly prejudicial and unnecessary for this par ticular case. The court then ruled that the Murrieta CVS robbery evidence would be admissible under Evidence Code section 1101, subdivision (b) as it went to motive and modus operandi, as well as identity. With respect to the three charged offenses, the court found that cro ss-admissibility was proper because of the similarity of the fact pattern and timing, to show motive and identity. As we will further discuss, even though the prosecutor had ora lly argued that the trial court could take into account the cell phone evidence and th e evidence of Guy's similar clothing as seen on two of the surve illance videos, the trial court's ruling does not expressly mention those crite ria as supporting admission of the uncharged offense evidence or cross-admi ssibility. Nor did the ruling expr essly mention the establishment8 of intent as a ground for admission of the evidence of other offenses, although the prosecutor had argued that theory as well. (See People v. Ervine (2009) 47 Cal.4th 745, 779 ( Ervine ) [to be cognizable on appeal, a theo ry of admissibility must have been presented at trial; alternatively, the basis for it must be in the record].)
IV THE DEFENSE CASE; VERDICT; JUDGMENT At trial, Guy testified that he owed Humes money for a failed drug production deal. Humes threatened to harm Guy and hi s family unless Guy participated with him and another man in three of the robberies. Even though Gu y unwillingly participated, he did not intend to rob the employees or the stores. After instructions and deliberations, th e jury convicted Guy of all the robbery charges and those of false imprisonment. The court found true the prison and strike priors and sentenced Guy to a total term of 105 years. He appeals.
V
ISSUES PRESENTED A. Applicable Legal Principles Evidence Code section 1101, subdivision (b ), authorizes admission of evidence of uncharged crimes to prove some fact, ot her than propensity, "such as motive, opportunity, intent, preparation, plan, kn owledge, identity, abse nce of mistake or accident . . . ." ( Ibid .; Evid. Code, § 1101, subd. (a) [prior criminal act normally not admissible to prove conduct].) The admissi bility of uncharged crimes depends on: " '(1) the materiality of the facts sought to be proved, (2) the tendency of the uncharged9 crimes to prove those facts, and (3) the existe nce of any rule or policy requiring exclusion of the evidence.' " ( People v. Kelly (2007) 42 Cal.4th 763, 783; People v. Ewoldt (1994) 7 Cal.4th 380, 402 ( Ewoldt ).) Circumstances in which ev idence of uncharged crimes may properly be admitted are described in Lindberg, supra, 45 Cal.4th 1, 23: "When th e prosecution seeks to prove the defendant's identity as the perpetrator of the char ged offense with evidence he had committed uncharged offenses, th e admissibility of evidence of the uncharged offenses turns on proof that the charged and unchar ged offenses share sufficient distinctive common features to raise an inference of id entity. A lesser degree of similarity is required to establish the existence of a common plan or scheme and still less similarity is required to establish intent . [Citations, including Ewoldt, supra, 7 Cal.4th 380, 402- 403.]" (Italics added.) In evaluating the admissibility of "other crimes" evidence on the issues of identity, motive and intent, a trial court must "carefully review each count in light of the alleged 'other crimes' evidence to determine its probativeness to prove a material fact other than criminal disposition and then . . . weigh its probative value against its prejudicial effect before it is admitted." ( People v. Armstead (2002) 102 Cal.App.4th 784, 793-794; Evid. Code, §§ 1101, subd. (b), 352; Ewoldt, supra, 7 Cal.4th at p. 404.) 3

