P. v. Guerra

Filed 7/11/06 P. v. Guerra CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

APPEAL from a judgment of the Superior Court of Los Angeles County.

Jacqueline Nguyen, Judge. Affirmed.

Robert Valencia, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General of the State of California, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, and David E. Madeo, Deputy Attorney General, for Plaintiff and Respondent.

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Appellant Pedro Guerra was convicted, following a jury trial, of one count of attempted second degree burglary in violation of Penal Code sections 459 and 664. The jury found true the allegations that he had two prior serious felony convictions within the meaning of section 1170.12 and 667, subdivision (a), and served four prior prison terms within the meaning of section 667.5, subdivision (b). The trial court sentenced him to a term of 25 years to life in state prison pursuant to the three strikes law, plus two five-year enhancement terms for the section 667, subdivision (a) allegations. Appellant appeals from the judgment of conviction, contending that the trial court erred in denying his motion to suppress evidence, and that there is insufficient evidence to establish the corpus delicti of attempted residential burglary or his conviction for attempted burglary. He further contends that the trial court erred in imposing the section 667, subdivision (a), enhancement terms and abused its discretion in refusing to dismiss the three strikes allegations. He contends the sentence imposed by the trial court constitutes cruel and unusual punishment. He also contends that the state's failure to preserve certain items of evidence denied him his right to present a defense. We affirm the judgment of conviction.

Facts

On July 2, 2003, at about 1:00 or 2:00 p.m., Jonathan Chang and his mother Annie Chow were at their condominium on Le Cadena Avenue in Arcadia. Chang heard someone knocking on the door. He looked through the peephole and saw a man, later identified as appellant. The man was wearing a tan shirt and had a two-way radio device going to his mouth with a headset. The man appeared young and Caucasian to Chang. Chang did not know appellant and so did not open the door.

Chang walked away from the door, then returned when the knocking became loud and rapid. Chang looked through the peephole and again saw appellant. Chow also looked through the peephole, but could not fully see appellant's face. Chang heard the outside door handle being pressed down multiple times and very rapidly. This continued for about two minutes. He told Chow to call the police. She called 911 and said that someone was trying to break into her home.

Chang and Chow heard clicking and metal on metal sounds. Chang saw appellant's shoulders moving as if he was working at something. After a few minutes, Chang and Chow heard someone run down the front porch stairs. When they looked out, appellant was gone.

At about 2:00 p.m., Officers Robert Bolduc and Nicole Roberge responded to a call of attempted residential burglary. As they drove to the location, they saw appellant walking away from La Cadena Avenue. He fit the description of the suspect. Officer Bolduc got out of the car to talk to appellant. He turned and ran away.

Officer Bolduc chased appellant and caught him fairly quickly. Appellant got down on the ground and Officer Bolduc saw a pair of black gloves partially protruding from appellant's back pocket. Appellant had an earpiece in his ear. A pat-down search revealed a Motorola two-way radio on his person.

The officers handcuffed appellant. Another officer went to Chang's and Chow's condominium and brought them to the location where appellant was being detained. Chow recognized appellant's clothing and general physical appearance, but not his face. Chang identified appellant as the person he saw at his front door. Chang also identified appellant at trial. Chang testified at trial that appellant looked Caucasian to him.

When Chow used her key in the front door lock after this incident, the lock was stiff.

At trial, appellant's brother, Robert Guerra, testified that in July 2003 appellant worked for him. Guerra was president of a seafood company and appellant worked in the company's warehouse. Appellant wore gloves and a Motorola walkie-talkie radio while working in the warehouse. In July 2003, appellant lived with his mother about 16 miles away from Arcadia.

Discussion

1. Motion to suppress

Appellant contends police officers did not have reasonable cause to detain him and that the trial court erred in denying his motion to suppress the evidence found by police during that detention. We see no error.

The standard of review of a trial court's ruling on a motion to suppress is well established. We defer to the trial court's factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. (People v. Glaser (1995) 11 Cal.4th 354, 362.)

"A detention is reasonable under the Fourth Amendment when the detaining officer can point to the specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity." (People v. Souza (1994) 9 Cal.4th 224, 231.)

