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Mistaken Admission of Prior Uncharged Act, No Common Motive
On April 24, 2018, J.R., O.F. and G.N. were working in Sacramento County as construction pipelayers on a project in Land Park in Sacramento.
At around noon, they stopped working and sat by the side of the road to eat lunch together. After about five minutes, two males, Gerquan Dwayne Clark and Anthony Maurice Brown, approached the three. Either Clark or Brown pulled out a handgun and demanded money, wallets and phones. The man holding the gun then racked the slide of the gun as if to chamber a round. The three construction workers handed over their wallets, money and phones. The entire incident took two to four minutes.
Why This Article Matters: Evidence of a prior uncharged act cannot be introduced to show propensity to commit a crime, but it can be admitted to establish a common motive, knowledge, absence of a mistake, opportunity, preparation, plan or identity.
Shortly thereafter, police received a 911 call and defendants were tracked to a local Burlington Coat Factory store using a phone app on one of the cell phones they had stolen. Upon arriving at the location, police located a vehicle that matched a description of the car at the robbery scene. The vehicle was registered to Brown. Brown and Clark were then apprehended leaving the store. Clark had one of the victim’s cell phones. In Brown’s car, police found more property taken from the victims. A video from inside the store showed the two men changing clothes.
The victims were then transported to the Burlington Coat Factory for a show up. One victim identified both Clark and Brown as the suspects. One victim only identified one and the third victim could not identify either as a suspect, saying “those are not the clothes they were wearing.”
At trial, two of the victims identified Clark as the man who pointed the gun at them and one of the victims described Brown as the man with the gun. Police never found the gun.
Court of Appeal Third Appellate District SacramentoAt trial, defendants asserted that the prosecution had not proven beyond a reasonable doubt that the object used during the robbery was a real gun. As the reader may know, pellet guns and BB guns are not considered firearms because “instead of explosion or other combustion, they use the force of air pressure, gas pressure or spring action to expel a projectile.” People v. Monjaras (2008) 164 Cal.App.4th 1432, at 1435.
During trial, the judge admitted evidence of Clark’s prior uncharged act involving possession of a firearm under Evidence Code § 1101(a) on the prosecution theory that the uncharged act was relevant to prove Clark knew he possessed a real gun at the time of the robberies and this is why he discarded it before being arrested. The prosecution also presented evidence that Brown had two prior convictions for unauthorized possession of a firearm. The theory was that both defendants knew possession of a firearm would greatly increase punishment, so they discarded the firearm after using it in the robberies.
Defense counsel for each defendant objected to the introduction of such evidence as pure propensity evidence, which is illegal evidence. A party cannot introduce evidence of a prior act to suggest a defendant has a propensity to commit the act again. Evidence Code § 352 would exclude it as more prejudicial than probative.
The judge overruled the objections and permitted the introduction of such evidence.
The jury then found defendants guilty of three counts of robbery in the second degree with firearm enhancements. The jury also found each defendant guilty of possession of a firearm by a felon. The judge sentenced Clark to 21 years in state prison and Brown to 12 years in state prison.
Clark and Brown then appealed their felon in possession of a firearm convictions under Penal Code § 29800(a)(1) and the firearm enhancements under Penal Code § 12022.53(b) because the judge erred in admitting evidence of Clark’s prior uncharged act involving possession of a firearm.
The Third Appellate District Court of Appeal agreed with both Brown and Clark and reversed the convictions for felon in possession of a firearm and the firearm enhancements, finding that the trial court judge erred and that the admission of such evidence was not harmless error.
The Third Appellate District court explained that evidence of prior conduct can be admissible to prove a fact other than disposition to commit a crime, i.e., motive, knowledge, absence of a mistake, opportunity, preparation, plan or identity. Evidence Code § 1101(b); People v. Hendrix (2013) 214 Cal.App.4th 216, at 238.
The Third Appellate District then turned to the People’s “motive theory” for admissibility and called it “somewhat novel,” with respectful skepticism. The court then was more clear, stating, “[t]his theory departs from the norm regarding section 1101(b) motive theory and the People cite no case supporting it.”
Moreover, “motive is an intermediate fact, from wich the existence of an ultimate fact may be inferred.” As defendants pointed out, and the appellate court agreed, that motive is the motive to commit the crime charged, which is robbery, not destruction of evidence.
The court therefore vacated the conviction for each defendant on possession of a firearm by a felon and the use of a firearm enhancement against Clark were struck, as well as the same enhancement against Brown. The case was otherwise remanded for resentencing on this and on the prison prior sentence enhancement with the new law under AB 136 removing this enhancement.
The citation for the Third Appellate District Court ruling discussed above is People v. Gerquan Dwayne Clark and Anthony Maurice Brown (3rd App. Dist., 2021) 62 Cal. App. 5th 939, 277 Cal. Rptr. 3d 176.
For more information about issues involving evidence of prior uncharged acts, please click on the following articles:
