P. v. King

Filed 9/25/07 P. v. King CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County. Cynthia Rayvis, Judge. Convictions affirmed; remanded for limited resentencing.

William L. McKinney for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Stephanie C. Brenan and Marc E. Turchin, Deputy Attorneys General, for Plaintiff and Respondent.

_______________________

Anthony King was convicted of six counts of second degree robbery involving the personal use of a firearm (Pen. Code,[1] 211, 12022.53, subd. (b)) and two counts of being a felon in possession of a firearm ( 12021, subd. (a)(1).) On appeal, he argues that insufficient evidence supports the robbery convictions and that fingerprint evidence should have been suppressed. The Attorney General argues that the matter should be remanded for resentencing because the trial court failed to impose all mandatory sentence enhancements. We affirm the convictions and remand with directions to the trial court to impose an additional five-year sentence enhancement under section 667, subdivision (a)(1).

FACTUAL AND PROCEDURAL BACKGROUND

On the morning of August 16, 2005, King visited a Starbucks in Norwalk. The Starbucks employee who helped him, Silvia Howell, noticed that as he entered the store, he look[ed] at the place rather than just coming in and ordering what he wanted. He actually walked in, looked at the store. And then . . . he leaned over . . . to look to see as if he was looking behind . . . where the employees are. Howell asked King if she could help him, and he purchased a coffee drink, then sat out on the patio drinking, smoking a cigarette, and reading a newspaper. One employee noticed that there was a water bottle on the table where King was sitting.

Approximately one-half hour later, King re-entered the Starbucks, cursing and yelling. He put his gun to Howells face, and told her to be quiet and to go to the back of the store. He directed the other two Starbucks employees who were in the front of the store, Brian De Rose and Victor Aguilar, to go to the back of the store as well. They entered the back room, where Royden Vigilance, Elias Velasco, and Yvette Arrey were working. King demanded money from the store safe; when Vigilance did not immediately comply, King punched him in the face. Vigilance instructed Velasco to open the safe and comply with Kings orders. Aguilar emptied the cash registers into a bag for King, then he and Velasco emptied the safe for him. After King had the stores money, he told the employees to remain in the back of the store, and then he left the premises.

Two handguns and clothing similar to the clothing the employees saw King wearing were recovered from Kings girlfriends home, along with mail belonging to King and his Social Security card. Fingerprints taken from the water bottle matched Kings. Five of the six employees testified at trial. Each identified King as the robber in court. Aguilar, Vigilance, and Velasco also identified King as the robber in a photographic lineup.

King presented an alibi defense. Kings mother testified that on the morning of August 16, 2005, she took King to a trucking company in Los Angeles to fill out an employment application. They then returned to Inglewood, where they shopped for school clothes and had lunch with Kings daughter. After lunch, she took King to the bank and waited while he made a transaction, they filled the car with gasoline, and they returned home. Kings mother also claimed that the guns recovered by the police were placed there at her request and were previously in the possession of her brother. An employee of the trucking company testified that King had come in on August 16, 2005, and completed an application form. A bank slip with Kings signature was introduced into evidence, as was a record of a gasoline purchase with Kings Costco card from 11:54 on the morning of August 16, 2005. Kings girlfriends brother testified that the clothes the police recovered were actually his. King presented an eyewitness identification expert witness, who testified about mistaken identifications.

King also challenged the eyewitness identifications. Each employee testified that he or she was close to King during the incident, but that he or she did not see any tattoos on him. De Rose was approximately two feet away from King but did not notice any tattoos. King was in my face, reported Howell, but she did not remember him having any tattoos. Aguilar was three to four feet from King, with a clear view of his face, but did not notice any tattoos below his eyes. Vigilance was face to face with King, and did not see any tattoos. Velasco was an intimate distance from King but saw nothing, and he testified that he would have seen a tattoo if King had one. King had a teardrop tattoo under one eye. He was wearing glasses at the time of the robbery.

King was convicted of six counts of robbery and two counts of being a felon in possession of a firearm. For each robbery count, the jury found true the special allegation that King personally used a firearm within the meaning of section 12022.53, subdivision (b). Numerous special allegations were set forth in the complaint pertaining to all of the counts alleged. King admitted two robbery convictions and a conviction for disturbing the peace. He admitted that the robbery convictions were within the meaning of section 667, subdivision (a)(1) and the Three Strikes Law, sections 667, subdivisions (b)-(i) and 1170.12, subdivisions. (a)-(d). He also admitted, pursuant to section 667.5, subdivision (b), that with respect to the three prior convictions, he served prison terms, he did not remain free of custody for five years after his term was completed, and he committed an offense resulting in a felony conviction during a period of five years subsequent to the conclusion of the terms.

The trial court sentenced King to the high term of five years for the first robbery count, doubling it pursuant to the Three Strikes Law. The court added 10 years for the firearm allegation pursuant to section 12022.53, subdivision (b) and five more years under section 667, subdivision (a)(1), for a total of 25 years on count 1. For the remaining robbery charges, the trial court imposed one-third the midterm sentence for the offense and one-third the midterm sentence on the firearm enhancement, for a total of 5 years 4 months, and designated that each sentence was to run consecutively. On the firearm possession charges, the trial court imposed one-third of the midterm sentence for each count, designated to run consecutively. Kings total sentence was 54 years 8 months.

DISCUSSION

I. Sufficiency of the Evidence

King argues that the evidence submitted to the jury was insufficient to support his robbery convictions.[2] Viewing the evidence in the light most favorable to the judgment, as we must (People v. Rodriguez (1999) 20 Cal.4th 1, 11), the evidence is sufficient to support the robbery convictions. King was identified by all five testifying employees as the robber. His fingerprints were found on a water bottle that was left at the table where King was sitting. Clothes matching those of the perpetrator were found among Kings possessions. While King challenged the accuracy of the identifications and offered explanations for the fingerprints and clothes, a reasonable jury could have found that the elements of the crime of robbery were proven beyond a reasonable doubt.

King attempts to attack different aspects of the evidence, but none of these arguments are availing. