P. v. Dupois

Filed 5/25/10 P. v. Dupois CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEALS from judgments of the Superior Court of Los Angeles County, Frederick N. Wapner, Judge. Affirmed.

David M. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant Deandre D. Dupois.

Laura Schaefer, under appointment by the Court of Appeal, for Defendant and Appellant Melvin Rice.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.

Appellants Deandre D. Dupois and Melvin Rice were jointly charged with carjacking and second degree robbery with the use of a firearm (counts 1 and 2). (Pen. Code, 215, 211, 12022.53, subd. (b).)[1] The same information charged Rice with two additional counts of second degree robbery (counts 3 and 4) and Dupois with evading an officer (count 5). (Veh. Code, 2800.2, subd. (a).) In the first joint trial, Dupois was convicted of evading; however, the jury was unable to reach a verdict on the other counts and a mistrial was declared. After a second trial, appellants were convicted of the remaining charges. They appeal from the judgments entered following their convictions. Dupois contends counts 3 and 4, which only named Rice, should have been severed from his trial and there is insufficient evidence to sustain the finding that he used a firearm. Rice urges the court erred by instructing the jury with CALCRIM No. 376. Finding no error, we affirm the judgments.

STATEMENT OF FACTS[2]

On January 18, 2007, at approximately 10 p.m., Efren Zafra arrived at his home on Market Street in Inglewood. As he parked his Ford Explorer, four young men approached. One of them knocked on the passenger window and asked for the time. Zafra lowered the window. The man put a semiautomatic gun through the window, pointed it at Zafras forehead, and demanded the keys to the vehicle. Two other men went to the drivers side, opened the door, and again asked for the keys. Zafra got out of the truck. One of the men put a round metal object against Zafras ribs. Zafra thought the object was the barrel of a gun, although he had never felt one before. At trial, he indicated the end of the barrel was slightly larger than a quarter. The man was concealing the object, but Zafra saw a bulge under the mans sweater. Two of the other men took Zafras wallet, cell phone, and watch. The man who held the object to Zafras ribs got in the drivers seat of the Explorer and the man who pointed the gun in the passenger window got in the front passenger seat. The other two men got in the back seat and Zafras vehicle was driven away.

Before the jury, Zafra identified Rice as the person who approached the passenger side of the Explorer and Dupois as the man who held the object against his ribs. Zafra acknowledged that during the preliminary hearing, he mistakenly identified Rice as the man who approached the drivers side window. Zafra said he was confused on that occasion and confirmed that Rice was the individual who put the gun through the passenger window.

About a half hour after Zafras Explorer was taken, Cynthia Campos was walking with her friend Yuri Rodriguez on Mullen Street near Pico Boulevard when a man approached from behind and demanded Rodriguezs purse and Camposs backpack. The man pointed a knife at Camposs stomach and said if she did not give him her backpack, he would shank her. After he took Camposs backpack, which contained her wallet, he got into the passenger seat of a blue truck that looked like an Explorer or Escalade. There was one other person inside the vehicle, the driver. The next day, police called and told her they had found her belongings. They returned her wallet with all of the contents but not the backpack. At the preliminary hearing and trial, she identified Rice as the man who took her backpack.

Yuri Rodriguez testified that a man ran up behind her and Campos, grabbed her arm, and told her to give him her purse or she would be shanked. Rodriguez understood this to mean that she would be stabbed. She did not see a weapon. She was unable to see her attackers face because it was dark, but she described him as a tall, Black, skinny male wearing a black-hooded sweater, jeans, and sneakers. There was a royal blue truck on the street with someone in the drivers seat. The man who took her purse got into the passenger seat of the blue truck and it drove off. When police returned her purse the next day, her paycheck was missing. At a photographic lineup, she selected someone other than Rice, stating that she thought he was the person who took her purse. At the preliminary hearing, she identified Rice as the robber.

On the night following the robberies, January 19, Los Angeles police officers were on patrol in an unmarked car on La Brea Avenue. A blue Ford Explorer almost collided with them. They checked the license plate and determined that there was a felony warrant connected with the vehicle. They followed the truck and notified other police units. Another officer driving a marked patrol car saw the Explorer and activated the vehicles siren and light bar. The Explorer sped up, moved recklessly through traffic, and collided with another vehicle. Dupois, the driver, and Rice, the only passenger, were arrested. Officers transported Zafra to the arrest site. Zafra identified the Explorer as his. He identified Rice as the man who pointed the gun inside the passenger window and Dupois as the one who put the hard object to his ribs. Some of Zafras belongings were still in the truck, along with a black purse with identification cards bearing the name of Cynthia Campos and Yuri Rodriguez. No guns or other weapons were found in the truck.

