P. v. Bui

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Filed 10/7/09 P. v. Bui CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
RYAN BRIAN BUI,
Defendant and Appellant.
A119404
(San Mateo County
Super. Ct. No. 061477)
Appellant Ryan Brian Bui (Bui) appeals from his conviction of two counts of
burglary, one count of attempted burglary, and one count of receiving stolen property.
He maintains that his constitutional right to a public trial was violated by the trial court‘s
temporary exclusion of family members from the courtroom during jury voir dire. Bui
also claims error in the court‘s exclusion of certain evidence offered in support of his
defense theory of third party culpability. We affirm.
I. PROCEDURAL BACKGROUND
The San Mateo County District Attorney charged Bui by information with two
counts of burglary (Pen. Code, § 460, subd. (a)),1 one count of attempted burglary
(§§ 460, subd. (a), 664), and one count of receiving stolen property (§ 496, subd. (a)).
The information also alleged that Bui was on parole at the time he committed the last
offense, and that he had a prior conviction for one count of residential burglary in San
Francisco, and a San Mateo prior conviction for five counts of residential burglary.
1 All further undesignated statutory references are to the Penal Code.

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These prior convictions were alleged as strikes under section 1170.12, subdivision (c)(2),
and enhancements under sections 667.5, subdivision (b), and 667, subdivision (a).
A jury found Bui guilty of all four counts, and found all the enhancing allegations
to be true. Bui moved for a new trial on the basis of denial of his right to public trial and
exclusion of third party culpability evidence. The trial court denied the motion.
The court sentenced Bui to 25 years to life on the first count of burglary, and to a
consecutive determinate term of 21 years 8 months on the remaining counts. This timely
appeal followed.
II. FACTUAL BACKGROUND
On March 10, 2004, a number of homes in Foster City were burglarized. Sharon
and Yao Chi reported jewelry and cash missing from their Beach Park Boulevard home
that day. Police also discovered that the home of George and Pamela Hung, also of
Beach Park Boulevard, was burglarized the same day.
A third homeowner, Tommy Hui, was at home on Williams Lane on March 10th.
He heard the doorbell ring, but did not answer the door because he did not recognize the
black Range Rover parked in front of his house. Ten or fifteen minutes later, Hui heard
the noise of his gate opening, and then heard a metallic ringing sound. He went
downstairs, and saw two men at his sliding glass door. Hui started yelling, and both men
fled. Hui called police, describing the black Range Rover and giving them a partial
license plate number.
Foster City police officer William Sandri responded to the call. Within two
minutes of receiving the call, as he headed towards Williams Lane, Sandri saw a black
Range Rover matching the description given. The Range Rover was stopped at a stop
sign at the corner of Edgewater Boulevard and Port Royal Avenue. Sandri observed ―two
light skinned males‖ in the vehicle, which he followed. He lost sight of the vehicle for ―a
minute or more,‖ then saw it again in front of a RadioShack store in a shopping center on
Edgewater. Sandri turned on his emergency lights in order to stop the vehicle. The
Range Rover turned down an alley ―at a high rate of speed.‖ Sandri pursued the vehicle,
which came to a stop at the alley‘s dead end. The two men in the vehicle exited and fled

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southbound out of the parking lot. Sandri gave chase and caught up with them near the
south end of the shopping center. The two men were ―doubled over out of breath,‖ and
Sandri ordered them to get on the ground. Sandri identified Bui as one of the men and
Hoa Khuu as the second person.
Neither man complied with Sandri‘s order, instead ―jump[ing a] wall‖ into the
yard of a residence on Monterey Avenue. Sandri radioed for backup, and informed his
colleagues of the direction the men were headed. Foster City police officer Mark Lee
responded and met Sandri on the 1000 block of Monterey. Lee went through the
backyard of a residence and saw an Asian male, later identified as Hoa Khuu, running
along the water of a lagoon behind the house. Khuu first hid on a boat, then went in the
water, saying to the officers ―[G]o ahead and fucking shoot me.‖ He then got out of the
water and continued to run, eventually being found hiding in a garbage can.
That same day, Mary Elkington heard a noise outside her Bristol Court, Foster
City home. She went outside and saw an Asian male in his 20s. She asked him what he
was doing, then told him to leave. The man got down on his knee behind some trees and
gestured as though ―[h]e wanted [her] to be quiet.‖ The man then got up and ran. Later,
Elkington‘s husband found two pieces of paper in the spot where the man had hidden.
One was Bui‘s interim driver‘s license, and the other was a list of names, addresses and
telephone numbers. The Hung and Chi addresses were on the list, with a line through the
Hung‘s address.
Foster City police officer Eric Egan also responded to Sandri‘s call. He went into
the backyard of a house near Elkington‘s home, and saw Bui on the ground under some
bushes. He told Bui to get out of the bushes and down on the ground. As Egan holstered
his gun, Bui fled. Other officers joined the chase, and they and Egan ―took [Bui] to the
ground and placed him in handcuffs.‖
Khuu testified at trial2 that he and Mark Pham had committed the burglaries, not
Bui. He claimed that Pham utilized information gleaned during his employment at a real
2 Khuu had already been convicted of the March 10, 2004 burglaries.