Here, the officers had a description of a burglary suspect which matched appellant's appearance, appellant was very close to the victims' residence very shortly after the attempted burglary, there was no one else in the area who matched the suspect's description, and appellant ran when he saw police. We find these circumstances provided the officers with reasonable suspicion that appellant was involved in criminal activity and allowed them to detain him for further investigation.

Appellant acknowledges that unprovoked flight from police officers may be the basis for reasonable suspicion. (People v. Souza, supra, 9 Cal.4th at pp. 234-235; Illinois v. Wardlow (2000) 528 U.S. 119, 124-125.) He contends that his flight was provoked and so cannot support reasonable suspicion. He contends that after the police car arrived, the officers started yelling incoherently, and that a reasonable person would flee under such circumstances. There is nothing in the record to support this contention.

Appellant also contends that he did not match the description of the burglary suspect. That suspect was described as white and about 20 years old, wearing a white shirt and possibly carrying a two-way radio. Appellant is 43 and Hispanic. When detained, he was wearing a tan shirt and was not visibly carrying a two-way radio. The difference between a white shirt and a light tan one is negligible, and the radio was only a possibility to begin with. The officer testified that appellant appeared young and white to him. The trial court found the officer credible and found that appellant matched the suspect's description. The court was able to view appellant in person. We are not. We defer to the trial court's findings on this matter.

Appellant contends that the initial detention quickly turned into an arrest because one of the officers drew his gun, appellant was handcuffed in the presence of two officers and other officers drove by the scene for the field show-ups. He further contends that the officers did not have probable cause for such an arrest.

A show of force may transform a detention into an arrest. If, however, the show of force is reasonable under the circumstances, the force does not transform a detention into an arrest. (Terry v. Ohio (1968) 392 U.S. 1, 27; U. S. v. Ricardo D. (9th Cir. 1990) 912 F.2d 337, 340.)

We find the level of force used to be reasonable here. Appellant fled from the officers. Officer Bolduc drew his gun during the chase. This was a reasonable show of force under the circumstances. The officer had no way of knowing whether appellant was armed, or how he would react if cornered. Since appellant had tried to escape, the use of handcuffs for a brief period was also reasonable. The fact that there were two officers at the scene does not make the use of handcuffs less reasonable. The fact that additional officers transported the victims to appellant's location does not amount to an additional show of force.

To the extent that appellant contends that the officers were not justified in conducting a pat-down search of him for weapons at the beginning of the detention, we do not agree. Further, we agree with the trial court that the gloves and radio would have inevitably been discovered. There is nothing in the record to suggest that the officers' decision to hold a field show-up was based on the discovery of the gloves and radio. At the field show-up, Chang identified appellant. We have no doubt that the officers would have arrested appellant on the basis of that identification alone. Appellant would have been searched incident to arrest and the items would have then been discovered

2. Sufficiency of the evidence

Appellant contends that the evidence is not sufficient to prove the corpus delicti of the crime of attempted residential burglary or to support his conviction for that crime. Appellant has waived his claim that the prosecution failed to establish the corpus delicti by failing to object in the trial court. (People v. Sally (1993) 12 Cal.App.4th 1621, 1628; People v. Wright (1990) 52 Cal.3d 367, 403.) We see sufficient evidence to support appellant's conviction.[1]

In reviewing the sufficiency of the evidence, "courts apply the 'substantial evidence' test. Under this standard, the court 'must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence - that is, evidence which 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. Cuevas (1995) 12 Cal.4th 252, 260-261.)

The standard of review is the same when the prosecution relies on circumstantial evidence to prove guilt. (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) "'If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.' (People v. Bean (1988) 46 Cal.3d 919, 932-933.)" (People v. Thomas (1992) 2 Cal.4th 489, 514.)

An attempt to commit a crime consists of a specific intent to commit the crime and a direct but ineffectual act done towards its completion. (People v. Carpenter (1997) 15 Cal.4th 312, 387.) Mere preparation for a crime is not an attempt to commit that crime. (See People v. Buffum (1953) 40 Cal.2d 709, 718, overruled on other grounds by People v. Morante (1999) 20 Cal.4th 403.)

Here, appellant knocked repeatedly on Chang's door. Chang did not respond. The knocking stopped and Chang heard the outside door handle being pressed down multiple times over a two-minute period and also heard a metal on metal sound. When Chang looked through the peephole in his door, he saw appellant's shoulders moving as if he were working something. After a few minutes, appellant left. Shortly thereafter, police detained appellant. Chang identified appellant in a one-person field show-up as the man at the door.