Dupois presented an expert witness on memory and eyewitness identification who testified about factors that bear upon an individuals ability to perceive and recall events.

DISCUSSION

I. Motion to Sever

Prior to the second trial, Dupois moved to sever the Campos and Rodriguez robberies (counts 3 & 4), as they named only Rice.[3] The trial court denied his motion. Dupois contends this was error.

There is a statutory preference for joint trial of jointly charged defendants. ( 1098.) A classic case for joint trial is presented when defendants are charged with common crimes involving common events and victims. [Citation.] An appellate court reviews a trial courts ruling on a motion for separate trials for abuse of discretion. [Citation.] Under Penal Code section 1098, a trial court must order a joint trial as the rule and may order separate trials only as an exception. [Citation.] (People v. Cleveland (2004) 32 Cal.4th 704, 725-726.)

Where, as here, defendants are charged with several offenses and the offenses belong to the same class of crime, joinder pursuant to section 954 is appropriate and [t]he burden is on the party seeking severance to clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried. (People v. Soper (2009) 45 Cal.4th 759, 773.) A trial courts denial of a severance motion is reviewed for abuse of discretion. (Id. at p. 774.)

First, we consider the cross-admissibility of the evidence in hypothetical separate trials. [Citation.] If the evidence underlying the charges in question would be cross-admissible, that factor alone is normally sufficient to dispel any suggestion of prejudice and to justify a trial courts refusal to sever properly joined charges. [Citation.] (People v. Soper, supra, 45 Cal.4th at pp. 774-775.)

In denying Dupoiss motion, the trial court stated, The motion to sever is denied. All the evidence of those two counts is much of it is cross-admissible because the evidence is that Mr. Rice got into the truck that was the subject of the theft, the carjacking, and robbery in counts 1 and 2; and that that truck took off and eventually crashed; and that it was Mr. Dupois, I believe it was, driving the truck at the time that it crashed. So its circumstantial. The People are going to say, well, he had possession of this property one day afterwards, hes the person who was involved, therefore its cross-admissible, not prejudicial.

Dupois argues that none of the evidence relating to the Campos and Rodriguez robberies would have been admissible in a separate prosecution of the Zafra robbery. He maintains that the only connection between the two crimes is that property taken from the three victims was found in the Explorer after appellants arrest. He urges that that fact was irrelevant to the question of whether he robbed Zafra. We disagree.

The robbery of Campos and Rodriguez and the carjacking of Zafra were not two unrelated crimes. They were committed within approximately 30 minutes of each other and the vehicle taken from Zafra was used in the robbery of Campos and Rodriguez. Zafra testified that Dupois got into the drivers seat and Rice got into the passenger seat of his blue Explorer before it left the scene. Campos and Rodriguez noted that after taking their property, Rice got into the passenger seat of a blue Explorer or Escalade that contained one other individual, the driver. When police stopped Zafras vehicle the night after the robberies, Dupois was the driver and Rice was the passenger. Property from the two incidents was commingled in the Explorer. Taken together, this evidence shows it was likely Dupois and Rice remained together after committing the Zafra robbery until they were arrested, and it serves to corroborate Zafras testimony that Dupois was one of the robbers and the individual who drove his vehicle away.

We conclude the trial court was correct when it found the evidence was cross-admissible. Thus, its refusal to sever counts 3 and 4 was not an abuse of discretion.

II. Jury Instruction

The jury was instructed with CALCRIM No. 376, as follows: If you conclude that the defendant knew he possessed property and you conclude that the property had in fact been recently stolen, you may not convict the defendant of carjacking or robbery based on those facts alone. However, if you also find that supporting evidence tends to prove his guilt, then you may conclude that the evidence is sufficient to prove he committed carjacking or robbery. The supporting evidence need only be slight and need not be enough by itself to prove guilt. You may consider how, where, and when the defendant possessed the property, along with any other relevant circumstances tending to prove his guilt of carjacking or robbery. [] Remember that you may not convict the defendant of any crime unless you are convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt.