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estate firm to make the list of names and addresses found by the Elkingtons, targeting
Asian families based on a belief that they kept cash in their homes. Khuu said that he and
Pham asked to borrow Bui‘s Range Rover (which was registered to Bui‘s sister) on
March 10th, but did not tell him they intended to commit burglaries. He also borrowed
Bui‘s driver‘s license, in case the police pulled them over. Khuu stated that Bui drove
him and Pham to a shopping center in Foster City, then got out of the car. Khuu told Bui
they were going to visit a friend, but instead they committed the burglaries. After a
homeowner chased them, they went to pick up Bui who was waiting inside the
RadioShack. Pham ran into the store and got Bui. Pham got into the back seat of the
Range Rover and crouched down. A police car started following them about 30 seconds
after he picked up Bui. Pham then asked him to pull over and let him out of the vehicle,
which he did. While the police were chasing them down the alley, Khuu gave Bui‘s
driver‘s license back to him, with the paper containing the list of addresses attached.
The jury found Khuu‘s testimony unconvincing and, as noted previously,
convicted Bui on all charged counts.
III. DISCUSSION
A. Exclusion of Family Members From Voir Dire
Bui argues that he was denied his Sixth Amendment right to a public trial because
three spectators, including two family members,3 were excluded from the courtroom for
about 45 minutes during jury voir dire. He maintains that this constituted structural error,
requiring reversal of his conviction without the necessity of any showing of prejudice.
We disagree.
―Every person charged with a criminal offense has a constitutional right to a
public trial, that is, a trial which is open to the general public at all times. (See
U.S. Const., amends. VI, XIV; Cal. Const., art. I, § 15; see also Pen. Code, § 686,
subd. 1.)‖ (People v. Woodward (1992) 4 Cal.4th 376, 382 (Woodward).) A
3 The record is not entirely clear on the spectators‘ identities, but they are
described in Bui‘s motion for new trial as his ―mother, his aunt (who was visiting from
Vietnam) and a person not related to the defendant, Lily Wong.‖

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―defendant‘s state constitutional public trial right appears to be coextensive with the
federal guarantee [citation] . . . .‖ (Id. at p. 381.) ―Nearly a century ago this court
declared in People v. Hartman (1894) 103 Cal. 242, 245 . . . : ‗The doors of the
courtroom are expected to be kept open, the public are entitled to be admitted, and the
trial is to be public in all respects, . . . with due regard to the size of the courtroom, the
conveniences of the court, the right to exclude objectionable characters and youth of
tender years, and to do other things which may facilitate the proper conduct of the trial.‘ ‖
(Woodward, supra, at 388 (conc. opn. of Mosk, J.), first ellipsis added.)
A trial open to the public ―plays as important a role in the administration of justice
today as it did for centuries before our separation from England. The value of openness
lies in the fact that people not actually attending trials can have confidence that standards
of fairness are being observed; the sure knowledge that anyone is free to attend gives
assurance that established procedures are being followed and that deviations will become
known. Openness thus enhances both the basic fairness of the criminal trial and the
appearance of fairness so essential to public confidence in the system. [Citation.]‖
(Press-Enterprise Co. v. Superior Court of Cal. (1984) 464 U.S. 501, 508 (Press-
Enterprise).) If a defendant has been denied his Sixth Amendment right to public trial,
the error is structural in nature, and reversible per se. A ―defendant should not be
required to prove specific prejudice in order to obtain relief for a violation of the
public-trial guarantee.‖ (Waller v. Georgia (1984) 467 U.S. 39, 49–50, fn. omitted
(Waller).)
The public trial right applies not only to the trial itself, but also to a pre-trial
suppression hearing (Waller, supra, 467 U.S. at p. 48), preliminary examinations (People
v. Pompa-Ortiz (1980) 27 Cal.3d 519, 526), closing arguments (Woodward, supra,
4 Cal.4th at p. 383), instructing the jury (People v. Teitelbaum (1958) 163 Cal.App.2d
184, 206–207), and voir dire. (Press-Enterprise, supra, 464 U.S. at p. 508.) ―The
general trend of the cases appears to be toward expanding application of the public trial
right.‖ (Woodward, supra, 4 Cal.4th at p. 383.)

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In some limited circumstances, however, the public may be barred from a criminal
trial. ―The Sixth Amendment public trial guarantee creates a ‗presumption of openness‘
that can be rebutted only by a showing that exclusion of the public was necessary to
protect some ‗higher value‘ such as the defendant‘s right to a fair trial, or the
government‘s interest in preserving the confidentiality of the proceedings. [Citation.]‖
(Woodward, supra, 4 Cal.4th at p. 383.) ―The presumption of openness may be
overcome only by an overriding interest based on findings that closure is essential to
preserve higher values and is narrowly tailored to serve that interest. The interest is to be
articulated along with findings specific enough that a reviewing court can determine
whether the closure order was properly entered.‖ (Press-Enterprise, supra, 464 U.S. at
p. 510.)
The discussion by the California Supreme Court in Woodward, addressing the
right to public trial, is instructive here. In that case, the trial court directed that the
courtroom doors be closed and locked during closing argument, and a sign placed on the
courtroom door reading: ―Trial in progress—Please do not enter . . . .‖ Defense counsel
observed the sign on returning from a recess and moved for a mistrial. The court denied
the motion, explaining that ―the courtroom was the situs of the probate department, where
various counsel seeking ex parte orders were apt to cause ‗constant interruptions.‘ The
bailiff had placed the sign ‗sometime probably at lunch in order not to interrupt argument
with the attorneys coming in and out.‘ ‖ (Woodward, supra, 4 Cal.4th at p. 380.) The
court agreed to take the sign down and unlock the courtroom doors. (Ibid.) The
following day, the court stated that another reason for the temporary closure was that the
trial posed unusual security risks. (Ibid.) The court indicated that defendant was a
― ‗kickboxer‘ and had been classified both as a violent offender and an escape risk. . . .
[His] alleged offenses involved drug transactions, and defendant had indicated to the
bailiff that some persons in the courtroom might attempt to kill him.‖ (Ibid.) Due to the
number of people entering the courtroom in the morning, the bailiff asked to close the
doors and direct persons to a room, ―where they could be more readily screened before
admittance to the courtroom. Due to a shortage of security personnel, only a single

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bailiff was available to secure the courtroom.‖ (Ibid.) The court indicated that ― ‗during
the entire afternoon session there were in fact people in the audience in the courtroom
and . . . people were not prevented from coming in and being spectators.‘ ‖ (Ibid.)
The Woodward court held that ―the closure of the courtroom doors to additional
spectators during part of the prosecutor‘s arguments, being both temporary in duration
and motivated by legitimate concerns to maintain security and prevent continuous
interruptions of closing arguments, and not involving the exclusion of preexisting
spectators, did not constitute a denial of defendant‘s public trial right.‖ (Woodward,
supra, 4 Cal.4th at p. 381.) The court noted that ―the courtroom was never cleared to
remove all spectators for a significant period.‖ (Id. at p. 385.) Moreover, the trial court
had ―expressed substantial reasons justifying the temporary closure, namely, to maintain
court security and orderly courtroom proceedings.‖ (Ibid.) The Woodward court held
that ―the de minimus rationale . . . is more pertinent to the circumstances of this case, in
which the closure did not exclude preexisting spectators, did not include any of the
evidentiary phase of the trial and lasted only one and one-half hours.‖ (Id. at pp. 385–
386.) Accordingly, the court held that ―defendant had a public trial throughout the entire
proceeding.‖ (Id. at p. 385.)
In order to analyze whether Bui was denied his right to a public trial, we set forth
the facts surrounding the claimed denial in some detail. During voir dire, Bui‘s attorney
indicated he had ―another motion . . . . [¶] . . . [¶] [A]t approximately 10:20, Mr. Bui‘s
family came in and I noticed they arrived and they sat in the row, I think the second row
together as much as they could. There were many empty seats at that point although the
potential jurors were also seated in the body of the courtroom. I noticed that the bailiff
removed them from the courtroom and they have been removed from the courtroom
since. It is now 11:05. [¶] At the bench, the Court informed me that it is the Court‘s
policy not to let members of the family sit in the audience while voir dire is going on and
jurors are being selected for fear that the family might say something inappropriate and
taint the process. While I appreciate the Court‘s concern and certainly do not wish any
tainting on this process, this is a public proceeding and Mr. Bui‘s family and Mr. Bui

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himself have the right to have a complete open and public process. And there are
alternatives to the Court, for example, setting aside certain seats and sitting the jury in
another section of the audience or admonishing the family. There are alternatives to
summarily removing . . . the family from the courtroom during this proceeding, and for
that reason, I would move that the panel be stricken and we start anew. . . . This is a
public proceeding, and I don‘t believe the Court has the authority absent misconduct to
remove anybody from viewing the proceeding.‖ The court responded: ―. . . I would
agree with you that if I had been told that the family was going to be there or given any
notice whatsoever, what I would [have] said to you is to admonish these people from not
discussing anything in front of the prospective jurors, and we would [have] made
provisions to have them sit that as best we could in a fashion that‘s segregated from the
rest of the jurors, but they just showed up and there they were. I have to make these
decisions at that moment, and I can‘t risk having potential jurors hearing conversation
among the family, it would totally prejudice the panel, so I have to make these decisions
quickly. And again, I wish it had not happened that way, but they‘re only excluded for a
few minutes. I don‘t remember when they showed up, but you can certainly
accommodate them after they have been admonished. I‘m just not going to take that kind
of chance.‖
The prosecutor interjected that, at the side bar, she ―heard the Court say to [Bui‘s
attorney] and I, of course, quietly and the reporter wouldn‘t [have] taken it down. What I
remember the Court saying is something like unless you want to admonish them, which I
took to be an offer to [Bui‘s attorney] to stop the process and have him make the
appropriate admonition to the family members.‖ Bui‘s counsel responded: ―Your honor,
at the bailiff‘s request, I actually did make an admonition to the family yesterday. I did
not hear the Court saying unless you want to admonish them, had I heard that I would
have happily said yes, I‘m happy that they be admonished and be allowed to remain in
the courtroom. I did not hear that, and I don‘t believe it was spoken in my presence.‖
The court responded: ―I think I did say that, but you didn‘t respond so you may not have
heard what I said. But I just wasn‘t given any heads up that these people were going to

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be here otherwise we would have discussed that issue and handled it in some fashion
which we do all the time. It‘s not unusual, it‘s fairly typical to have family members
watch a trial, we just need to kind of know these things so . . . we can handle them in one
way or the other. So I don‘t think it‘s a great prejudice, the fact that they have been
excluded from the courtroom for a few minutes, I mean literally so . . .[.]‖ Bui‘s attorney
explained: ―It has been a better part of an hour, and I‘m not aware of any duty on the
defense‘s part to inform the Court or anybody that members of the public are going to be
witnessing the trial or any aspect.‖ The court denied the motion to strike the jury panel,
stating ―It‘s not a member of the public . . . . I mean, you know as well as I do that
people say things that they don‘t realize are being overheard by other people, that‘s my
job to guarantee both sides a fair trial. So again, if I know these things are going to
happen then I will deal with them appropriately, and hopefully fairly, but I have to deal
with things as they happen. . . . [¶] . . . [¶] Well, they have been admonished; is that
correct? [¶] [Bui‘s Counsel]: I admonished them yesterday to make no comments and to
have no communication with Mr. Bui. [¶] [The Court]: Again, I didn‘t know that, we
didn‘t have that discussion. [¶] All right. When they come back in, if you could have
them seated somewhere that is not around the other jurors. I‘m asking the bailiff to do
that.‖
Bui represents that his family members did not return until the next day. Bui also
represents that ―members of the public mistakenly believed to be of Bui‘s family,‖
apparently a reference to Lily Wong, were excluded in addition to family members.
There is no question here that three individuals were excluded from the voir dire
examination for a period of roughly 45 minutes. The issue is whether this exclusion was
―de minimus‖ and so did not violate the Sixth Amendment. (People v. Woodward, supra,
4 Cal.4th at pp. 379, 385.) Bui acknowledges the holding in Woodward, but relies on
Owens v. U.S. (1st Cir. 2007) 483 F.3d 48 (Owens). In that case the trial court had
cleared the courtroom of members of the public, including two members of the