3 Evidence Code section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantia lly outweighed by the probability that its admission will (a) necessitate undue consumptio n of time or (b) create substantial danger of undue prejudice, or confusing the issues, or of misleading the jury."10 The weighing process under Evidence Code section 352 "depends upon the trial court's consideration of the unique facts and is sues of each case, ra ther than upon the mechanical application of automatic rules." ( People v. Jennings (2000) 81 Cal.App.4th 1301, 1314.) We review the trial court's rulings in this context for any abuse of discretion. ( People v. Lewis , supra , 25 Cal.4th 610, 637; see Alcala, supra , 43 Cal.4th 1205, 1220 [an evaluation of a trial court's ex ercise of discretion considers the record before it when the ruling was made].) B. No Forfeiture of Appellate Claims Guy challenges his convictions by argu ing the trial court erroneously allowed admission of evidence about th e uncharged robbery, becaus e the similarities between it and the charged robberies were not sufficientl y distinctive to show identity, intent, or a common plan, and only generic similarities were shown: e.g., the use of duct tape to restrain employees and the hour of the day wh en the robberies occurred. (Evid. Code, § 1101, subd. (b); see People v. Rivera (1985) 41 Cal.3d 388, 393 ["signature" acts required].) Guy points out that zip ties were us ed in only one of the four robberies, and a mask was used in only one of the four robberies. He cl aims the uncharged offense was particularly inflammatory ev idence, since the employees in that case were women and one of them cried during the ordeal. ( Ewoldt, supra, 7 Cal.4th at pp. 404-405.) Guy asserts his counsel's objections were adequate to protect his right to appeal (i.e., creating a trial within a tr ial, being highly prejudicial, unnecessary for this particular case). If those objections were not adequate, he argues we should examine the appellate issues under a Sixth Amendment assistance of counsel analysis.11 In response, the Attorney General appears to conced e that the defense objection below was adequate to preserve the issues fo r appeal, but argues that in any case, there was no error, or any error was harmless. We agree that although the objection was quite general in nature, the parties and the trial court were well aware of the nature of the problem and had all the necessary tools to anal yze it. There is no justification for treating this as a forfeiture case, and we look at its merits. C. Scope of Review Guy strenuously argues that the trial cour t's ruling does not expressly mention the establishment of intent as a ground for admi ssion of the evidence of other offenses, and therefore the ruling cannot be upheld on that ground. Guy also objects to any consideration of the cell phone evidence and the evidence of Guy's similar clothing as seen on two of the surveillance videos, as s upporting admission of the uncharged offense evidence, again because the ruling does not expressly rely on those grounds. (See Ervine , supra , 47 Cal.4th 745, 779 [to be cognizable on appeal, a theory of admissibility must be presented at trial, or at least a basis for th e theory must be appa rent in the record].) Alternatively, Guy seems to make so me kind of instructional error argument (without calling it that), by contending that the jury was given CA LCRIM No. 375 on the proper usage of evidence of an uncharged offense to prove id entity, intent, etc., and this somehow served to expand the purposes fo r which the uncharged offense evidence could properly be used. The record does not include any specif ic objection to the language including intent in this jury instruction. Guy argues that th e trial court's in limine ruling must be restricted to its or iginal grounds, motiv e and identity, and any additional use of12 the uncharged offenses to prove intent would be improper. However, he also admits that the trial court's decision is reviewed on appeal based on the facts known to the trial court when the ruling was made. (See People v. Lawson (2005) 131 Cal.App.4th 1242, 1249 [potential effect of eviden tiary error upon a defendant 's decision to testify].) On appeal, most of Guy's argument deals with the uncharged cr imes evidence, and it is not entirely clear from the briefs whethe r he continues to object that the trial court should not have allowed the evidence about the th ree charged robberies to be crossadmissible, for proving one an other. On both types of ev idence, the pros ecution's motion in limine presented the trial court with seve ral theories of admissibility, common scheme or plan, identity, and intent. The prosecutor argued for admi ssibility of the entire body of evidence that would be presented, both the charged and uncharged crimes evidence, as probative of the charged counts (due to "strik ing similarities" between the four sets of offenses). Moreover, the prosecu tor orally argued the probative ef fect of the similarity of the cell phone data that was related to the va rious charges, as well as the similarity of clothing in the surveillance vi deos. There is no indication th e trial court rejected those criteria in making the ruling. Instead, the court expressly relied on the explanation given by the prosecutor, while designating the "most si gnificant factor" as the similarity among the various fact patterns and timing of the va rious offenses, to pr ove modus operandi and motive. We consider the grounds expressly relie d upon in the ruling but additionally, are not foreclosed from considering the trial court's exercise of discretion at that time in light of all the theories presented to it, which clea rly included intent. As the trial progressed,13 Guy's defense of duress further highlighted the i ssue of his intent during the incidents. In any event, there was an adequate basis in the record for each of those theories of admissibility. ( Ervine , supra , 47 Cal.4th 745, 779.) Moreover, Respondent's brie f essentially concedes that the theory about a common scheme or plan is not as strong as the identified grounds for admission, identity and motive. ( Ewoldt, supra, 7 Cal.4th 380, 402-403 [lesser de gree of similarity among the uncharged and charged acts required for comm on scheme or plan].) We need only address in detail the purposes of proving id entity and intent as justifications for admissibility of this evidence.
VI
ANALYSIS A. Identity The prosecutor argued the evidence was admissible to prove identity under Evidence Code section 1101, subdivision (b ), because the crimes shared numerous distinctive features that were similar. On appeal, Guy argues the crimes were not identical and involved only a seri es of extremely generic acts (duct tape use, timing of robberies) that in no way constituted "signatu re" acts that would have identified a single perpetrator. ( People v. Rivera , supra , 41 Cal.3d 388, 393.) Moreover, the Kragen robbery was unique because only a lone man committed it, without a mask and without restraining any employees. The Mira Mesa AutoZone robbery by two men did not involve a mask and uniquely involved zip ties, as well as duct tape . The Encinitas CVS14 robbery uniquely involved a mask or bandanna . The Murrieta CVS robbery was different because there were female victims. Nevertheless, both the uncharged offenses and the charged acts involved robbery at gunpoint and moving employees around, to obtain money from store registers or safes, and three out of four incidents included a co perpetrator. The closing time auto store robberies, followed by 2:00 a.m. CVS robb eries some driving distance away, formed some kind of pattern that was distinctive in nature and raised an inference of identity. ( People v. Medina (1995) 11 Cal.4th 694, 748 [admissibility depend s upon proof that the various offenses shared distinctive common marks sufficient to ra ise an inference of identity].) Here, the uncharge d offense evidence had a str ong tendency toward proving the identity of the perpetrato r, a material issue, and ther e were enough common features or similarities to justify its admission for that purpose (sam e types of commercial targets, same sequence of events within the store, us e of a gun, same time frame, same driving vicinity). ( Ibid. ; People v. Carpenter (1997) 15 Cal.4t h 312, 378-379 ( Carpenter ); Lindberg, supra , 45 Cal.4th 1, 21-22.) Further, Guy has not pointed to any ru le or policy that should have required exclusion of that evidence. ( Carpenter, supra , 15 Cal.4th 312, 378-379.) As compared to the manner in which the charged robberies took place, the court could permissibly conclude there was no excessively inflammato ry effect in admittin g the evidence about the uncharged robbery, even thou gh the victims in that case were female. The evidence had a significant tendency to pr ove the facts of modus operan di and identity, as expressly15 stated by the trial court. The evidence was not unduly remote or dissimilar, nor was its presentation unduly burdensome in terms of trial time.
B. Intent To be relevant on the issue of intent, uncharged crimes need to be sufficiently similar to a charged offense to support an in ference that the defendant probably harbored the same intent in each instance. ( People v. Kipp (1998) 18 Cal.4th 349, 371; Ewoldt,

