P. v. Gleghorn

Filed 4/4/06 P. v. Gleghorn CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 SIX

Kelsey Dru Gleghorn appeals from the judgment entered after a jury found him guilty of first degree burglary. ( judgment ) entered after a jury found him guilty of first degree burglary (Pen. Code^[1], § 459). He admitted he had suffered three prior serious or violent felony convictions within the meaning of section 667, subdivision (a)(1), and the three strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). He was sentenced to a state prison term of 25 years to life, plus 15 years. He contends the evidence is insufficient to support his conviction, and that the trial court abused its discretion by denying his motion to strike prior convictions pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. We affirm.

FACTS AND PROCEDURAL HISTORY

At approximately 4:30 a.m. on August 17, 2001, Jill Billinger was sleeping on the couch in the living room at her home at 4171 Eileen Street in Simi Valley when she was awakened by a rustling noise. She saw a penlight near the hall and, believing it was her husband, she asked what he was doing. The light went out, and she went back to sleep. Shortly thereafter, she was awakened by another noise and saw the penlight shining near the front door. Again believing that it was her husband, she asked what he was doing and demanded that he answer her. When there was no answer, she realized that it was not her husband. She jumped up and yelled, "John, there's someone in the house."

The intruder told Mrs. Billinger to "chill," walked past her, and exited through the open sliding glass door to the backyard. Mrs. Billinger noticed that he was carrying a black bag. Mr. Billinger came out of the bedroom, grabbed a knife from the kitchen, and chased the man down the street after he saw him exit through the gate. Mr. Billinger observed that the man was wearing a black hooded shirt with the hood down and that he had salt-and-pepper colored hair in a ponytail. Mr. Billinger also saw the man climb over a gate into the neighbor's backyard.

The police arrived shortly thereafter, and a perimeter was set up around the area between 4:45 and 5:30 a.m. Efforts to find the intruder at that time were unsuccessful. A hat bearing the phrase "No Fear" was found on the Billingers' living room floor, and a black bag belonging to the Billingers was missing. Mr. Billinger's wallet and hat were found in the backyard. A 12-pack of beer that had been in the backyard was also gone.

At approximately 4:45 a.m., a neighbor who lived on nearby Deborah Street called the police to report that someone had climbed over the fence into his backyard. At around 5:55 a.m., Paula Clough, who lived at 4142 Deborah Street, called the police after seeing a man running in her backyard. Clough told the police that the man was wearing a "Dickie-type uniform," and that he had long hair that was hanging out of a head covering that was not a hat. Clough also saw the man retrieve a black duffel bag from behind her shed.

Sometime later, Officer Jones was responding to another report of a prowler in the area when he heard rustling in the bushes in one of the backyards on Deborah Street. The officer called for more units, and a perimeter was set up around the area, but the source of that noise was not found. After the responding officers spoke to each other about the incidents and the descriptions of the intruder, Officer Jones identified Gleghorn, who often stayed at Stuart Sheets's home at 4162 Deborah Street, as a possible suspect. It was discovered that Gleghorn had an unrelated warrant for his arrest, and a perimeter was set up around Sheets's house.

Officers knocked on Sheets's door and asked for permission to search for a prowler. Peggy Morabito answered the door and told them Gleghorn was not there. Both Morabito and Sheets denied the police entry into the home. After learning that Gleghorn was there, the police initiated the process for a warrant to search the house. In the meantime, Gleghorn walked by the open door in view of the police and was ordered outside. He complied and was placed under arrest. At the time of his arrest, Gleghorn exhibited signs of intoxication and had plant material on his upper body and in his hair. Eleven cans of beer were found in the refrigerator, and an empty 12-pack container was on top of the trash can. Morabito identified the "No Fear" hat found in the Billingers' house as Gleghorn's favorite hat. Gleghorn's DNA was subsequently found in the rim of the hat.

Clough was unable to identify Gleghorn from a photographic lineup as the individual she had seen in her backyard, but she made a field identification of him when the police took her to see him in front of Sheets's house. Gleghorn was not wearing a hat when Clough identified him. Mr. Billinger also saw Gleghorn when he was brought out of Sheets's house, and said that he resembled the individual he had chased from his house. At trial, Mr. Billinger positively identified Gleghorn as the burglar.

Morabito, who was Gleghorn's girlfriend at the time, testified at trial that he had left Sheets's house sometime on the morning of the crime after a day and night of drinking alcohol. Morabito verified that Gleghorn was wearing his "No Fear" hat and that his hair was in a ponytail. According to Morabito, Gleghorn returned approximately 30 to 45 minutes later with a black duffel bag that contained frozen dinners, and he was no longer wearing his hat. He left again, and returned about 30 minutes later with a duffel bag containing a 12-pack of beer. Gleghorn drank one of the beers and put the rest in the refrigerator. Laurie Mallon, Sheets's fiancée, hid the duffel bag under a pile of clothes.

Gleghorn testified on his own behalf. He claimed that he had passed out from intoxication between 3:00 and 4:00 a.m. on the morning of the crime. He also claimed that the police made him wear the "No Fear" hat recovered from the Billingers' house when Clough identified him in the field. He also disclaimed ownership of the hat, and claimed that Morabito had confused it with another "No Fear" hat of a different color that belonged to him. A defense investigator testified that he had recovered Gleghorn's hat from the home of a woman named Valerie Wood. Sheets testified that Gleghorn never left the house that morning, and that Mallon had purchased the beer in the refrigerator earlier that night.

DISCUSSION

I.