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defendant‘s family, to allow seating for the large jury panel required for the case.4 (Id. at
pp. 54, 61.) The public was not re-admitted, however, as seats became available, and as a
result the public was excluded for an entire day of jury selection. (Ibid.) On review of
denial of the defendant‘s habeas corpus petition, the court remanded for an evidentiary
hearing to determine the nature and extent of the trial closure, noting that this ―was not a
mere fifteen or twenty-minute closure; rather, Owens‘ trial was allegedly closed to the
public for an entire day while jury selection proceeded.‖ (Id. at pp. 63.) The court
concluded that if the trial court barred spectators from the courtroom as defendant
alleged, he was denied his Sixth Amendment right to have a public trial and that he need
not demonstrate prejudice.5 (Id. at pp. 63–64, 66.) Owens is distinguishable on its facts.
Not only was voir dire in that case closed to the public for an entire day, but all members
of the public were excluded. (Id. at p. 62.) Further, even Owens appears to recognize, in
contrasting ―a mere fifteen or twenty-minute closure,‖ that the Sixth Amendment right to
a public trial ―is not trammeled . . . by a trivial, inadvertent courtroom closure‖ (Bowden
v. Keane (2d Cir. 2001) 237 F.3d 125, 129).
Here, as in Woodward, there was only a temporary exclusion of certain spectators,
occasioned by the court‘s concern that the spectators, who would be in immediate
proximity with the prospective jurors in the body of the courtroom, had not yet been
admonished by defendant‘s counsel to refrain from comments that might prejudice the
panel. The trial court indicated its concern that spectators in these circumstances might
say something the potential jurors would overhear, ―totally prejudic[ing] the panel,‖ and
potentially denying ―both sides a fair trial.‖ This was a legitimate concern. While on
reflection other alternatives may have been available to the court, we recognize that the
4 The court rejected defendant‘s argument that the absence of his family and
friends at trial raised special concerns, finding that the same standard applied to family
members as to the general public. (Owens, supra, 483 F.3d at p. 62, fn. 12.)
5 Habeas relief was granted on remand. (Owens v. U.S. (D.Mass. 2007)
517 F.Supp.2d 570.)

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court had no prior notice of the presence of Bui‘s family members among the venire until
the situation actually presented itself.
We do not condone exclusion of any person from trial court proceedings without
prior explicit consideration, on the record, of the criterion set forth in Press-Enterprise
and Waller and appropriate findings. (See People v. Prince (2007) 40 Cal.4th 1179,
1279.) We reiterate that ―[t]he exclusion of any nondisruptive spectator from a criminal
trial should never be undertaken without a full evaluation of the necessity for the
exclusion and the alternatives that might be taken. This evaluation should be reflected in
the record of the proceedings. The evaluation would fulfill the statutory requirements, if
any, for exclusion of persons from a trial and assist in the evaluation of any alleged
constitutional violation.‖ (People v. Esquibel (2008) 166 Cal.App.4th 539, 556, cert. den.
Esquibel v. California (2009) 129 S.Ct. 1998.) We also agree, however, with the
conclusion of the Second District in Esquibel that ―the temporary exclusion of select
supporters of the accused does not create an automatic violation of the constitutional right
to a public trial.‖ (Id. at p. 554 [exclusion of two spectators during the testimony of one
witness because of gang intimidation concerns not a basis for reversal].)
Here three individuals were excluded for a very limited period, and not during the
evidentiary phase of the trial. They were allowed in the courtroom once defense counsel
assured the court that they had been appropriately admonished. Given the de minimus
nature of the temporary exclusion of these individuals from only a limited portion of voir
dire, we likewise find, as did the court in Woodward, that this ―temporary ‗closure‘ did
not violate defendant‘s fundamental constitutional right to a public trial.‖ (Woodward,
supra, 4 Cal.4th at p. 379.)6
6 Bui does not raise the issue of exclusion of the spectators without prior notice, as
in Woodward. Woodward held that such ―lack of notice does not establish denial of a
public trial . . . [but] at most a procedural due process violation‖ analyzed under the
Chapman test. (Woodward, supra, 4 Cal.4th at pp. 386, 387; Chapman v. California
(1967) 386 U.S. 18.)

