Budget Auto Sales

					Filed 9/28/10          P. v. Sanders CA3
                                            NOT TO BE PUBLISHED

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 This opinion has not been certified for publication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

                                       THIRD APPELLATE DISTRICT

                                                      (Shasta)

                                                          ----

THE PEOPLE,                                                                            C063392

         Plaintiff and Respondent,                                     (Super. Ct. No. 09F4708)

         v.

KEMAYU KEDEEM SANDERS,

         Defendant and Appellant.




         A jury found defendant Kemayu Kedeem Sanders guilty of

unlawful driving or taking of a vehicle and evading a police

officer with reckless disregard for public safety.                                                 The court

found defendant served a prior prison term and had a prior

conviction for vehicle theft.

         Sentenced to four years eight months in state prison,

defendant appeals.                    He contends the trial court erred by

admitting evidence of his 2007 conviction, and failing to

instruct the jury that the flight instruction (CALCRIM No. 372)

did not apply to the charge of reckless evasion of a peace

officer.           We disagree.               We shall, however, modify defendant‟s
presentence custody credits and otherwise affirm the judgment.



                                                             1
               FACTUAL AND PROCEDURAL BACKGROUND
    On June 9, 2009, Matthew Chaffin, a sales and finance

manager at Budget Auto Sales in Redding, noticed one of his

vehicles, a 2006 gunmetal gray Ford F-350 pickup truck, being

driven off the lot.   Once he determined the truck was not being

driven by an employee, he called the police and reported it

stolen.

    Approximately two hours later, Redding Police Officer

Michael Dimatteo noticed a vehicle matching the stolen truck‟s

description stopped at an intersection.    Dimatteo saw two

African-American males in the truck.    The driver had long black

curly hair in a ponytail and the passenger wore a black rag over

his hair.   Dimatteo pulled in behind the stolen truck and, when

a second unit arrived to assist, activated his overhead lights

to initiate a traffic stop.   Instead of stopping, the truck

accelerated.   Dimatteo activated his siren and a chase ensued,

during which defendant drove the stolen truck in an unsafe

manner, reaching speeds of 80 to 100 miles per hour.

    The truck eventually crossed a large dirt berm that was

several feet high.    Officer Dimatteo was unable to follow in his

patrol car; however, California Highway Patrol Officer Shawn

Bainbridge and his partner took up the chase by helicopter.

Bainbridge soon found the truck, empty and idling with the

driver‟s side door open.   Several minutes later, Bainbridge

observed defendant and his brother walking approximately 600 to
700 feet from the truck.   Bainbridge advised backup officers on

the ground of the suspects‟ location.    Redding Police Officer

                                  2
Duane Morrison and his partner located the men and ordered them

to the ground at gunpoint.   Defendant, looking nervous and

“sweating profusely,” initially resisted the officers‟ orders,

but eventually complied.   Officer Dimatteo arrived at the scene

and identified defendant as the driver of the stolen truck.

    Defendant was charged with unlawful driving or taking of a

vehicle (Veh. Code, § 10851, subd. (a)--count 1), receiving a

stolen motor vehicle (Pen. Code, § 496d, subd. (a)--count 2),

and evading a police officer with reckless disregard for public

safety (Veh. Code, § 2800.2--count 3).   The information also

alleged a prior prison term (Pen. Code, § 667.5, subd. (b)) and

a prior, 2007 auto theft conviction (Pen. Code, § 666.5, subd.

(a)).

    At trial, Corporal Joel Dean of the Shasta County Marshal‟s

Office testified regarding an incident on June 27, 2007, during

which Dean attempted to conduct a traffic stop of an

unregistered vehicle driven by defendant.   When Dean activated
his overhead lights, defendant accelerated away from him.     When

Dean activated his siren, defendant refused to yield, leading

Dean on a chase and reaching speeds of 90 miles per hour.

Defendant eventually hit another vehicle and fled on foot.     He

was apprehended shortly thereafter in some nearby brush.    Dean

later learned the vehicle defendant was driving had been stolen

from Crown Motors in Redding.

    The parties stipulated that, as a result of the June 27,
2007 incident, defendant was convicted of evading an officer


                                 3
with willful disregard in violation of Vehicle Code section

2800.2, and unlawful taking or driving a vehicle in violation of

Vehicle Code section 10851, subdivision (a).

Defense
      Defendant‟s girlfriend and several of his family members

testified on his behalf, each claiming defendant was on his way

to defendant‟s aunt‟s house when he was arrested.

      Barbara Phillips, a fingerprint analyst for the California

Department of Justice, testified that fingerprints and a palm

print recovered from a bottle found in the stolen truck did not

match those of defendant.   Phillips noted that it was possible

for someone to touch an item and not leave a print.

      The jury found defendant guilty of counts 1 and 3, and not

guilty of count 2.   In a bifurcated court trial, the court found

the prior prison term and prior auto theft conviction

allegations true.

      The court denied probation and sentenced defendant to the
middle term of two years for count 1, plus a consecutive one-

year term for each of the two enhancements and a consecutive

eight-month term (one-third the middle term) for count 3, for an

aggregate sentence of four years eight months in state prison.

The court awarded defendant 137 days of actual custody plus 68

days of conduct credit for a total of 205 days of presentence

custody credit.

      Defendant filed a timely notice of appeal.



                                 4
                               DISCUSSION

                       I. Evidence of 2007 Conviction
    Defendant contends the trial court abused its discretion by

admitting evidence of his prior bad acts (i.e., his 2007

conviction for unlawfully taking a vehicle and evading a police

officer) to prove intent and motive, arguing the proffered

evidence is cumulative and suggests his propensity to engage in

the current offense.   We disagree.

    Prior to trial, the prosecution sought to introduce

evidence of defendant‟s prior convictions--one in June 2007 and

one in September 2007--pursuant to Evidence Code section 1101,

subdivision (b).   Specifically, the June 2007 proffer was that a

patrol officer observed defendant driving a vehicle with an

expired registration and tried to initiate a traffic stop.

Defendant accelerated and led the officer on a high-speed chase

which ended with a collision.      Defendant fled on foot but was

later caught hiding in some shrubbery.          It was later determined

the vehicle had been stolen from Crown Motors, an auto dealer.
The September 2007 proffer was that an officer observed

defendant driving a vehicle and knew from prior contact that

defendant did not have a valid license.          The officer followed

the vehicle and initiated a traffic stop, but defendant quickly

turned into an apartment complex parking lot and entered a

parking stall.   When the officer reached the vehicle, defendant

was already out of the car and trying to get into his apartment.
Defendant denied driving the car and told the officer it

belonged to a friend who lent it to him.          The next day,

                                     5
defendant and his brother showed up at the probation office in a

different vehicle.   It was later determined that both vehicles

had been stolen from Crown Motors.       Defendant was convicted by

plea to two counts of violating Vehicle Code section 10851.

    At the hearing on the prosecution‟s motion in limine, the

prosecution argued both incidents were relevant to show motive,

intent, plan, identity, and absence of mistake, noting that at

least one of the priors involved defendant driving a car stolen

from an auto sales lot, evading police in the stolen vehicle and

then on foot, and then denying having driven the car.       The

prosecution argued that the prior incidents were particularly

relevant to show defendant‟s motive and intent to permanently or

temporarily deprive someone of the stolen vehicle and to flee

from or evade the officers.

    Defendant objected to introduction of the prior crimes to

show motive or intent, asserting the evidence was not strong

enough to show a similar motive.       With respect to intent,
defendant conceded there might be a “slightly stronger argument

for” the prior that involved evading a police officer, but

argued that prior conduct is generally only introduced to show

intent when, unlike here, “there‟s little doubt that a defendant

committed the acts.”

    The trial court found the June 2007 incident was admissible

under Evidence Code section 1101, subdivision (b), as it was

“the most similar and the most probative on the issues of
motive, intent, common plan, absence of mistake, knowledge, and


                                   6
identity.”   The court found the evidence to be highly probative

as to motive and state of knowledge, particularly as it related

to the evading charge, and noted that defendant‟s plea to the

prior incident showed he “certainly had knowledge based on the

prior incident of his obligation to stop when he sees [a]

distinctively marked vehicle giving him lawful commands to

stop.”   The court also found the prior evidence demonstrated a

“distinctive and common plan” and a motive “to have the use of

someone else‟s motor vehicle either temporarily or permanently.”