Sufficiency of the Evidence

Gleghorn contends the evidence is insufficient to establish his identity as the individual who burglarized the Billingers' home.

In reviewing claims of insufficient evidence, "we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]" (People v. Bolin (1998) 18 Cal.4th 297, 331.) We do not reweigh the evidence, and reversal is warranted only when the evidence is insufficient to support the judgment under any hypothesis. (Ibid.) "[T]he testimony of a single witness is sufficient to uphold a judgment even if it is contradicted by other evidence, inconsistent or false as to other portions. [Citation.]" (People v. Leigh (1985) 168 Cal.App.3d 217, 221.)

In light of these principles, we conclude that the evidence is sufficient to support the jury's finding with regard to Gleghorn's identity as the burglar. One of Gleghorn's victims, Jim Billinger, positively identified him at trial as the individual he had seen running from his house. That identification is sufficient by itself to support the finding that Gleghorn's identity as the burglar had been proven beyond a reasonable doubt. (See, e.g., People v. Leigh, supra, 168 Cal.App.3d at p. 221.) Clough also identified Gleghorn during a field identification, and that identification is not undermined, for purposes of evaluating the sufficiency of the evidence, by the fact that she was unable to identify him from a photographic lineup. (See In re Gustavo M. (1989) 214 Cal.App.3d 1485, 1497.) Although Gleghorn questions the accuracy of those identifications, "[w]eaknesses and inconsistencies in eyewitness testimony are matters solely for the jury to evaluate." (People v. Allen (1985) 165 Cal.App.3d 616, 623.) Moreover, the witness identifications are bolstered by Morabito's testimony and the fact that Gleghorn's DNA was found on the hat that was left behind in the Billingers' living room. Gleghorn claims that his DNA on the hat can be explained by the fact that the police made him wear it during the field identification. That claim, however, is directly contradicted by Clough's testimony that Gleghorn was not wearing the hat when she identified him. Because Gleghorn cannot establish that the witness identifications were physically impossible or inherently improbable, his claim that those identifications are insufficient to support his conviction necessarily fails. (People v. Young (2005) 34 Cal.4th 1149, 1181.)

II.

Denial of Romero Motion

Gleghorn also contends the trial court abused its discretion by denying his motion to strike his prior convictions. In Romero, our Supreme Court held that the three strikes law does not prohibit the trial court from striking prior convictions in furtherance of justice under section 1385, subdivision (a). The trial court's decision to strike a prior conviction pursuant to this authority is reviewed for an abuse of discretion. (People v. Superior Court (Romero), supra, 13 Cal.4th at p. 531.) The court subsequently recognized that a trial court's decision not to strike a prior conviction is subject to the same standard of review. (People v. Carmony (2004) 33 Cal.4th 367, 375.)

In reviewing the trial court's refusal to strike a prior, we must consider whether "'. . . in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.' [Citation.]" (People v. Carmony, supra, 33 Cal.4th at p. 377.) A reversal under the circumstances is warranted only in the extraordinary case where the relevant factors for striking a prior manifestly support it and no reasonable person could differ. (Id., at p. 378.)

This is not such an extraordinary case. Gleghorn's criminal history spans 25 years and includes three prison terms and at least 13 commitments to jail. He has prior convictions for involuntary manslaughter, two counts of first-degree burglary, and felony battery with serious bodily injury. In refusing to strike Gleghorn's priors, the trial court explained: "[He] is a career criminal starting at the early age of 17 . . . . [H]e's been to prison three times, he's a predator in terms of slipping in in the late-night hours into people's homes and to me that's very serious just because--it's not the issue as to whether he took beers or thousands of dollars of jewelry. It's just taking the risk to enter somebody's premises where someone could be shot and killed. People have heart attacks. He's a risk-taker and he has not learned from his actions. . . . [¶] I think he's a career criminal. He can't help himself. In my opinion, someone with his background of this outrageous criminal history and the fact that he went to prison once, didn't learn, he went to prison twice, didn't learn, he went to prison a third time for a sentence of 11 years and didn't learn, I don't think there's any useful purpose in striking any of the strikes." In light of the record, it cannot be said that the court's refusal to strike Gleghorn's priors constitutes an abuse of discretion.^[2]

Although Gleghorn claims that his criminal history and his current offense are the result of his drug and alcohol problems, such problems are "not necessarily regarded as a mitigating factor when a criminal defendant has a long-term problem and seems unwilling to pursue treatment." (People v. Martinez (1999) 71 Cal.App.4th 1502, 1511.) Gleghorn's drinking problem dates back to at least the age of 17, when he committed voluntary manslaughter by stabbing his victim three times in the chest when his blood alcohol was more than twice the legal limit for an adult. Nothing in the record indicates that Gleghorn ever made efforts to treat his alcohol problem in the ensuing 25 years.

The judgment is affirmed.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

YEGAN, Acting P.J.

COFFEE, J.

Herbert Curtis III, Judge

Superior Court County of Ventura

______________________________

Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven E. Mercer, Erika D. Jackson, Deputy Attorneys General, for Plaintiff and Respondent.

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^[1] Statutory references are to the Penal Code.

^[2] Gleghorn also complains that both sides had previously agreed to a plea-bargained sentence of 13 years in which both of his priors were stricken, but that the trial court refused to accept that plea on the grounds of illegality. As the People correctly note, the fact that the prosecution was prepared to strike the priors pursuant to a plea agreement did not compel the prosecution, or the trial court, to subsequently acquiesce in Gleghorn's motion to strike those priors after he pleaded not guilty and proceeded to trial.