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B. Exclusion of Evidence of Mark Pham’s Alleged Criminal Background
Bui next argues that he was denied his due process right to present evidence of his
―colorable third-party culpability defense,‖ that Khuu committed the crimes with an
individual named Mark Pham while Bui was having lunch and waiting at RadioShack.
Bui acknowledges that he presented evidence of this defense, in the form of Khuu‘s
testimony. He maintains, however, that it was error for the court to deny his proffered
evidence that a woman had identified a photograph of Pham as the individual who
burglarized her Daly City home four years prior, and that this error was of constitutional
dimension.
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 [citing, inter alia, United States v. Scheffer (1998) 523 U.S. 303, 308;
Crane v. Kentucky (1986) 476 U.S. 683, 690].) ―While the Constitution thus prohibits
the exclusion of defense evidence 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.) ―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

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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.) 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).‖
(People v. 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.)
Here, the excluded evidence was the proffered testimony of a burglary victim who
would purportedly testify with ―70 percent certainty‖ that she recognized Pham from a
photograph as the person who burglarized her home in Daly City approximately four
years prior to the Foster City burglaries. Pham had been investigated as a suspect in that
case, but the prosecution declined to file charges ―on an insufficient evidence basis.‖
Bui maintains this evidence was admissible under Evidence Code section 1101,
subdivision (b), to show a common plan or scheme on the part of Pham, and that its
exclusion denied him his due process rights. Evidence Code section 1101 provides in
part: ―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 occasion. [¶] 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, [or] absence of mistake or accident . . . .).‖ Bui claims the excluded

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evidence supplied ―powerful support‖ for his defense theory that Pham was Khuu‘s
accomplice in the burglaries because the evidence demonstrated ―Pham burglarized a
house in 2000 employing a modus operandi that is in all relevant respects identical to the
MO used in the 2004 burglaries.‖ He describes those ―relevant respects‖ as ―enter[ing]
the house in the homeowner‘s absence by prying open a sliding glass door in the rear[,
and stealing] guns, jade necklaces, other jewelry, credit cards, stamps, and cash.‖
― ‗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.]‖
(People v. Carter (2005) 36 Cal.4th 1114, 1154.) ―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.) To show similarities in
burglaries, simply taking the same types of items from similar targets is not sufficient.
(See, e.g., People v. Grant (2003) 113 Cal.App.4th 579, 589. [burglaries three years
apart, both of computer equipment by breaking into schools after hours, entry through
open window or prying a door open].)
Here, there were no unique factors in both the charged Foster City burglaries and
the Daly City burglary sufficient to support a strong inference that Mark Pham committed
both crimes. There is nothing particularly distinctive, when committing a residential
burglary, about prying open a rear door when the homeowner is absent and taking easily
disposable items of readily apparent value. Moreover, the evidence linking Pham to the
Daly City crime was not strong; the victim, four years prior, had been only ―70 percent
certain‖ it was Pham. Unlike Khuu‘s testimony, the proffered evidence did not link
Pham ―to the actual perpetration of the crime‖ in the instant case. (People v. DePriest,

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supra, 42 Cal.4th at p. 43.) The trial judge found the evidence lacked probative value and
would involve undue consumption of time. The court did not abuse its discretion in
excluding this evidence, and its exclusion did not deny Bui his constitutional right to
present a defense.
IV. DISPOSITION
The judgment is affirmed.
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Bruiniers, J.
We concur:
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Simons, Acting P. J.
_________________________
Needham, J.

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