Defendant’s prior robbery of a donut shop was admissible in his trial for robbery of motel to show that defendant engaged in a common design or plan. A jury convicted Myers of second degree robbery of a motel. The evidence at trial showed that Myers entered the motel, asked about room prices, and left to secure money for a room. When he returned, he put his hand in his jacket pocket and pointed something at the night clerk Hurst. He ordered Hurst to give him money from the cash register and to not look at him or he would shoot. Over defense objection, the trial court allowed the prosecution to also admit evidence that Myers robbed a donut shop three days before the motel robbery. Myers had walked into a donut shop, asked an employee about the price of various drinks and donuts, and then handed her a note demanding money. He grabbed his waistband as if to show her the shape of a gun and told her not to “f-ing move.” On appeal, Myers contended that evidence of the prior robbery of the donut shop was inadmissible. Held: Affirmed. Under Evidence Code section 1101, subdivision (b), uncharged misconduct is admissible if relevant to prove a material fact such as common design or plan. The uncharged misconduct must be sufficiently similar to the charged conduct to support an inference that they are manifestations of a common design or plan. Here, the offenses were sufficiently similar to support such an inference. In both robberies, Myers entered a business, asked about pricing, indicated that he had a gun, and demanded money. The trial court acted within its discretion under Evidence Code section 352 because the prior robbery had substantial probative value due to the similarities and proximity in time. The risk of undue prejudice was reduced by the trial court’s limiting instruction.

Testimony regarding contents of silent surveillance video, which was accidently erased by police, was not inadmissible hearsay. At trial, a detective and the motel’s owner testified about the contents of a surveillance video with no audio that showed the robbery. The prosecution was unable to admit the video itself because the detective and his partner had accidently deleted the video while trying to copy it. On appeal, Myers argued that testimony regarding Hurst’s act of putting his hands up when Myers reached for his waistband constituted inadmissible hearsay because the act was an out-of-court statement that he would comply with Myers’ demands, offered to prove the statement’s truth. The court rejected this argument. Even if the gesture was hearsay, it would be admissible under Evidence Code section 1240 because Hurst’s raised hands, offered to show he was afraid of what he perceived as Myers threatening him with a gun, described a condition perceived by Hurst that was a spontaneous statement. The gesture was also admissible under Evidence Code section 1250 as a statement of Hurst’s then existing state of mind. There were no circumstances to indicate that Hurst’s spontaneous reaction was untrustworthy.