Filed 5/16/13 P. v. Hughes 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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. 

BERNARD CHARLES HUGHES, 

Defendant and Appellant. 

F061613 

(Super. Ct. No. 7045) 

OPINION 

 APPEAL from a judgment of the Superior Court of Mariposa County. Richard L. 

Freeborn, Judge. (Retired Judge of the Lake Sup. Ct. assigned by the Chief Justice 

pursuant to art. VI, § 6 of the Cal. Const.) 

 Eileen S. Kotler, under appointment by the Court of Appeal, for Defendant and 

Appellant. 

 Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Peter H. 

Smith, Deputy Attorneys General, for Plaintiff and Respondent. 

-ooOooA jury convicted appellant Bernard Charles Hughes of residential burglary (Pen. 

Code, § 459; count 1), two counts of being a felon in possession of a firearm (Pen. Code, 

§ 12021, subd. (a)(1); counts 2 & 5), being a felon in possession of ammunition (Pen. 

Code, § 12316, subd. (b)(1); count 3), receiving stolen property (Pen. Code, § 496, subd. 
2 

(a); count 4), and falsifying a license plate (Veh. Code, § 4463, subd. (a)(1); count 7). 

The trial court found true allegations that appellant suffered two prior serious felony 

convictions (Pen. Code, § 667, subd. (a)(1)), two prior strike convictions (Pen. Code, 

§§ 667, subds. (b)-(i), 1170.12, subds. (a) & (d)), and four prior prison terms (Pen. Code, 

§ 667.5, subd. (b)). The court sentenced appellant to a total prison term of 88 years to life 

as follows: three consecutive terms of 25 years to life for counts 1, 5, and 7; three 

concurrent terms of 25 years to life for counts 2, 3, and 4; two consecutive five-year 

terms for the serious felony priors; and three consecutive one-year terms for the prison 

priors. 

Appellant raises numerous claims of error on appeal. He first contends the trial 

court erred in denying his motion for acquittal on count 5 because the prosecution failed 

to prove the corpus delicti of the offense. He next attacks his conviction on count 7 for 

falsifying a license plate, arguing Vehicle Code1 section 4463, subdivision (a)(1) did not 

prohibit his conduct, a more specific misdemeanor statute was applicable, and the court’s 

supplemental instruction on the offense was tantamount to a directed verdict. He also 

challenges various evidentiary rulings by the trial court, as well as the court’s denial of 

his new trial motion based on some of its adverse evidentiary rulings. Finally, he 

contends the sentence the court imposed for counts 2, 3, and 4 must be stayed under 

Penal Code section 654. We reject all but the last contention which respondent concedes. 

We order the trial court to stay the sentence imposed for count 2, 3, and 4, and otherwise 

affirm the judgment. 

FACTS

In 2008, Bill and Janet Whitla lived on a ranch near the town of Hornitos in 

Mariposa County.2 On May 1, around 3:00 p.m., they returned home early from 

vacation. As they were driving up the driveway to their house, they saw an unfamiliar 

                                                               

1 Further statutory references are to the Vehicle Code unless otherwise specified. 

2 Date references in the summary of facts are to 2008 unless otherwise specified.
3 

Chevy flatbed truck next to their garage. When Bill drove up next to the truck, Janet 

recognized appellant as the driver.3 Appellant said “Rick” in an excited voice and 

pointed towards the house twice before quickly driving away. As appellant drove away, 

Janet remarked that it looked like he had some of Bill’s equipment from the garage in the 

back of his truck. Bill turned his vehicle around and started to pursue appellant’s truck. 

The Whitlas eventually came across appellant’s truck abandoned on the side of the 

road and contacted the sheriff’s department through their vehicle’s “OnStar” security 

system. In the meantime, appellant’s girlfriend, Tami Turner, drove up. Janet asked 

Turner if the truck belonged to the man with whom she lived. Turner said something to 

the effect that the truck belonged to appellant, but he had not been driving it because he 

was at home with her having a “quickie.” When Janet pointed out that appellant was just 

at her house, Turner told her she was mistaken. Janet did not argue with Turner, in part 

because Turner appeared to be intoxicated. 

After Turner left and sheriff’s deputies arrived, the Whitlas identified a number of 

items in the back of appellant’s truck, including an air compressor, a generator, jewelry, a 

loaded Colt pistol, and various personal items. These items had been taken from the 

Whitlas’ house and garage. Janet estimated the jewelry was worth over $2,000, and Bill 

estimated the generator and air compressor were worth around $3,000. 

In appellant’s truck, deputies found bolt cutters, a pry bar, and leather work gloves 

with fresh sweat stains. Later forensics testing established the bolt cutters were used to 

cut the chain fastening the air compressor and generator to the wall of the Whitlas’ 

garage. A partial DNA sample extracted from the leather gloves was also consistent with 

appellant’s DNA sample. 

In their investigation on May 1, deputies determined the point of entry for the 

burglary was a door in the garage that opened into the Whitlas’ house. The door had a 

                                                               

3 First names are used for ease of reference only, not out of any disrespect.
4 

window in it and the condition of the door was consistent with someone removing the 

screen covering, reaching inside the window, and disengaging the door lock, possibly 

with a pry bar. The garage itself was open to the outside, so that anyone could walk in 

and see the tools and equipment in the garage. 

The day after the burglary and investigation, the Whitlas found a cigarette butt on 

the floor of the garage, a few feet from the main entrance. They preserved the cigarette 

butt in a sealed envelope and, the following week, Janet personally delivered the 

envelope to the main sheriff’s office in Mariposa. A DNA sample extracted from the 

cigarette butt matched appellant’s DNA sample. 

Rick Skavdahl worked as a caretaker for the Whitlas and lived in a trailer on their 

ranch. Before they left for vacation, the Whitlas informed Skavdahl of their original plan 

to return home on May 3. Before returning to their house on May 1, the Whitlas stopped 

in Hornitos to pick up their mail. They saw Skavdahl in the town plaza and exchanged 

waves with him. 

When deputies went to Turner’s house after the burglary to look for appellant, 

they did not find him. Turner and Skavdahl were both at the house and appeared to be 

intoxicated. 

Appellant was eventually apprehended at Turner’s house on May 30. Deputies 

found him hiding under the bed in the master bedroom. The bedroom was located 

immediately to the right of the front door of the house. Behind the front door, deputies 

found a 30/30 rifle in a scabbard, leaning against the wall. To the left of the front door, 

inside the living room, deputies located a box, which appeared to contain documents 

belonging to appellant. They also located a suitcase in the living room, which Turner 

identified as belonging to appellant. 

During the drive to jail, appellant made statements which were audio-recorded. In 

reference to the 30/30 rifle, appellant stated: “I seen a coyote the other night fucking 

coming up to get the chickens” and “[s]o I took a pretty good shot at him.” 
5 

On the day of appellant’s arrest, a white Dodge Caliber was found parked behind 

Turner’s house. A folder and prescription bottle bearing appellant’s name were inside the 

car, and a key to the car was in appellant’s pocket. 

The Dodge Caliber had a Kansas license plate. The Kansas license plate did not 

belong to the Dodge Caliber but had been issued to another vehicle that was currently 

registered in Kansas. The vehicle identification number on the Dodge Caliber revealed it 

was owned by a Los Angeles rental car company. 

