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Name: People v. Lopez
Case #: H034619
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 08/19/2011

The admission of prior bad acts involving theft required reversal of a first degree burglary conviction where the prejudicial effect outweighed the probative value. In limine the trial court ruled that the prosecution could introduce evidence of a theft of a purse from a car, an admitted theft of an iPod from a truck, and possession of a stolen vehicle on the basis that the evidence was “probative of intent” without any elaboration or detailed analysis to support the conclusion. The appellate court found abuse of discretion because the issue of intent was a “foregone conclusion” and there was no probative value to weigh against the significant prejudical effect of the three uncharged acts.

CALCRIM No. 376 on possession of recently stolen property does not reduce the prosecution’s burden of proof, but prohibits the jury from drawing an inference of guilt solely from possession, without more. The instruction is a slight variation of CALJIC No. 2.15 which withstood similar challenges. The reference to “slight evidence” does not reduce the prosecution’s burden of proof of beyond a reasonable doubt. In this case there was possession of stolen property from several thefts as well as a burglary, giving rise to an argument that the instruction could be applied without limitation and as propensity evidence. However, the prosecutor in his opening statement referenced the instruction and pointed to the possession of evidence taken in the burglary as the basis for the inference to support the burglary charge.

The punishment for use of a stolen access card was properly imposed in addition to punishment for theft of the purse that contained the card. Penal Code section 654 was not violated by imposing concurrent sentences because the trial court could have reasonably concluded that there were multiple objectives: taking the purse and later using the card. There was no indication that there was an intent to steal the access card while stealing the purse; the objective of using the access card to obtain merchandise arose later.