supra, 7 Cal.4th 380, 402 [least degree of simila rity required to establish intent].) Robbery is the felonious taking of persona l property in the possession of another, "from his person or immediate presen ce, and against his will, acco mplished by means of force or fear." (§ 211.) By plead ing not guilty, Guy placed into dispute all the elements of the robberies and other charges, as of the outse t of trial, when the challenged evidentiary ruling was made. Later, Guy placed the issue of his intent to rob in further dispute, through his defense of duress, and the jury instructi ons properly addressed that defense. In CALCRIM No. 375, regarding othe r crimes evidence, the jury was told the evidence had been admitted for a limited purpose, not to prove the defendant 's predisposition to commit crimes, but rather to determine whethe r the necessary element of intent to rob was proven. This effectively eliminated any danger of confusing the issues or misleading the jury. (Evid. Code, § 352.) No defense ob jections to the instru ction have been called to our attention, and "we presume the jury followed these instructions." ( Lindberg,

supra , 45 Cal.4th 1, 25-26.)16 We conclude these uncharged crimes we re sufficiently similar to the charged offenses to support and allow inferences th at Guy probably demonstrated and had the same intent to rob store employees in each instance. ( People v. Kipp , supra , 18 Cal.4th 349, 371; Alcala, supra , 43 Cal.4th 1205, 1220 [trial c ourt's exercise of discretion is viewed in light of the record before the trial court when ru ling was issued].) Since there was no error or undue prejudice in the admi ssion of this evidence for the purposes that were presented to the trial court, no harmle ss error analysis is appropriate. (See People v. Walker (2006) 139 Cal.App.4th 7 82, 808 [" 'the erroneous admission of prior misconduct evidence does not compel reve rsal unless a result more favor able to the defendant would have been reasonably pr obable if such evidence were excluded.' "].)
DISPOSITION The judgment is affirmed.

HUFFMAN, Acting P. J.
WE CONCUR:

HALLER, J.

McDONALD, J.