During a sheriff’s department interview, a detective questioned appellant about the 

Kansas license plate on the Dodge Caliber. Appellant claimed he “borrowed” the rental 

car from a “friend” and had planned to return it. But after learning from Turner that the 

car had been reported stolen, appellant decided to keep it, reasoning, “fucking, I’ve got to 

have wheels.” The car had California license plates, so appellant asked someone he knew 

if he could use the Kansas license plate. Appellant explained: “Kansas—he had a plate 

from Kansas.... And I said, ‘Fucking, yeah, let me use that, bud, so then I can fucking 

kick back and go around and, fuck, travel you know.’ So fucking, yeah—so then I hid 

the car and ... shit.” Appellant later added, “I didn’t change the plates until the 

fucking—I knew it was reported stolen.” 

Lillian Donato, a former friend of Turner, testified that Turner bribed her with 

beer to get her to lie and tell defense counsel and his investigator that she saw someone 

other than appellant getting out of his truck somewhere near Hornitos. 

The parties stipulated that appellant was a convicted felon prior to May 1, and that 

the Dodge Caliber was reported stolen on May 11. 

The defense 

The defense did not dispute that the flatbed truck involved in the burglary 

belonged to appellant or that the property found in his truck belonged to the Whitlas. The 

defense theory was that Janet Whitla, who admittedly only viewed the driver for a couple 

of seconds, misidentified appellant as the person driving his truck. In support of the 
6 

theory, the defense called an expert witness who testified generally regarding problems 

with perception, memory, and eyewitness identification. In addition, the defense 

investigator testified regarding Janet’s initial description of appellant and how it omitted 

details she added in later interviews and in her trial testimony. 

The defense investigator further testified that he interviewed Donato in 2008 and 

2009. Donato told him she saw appellant’s truck parked near the Whitlas’ ranch and saw 

someone other than appellant get out of the driver’s door. She described this person as a 

short, heavy-set White male with short, spiked hair. The first time the investigator heard 

anything about Turner bribing Donato with beer to come forward with a false alibi was 

during an interview with Donato in April 2010, right before appellant’s trial. 

The defense also presented expert testimony that DNA testing excluded appellant 

as a contributor to DNA samples extracted from a sweatshirt found in appellant’s truck 

and a beanie found inside the Whitlas’ garage after the burglary. 

Turner testified that, on the morning of the burglary, she and appellant got up 

around 4:00 or 5:00 a.m. to spray thistle. They returned to the house and were sitting 

outside around 11:00 a.m., when Skavdahl and a guy Turner knew as “Cheeto” came by. 

After Skavdahl and Cheeto left, Turner and appellant went to bed, made love, and went to 

sleep. 

At some point, Turner woke up. As she was getting up, she heard what sounded 

like appellant’s flatbed truck. She ran outside and saw the truck going up the road. She 

ran back inside, where appellant was still sleeping, got dressed and grabbed her keys. 

She then jumped in her truck to follow appellant’s truck. 

Turner found appellant’s truck crashed into a bank with the Whitlas parked behind 

it. Turner acknowledged it was appellant’s truck and told them appellant was home 

asleep in bed. She did not remember saying anything about a “quickie.” 

After speaking with the Whitlas, Turner drove home and woke up appellant. She 

told him she thought his truck had just been used in a burglary and that the cops were 
7 

going to be there. Appellant said he was not going back to prison for something he did 

not do and took off running. 

Turner denied that she tried to bribe Donato to say she saw someone else driving 

appellant’s truck. Donato volunteered this information on her own. 

On May 30, appellant returned to Turner’s house in the middle of the night. He 

did not take a shot at a coyote with the 30/30 rifle, which had belonged to Turner’s father. 

There was no ammunition for the rifle in the house. Turner claimed her friend, Joe 

Manriquez, brought the rifle down to her house four or five days before appellant’s 

return. 

DISCUSSION

I. The prosecution sufficiently established the corpus delicti of count 5 

Appellant contends the trial court erroneously denied his motion for acquittal on 

count 5 because the prosecution presented insufficient evidence to prove the corpus 

delicti of the offense of being a felon in possession of a firearm based on the 30/30 rifle 

found inside of Turner’s house. Particularly, appellant argues that, independent of his 

extrajudicial statements to the effect he recently used the rifle to shoot at a coyote, there 

was insufficient evidence he possessed the firearm. 

“On a motion for judgment of acquittal under [Penal Code] section 1118.1, the 

trial court applies the same standard as an appellate court reviewing the sufficiency of the 

evidence. The court must consider whether there is any substantial evidence of the 

existence of each element of the offense charged, sufficient for a reasonable trier of fact 

to find the defendant guilty beyond a reasonable doubt. [Citation.]” (People v. Harris

(2008) 43 Cal.4th 1269, 1286.) “The sufficiency of the evidence is tested at the point the 

motion is made. [Citations.] The question is one of law, subject to independent review. 

[Citation.]” (People v. Stevens (2007) 41 Cal.4th 182, 200.) 
8 

 “‘The corpus delicti of a crime consists of two elements, the fact of the injury or 

loss or harm, and the existence of a criminal agency as its cause.’ [Citation.]” (People v. 

Jennings (1991) 53 Cal.3d 334, 364.) The law requires these elements to be proven 

independently of the defendant’s statements. (People v. Ledesma (2006) 39 Cal.4th 641, 

721.) However, “the quantum of evidence required is not great, and ‘need only be “a 

slight or prima facie showing” permitting an inference of injury, loss, or harm from a 

criminal agency ....’ [Citation.] ‘The inference [that a crime has been committed] need 

not be “the only, or even the most compelling, one ... [but only] a reasonable one.”’ 

[Citation.]” (Id. at p. 722.) In other words, the proof necessary to establish the corpus 

delicti of an offense will be deemed sufficient so long as “it permits an inference of 

criminal conduct, even if a noncriminal explanation is also plausible. [Citations.]” 

(People v. Alvarez (2002) 27 Cal.4th 1161, 1171.) 

 Here, the prosecution was required to establish a prima facie showing that a person 

convicted of a felony owned or possessed a firearm. (People v. Hilliard (1963) 221 

Cal.App.2d 719, 724.) Proof of possession of a firearm requires knowledge of the 

firearm and dominion and control over it. (People v. Pena (1999) 74 Cal.App.4th 1078, 

1083.) Possession may be actual or constructive and may be jointly shared with other 

persons. (People v. Jeffers (1996) 41 Cal.App.4th 917, 922; People v. Neese (1969) 272 

Cal.App.2d 235, 245; People v. Nieto (1966) 247 Cal.App.2d 364, 368.) A person has 

constructive possession of a firearm that is not in his actual possession when he 

knowingly maintains, or maintains the right to, dominion and control. (People v. Pena, 

supra, 74 Cal.App.4th at p. 1083.) Possession may be established by circumstantial 

evidence and any reasonable inferences to be drawn from it. (People v. Williams (1971) 

5 Cal.3d 211, 215.) 

We disagree with appellant’s argument that the prosecution presented insufficient 

evidence he had constructive possession of the 30/30 rifle for purposes of establishing the 

corpus delicti of the offense. Deputies found the rifle behind the front door of Turner’s 
9 

house. The front door was located immediately next to the master bedroom where 

appellant was found hiding under the bed. Appellant’s presence at Turner’s house was 

not a random occurrence; the two were boyfriend and girlfriend. At the time of the 

burglary, appellant was living with Turner and occupying the same bedroom. Several 

weeks later, he returned to stay at Turner’s house and hid in the bedroom when the 

deputies came to look for him. Thus, the evidence at the time of the Penal Code section 

1118.1 hearing permitted an inference that appellant knowingly shared with Turner the 

right to control the 30/30 rifle found at the time of his arrest. The inference appellant 

constructively possessed the rifle was a reasonable one, even if other explanations—such 

as those appellant offers on appeal—were equally reasonable. (See People v. Jacobson

(1965) 63 Cal.2d 319, 327 [corpus delicti requires evidence which creates a reasonable 

inference that the harm could have been caused by a criminal agency, even in the 

presence of an equally plausible noncriminal explanation of the harm].) 

