P. v. Collins

Filed 10/24/06 P. v. Collins CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County. Ronald S. Coen, Judge. Affirmed.

Jennifer A. Mannix for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Herbert S. Tetef and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.

RELEVANT PROCEDURAL BACKGROUND

On February 28, 2005, an amended four-count information was filed against appellant Bernard Collins III. Count 1 charged appellant, James Lincoln, and Darryl Smith, Jr.^[1] with first degree burglary (Pen. Code, ^[2] § 459).^[3] The information also charged appellant and Lincoln in count 2 with having a concealed firearm in a vehicle (§ 12025, subd. (b)(a)(1)) in count 3, with carrying a loaded, unregistered firearm (§ 12031, subd. (a)(1)); and in count 4, with receiving stolen property (§ 496, subd. (a)).^[4] Appellant pleaded not guilty.

On March 8, 2005, a jury found appellant guilty as charged.^[5] Appellant was sentenced to a term of imprisonment totaling six years and eight months. This appeal followed.

FACTS

A. Prosecution Evidence

Alan D. is a high school student who lives with his parents in Santa Clarita. At approximately 10:15 a.m. on July 8, 2004, he was asleep in his bedroom located on an upper floor in his house. The sounds of people running up the stairs woke him, and someone opened his bedroom door.

Alan saw two African-American males standing in the doorway. The closest male wore a white T-shirt shirt and blue jeans, and his hair was a “close cut.” The other male, who wore a blue sweatshirt and jeans, was taller and had long hair or a ponytail. Alan testified that he was then focused on their clothes, and not on their faces.

One of the males said, “Someone’s here,” and they retreated down the stairs and out the front door. Through a window, Alan saw them run toward a parked red Ford Explorer. He went downstairs and found that a glass sliding door in the back of the house had been broken. He then called his father, Toby W., who transferred the call to his wife, and drove home.

Los Angeles County deputy sheriff Chris Wyatt soon arrived at the house, followed by Toby W. They found that some drawers in a bedroom had been ransacked and the glass sliding door was shattered, but nothing was missing from the house. Near the broken glass were two porcelain sparkplug chips displaying the letters “CH” and “MPIO.” In addition, there were shoe prints in a smooth area of dirt on the side of the house.

After Los Angeles County Sheriff’s Detective Mike McPheeters heard about the burglary, he and three other detectives drove through Santa Clarita and Valencia in a police car. They assisted another police car in stopping a red Ford Explorer and arresting its occupants. Lincoln was the driver, appellant sat in the front passenger seat, and Smith was in a rear passenger seat.

When McPheeters ordered the Explorer’s occupants to raise their hands, appellant did not immediately comply, and instead moved toward the console between the front seats. McPheeters noticed that the console was ajar, and under it he found a handgun. The Explorer also contained a hat with fake dreadlocks attached to it, some gloves, three cell phones, and three commemorative coins.

As Los Angeles County deputy sheriff Anthony Hawkins patted appellant down during the stop, he found a receipt from a nearby auto parts store and fragments of porcelain resembling pieces of a sparkplug in appellant’s right front coin pocket. The receipt was dated that morning, “July 8, ‘04, at 9:01 a.m.” and contained the notations “Champion res” and “plug.”

Wyatt drove Alan to the stopped Explorer for a field show up and identification. According to Wyatt, appellant then wore a tan shirt over a white undershirt and baggie tan Chino pants; Lincoln wore a white shirt and blue jeans; and Smith wore a bulky black shirt or jacket over a white T-shirt and blue jeans. Lincoln and appellant had shaved heads, and Smith’s hair was pulled back into a small pony tail. Lincoln is taller than Smith, who in turn is taller than appellant.

Alan identified the Explorer as the vehicle he had seen earlier, and Lincoln and Smith as the males in his bedroom doorway. According to Alan, his initial identification of the individuals relied on their clothes and hairstyles, rather than their faces. At trial, Alan identified appellant and Smith as the males in his bedroom doorway. He acknowledged that this identification was based on appellant’s and Smith’s faces, and that he was more confident of his initial identification on July 8, 2004.