The court analyzed the prior incident under Evidence Code

section 352 and found the probative value of that evidence

substantially outweighed the probability of undue prejudice to

defendant.

     Finding admission of a second Vehicle Code section 10851

violation would “increas[e] the likelihood that the jury would

use it for propensity evidence and not for the proper limited

[Evidence Code section] 1101[, subdivision] (b) evidence and

also because the distinctive acts of fleeing by a vehicle and
then on foot from law enforcement officers was not involved,”

the court denied the prosecution‟s request to admit evidence of

the September 2007 incident under Evidence Code section 1101,

subdivision (b).1   As we shall explain, there was no reversible

error.




1  The court did, however, admit the June 2007 evidence (vehicle
theft from Crown Motors) for impeachment purposes.


                                 7
    “„“Evidence of the defendant‟s commission of a crime other

than one for which the defendant is then being tried is not

admissible to show bad character or predisposition to

criminality but it may be admitted to prove some material fact

at issue, such as motive or identity.     (Evid. Code, § 1101.)

Because evidence of other crimes may be highly inflammatory, its

admissibility should be scrutinized with great care.

[Citation.]”   [Citation.]   In cases in which the prosecution

seeks to prove the defendant‟s identity as the perpetrator of

the charged offense by evidence he had committed uncharged

offenses, admissibility “depends upon proof that the charged and

uncharged offenses share distinctive common marks sufficient to

raise an inference of identity.”‟     [Citation.]   A somewhat

lesser degree of similarity is required to show a common plan or

scheme and still less similarity is required to show intent.

[Citation.]    On appeal, we review a trial court‟s ruling under

Evidence Code section 1101 for abuse of discretion.”      (People v.

Roldan (2005) 35 Cal.4th 646, 705, disapproved on a different
ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)

    Defendant concludes, without analysis, that the evidence of

the June 2007 incident raises the question of his “propensity”

to engage in the charged conduct.     He also argues that, because

the prosecution “presented evidence which, if believed, would

establish [defendant] stole the truck from the Budget Car Sale

lot and knowingly evaded officers,” evidence of the June 2007
offense was cumulative on the issues of intent and motive.       He



                                  8
claims the probative value of that evidence was outweighed by

its prejudicial effect under Evidence Code section 352.

    “As Evidence Code section 1101, subdivision (b) recognizes,

that a defendant previously committed a similar crime can be

circumstantial evidence tending to prove his identity, intent,

and motive in the present crime.       Like other circumstantial

evidence, admissibility depends on the materiality of the fact

sought to be proved, the tendency of the prior crime to prove

the material fact, and the existence vel non of some other rule

requiring exclusion.”   (People v. Roldan, supra, 35 Cal.4th at

p. 705.)   Here, defendant placed all issues in dispute by

pleading not guilty, thus rendering the evidence material.

    “„The least degree of similarity (between the uncharged act

and the charged offense) is required in order to prove intent.‟

[Citation.]   The more often a similar result occurs, the less

likely it is the defendant acted inadvertently or in self-

defense.   Consequently, „to be admissible to prove intent, the
uncharged misconduct must be sufficiently similar to support the

inference that the defendant “„probably harbor[ed] the same

intent in each instance.‟”‟”   (People v. Walker (2006)

139 Cal.App.4th 782, 803.)

    Defendant concedes that the uncharged conduct, to wit, the

June 2007 conviction, was “virtually identical” to the current

offense.   In both instances, defendant stole a vehicle from a

car sales lot, fled from an attempted traffic stop by a
uniformed law enforcement officer in a marked patrol car,


                                   9
abandoned the vehicle and fled on foot and, when apprehended,

denied having taken or driven the stolen vehicle.   The trial

court did not abuse its discretion in finding the prior incident

sufficiently similar to allow testimony regarding that incident

on the issue of intent.   Because defendant‟s plea of not guilty

placed the issue of intent in dispute (People v. Rowland (1992)

4 Cal.4th 238, 260), the trial court did not abuse its

discretion in concluding the evidence of the prior bad act was

probative.