We have reviewed and find inapplicable the decisions appellant cites in support of 

his argument there was insufficient evidence he had constructive possession of the 30/30 

rifle. (See People v. Sifuentes (2011) 195 Cal.App.4th 1410, 1417-1418 [gun found 

under mattress in motel room where defendant and another gang member were present]; 

see also People v. Johnson (1984) 158 Cal.App.3d 850 854 [bottles of PCP found hidden 

in kitchen ceiling at house where defendant and others present].) These decisions do not 

address the issue here; i.e., whether the corpus delicti of the offense was sufficiently 

established by evidence other than the defendant’s statements. It might very well be that 

the evidence of constructive possession in this case would have been insufficient by itself 

to support a conviction for being a felon in possession of a firearm. However, as 

discussed above, the showing necessary to establish the corpus delicti of an offense need 

only be slight. The trial court correctly concluded that, although the evidence of 

constructive possession was not overwhelming, it was sufficient for purposes of 

establishing the corpus delicti of the offense of being a felon in possession of a firearm. 
10 

Because the corpus delicti of the crime was sufficiently established, the trial court 

could properly consider the evidence of constructive possession, plus appellant’s 

statements describing his recent use of the 30/30 rifle, to conclude there was substantial 

evidence he committed each element of the offense of being a felon in possession of a 

firearm. Accordingly, the court did not err in denying appellant’s motion for acquittal on 

count 5. 

II. Sufficient evidence supports appellant’s conviction on count 7

Appellant contends insufficient evidence supports his conviction on count 7 for 

falsifying a license plate in violation of section 4463, subdivision (a)(1) (§ 4463(a)(1) 

because there was no evidence the Kansas license plate he placed on the Dodge Caliber 

was “false” within the meaning of the statute. According to appellant, the language of 

section 4463(a)(1) does not prohibit “his act of placing a valid Kansas license plate on a 

California car.” Instead, he interprets the statute as requiring “some action” be “taken to 

change the license plate.” Thus, the issue before us turns on a question of statutory 

construction. 

Section 4463 provides, in pertinent part: 

 “(a) A person who, with intent to prejudice, damage, or defraud, 

commits any of the following acts is guilty of a felony and upon conviction 

thereof shall be punished by imprisonment pursuant to subdivision (h) of 

Section 1170 of the Penal Code for 16 months or two or three years, or by 

imprisonment in a county jail for not more than one year: 

“(1) Alters, forges, counterfeits, or falsifies a certificate of 

ownership, registration card, certificate, license, license plate, device issued 

pursuant to Section 4853, special plate, or permit provided for by this code 

or a comparable certificate of ownership, registration card, certificate, 

license, license plate, device comparable to that issued pursuant to Section 

4853, special plate, or permit provided for by a foreign jurisdiction, or 

alters, forges, counterfeits, or falsifies the document, device, or plate with 

intent to represent it as issued by the department, or alters, forges, 

counterfeits, or falsifies with fraudulent intent an endorsement of transfer 

on a certificate of ownership or other document evidencing ownership, or 

with fraudulent intent displays or causes or permits to be displayed or have 
11 

in his or her possession a blank, incomplete, canceled, suspended, revoked, 

altered, forged, counterfeit, or false certificate of ownership, registration 

card, certificate, license, license plate, device issued pursuant to Section 

4853, special plate, or permit.” (Italics added.) 

The elements of the crime, as they were presented in the jury instructions, are as 

follows: “1. The defendant displayed or caused or permitted to be displayed or have in 

his possession an altered, forged, counterfeit, or false license plate; [¶] AND 2. The 

defendant had the specific intent to defraud.” 

In interpreting a statute, if the language of the statute is not ambiguous, the plain 

meaning controls. (People v. Eddards (2008) 162 Cal.App.4th 712, 717.) We begin with 

the statutory language because it is generally the most reliable indication of legislative 

intent. (Lopez v. Superior Court (2010) 50 Cal.4th 1055, 1063.) If the statutory language 

is unambiguous, we presume the Legislature meant what it said. (People v. Hudson

(2006) 38 Cal.4th 1002, 1009.) Significance should be attributed to every word, phrase, 

sentence, and part of an act in pursuance of the legislative purpose. (People v. Black

(1982) 32 Cal.3d 1, 5.) A construction making some words surplusage is to be avoided. 

(Ibid.) 

 A primary dictionary definition of the word “false” is “adjusted or made so as to 

deceive.” (Webster’s 10th Collegiate Dict. (2001) p. 419.) In a similar vein, “false” is 

defined as “intended or tending to mislead.” (Ibid.) Thus, the plain meaning of “false” 

supports the interpretation of “false ... license plate” in section 4463(a)(1) to include the 

placement of a genuine license plate on a car to which it does not belong in order to 

deceive or mislead such as in this case, where the evidence showed appellant removed 

the California license plate and placed the Kansas license plate on the Dodge Caliber 

after he learned the rental car had been reported stolen, in order to drive the car while 

avoiding detection and restoration of the car to its rightful owner. 

Appellant’s contrary interpretation that the license plate must be “altered or 

counterfeited or at a minimum in some[]way invalidated” in order to be “false” would 
12 

render additional terms in the applicable provision of section 4463(a)(1) mere surplusage, 

as the language expressly prohibits the display of an “...altered, forged, counterfeit, or 

false ... license plate ....” (Italics added.) Without addressing this basic flaw in his 

interpretation, appellant invokes various rules of statutory construction and relies on 

language in other parts of the statute and other Vehicle Code sections to support his 

narrow interpretation of the term “false” in the provision of section 4463(a)(1) at issue. 

We find none of his arguments convincing. 

In our view, the fact the Legislature listed several ways the relevant provision in 

section 4463(a)(1) could be violated before concluding with the term “false” strongly 

suggests it intended for the term to be interpreted broadly, in accordance with its ordinary 

meaning, to include deceptive displays of a license plate like the one in this case. The 

term “false” in this context is not ambiguous and a broad interpretation of the term is 

consistent with the apparent aim of the statute to cover a wide array of fraudulent 

activities involving evidence of vehicle ownership, identification, and registration. 

The evidence in this case was sufficient to support appellant’s conviction for 

violating section 4463(a)(1). For reasons discussed above, appellant’s conduct of placing 

the Kansas license plate on the Dodge Caliber was conduct falling within section 

4463(a)(1)’s proscription against the display of a false license plate. Moreover, appellant 

does not dispute, and the evidence shows, he acted with the requisite intent to defraud. 

Accordingly, we reject his sufficiency of the evidence challenge to count 7. 

III. Appellant was properly prosecuted under section 4463(a)(1)

Next, appellant contends the prosecution improperly prosecuted him under section 

4463(a)(1) because a more specific misdemeanor statute, section 4462.5, applied to his 

conduct. 

Although not explicitly stated, appellant’s contention is essentially based on the 

Williamson rule. (In re Williamson (1954) 43 Cal.2d 652, 654.) The California Supreme 

Court recently explained the Williamson rule as follows: 
13 

“...Under the Williamson rule, if a general statute includes the same 

conduct as a special statute, the court infers that the Legislature intended 

that conduct to be prosecuted exclusively under the special statute. In 

effect, the special statute is interpreted as creating an exception to the 

general statute for conduct that otherwise could be prosecuted under either 

statute. (Ibid.) ‘The rule is not one of constitutional or statutory mandate, 

but serves as an aid to judicial interpretation when two statutes conflict.’ 

[Citation.] ‘The doctrine that a special statute precludes any prosecution 

under a general statute is a rule designed to ascertain and carry out a 

legislative intent. The fact that the Legislature has enacted a special statute 

covering much the same ground as a more general law is a powerful 

indication that the Legislature intended the specific provision alone to 

apply. Indeed, in most instances, an overlap of provisions is determinative 

of the issue of legislative intent and “requires us to give effect to the 

specific provision alone in the face of the dual applicability of the general 

provision ... and the special provision ....” [Citations.]’ [Citation.] 

“Absent some indication of legislative intent to the contrary, the 

Williamson rule applies when (1) ‘each element of the general statute 

corresponds to an element on the face of the special statute’ or (2) when ‘it 

appears from the statutory context that a violation of the special statute will 

necessarily or commonly result in a violation of the general statute.’ 

[Citation.] In its clearest application, the rule is triggered when a violation 

of a provision of the special statute would inevitably constitute a violation 

of the general statute.... 

“On the other hand, if the more general statute contains an element 

that is not contained in the special statute and that element would not 

commonly occur in the context of a violation of the special statute, we do 

not assume that the Legislature intended to preclude prosecution under the 

general statute. In such situations, because the general statute 

contemplates more culpable conduct, it is reasonable to infer that the 

Legislature intended to punish such conduct more severely....” (People v. 

Murphy (2011) 52 Cal.4th 81, 86-87, italics added.) 

 Invoking these principles, appellant argues his prosecution under section 

4463(a)(1) was precluded by section 4462.5, which provides: “Every person who 

commits a violation of subdivision (b) of Section 4462, with intent to avoid compliance 

with vehicle registration requirements ... is guilty of a misdemeanor.” Section 4462, 

subdivision (b) provides, in pertinent part: “No person shall display upon a vehicle .... 
14 

any ... license plate ... not issued for that vehicle or not otherwise lawfully used thereon 

under this code.” 

Appellant suggests that a violation of section 4462.5 will necessarily result in a 

violation of section 4463(a)(1) because they have overlapping mental elements. Thus, 

appellant asserts: “Section 4462.5 requires the intent [to] avoid compliance with the 

vehicle registration requirements, or in other words, to defraud the Department of Motor 

Vehicles, an element subsumed by section 4463’s general intent requirement.” 

Contrary to appellant’s assertion, the mental state required by section 4463(a)(1) 

does not subsume the mental state required by section 4462.5. Section 4463(a)(1) 

requires proof the defendant acted with the specific intent to defraud. As the jury 

instructions correctly advised, “[s]omeone intends to defraud if he intends to deceive 

another person either to cause a loss of money, or goods, or services or something else of 

value or to cause damage to, a legal, financial, or property right.” In contrast, section 

4462.5 only requires proof the defendant acted “with intent to avoid compliance with 

vehicle registration requirements.” This is not the same as requiring an intent to defraud. 

Someone may intend to avoid vehicle registration requirements without specifically 

intending to deceive or cause loss or damage to the Department of Motor Vehicles. 

Section 4463(a)(1) clearly contemplates more culpable conduct than section 4462.5.4 

Because a violation of section 4462.5 will not necessarily or commonly result in a 

violation of section 4463(a)(1), we conclude the Williamson rule did not apply to 

preclude appellant’s prosecution under the broader felony statute. 

                                                               

4 We note that, at the defense’s request, the trial court instructed the jury on section 4462.5 

as a lesser included offense of section 4463(a)(1). The propriety of this instruction is not at issue 

on appeal. However, in light of this instruction, the jury’s guilty verdict on count 7 indicates it 

found appellant, in displaying the Kansas license plate, acted with the more serious intent to 

defraud than the mere intent to avoid vehicle registration requirements. 
15 

IV. The supplemental instruction was not tantamount to a directed verdict 

During deliberations, the jury asked the trial court for “clarity of false license plate 

in Vehicle Code section 4463(a)(1).” The court responded to the jury’s request for 

clarification by instructing the jury orally and giving it the following written instruction: 

“For purposes of Vehicle Code Section 4463(a)(1), a ‘false license plate’ can be a license 

plate lawfully issued for one vehicle that is placed onto another vehicle with the intent to 

defraud another person.” Appellant contends the court’s definition of “false license 

plate” so closely tracked the prosecution’s evidence that it was tantamount to a directed 

verdict on that element of the offense and violated his due process and jury trial rights. 

A jury instruction relieving the prosecution of the burden of proving, beyond a 

reasonable doubt, each element of the offense violates the defendant’s rights under the 

federal and California constitutions. (People v. Flood (1998) 18 Cal.4th 470, 479-480 

(Flood).) Such an instruction constitutes error even when the evidence of that element is 

undisputed. (People v. Figueroa (1986) 41 Cal.3d 714, 724.) Thus, in a prosecution for 

evading a “peace officer,” it was error to instruct the jury that the person the defendant 

evaded was, in fact, a “peace officer.” Instead, the jury should have been instructed that 

police officers are considered “peace officers,” leaving it to the jury to determine, on the 

evidence, whether the person in question was a police officer. (Flood, supra, 18 Cal.4th 

at p. 482 & fn. 8.) Similarly, in a prosecution for the sale of unqualified “securities,” it 

was error to instruct the jury that the documents in question were “securities”; instead, 

the jury should have been instructed on the statutory definition of a “security,” so the jury 

could make the determination with respect to the documents at issue. (Figueroa, supra, 

41 Cal.3d at pp. 734, 740.) In contrast, in a prosecution for creating fraudulent 

“certificates” within the meaning of section 4463, the trial court did not err in instructing 

the jury that “smog certificates” constitute “certificates” within the meaning of the 

statute. In that case, the jury “was still permitted to determine the fact whether or not the 
16 

exhibits themselves were smog certificates.” (People v. Avanessian (1999) 76 

Cal.App.4th 635, 644-645.) 

Under this authority, it is apparent the trial court did not err in instructing the jury 

that, for purposes of section 4463(a)(1), a “false license plate” could be a license plate 

lawfully issued for one vehicle that is placed onto another vehicle with the intent to 

defraud. It would have been error for the court to instruct the jury that the Kansas license 

plate in question was, in fact, a “false license plate.” The court’s legally correct 

instruction properly left it to the jury to make this factual determination. The instruction 

did not relieve the prosecution of its burden of proof or otherwise violate appellant’s 

constitutional rights. 

V. The trial court properly admitted the cigarette butt evidence

Appellant moved in limine to exclude evidence of the cigarette butt the Whitlas 

found in their garage the day after the burglary investigation. His written motion 

asserted, in relevant part: 

“It is believed that seven (7) months earlier, the same Deputy, 

Deputy Mirelez who assisted Deputy Weaver in the collection of evidence 

on May 1, 2008, and investigated the crime scene, was called out to the 

Whitla Ranch for a burglary [of another residence on the property], where 

Rick Skavdahl, the ranch care taker was a witness who assisted Deputy 

Mirelez on September 1, 2007. After Deputy Mirelez investigated the 

scene and left, Janet Whitla found a cigarette butt at the point of entry into 

the residence. She then mailed that cigarette butt to Deputy Mirelez. 

Please refer to Exhibit B [Deputy Mirelez’s report of the September 1 

burglary] and note that both cigarette butts were located near the point of 

entry at isolated residences. The back doors were the point of entry. The 

investigation Deputies missed both cigarette butts. 

 “The sloppy investigation and negligence of Deputies in failing to 

find these items of evidence while conducting their investigations raised 

serious doubts that the cigarette butt was actually at the scene on the date of 

the alleged offense. 

 “The evidence, or the cigarette butt was not found on the date of the 

investigation and is not present in any of the photos taken on that date. The 
17 

prosecution cannot prove that no other persons had access to the garage in 

between those dates. 

“Therefore the defendant respectfully moves that the evidence of the 

cigarette butt, that defendant had tested and which does contain his DNA, 

be excluded.” (Bracketed insertion added.) 

At a pretrial hearing, the trial court summarily denied appellant’s motion to 

exclude the cigarette butt evidence. 

Although no reference was made to Evidence Code section 352 below, appellant 

now contends the trial court should have excluded the cigarette butt evidence under that 

code section because the evidence was unreliable and therefore lacked relevance and 

probative value. Appellant argues that “because the origin of the cigarette butt was so 

questionable, its probative value was weak” and the trial court erroneously “permitted the 

jury to draw the inference that appellant dropped the cigarette during the burglary.” 

Appellant has failed to demonstrate any error in the trial court’s admission of the 

cigarette butt evidence. First, none of the authorities he cites involves analogous legal 

issues. (See, e.g., People v. Creegan (1898) 121 Cal. 554, 559 [court must be satisfied a 

writing is genuine before admitting it for comparison with other writings whose 

authenticity is in dispute]; People v. Allen (2008) 44 Cal.4th 843, 864 [court retains 

discretion under Evidence Code section 352 to exclude unreliable hearsay].) 

Second, appellant’s argument that the cigarette butt evidence was unreliable or 

untrustworthy is based merely on his theory that the cigarette butts in both the prior and 

current burglaries were planted by Skavdahl to frame someone else for crimes he 

committed. However, the defense offered no evidence, only conjecture, connecting 

Skavdahl to the cigarette butt evidence in either case. 

Moreover, contrary to appellant’s assertions, the cigarette butt evidence was 

relevant and probative. “Evidence is relevant if it has ‘any tendency in reason to prove or 

disprove any disputed fact that is of consequence to the determination of the action.’ 

[Citations.]” (People v. Wallace (2008) 44 Cal.4th 1032, 1058.) In assessing relevance, 
18 

the test “‘“is whether the evidence tends ‘“logically, naturally, and by reasonable 

inference” to establish material facts such as identity, intent, or motive.’”’ [Citation.]” 

(Ibid.) 

Here, the cigarette butt was clearly relevant to the issue of identity and was highly 

probative because it contained appellant’s DNA and was found in the victims’ garage 

after the burglary. As appellant recognizes, whether evidence is reliable in the sense of 

being credible generally goes to its weight and not its relevance. (People v. Torrez

(1995) 31 Cal.App.4th 1084, 1092.) Thus, the question of whether the cigarette butt was 

credible evidence that appellant was present in the victims’ garage at the time of the 

burglary was a question properly left for the jury’s determination. 

Finally, because appellant has not shown the trial court erred in admitting the 

cigarette butt evidence, we reject his claims that its erroneous admission prejudiced him 

and violated his federal right to due process. 

VI. The trial court properly excluded proffered defense evidence

In his next three contentions on appeal, appellant contends the trial court erred in 

excluding certain evidence offered by the defense in support of a theory of third party 

culpability, and that the error was of constitutional dimension. 

1. Applicable legal principles 

States “‘have broad latitude under the Constitution to establish rules excluding 

evidence from criminal trials.’ [Citations.] This latitude, however, has limits. ‘Whether 

rooted directly in the Due Process Clause of the Fourteenth Amendment or in the 

Compulsory Process or Confrontation Clauses of the Sixth Amendment, the Constitution 

guarantees criminal defendants “a meaningful opportunity to present a complete 

defense.”’ [Citations.] This right is abridged by evidence rules that ‘infring[e] upon a 

weighty interest of the accused’ and are ‘“arbitrary” or “disproportionate to the purposes 

they are designed to serve.”’ [Citations.]” (Holmes v. South Carolina (2006) 547 U.S. 

319, 324-325.) “While the Constitution thus prohibits the exclusion of defense evidence 
19 

under rules that serve no legitimate purpose or that are disproportionate to the ends that 

they are asserted to promote, well-established rules of evidence permit trial judges to 

exclude evidence if its probative value is outweighed by certain other factors such as 

unfair prejudice, confusion of the issues, or potential to mislead the jury.” (Id. at p. 326.) 

In California, third party culpability evidence is admissible if it is “capable of 

raising a reasonable doubt of defendant’s guilt.” (People v. Hall (1986) 41 Cal.3d 826, 

833 (Hall).) “This does not mean, however, that no reasonable limits apply. Evidence 

that another person had ‘motive or opportunity’ to commit the charged crime, or had 

some ‘remote’ connection to the victim or crime scene, is not sufficient to raise the 

requisite reasonable doubt. [Citation.] Under Hall and its progeny, third party 

culpability evidence is relevant and admissible only if it succeeds in ‘linking the third 

person to the actual perpetration of the crime.’” (People v. DePriest (2007) 42 Cal.4th 1, 

43 (DePriest).) 

Courts “should simply treat third-party culpability evidence like any other 

evidence: if relevant it is admissible ([Evid. Code,] § 350) unless its probative value is 

substantially outweighed by the risk of undue delay, prejudice, or confusion ([Evid. 

Code,] § 352).” (Hall, supra, 41 Cal.3d at p. 834.) Under Evidence Code section 352, 

“[t]he court in its discretion may exclude evidence if its probative value is substantially 

outweighed by the probability that its admission will (a) necessitate undue consumption 

of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of 

misleading the jury.” The trial court enjoys broad discretion in determining whether to 

admit evidence under Evidence Code section 352 and its exercise of discretion must not 

be disturbed on appeal unless arbitrary, capricious or patently absurd and resulting in a 

manifest miscarriage of justice. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) 

2. The trial court properly excluded Arteaga’s hearsay statements 

During a pretrial hearing, defense counsel indicated he planned to introduce 

statements made by Humberto Arteaga (also known as “Cheeto”) on the day of the 
20 

burglary to the effect he wanted to borrow appellant’s truck. Arteaga was apparently 

unavailable to testify because he had been deported. The prosecutor stated he would 

object to the introduction of Arteaga’s statements on hearsay grounds. Defense counsel 

responded, “That’s present sense state of mind exception, ‘Can I borrow your truck.’” 

The trial court did not rule on the admissibility of Arteaga’s statements at that time but 

indicated there could be an “[Evidence Code, section] 352 problem.” 

During the prosecution’s case, Janet and Bill Whitla both testified that they had 

met appellant prior to the burglary when Turner brought him to their house seeking work. 

Bill testified he did not hire appellant because “anybody going to work for me, they can’t 

have a criminal record.” On cross-examination, Bill testified he was unaware Arteaga, 

who had worked for him in the past hauling scrap, had a criminal record. 

The issue of Arteaga’s hearsay statements arose again during Turner’s testimony. 

When asked if anybody else, besides Skavdahl, came to her house the morning of the 

burglary, Turner testified, “This guy named Cheeto that had been scrapping at the 

Whitlas came by and wanted to borrow [appellant’s] flatbed.” The trial court interjected: 

“Wait just a minute. It is hearsay. If the defendant wants to take the stand and testify 

about the colloquy he had with Cheeto, he can do that. Otherwise, it’s hearsay.” Defense 

counsel asserted Cheeto’s request to borrow the truck went to “[s]tate of mind.” The 

court ruled it would not permit the line of inquiry and granted the prosecutor’s motion to 

strike Turner’s testimony. 

Appellant contends the trial court erred by not admitting Arteaga’s statements 

under the state of mind exception to the hearsay rule (Evid. Code, § 1250). Evidence 

Code section 1250 provides, in relevant part, that “a statement of the declarant’s then 

existing state of mind, emotion, or physical sensation (including a statement of intent, 

plan, motive, design, mental feeling, pain, or bodily health) is not made inadmissible by 

the hearsay rule” when offered (1) to prove the declarant’s state of mind, emotion, or 

physical sensation at that time or at any other time when it is itself an issue in the action, 
21 

or (2) to prove or explain acts or conduct of the declarant. (Evid. Code, § 1250, subd. 

(a)(1), (2).) 

Evidence Code section 1250 codifies the California Supreme Court’s decision in 

People v. Alcalde (1944) 24 Cal.2d 177 (Alcalde), which addressed the admissibility of 

what the high court referred to as “declarations of intent to do an act in the future.” 

(Alcalde, supra, 24 Cal.2d at p. 187.) Specifically, in Alcalde, the Supreme Court 

addressed the admissibility of a decedent’s statement that she was planning to go out with 

a man named Frank, the defendant’s nickname, on the night she was killed. (Alcalde, 

supra, 24 Cal.2d at pp. 187-188.) The high court held that the elements essential to 

admissibility of the decedent’s statement were that (1) “the declaration must tend to 

prove the declarant’s intention at the time it was made,” (2) “it must have been made 

under circumstances which naturally give verity to the utterance,” and (3) “it must be 

relevant to an issue in the case.” (Id. at p. 187.) Applying this three-prong test, the 

Alcalde court concluded that the decedent’s statement was admissible because “it was a 

natural utterance made under circumstances which could create no suspicion of untruth in 

the statement of her intent” (id. at pp. 187-188), and “[u]nquestionably the deceased’s 

statement of her intent and the logical inference to be drawn therefrom, namely, that she 

was with the defendant that night, were relevant to the issue of the guilt of the 

defendant.” (Id. at p. 188; see also People v. Majors (1998) 18 Cal.4th 385, 404-405 

(Majors) [witness statement that victim said he was going to conduct a drug deal with 

people from Arizona on the night he was killed admissible as declaration of intent to do 

future act].) 

Relying on Alcalde and Majors, appellant argues that Turner’s testimony that 

Arteaga wanted to borrow appellant’s truck was admissible because “the jury could infer 

from Arteaga’s declared intent to use the truck that he later drove the truck to commit the 

burglary.” The Supreme Court’s decisions are not analogous to this case. Unlike the 

victims’ statements in Alcalde and Major, Arteaga’s proffered statements said nothing 
22 

about what he was planning to do at the time the crime was committed. The most we can 

infer about his mental state is that he desired to borrow appellant’s truck at the time the 

statements were made; i.e., in the morning, approximately four hours prior to the 

burglary. (See People v. Whitt (1990) 51 Cal.3d 620, 642-643 [“The exception is limited 

to out-of-court statements describing a relevant mental state being experienced by the 

declarant at the time the statements were made.”].) Because Arteaga’s statements did not 

constitute a declaration of an intent to do an act in the future, and his state of mind the 

morning of the burglary was not shown to be relevant to any of the issues in the action, 

Arteaga’s hearsay statements were not made admissible by Evidence Code section 1250 

or the Supreme Court’s reasoning in Alcalde and Major. 

Appellant nonetheless suggests it was logical to infer from Arteaga’s statements 

requesting to borrow appellant’s truck that Arteaga actually drove the truck at the time of 

the burglary because “[a]s in Majors, there were corroborating circumstances point[ing] 

to Arteaga’s guilt.” The so-called corroborating circumstances appellant cites are these: 

(1) Arteaga’s presence at Turner’s residence on the morning of the burglary; (2) 

Arteaga’s familiarity with the Whitlas’ property; (3) Turner’s testimony that she and 

appellant were in bed when she heard appellant’s truck drive up the hill; and (4) 

testimony by Bill Whitla that Arteaga never returned power equipment he loaned to him. 

However, none of the forgoing circumstances directly implicated Arteaga in the 

instant burglary or led to a logical inference that Arteaga, in appellant’s words, “took [the 

truck] when appellant refused to let him borrow it.” Moreover, because the proffered 

evidence did not link Arteaga “to the actual perpetration of the crime” in this case 

(DePriest, supra, 42 Cal.4th at p. 43), its exclusion did not deny appellant his 

constitutional right to present a third party culpability defense. For all these reasons, we 

reject appellant’s claim that the court erred in excluding Turner’s testimony regarding 

Arteaga’s hearsay statements. 
23 

3. The trial court properly excluded evidence of prior burglary 

Appellant moved in limine to admit evidence that an unoccupied house located on 

the Whitlas’ ranch was burglarized in September 2007, when appellant was incarcerated. 

During the hearing on the motion, defense counsel argued there were “striking 

similarities” between the prior burglary and the instant burglary. Defense counsel noted 

the prior burglary involved a “similar point of entry” and “[t]here was a similarity with 

the cigarette butt that was not found on the date of the investigation by the same officers 

involved in this investigation and was found, in fact, a day later.” 

 The parties further debated the issue of the admissibility of evidence of the prior 

burglary, in relevant part, as follows: 

 “THE COURT: Let me ask a question, [defense counsel]. Is there 

something unique about the method of entry on these two burglaries 

separated by some 10 months or so in time, modus operandi or something 

that is unique or distinctive or is it simply just a couple of places where 

entry was forced and stuff was taken? 

 “[DEFENSE COUNSEL]: It’s my understanding, such as the 

reports that I have read, that the entry was through a back door with the 

window pried open. That, in fact, the day following, not the day of the 

investigation was done, but the day following, we have another cigarette 

butt that appears near the point of entry. 

 “THE COURT: In which case? 

 “[DEFENSE COUNSEL]: In both of them. 

 “THE COURT: Okay. 

 “[DEFENSE COUNSEL]: In both of them. It’s also pertinent to me 

because Mrs. Whitla, who—I believe it was her mother’s residence; am I 

correct? 

 “THE COURT: Which one? 

 “[DEFENSE COUNSEL]: The first one— 

 “THE COURT: Okay. 
24 

 “[DEFENSE COUNSEL] —was her mother’s residence, but her 

mother is now deceased, so the house was not occupied at the time, but all 

of the property was still there. So, it was broken into, personal property 

was taken.... [¶] ... [¶] 

 “[THE PROSECUTOR]: I just wanted to ... point out to the Court 

that this thing about the cigarette butt, I find that to be completely irrelevant 

in this sense, the cigarette butt in our case on the burglary on May 1st, 

2008, Department of Justice tested that cigarette butt. It came back with 

the defendant’s DNA profile. So the fact that there was another cigarette 

butt in this prior burglary, 2007, again the People find it completely 

irrelevant. 

 “[DEFENSE COUNSEL]: It’s not irrelevant at all if Rick Skavdahl 

is planting these cigarette butts trying to put this on somebody else. It’s 

very relevant. Because the fact of the matter is after this offense, the 

Sheriff’s office transported Mr. Skavdahl back to his place on the Whitla 

property where [appellant] had visited with him and had smoked cigarettes 

and left them outside of his place. And so now, we have, magically, the 

same guy around. 

 “And incidentally, [appellant] is in jail when the first offense occurs. 

Okay. He’s still in prison. He’s nowhere around to even possibly be 

involved in that, but the common denominator— [¶] ... [¶] So that’s—it’s 

our argument that the cigarette butts are plants, possibly planted there. 

 “THE COURT: Other than speculation and conjecture, is there any 

other evidence to indicate that? 

 “A lot of people smoke cigarettes.... [¶] ... [¶] 

 “[DEFENSE COUNSEL]: Well, it would be interesting to know 

why they didn’t DNA test the other one. 

 “THE COURT: Well, that’s a different burglary, a different 

situation. It was not an occupied dwelling. [¶] ... [¶] 

 “[THE PROSECUTOR]: ...[A]s far as I know, the Sheriff’s 

investigation was—they never sent it to my office for prosecution. [¶] ... 

[¶] 

 “[DEFENSE COUNSEL]: Let me add a word to that. In that case, 

the Sheriff’s investigation was inept and problematic as it is in this case, 

and that’s what we have a right to show. [¶] ... [¶] 
25 

 “THE COURT: Any response on your part other than what you 

have offered so far, [defense counsel]? 

 “[DEFENSE COUNSEL]: No, other than, I think, the reports that I 

have seen indicate that it was Mrs. Whitla that found the cigarette the day 

after the first one as well. 

 “THE COURT: Do you have anything to suggest that Mrs. Whitla 

has any motivation to frame your client? 

 “[DEFENSE COUNSEL]: I don’t think that Mrs. Whitla is trying to 

frame my client, I think somebody else is. And somebody else was trying 

to implicate somebody else in that case who wasn’t involved. 

 “THE COURT: And who do you suspect that might be? 

 “[DEFENSE COUNSEL]: I think, your Honor— 

 “THE COURT: Mr. Skavdahl? 

 “[DEFENSE COUNSEL]: —that Mr. Skavdahl is involved in some 

way in both of these offenses. 

 “THE COURT: People have any evidence or information that 

suggests that that may be the case or not, Skavdahl may have been 

complicit in either of these events? [¶] ... [¶] 

 [THE PROSECUTOR]: I mean, I guess anything is possible. I 

mean, he’s the caretaker on the property, you know, so to say that if the 

Court is asking me is it impossible, no, so definitely is possible. 

 “THE COURT: Okay. If I understand the posture of your case, you 

have Mrs. Whitla identifying the defendant leaving the property on the date 

of the burglary, correct? 

 “[THE PROSECUTOR]: That’s correct. 

 “THE COURT: And we don’t have any representation by the 

defense that Mrs. Whitla is somehow personally conspiring to frame Mr. 

Hughes or there’s no interpretation of the evidence that suggests she is 

other than a citizen witness that’s relating what she observes. [¶] ... [¶] 

 “[DEFENSE COUNSEL]: I’m certainly not indicating that we think 

Mrs. Whitla burglarized her own house or her mother’s house. Okay. 

 “THE COURT: Right. 
26 

 “[DEFENSE COUNSEL]: But I think if the possibility exists that 

somebody else is involved and would have some evidence of that that is 

credible, that is probative under the Code, we should be entitled to put it in, 

okay, the jury should hear it. 

 “THE COURT: The issue will stand submitted. And I am going to 

conclude on the [Evidence Code section] 352, with all due respect to the 

defense, that I’m not sold that this is not a case where the—going into this 

with several witnesses and trying to show the burglary some eight or nine 

months before on the property that’s separated by a half mile and with a not 

uncommon form of entry, a forced back door or through a window. And 

we both heard a number—all of us have heard a number of burglary cases. 

That’s not an uncommon phenomenon, back doors as opposed to front 

because they’re out of view of the public. There’s nothing unique about the 

circumstances of the case. There is nothing more than conjecture that Mr. 

Skavdahl or anyone else has anything else to do with it. [¶] ... [¶] I’m 

going to conclude under [Evidence Code section] 352 that it would involve 

undue consumption of time and it stands the chance of being unduly 

misleading to the jury.” 

Appellant contends the trial court abused its discretion and violated his right to 

present a complete defense by excluding the evidence of the prior burglary. Appellant 

argues the evidence was admissible under Evidence Code section 1101, subdivision (b), 

to show “Skavdahl’s motive and common plan to commit the current burglary.” 

Appellant asserts he met his burden of showing the evidence was admissible by 

demonstrating the following: 

“Here the burglaries were only a few months apart on the same victim’s 

property when Skavdahl knew the residents would be absent. The method 

of entry was the same in both burglaries—through a back door with the 

windows pried open. In both cases, a partially smoked cigarette appeared 

the day after the burglary. Appellant theorized that Skavdahl planted the 

cigarettes in order to deflect suspicion from himself. Thus, the burglaries 

were substantially similar and evidenced a common scheme.” 

Evidence Code section 1101 provides, in relevant part: “(a) Except as provided in 

this section ... evidence of a person’s character or a trait of his or her character (whether 

in the form of an opinion, evidence of reputation, or evidence of specific instances of his 

or her conduct) is inadmissible when offered to prove his or her conduct on a specified 
27 

occasion. [¶] (b) Nothing in this section prohibits the admission of evidence that a 

person committed a crime, civil wrong, or other act when relevant to prove some fact 

(such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of 

mistake or accident ....).” 

“‘To be admissible to demonstrate a distinctive modus operandi, the evidence 

must disclose common marks or identifiers, that, considered singly or in combination, 

support a strong inference that the defendant committed both crimes. [Citations.]’ 

[Citation.]” (People v. Carter (2005) 36 Cal.4th 1114, 1154-1155.) “In order to be 

relevant as a common design or plan, ‘evidence of uncharged misconduct must 

demonstrate “not merely a similarity in the results, but such a concurrence of common 

features that the various acts are naturally to be explained as caused by a general plan of 

which they are the individual manifestations.”’ [Citation.]” (People v. Catlin (2001) 26 

Cal.4th 81, 111.) “Reaching a conclusion that offenses are signature crimes requires a 

comparison of the degree of distinctiveness of shared marks with the common or 

minimally distinctive aspects of each crime. [Citations.]” (People v. Bean (1988) 46 

Cal.3d 919, 937.) 

We agree with respondent that there were no unique factors in the two burglaries 

sufficient to support a strong inference they were committed by the same person in 

accordance with a common scheme. Appellant essentially offered only two points of 

similarity to connect the prior and instant burglaries; i.e., the method of entry and the 

discovery of cigarette butts the following day. However, as the trial court observed, it is 

not uncommon, in the context of a residential burglary, for a burglar to enter a house by 

forcing open a back door or window. Nor is the presence of a cigarette butt a particularly 

distinctive feature as many people smoke cigarettes. As already discussed, appellant 

offered no evidence, only conjecture, supporting his theory that Skavdahl planted the 

cigarette butts to frame other people for his crimes. Because the first burglary was not 

shown to share sufficient common features with the instant burglary, the court did not err 
28 

in ruling evidence of the first burglary was not admissible under Evidence Code section 

1101, subdivision (b). 