Police investigators determined that the porcelain fragments found on appellant fit together with the fragments discovered at the house, and the shoe prints in the dirt near Alan’s house matched the shoes worn by Lincoln upon his arrest. According to Los Angeles County Sheriff’s Detective John Howard, an expert on burglary, thieves often use sparkplugs as tools because they are capable of breaking glass while emitting little sound. None of the fingerprints found in the house matched appellant’s, Lincoln’s, or Smith’s fingerprints.

Randi Jacobs testified that the gun and commemorative coins found in the Ford Explorer were stolen from his home during a burglary on July 1, 2004. In addition, Sherese Butler testified that she sold the Ford Explorer to Smith in 2004. According to Butler, it did not then contain a gun or commemorative coins.

B. Defense Evidence

Smith testified on his own behalf, and denied that he had participated in a burglary with Lincoln or appellant. According to Smith, he gave Lincoln permission to drive his Explorer on July 8, 2004. Smith rode in its back seat, where he slept, “[o]ff and on.” He overheard Lincoln receiving directions from appellant by cell phone. At approximately 9:45 a.m., Lincoln picked up appellant, who held a blue jacket as he entered the vehicle. Smith reclined in the back seat, and the next event that he recalled was the police stopping the Explorer.

Appellant also testified on his own behalf. He stated that on July 8, 2004, he took an early train from Los Angeles, intending to go to Lancaster to see the mother of his child. As he rode the train, he had a dispute with her by cell phone about finances. He became angry, and got off the train at Santa Clarita. He then phoned Lincoln to pick him up.

While appellant waited for Lincoln, he walked away from the train station and decided to burglarize a house. To break the house’s window, he bought a sparkplug in an auto parts store. He located a house that appeared to be free of occupants, and shattered the glass in a sliding door with the sparkplug. After entering the house, he searched some drawers, and found someone in bed. He said aloud to himself, “Shit, there’s somebody here,” and ran out of the house and down the street for a couple of blocks. He again phoned Lincoln, who picked him up about 20 minutes later. He did not tell Lincoln or Smith that he had burglarized a house. When the police stopped Lincoln’s vehicle, appellant placed his gun under his seat, and not under the vehicle’s center console.

According to appellant, the tennis shoes that prosecution witnesses had attributed to Lincoln -- and whose soles matched the prints in the dirt near Alan’s house -- belonged to him. Appellant also testified that he bought the gun found in the Explorer approximately two weeks before his arrest.

DISCUSSION

Appellant contends that the trial court erred in (1) instructing the jury and (2) imposing a sentence.

A. Instructional Error

Appellant contends that the trial court erred in failing to instruct the jury with CALJIC Nos. 2.70 and 2.72, which would have informed it, respectively, that evidence of a defendant’s oral admissions or confession must be viewed “‘with caution,’” and that the corpus delicti of a crime must be proved independently of the defendant’s admissions or confession.^[6] These instructions must be given sua sponte in suitable circumstances when a defendant’s extrajudicial statements have been admitted. (See People v. Padilla (1995) 11 Cal.4th 891, 921, reversed on another ground in People v. Hill (1998) 17 Cal.4th 800 [CALJIC No. 2.70]; People v. Alvarez (2002) 27 Cal.4th 1161, 1170 [CALJIC No. 2.72] (Alvarez).) Appellant argues that the admission of his intrajudicial statements -- that is, his trial testimony -- also obliged the court to give these instructions on its own motion. As explained below, we disagree.

“[E]ven in the absence of a request, a trial court must instruct on general principles of law that are commonly or closely and openly connected to the facts before the court and that are necessary for the jury’s understanding of the case. [Citations.]” (People v. Montoya (1994) 7 Cal.4th 1027, 1047.) However, the trial court need not give CALJIC Nos. 2.70 and 2.72 on its own motion when the evidence at trial falls outside their rationales. (See People v. Gardner (1961) 195 Cal.App.2d 829, 831-833 [CALJIC No. 2.70]; People v. Carpenter (1997) 15 Cal.4th 312, 393-394 [CALJIC No. 2.72].)