    “The probative value of the uncharged offense evidence must

be substantial and must not be largely outweighed by the

probability that its admission would create a serious danger of

undue prejudice, of confusing the issues, or of misleading the

jury.”   (People v. Kipp (1998) 18 Cal.4th 349, 371.)    We review

the trial court‟s determination in this regard for abuse of

discretion.   (Ibid.)

    The California Supreme Court has identified various factors
in determining whether the probative value of the evidence is

outweighed by its prejudicial effect.   Specifically, “(1)

whether the inference of a common design or plan is strong; (2)

whether the source of evidence concerning the present offense is

independent of and unaffected by information about the uncharged

offense; (3) whether the defendant was punished for the prior

misconduct; (4) whether the uncharged offense is more

inflammatory than the charged offense; and (5) whether the two
incidents occurred close in time.”   (People v. Dancer (1996)


                                10
45 Cal.App.4th 1677, 1690, disapproved on other grounds in

People v. Hammon (1997) 15 Cal.4th 1117, 1123; see People v.

Ewoldt (1994) 7 Cal.4th 380, 404-405.)

    The prior incident and the current offense are virtually

identical, and thus there is no reason to suggest that the

inference of a common design or plan is weak.   “To establish the

existence of a common design or plan, the common features must

indicate the existence of a plan rather than a series of similar

spontaneous acts, but the plan thus revealed need not be

distinctive or unusual.”   (People v. Ewoldt, supra, 7 Cal.4th at

p. 403.)   The common features of both the prior incident and the

current offense indicate the existence of a plan to take a

vehicle from an auto sales lot, to flee by vehicle or by foot if

pursued by law enforcement, and to deny any involvement if

apprehended.   The evidence of the prior incident came from

Corporal Dean, a law enforcement officer independent of and not

involved in any way in the current offense.   Because the jury

was told (by virtue of the parties‟ stipulation) that defendant
was convicted for the prior incident, there was no risk they

would feel compelled to punish him for that past misconduct.

The prior incident is virtually identical to, and thus no more

inflammatory than, the current offense.   The prior incident was

not remote in time, occurring in June 2007, just two years

before the current offense.   Based on these facts, the trial

court‟s determination that the probative value outweighed any
prejudicial effect was reasonable.



                                11
    Moreover, even if we were to find that the evidence was

improperly admitted, we would find no prejudice.            That is, there

is no reasonable probability defendant would have had a more

favorable result in the absence of error.          (People v. Watson

(1956) 46 Cal.2d 818, 836.)     Minutes after the abandoned truck

was found, defendant and his brother were found 600 to 700 feet

away.   Officer Dimatteo positively identified defendant at the

scene, and again at trial.     Dimatteo‟s identification, although

questioned on cross-examination, was not discredited.

    Introduction of the evidence of defendant‟s June 2007

conviction was not an abuse of discretion.

                  II. Flight Instruction--CALCRIM No. 372
    Defendant contends the flight instruction (CALCRIM No. 372)

did not apply to the charge of evading a police officer with

reckless disregard for public safety, and the trial court erred

when it failed to so instruct the jury.         He claims his

attorney‟s failure to object at trial constituted ineffective
assistance of counsel under Strickland v. Washington (1984)

466 U.S. 668, 684-686 [80 L.Ed.2d 674].         As we shall explain,

there was no error and thus no failure to object by counsel.

    The court instructed the jury with CALCRIM No. 372 as

follows:   “If the defendant fled immediately after the crime was

committed, that conduct may show that he was aware of his guilt.

If you conclude that the defendant fled, it is up to you to

decide the meaning and importance of that conduct.           However,
evidence that the defendant fled cannot prove guilt by itself.”


                                    12
    “In general, a flight instruction „is proper where the

evidence shows that the defendant departed the crime scene under

circumstances suggesting that his movement was motivated by a

consciousness of guilt.‟    [Citations.]   „“[F]light requires

neither the physical act of running nor the reaching of a far-

away haven.   [Citation.]   Flight manifestly does require,

however, a purpose to avoid being observed or arrested.”‟”

(People v. Bradford (1997) 14 Cal.4th 1005, 1055.)