We also reject appellant’s claim the trial court’s ruling violated his right to present 

a complete defense. The cases appellant cites to support his claim are inapposite. (See 

People v. Reeder (1978) 82 Cal.App.3d 543, 449-554 [erroneous exclusion of 

codefendant’s prior acts of misconduct offered to show defendant disliked codefendant 

too much to engage in narcotics dealings with him]; People v. Taylor (1980) 112 

Cal.App.3d 348, 362-366 [erroneous exclusion of victim’s suicide declarations].) Unlike 

in the cases appellant cites, the court’s exercise of discretion under Evidence Code 

section 352 in this case did not result in the exclusion of evidence of significant probative 

value. 

4. The trial court properly excluded Skavdahl’s hearsay statements 

 Skavdahl, who was subpoenaed by the defense, invoked his Fifth Amendment 

privilege not to testify. Consequently, the defense sought to introduce, through the 

testimony of three jail inmates, statements Skavdahl purportedly made in jail following 

his arrest on an unrelated weapons charge in June 2008. The defense argued Skavdahl’s 

statements were admissible as statements against his penal interest under Evidence Code 

section 1230. The court granted the defense’s motion as to one of the inmates, Adam 

Drennen, and denied it as to the other two, Dari Russel and Luis Vasquez. The defense 

ultimately decided not to call Drennen “as a tactical matter.”5 Therefore, only the 

proffered testimony of Russel and Vasquez is at issue in this appeal. 

                                                               

5 Upon further inquiry by the trial court, defense counsel stated: “It’s not that I don’t 

believe his testimony, I just feel like his testimony, without the buttressing testimony of the other 

two witnesses that the Court has excluded, would lack the credibility and the corroboration that 

would need to be able to withstand any rebuttal witnesses that might testify about statements 

made to them.” Defense counsel added that Drennen “had apparently been drinking some” and 

“wasn’t dressed appropriate to come to court either.” 
29 

 The proffered testimony of Russel was that he heard Skavdahl say “he worked on 

a cattle ranch somewhere in Hornitos” and “how his boss got ripped off and how some 

guy that didn’t do it was getting blamed and how he was worried also that he, himself, 

might get blamed, for some reason.” Vasquez’s proffered testimony was that, when the 

local newspaper came into the jail with a story about appellant’s arrest, he heard 

Skavdahl say “they were going after the wrong guy.” 

 Appellant contends the trial court erroneously concluded that the statements 

overheard by Russel and Vasquez were inadmissible under Evidence Code section 1230, 

as statements against Skavdahl’s penal interest. According to appellant, “Skavdahl’s 

statement that the police were chasing the wrong guy for the May 1, 2008 [burglary] 

could potentially subject him to criminal liability because he told the police that he didn’t 

know who did it but thought appellant might be involved.” 

 Evidence Code Section 1230 codifies an exception to the hearsay rule for a 

declaration against interest. A hearsay statement qualifies as a declaration against penal 

interest if it could subject the declarant to the risk of criminal liability to such an extent 

that a reasonable person in the same position would not have made the statement unless 

he or she believed it to be true. (Evid. Code, § 1230; People v. Brown (2003) 31 Cal.4th 

518, 536; People v. Duarte (2000) 24 Cal.4th 603, 610.) The proponent of such evidence 

must show that the declarant is unavailable, that the declaration was against the 

declarant’s penal interest when made, and the declaration was sufficiently reliable to 

warrant admission despite its hearsay character. (People v. Duarte, supra, 24 Cal.4th at 

pp. 610-611.) 

 “[T]o satisfy the requirements of section 1230 of the Evidence Code and the 

confrontation clause of the United States Constitution, a declaration against penal interest 

must be ‘distinctly’ against the declarant’s penal interest [citation] and must be clothed 

with indicia of reliability.” (People v. Shipe (1975) 49 Cal.App.3d 343, 354, italics 

added.) “In the absence of any legislative declaration to the contrary,” this hearsay 
30 

exception is “inapplicable to evidence of any statement or portion of a statement not itself 

specifically disserving to the interests of the declarant.” (People v. Leach (1975) 15 

Cal.3d 419, 441, fn. omitted.) 

 Here, the statements attributed to Skavdahl were not specifically disserving of his 

penal interest. He merely expressed an opinion that the police had the wrong person for 

the burglary without providing any details explaining why this was his opinion. He did 

not implicate himself in the burglary or in any other criminal activity. Appellant’s theory 

that Skavdahl’s statements could potentially subject him to criminal liability because he 

made contradictory statements to the police does not satisfy the requirements of Evidence 

Code section 1230. The statements were not distinctly against Skavdahl’s penal interest. 

Therefore, the court did not err in finding inapplicable the hearsay exception for 

statements against penal interest. Nor did the court’s ruling violate appellant’s right to 

present a third party culpability defense the statements did not link Skavdahl to the actual 

perpetration of the burglary. (See DePriest, supra, 42 Cal.4th at p. 43.) 

VII. The denial of appellant’s new trial motion was not an abuse of discretion 

Appellant contends the trial court abused its discretion when it denied his new trial 

motion arguing the court’s adverse evidentiary rulings prejudiced appellant’s ability to 

present a third party culpability defense. For reasons already discussed, we reject 

appellant’s contention. Contrary to his assertions, the proffered evidence of the prior 

burglary and the hearsay statements of Arteaga and Skavdahl failed to link either man to 

the actual perpetration of the burglary in this case. Therefore, the exclusion of this 

evidence did not deny appellant his right to present a defense or irreparably damage his 

chances of receiving a fair trial as he contends. 

VIII. The sentence imposed for counts 2, 3, and 4 must be stayed under Penal Code 

section 654 

Appellant contends, and respondent concedes, that his sentence for count 2 (felon 

in possession of firearm) and count 3 (felon in possession of ammunition) must be stayed 
31 

under Penal Code section 654 because his possession of Bill Whitla’s Colt pistol and the 

ammunition with which it was loaded were an indivisible part of the burglary (count 1). 

We accept respondent’s concession as properly made. (People v. Bradford (1976) 17 

Cal.3d 8, 22 [Penal Code section 654 applies where defendant’s possession of firearm not 

antecedent and separate from primary offense].) Likewise, appellant contends, and 

respondent properly concedes, that his sentence for count 4 (receiving stolen property) 

must be stayed under Penal Code section 654 because his receipt of stolen property was 

an indivisible part of the burglary. (People v. Allen (1999) 21 Cal.4th 846, 866 [Penal 

Code section 654 applies where stolen property defendant received was property 

defendant stole in burglary].) 

DISPOSITION

 The sentence imposed for counts 2, 3, and 4 is ordered to be stayed pursuant to 

Penal Code section 654. In all other respects, the judgment is affirmed. The superior 

court is ordered to prepare an amended abstract of judgment and to transmit a copy of it 

to the appropriate authorities. 

 _____________________ 

HILL, P. J. 

WE CONCUR: 

 _____________________ 

LEVY, J. 

 _____________________ 

CORNELL, J.