Our research has disclosed no case squarely addressing appellant’s contentions, and thus we examine the rationales underlying the instructions at issue. The purpose of CALJIC 2.70 “‘is to assist the jury in determining if the statement was in fact made.’” (People v. Carpenter, supra, 15 Cal.4th at p. 393, quoting People v. Beagle (1972) 6 Cal.3d 441, 456, reversed on another ground in People v. Castro (1985) 38 Cal.3d 301, italics added.) Accordingly, “this cautionary instruction is inapplicable, and should not be given, if [an] oral admission was tape-recorded. [Citation.]” (People v. Mayfield (1997) 14 Cal.4th 668, 776; see People v. Gardner, supra, 195 Cal.App.2d at pp. 831-833.) For the same reason, CALJIC No. 2.70 is inapplicable when, as here, the defendant makes the statements in question while testifying at his own trial.

As our Supreme Court explained in Alvarez, CALJIC No. 2.72 informs the jury about the doctrine of corpus delicti, as recognized in California. (27 Cal.4th at pp. 1168-1170 & fn. 5.) Under this doctrine, “[i]n every criminal trial, the prosecution must prove the corpus delicti, or the body of the crime itself -- i.e., the fact of injury, loss, or harm, and the existence of a criminal agency as its cause. In California, it has traditionally been held, the prosecution cannot satisfy this burden by relying exclusively upon the extrajudicial statements, confessions, or admissions of the defendant. [Citations.] Though mandated by no statute, and never deemed a constitutional guaranty, the rule requiring some independent proof of the corpus delicti has roots in the common law. [Citations.] California decisions have applied it at least since the 1860’s. [Citation.].” (Id. at pp. 1168-1169.) The doctrine precludes a conviction if “the trial record lacks independent evidence of the corpus delicti.” (Alvarez, supra, 27 Cal.4th at p. 1170.) However, “the independent proof may be circumstantial and need not be beyond a reasonable doubt, but is sufficient if it permits an inference of criminal conduct, even if a noncriminal explanation is also plausible. [Citations.] There is no requirement of independent evidence ‘of every physical act constituting an element of an offense,’ so long as there is some slight or prima facie showing of injury, loss, or harm by a criminal agency. (Alvarez, supra, 27 Cal.4th at p. 1171, quoting People v Jones (1998) 17 Cal.4th 279, 303.)

The requirement that the trial court must instruct the jury on its own motion with CALJIC No. 2.72 is itself an element of the corpus delicti doctrine, as applied by California courts. (Alvarez, supra, 27 Cal.4th at pp. 1177-1178.) As the court in Alvarez explained, “[w]henever an accused’s extrajudicial statements form part of the prosecution’s evidence, the cases have additionally required the trial court to instruct sua sponte that a finding of guilt cannot be predicated on the statements alone. [Citations.]” (Id. at p. 1170, italics omitted.)

According to the court in Alvarez, the corpus delicti doctrine “is intended to ensure that one will not be falsely convicted, by his or her untested words alone, of a crime that never happened.” (27 Cal.4th at p. 1162.) In People v. Jennings (1991) 53 Cal.3d 334, 368, the court elaborated: “[T]he purpose of the corpus delicti rule is ‘to protect the defendant against the possibility of fabricated testimony which might wrongfully establish the crime and the perpetrator.’ [Citation.] As one court explained, ‘Today’s judicial retention of the rule reflects the continued fear that confessions may be the result of either improper police activity or the mental instability of the accused, and the recognition that juries are likely to accept confessions uncritically.’ [Citation.]” Given the rationale underlying the corpus delicti doctrine, we conclude that the trial court is not obliged to give CALJIC No. 2.72 on its own motion when, as here, the defendant’s inculpatory statements (1) occurred in his testimony at trial, and (2) were admitted after the prosecution’s case-in-chief, during which the prosecutor had presented evidence sufficient to establish the defendant’s guilt, independent of his testimony. To begin, a defendant who testifies on his own behalf at trial is subject to direct and cross-examination, and his demeanor and manner of testifying are open to the jury. Under these circumstances, his inculpatory statements are not “untested” (Alvarez, supra, 27 Cal.4th at p. 1162), and there is little likelihood that the jury will be improperly induced to accept testimony that is “‘fabricated’“ or arises from “‘improper police activity or the mental instability of the accused.’” (People v. Jennings, supra, 53 Cal.3d at p. 368.)