Rice contends the instruction was misleading because [he] was only a passenger in the vehicle and therefore did not possess the stolen truck or its contents. Presence in the passenger seat is not sufficient to show possession of a stolen vehicle. We are not persuaded that the instruction misled the jury in any way. While Rice is correct that his presence in the passenger seat of the Explorer was not enough to establish that he possessed the truck or the property inside (see People v. Zyduck (1969) 270 Cal.App.2d 334, 335-336), nothing in the instruction suggested that mere presence in the vehicle equated to possession of it or its contents. The jury was informed it had to conclude that Rice knew or was aware he possessed certain property that turned out to be stolen.[4]

Moreover, the jury expressly was told that possession alone was not sufficient to support a conviction for carjacking or robbery and that additional evidence of guilt was necessary. Here, Rice was identified by Zafra and Campos, he and Dupois were in Zafras Explorer when they were arrested by police, and the victims property was found in the vehicle.

In evaluating Rices claim that the jury misconstrued the instruction in question, we determine whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution. (People v. Raley (1992) 2 Cal.4th 870, 901.) We conclude it is not reasonably likely the jury misunderstood CALCRIM No. 376 in the manner Rice claims.[5]

Rice complains that unlike its predecessor, CALJIC No. 2.15, which specifically required the jury to find the defendant was in possession of recently stolen property before allowing the inference [of guilt] to be drawn[,] . . . CALCRIM No. 376 is not as clear in that it requires the jury only to find [he] knew he possessed property, and not that he actually possessed the stolen property. Rices suggestion that the CALCRIM instruction requires less proof than that required under CALJIC No. 2.15, an instruction that he concedes accurately states the law, is unavailing.

In order to apply the inference in CALCRIM No. 376, the jury had to conclude that Rice knew he possessed property that had in fact been recently stolen. We have difficulty discerning the difference between finding the accused was in possession of recently stolen property (CALJIC No. 2.15) and determining the accused knew he or she possessed recently stolen property. The trial courts use of CALCRIM No. 376 did not constitute error.

III. Firearm Enhancement

Dupois contends there is insufficient evidence to support the firearm enhancement because Zafra testified that the only weapon he saw was the one Rice pointed through the window. Dupois argues Zafra did not see what he was holding under his sweater and Zafra admitted that prior to the night of the robbery he had never felt a barrel of a gun against his ribs. Dupois also argues Zafra did not hear any other sounds that would suggest the presence of a firearm, and no other weapons were found in the vehicle when Dupois and Rice were apprehended.

Circumstantial evidence alone is sufficient to support a finding that an object used by a robber was a firearm. (People v. Monjaras (2008) 164 Cal.App.4th 1432, 1436.) Here, Zafra testified he felt a gun barrel against his ribs, and saw a bulge under Dupoiss sweater. Dupois threatened Zafra with the object to convince him to hand over his belongings. Zafras sensory perception and the fear the object produced support an inference that a gun was being used. The fact that Zafra did not actually see a gun is not dispositive. (People v. Dominguez (1995) 38 Cal.App.4th 410, 414, 421-422 [feeling cold cylindrical object accompanied by threat to kill was sufficient to uphold a firearm enhancement]; People v. Granado (1996) 49 Cal.App.4th 317, 328-329, fn. 10 [a firearm use finding could be upheld against a blind victim].) The jurors were entitled to draw an inference from the evidence presented that Dupois used a firearm. (People v. Monjaras, supra, 164 Cal.App.4th at pp. 1436-1437 [jurors entitled to infer that defendant used a firearm even if victim was unable to say whether gun was real].)

DISPOSITION

The judgments are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

SUZUKAWA, J.

We concur:

EPSTEIN, P.J.

WILLHITE, J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by San Diego County Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

[1]All further statutory references are to the Penal Code.

[2] As neither appellant raises an issue with respect to the first trial, we set forth only the evidence presented in the second.

[3]Dupois made the identical motion prior to the first trial. As that trial ended with a mistrial on the robbery counts, we address the second motion to sever.

[4] Contrary to Rices claim, his status as a passenger does not necessarily mean he did not possess the truck or its contents. In People v. Land (1994) 30 Cal.App.4th 220, the defendant was a passenger in a stolen car that was used in other crimes as part of a joint enterprise. Other evidence in addition to Lands presence in the vehicle supported his conviction for receiving stolen property. (Id. at p. 228.)

[5]Although Dupois joined in Rices contentions to the extent they assisted him, given that Rices argument was based on his status as a passenger in the Explorer, it was not applicable to Dupois, the driver.