    As defendant concedes, the flight instruction was

“appropriate and relevant” as to counts 1 and 2.     However, even

assuming the jurors attempted to apply the flight instruction to

the charge of attempting to evade a police officer, CALCRIM

No. 372 makes it clear on its face that only flight “immediately

after the crime was committed” is implicated.     The jury

therefore necessarily would have understood that it first had to

find defendant guilty of count 3, pursuant to CALCRIM No. 2181,

willfully evading a peace officer based on evidence establishing

that (1) a peace officer driving a motor vehicle was pursuing
defendant, (2) defendant, while driving a motor vehicle,

“willfully fled from, or tried to elude, the officer, intending

to evade the officer,” (3) during the pursuit, defendant “drove

with willful or wanton disregard for the safety of persons or

property,” (4) the peace officer‟s vehicle had at least one

lighted red lamp visible from the front, (5) defendant “saw or

reasonably should have seen” the lighted lamp, (6) the officer‟s
vehicle was distinctively marked, (7) the officer‟s vehicle was



                                 13
sounding a siren as reasonably necessary, and (8) the officer

was wearing a distinctive uniform, before it could consider any

subsequent evidence of flight pursuant to CALCRIM No. 372.         We

presume the jurors followed the court‟s instructions.         (People

v. McLain (1988) 46 Cal.3d 97, 119-120.)

     There was no error in giving the flight instruction

(CALCRIM No. 372), making it unnecessary for defense counsel to

object.

                     III. Presentence Conduct Credits
     Pursuant to this court‟s miscellaneous order No. 2010-002,

filed March 16, 2010, we deem defendant to have raised the issue

of whether amendments to Penal Code section 4019, effective

January 25, 2010, apply retroactively to his pending appeal and

entitle him to additional presentence credits.2         We conclude that

the amendments do apply to all appeals pending as of January 25,

2010.   (See In re Estrada (1965) 63 Cal.2d 740, 745 [Amendment

to statute lessening punishment for crime applies “to acts


2  The Supreme Court has granted review to resolve a split in
authority over whether the January 2010 amendments to Penal Code
section 4019 apply to pending appeals. (People v. Brown (2010)
182 Cal.App.4th 1354, review granted June 9, 2010, S181963
[giving retroactive effect to amendments]; accord, People v.
Pelayo (2010) 184 Cal.App.4th 481, review granted July 21, 2010,
S183552; People v. Landon (2010) 183 Cal.App.4th 1096, review
granted June 23, 2010, S182808; People v. House (2010)
183 Cal.App.4th 1049, review granted June 23, 2010, S182813;
contra, People v. Hopkins (2010) 184 Cal.App.4th 615, review
granted July 28, 2010, S183724; People v. Otubuah (2010)
184 Cal.App.4th 422, review granted July 21, 2010, S184314;
People v. Rodriguez (2010) 182 Cal.App.4th 535, review granted
June 9, 2010, S181808.)


                                   14
committed before its passage provided the judgment convicting

the defendant of the act is not final.”]; People v. Doganiere

(1978) 86 Cal.App.3d 237, 239-240 [applying Estrada to amendment

involving conduct credits]; People v. Hunter (1977)

68 Cal.App.3d 389, 393 [applying the rule of Estrada to

amendment following award of custody credits].)     Defendant is

not among the prisoners excepted from the additional accrual of

credit.    (Pen. Code, § 4019, subds. (b)(2) & (c)(2); Stats.

2009, 3d Ex. Sess., ch. 28, § 50.)     Consequently, defendant,

having served 137 days of actual presentence custody, is

entitled to 136 days of conduct credits, for a total of 273

presentence custody credits.

                             DISPOSITION
    The judgment is modified to specify custody credits as

follows:   137 days of actual custody credit and 136 days of

conduct credit, for a total of 273 days of presentence custody

credits.   As modified, the judgment is affirmed.    The trial

court is directed to amend the abstract of judgment accordingly
and to forward a certified copy of the amended abstract to the

Department of Corrections and Rehabilitation.


                                             BUTZ           , J.

We concur:


           BLEASE          , Acting P. J.


           NICHOLSON       , J.


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