Appellant contends that the activities observed by Chang were at most "mere preparation." We do not agree.

It is reasonable to infer from these facts that appellant knocked on the door to see if someone were home. It is also reasonable to infer that when appellant did not receive a response to his knocks, he tried to open the door using a metal object. This is a direct but ineffectual step toward entering the home. Since this was not appellant's home, it is reasonable to infer that he was attempting to enter the home for the purpose of committing a felony. Given appellant's efforts to make sure that no one was home, it is reasonable to infer that he was attempting to commit the crime of theft.[2] (See People v. Nunley (1985) 168 Cal.App.3d 225, 230-231[entering an apartment lobby with the intent to burglarize one of the apartments was sufficient act to constitute burglary]; People v. Machen (1935) 3 Cal.App.2d 499, 500-501 [defendant found with hands raised against the screen of an apartment house was guilty of attempted burglary]; People v. Gilbert (1927) 86 Cal.App. 8, 9-10 [climbing up to a second story and approaching the doors which led to the intended victim's bedroom and leaving without entering was sufficient act to support attempted burglary conviction].)

Appellant also contends that his identification as the man at Chang's door was not supported by substantial evidence because the victims did not have adequate opportunity to observe him, gave an incorrect description of him to police and were of a different race than him. We do not agree with appellant's characterization of the evidence. Chang had ample opportunity to observe appellant several times through the peephole in his door, at close range and with no obstructions or distractions. Chang described appellant as Caucasian and about 20 years old. Officer Bolduc testified that he detained appellant because he fit Chang's description. Thus, despite the fact that appellant is in his forties and Hispanic, we see no reason to doubt that Chang's description of appellant accurately conveys appellant's appearance.

Further, these were matters to be considered by the jury in determining whether Chang correctly identified appellant. "Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for 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 upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.] " (People v. Maury (2003) 30 Cal.4th 342, 403.)

Appellant also contends that the show-up in which the victims identified him was unfair. The jury was free to consider the fact that appellant was handcuffed and alone when the victims identified him. Appellant did not object to the introduction of evidence of the show-up, however, and so has waived any claim that the unfairness of the identification requires reversal of his conviction.

3. Failure to preserve evidence

Appellant contends that the trial court erred in denying his motion for sanctions against the prosecutor for destroying evidence, made pursuant to California v. Trombetta (1984) 467 U.S. 479. He contends that this ruling denied him his federal constitutional right to due process, specifically the right to present a defense. We see no abuse of discretion.

"Whatever duty the Constitution imposes on the States to preserve evidence, that duty must be limited to evidence that might be expected to play a significant role in the suspect's defense. To meet this standard of constitutional materiality, see United States v. Agurs, 427 U.S., at 109-110, 96 S.Ct., at 2400, evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." (California v. Trombetta (1984) 467 U.S. 479, 488-489 [footnote omitted]; accord, People v. Beeler (1995) 9 Cal.4th 953, 976.) "[T]he mere 'possibility' that information in the prosecution's possession may ultimately prove exculpatory 'is not enough to satisfy the standard of constitutional materiality.'" (City of Los Angeles v. Superior Court (Brandon) (2002) 29 Cal.4th 1, 8, quoting Arizona v. Youngblood (1988) 488 U.S. 51, 56.)

Here, the trial court found that the gloves and radio had no apparent exculpatory value and were, if anything, inculpatory. We agree.

The victims stated that the man at their door was wearing gloves and had a two-way radio. Such items were found on appellant when he was detained on the street in front of the victims' apartment building shortly after the victims called police. Thus, the items corroborated the victims' identification of appellant as the burglar. Further, gloves are a tool which are commonly used by burglars and other criminals. Appellant's possession of the gloves had some tendency to show that he intended to commit a crime at the victims' apartment.

In the trial court, appellant's counsel argued: "If I were successful upon cross-examination in committing [the victim] to one description of a radio and it turns out that the radio looks completely different, then that turns into exculpatory evidence." Thus, appellant's counsel showed only a possibility that the gloves and radio might be exculpatory.