Furthermore, giving CALJIC No. 2.72 does not serve the corpus delicti doctrine when the prosecutor’s case against the defendant does not rely on his statements, and is otherwise adequate to establish his guilt. Here, the prosecutor’s opening statement tendered the theory that appellant had aided and abetted Lincoln and Smith in the burglary. In support of this theory, the prosecutor presented evidence during his case-in-chief that Alan identified Lincoln and Smith shortly after the burglary, sparkplug fragments were found at Alan’s house, and appellant possessed matching fragments and a receipt for a sparkplug when the Explorer was stopped. To establish the other offenses charged against appellant, the prosecutor submitted evidence that appellant hid the gun stolen from Jacobs in the Explorer when the stop occurred. During closing argument, the prosecutor reasserted his theory that appellant had aided and abetted the burglary, argued that appellant’s testimony was intended to protect Lincoln, and urged the jury to reject much of it.

The prosecutor thus did not rely on appellant’s testimony. Moreover, in our view, the prosecution’s case-in-chief, taken by itself, exceeds the minimal showing required under the corpus delicti doctrine, and constitutes substantial evidence to support appellant’s convictions.^[7] The prosecution evidence supported the reasonable inference that appellant aided Lincoln and Smith in the burglary by purchasing the sparkplug used to gain entry, and by collecting sparkplug fragments during the burglary to eliminate incriminating evidence; in addition, it supported the reasonable inference that appellant possessed and hid the gun in the Explorer with knowledge that it had been stolen. Under these circumstances, there was little or no danger that appellant would be “falsely convicted, by his or her untested words alone, of a crime that never happened.” (Alvarez, supra, 27 Cal.4th at p. 1161.) Accordingly, the trial court was not obliged to give CALJIC No. 2.72 on its own motion.

In sum, there was no instructional error.

B. Sentencing

Appellant contends that the trial court abused its discretion in determining his term of imprisonment. The trial court imposed the upper term of six years for burglary, and a consecutive term of eight months (1/3 of the middle term) for having a concealed firearm in a vehicle; it stayed punishment for the remaining offenses under section 654. Appellant argues that the trial court failed to consider several mitigating circumstances in imposing the upper term on his conviction for burglary.

When a sentence of imprisonment is imposed, the trial court is required to select the middle term, “unless imposition of the upper or lower term is justified by circumstances in aggravation or mitigation.” (Cal. Rules of Court, rule 4.420(a).) However, “[a] single factor in aggravation will support imposition of an upper term. [Citation.]” (People v. Cruz (1995) 38 Cal.App.4th 427, 433.)

We review the trial court’s findings concerning aggravating and mitigating factors for the presence of substantial evidence (People v. Gragg (1989) 216 Cal.App.3d 32, 46), and the trial court’s balancing of aggravating and mitigating factors for abuse of discretion (People v. Hetherington (1984) 154 Cal.App.3d 1132, 1140-1141).

Here, the probation report identified a single aggravating factor -- the increasing seriousness of appellant’s criminal adjudications as a juvenile and convictions as an adult -- and a single mitigating factor -- an insignificant record of criminal conduct. The report discloses that appellant had an adjudication for battery (§ 243.2, subd. (a)(1)) as a minor and convictions for loitering with the intent to sell or possess narcotics (Health & Saf. Code, § 11532, subd. (a)) and theft (§ 484, subd. (a)) as an adult. He was on probation for the latter offenses when he committed the burglary at issue.

During the sentencing hearing, appellant’s counsel cited an additional mitigating factor, namely, that appellant had played a minor role in the burglary. He argued that appellant had remained in the Explorer, was not its driver, and had not entered Alan’s house. In imposing the upper term, the trial court stated that it had considered the probation report, and found that appellant was on two separate grants of probation when he engaged in the burglary, which rendered his performance on probation unsatisfactory.

Appellant does not dispute that the trial court properly identified an aggravating factor (Cal. Rules of Court, rule 4.421(b)(4)), or that substantial evidence supports its determination.^[8] He contends instead that the trial court did not consider the mitigating factors cited in the probation report and by his counsel during the sentencing hearing. This contention fails on the record before us.

Although the trial court must consider all mitigating factors (People v. Whitten (1994) 22 Cal.App.4th 1761), it is presumed to have done so unless the record shows otherwise (People v. Castellano (1983) 140 Cal.App.3d 608, 615). Thus, “[a] trial court may minimize or even entirely disregard mitigating factors without stating its reasons. [Citations.]” (People v. Salazar (1983) 144 Cal.App.3d 799, 813.) Here, nothing in the record suggests that the trial court declined to consider the cited factors in exercising its discretion.

Appellant also contends that the trial court failed to recognize other mitigating factors neither stated in the probation report nor raised at the sentencing hearing. He points to evidence in the record that he engaged in the burglary out of financial necessity, Alan’s house was targeted because it appeared to be unoccupied, and the burglars fled without harming Alan. However, this contention is waived. When, as here, an appellant had a meaningful opportunity to cite mitigating factors to the trial court when it exercised its discretion, but failed to do so, he may not raise them on appeal. (People v. Kelley (1997) 52 Cal.App.4th 568, 582; see People v. Scott (1994) 9 Cal.4th 331, 356.)

^[9]

In sum, appellant has failed to show sentencing error.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MANELLA, J.

We concur:

WILLHITE, Acting P.J.

SUZUKAWA, J.

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^[1] Lincoln and Smith are not parties to this appeal.

^[2] All further statutory citations are to the Penal Code, unless otherwise indicated.

^[3] In connection with count 1, the information alleged that the offense was a violent felony in that a person other than a defendant was present in the residence during its commission (§ 667.5, subd. (c)).

^[4] In addition, the information alleged that Smith had suffered several prior felony convictions.

^[5] The jury also found true the special allegation under count 1 that a person other than a defendant had been present during the burglary.

^[6] CALJIC No. 2.70 states: “A confession is a statement made by a defendant in which [he] [she] has acknowledged [his] [her] guilt of the crime[s] for which [he] [she] is on trial. In order to constitute a confession, the statement must acknowledge participation in the crime[s] as well as the required [criminal intent] [state of mind]. An admission is a statement made by [a] [the] defendant which does not by itself acknowledge [his] [her] guilt of the crime[s] for which the defendant is on trial, but which statement tends to prove [his] [her] guilt when considered with the rest of the evidence. You are the exclusive judges as to whether the defendant made a confession [or an admission], and if so, whether that statement is true in whole or in part. [Evidence of [an oral confession] [or] [an oral admission] of the defendant not made in court should be viewed with caution.]”

CALJIC No. 2.72 states: “No person may be convicted of a criminal offense unless there is some proof of each element of the crime independent of any [confession] [or] [admission] made by [him] [her] outside of this trial. The identity of the person who is alleged to have committed a crime is not an element of the crime [nor is the degree of the crime]. The identity [or degree of the crime] may be established by [a] [an] [confession] [or] [admission].”

^[7] “‘The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder. [Citations.]’ [Citation.]” (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)

^[8] California Rules of Court, rule 4.421(b)(4) identifies as a circumstance in aggravation that “[t]he defendant was on probation or parole when the crime was committed.”

^[9] In addition, appellant contends that the imposition of the upper term for burglary contravened Blakely v. Washington (2004) 542 U.S. 296. He concedes that our Supreme Court rejected his contentions in People v. Black (2005) 35 Cal.4th 1238, and that he has raised them only to preserve them pending the decision of the United States Supreme Court in People v. Cunningham (Apr. 18, 2005, A103501) [nonpub. opn.], cert. granted sub nom. Cunningham v. California Feb. 21, 2006, No 05-6551, ____ U.S. ____ [126 S.Ct. 1329, 164 L.Ed.2d 47].) We therefore do not address them.