"[U]nless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law." (Arizona v. Youngblood, supra, 488 U.S. at p. 58; accord People v. Beeler, supra, 9 Cal.4th at p. 976.) We see no evidence of bad faith here. Detective Ellenberger explained that he ordered the gloves and radio destroyed on the basis of a computer record which showed, erroneously, that the case was closed. We see nothing to call the detective's credibility into question. The trial court found the detective credible, and we defer to that finding.

4. Cruel and unusual punishment

Appellant contends that his sentence of 35 years to life in prison constitutes cruel and unusual punishment under the California and United States Constitution.

We do not agree.

The United States Supreme Court has addressed whether a 25 year to life sentence imposed under the three strikes laws for a nonviolent "wobbler" felony was cruel and unusual punishment under the U.S. Constitution. (Ewing v. California (2003) 538 U.S. 11.) In Ewing, the court affirmed the conclusion in Harmelin v. Michigan (1991) 501 U.S. 957 that the Eighth Amendment contains "a narrow proportionality principle" that applies to noncapital sentences. Only in those rare cases where a comparison of the crime committed (including the defendant's criminal record) and the sentence imposed leads to an inference of gross disproportionality are courts required to engage in intra-jurisdictional and inter-jurisdictional comparisons of punishments. (Ewing v. California, supra, 538 U.S. at pp. 20-21.)

Applying the narrow proportionality principle to a recidivist sentencing scheme, both the current offense and the defendant's prior criminal record must be considered. Deterring and incapacitating recidivist felons, regardless of the gravity of the new felony, are legitimate bases for enhanced punishment. (Ewing v. California, supra, 538 U.S. at pp. 24-29.)

Ewing was convicted of grand theft for stealing three golf clubs worth about $1,000. His prior strike convictions were for three residential burglaries and a robbery. He was sentenced to 25 years to life under the three strikes law. Justice O'Connor, writing for the court, found that Ewing's sentence did not raise an inference of gross disproportionality. (Ewing v. California, supra, 538 U.S. at pp. 28-31.)

Here, appellant's sentence is longer than Ewing's sentence. Appellant's current conviction for attempted residential burglary is more dangerous than Ewing's theft, however. His record of seven prior convictions, for robbery, battery, burglary and various drug-related offenses, is more extensive than Ewing's record. Since Ewing's sentence did not raise an inference of gross disproportionality, appellant's sentence does not either.

In determining whether punishment is cruel or unusual under the California constitution, the basic test is whether the punishment is "so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity." (In re Lynch (1972) 8 Cal.3d 410, 424, fn. omitted.) Thus, a "defendant must overcome a 'considerable burden' in convincing us his sentence was disproportionate to his level of culpability." (People v. Weddle (1991) 1 Cal.App.4th 1190, 1197.) Indeed, successful challenges to proportionality are an "exquisite rarity." (Id. at p. 1196.)

"Dillon, relying on Lynch, establishes a 'two-prong' analysis. First, the crime itself must be reviewed, both in the abstract and in view of the totality of the circumstances surrounding its commission, 'including such factors as its motive, the way it was committed, the extent of defendant's involvement, and the consequences of his acts . . . ,' to determine whether a particular punishment is grossly disproportionate to the crime for which it is inflicted. [Citation.] Secondly, the court must consider 'the nature of the offender' and inquire 'whether the punishment is grossly disproportionate to the defendant's individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind.'" (People v. Weddle, supra, 1 Cal.App.4th at pp. 1197-1198, fns. omitted.)

Appellant contends that his sentence is too severe because his current offense involved a "feeble" attempt to commit a crime. We note that residential burglary has the potential for violence, and the fact that appellant was not successful in breaking into the condominium reflects no credit on him. However, the offense for which appellant received a life term is recidivism. Recidivism of felonies creates a "manifest danger to society" that justifies longer sentences. (See, e.g., People v. Karsai (1982) 131 Cal.App.3d 224, 242, overruled on other grounds in People v. Jones (1988) 46 Cal.3d 585, 600, fn. 8.) Here, appellant has six prior felony convictions, for robbery, burglary battery and various drug-related offenses. His first conviction occurred in 1982, his most recent one in 2001. The present offense was committed while appellant was on parole, less than a year after he was released from prison.

In short, appellant has not been sentenced to life in prison because he attempted to commit burglary. Rather, he was so sentenced because he is a career criminal who has demonstrated that he has no intention of abiding by the laws of the State of California. Appellant's sentence is not so disproportionate to his crimes that it shocks the conscience and offends fundamental notions of human dignity.

5. Section 667, subdivision (a) enhancements

Appellant contends that the two five-year enhancements imposed pursuant to section 667, subdivision (a) are invalid because the jury did not specifically find the allegations true. We do not agree.

The amended information charged appellant with two prior serious felony convictions within the meaning of section 667, subdivision (a). These convictions were the same felony convictions alleged as prior strike convictions under the three strikes law. The jury found true the allegations that appellant had suffered the two prior strike convictions. This true finding is sufficient to support the section 667, subdivision (a) enhancements. (People v. Williams (2002) 99 Cal.4th 696, 700.)

The trial court made the implied legal finding that the two prior strike convictions were serious felonies when it imposed the two section 667, subdivision (a) enhancement terms. This, together with the jury's finding that appellant suffered those convictions, is sufficient to support appellant's sentence.

Appellant's reliance on Blakely v. Washington (2004) 542 U.S. 961 [124 S.Ct. 2531] to show error is misplaced. The Court in Blakely states: "'Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.'" (124 S.Ct. at p. 2536 (emphasis added), quoting Apprendi v. New Jersey (2000) 530 U.S. 466, 490.) Here, we are concerned with prior convictions.

6. Denial of motion to strike

Appellant contends that the trial court abused its discretion when it denied his motion to strike his prior conviction allegations. We see no abuse of discretion.

Rulings on motions to strike prior convictions are reviewed under the deferential abuse of discretion standard. Under that standard an appellant who seeks reversal must demonstrate that the trial court's decision was irrational or arbitrary. It is not enough to show that reasonable people might disagree about whether to strike one or more of his prior convictions. Where the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court's ruling. (People v. Myers (1999) 69 Cal.App.4th 305, 309-310.)

Here, the court stated that it had read appellant's probation report and the three motions to strike filed by appellant and his former defense counsel. The court found appellant's criminal history to be extensive, and pointed out that appellant's second strike conviction was a recent one, incurred in 2001. The court noted that appellant was on parole for that offense when he committed the current offense. The court also found that since appellant was gainfully employed at the time of the current offense, yet chose to commit the offense, appellant's prospects for rehabilitation were dim. Thus, the trial court's comments indicate that it properly considered the nature and circumstances of appellant's current and prior convictions and the particulars of his background, character and prospects, and reached an impartial decision. (People v. Williams (1998) 17 Cal.4th 148, 161-164.) The trial court did not abuse its discretion.

We cannot agree with appellant that the trial court failed to consider such factors as appellant's history of substance abuse, physical abuse by his father, his military service, the possibility of mental illness, the fact that appellant is loved by his family, the "low-end" nature of his current offense, or the remoteness of his first strike conviction. Like the trial court, we do not view attempted residential burglary as a "low-end" crime. And as appellant acknowledges, the remoteness of a prior conviction is a mitigating factor only when the defendant leads a crime-free life thereafter. (People v. Gaston (1999) 74 Cal.App.4th 310, 321.) Appellant did not. We commend appellant's military service. However, that service, together with the remaining factors, if they weigh in mitigation at all, do so lightly, and do not outweigh appellant's extensive criminal record.

Disposition

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ARMSTRONG, Acting. J.

We concur:

MOSK, J. KRIEGLER, J.

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[1] We note that the purpose of the corpus delicti rule is to prevent an accused from admitting to a crime which never occurred. Thus, the corpus delicti rule requires the prosecution to show that a crime occurred independently of extrajudicial statements or admissions by the defendant. The prosecution may rely on circumstantial evidence and need only make a prima facie showing which permits a reasonable inference that a crime was committed. (People v. Jones (1998) 17 Cal.4th 279, 301.) Here, the prosecution did not rely on any extrajudicial statements or admissions by appellant to prove the case. Thus, assuming for the sake of argument that appellant had not waived his corpus delicti claim, our finding that there is sufficient evidence to support the conviction would necessarily also be a finding that there is sufficient evidence to establish the corpus delicti.

[2] Since there was no evidence that appellant knew Chang or his mother, it is not reasonable to infer that appellant sought to enter their house for some other property-related crime such as vandalism or arson.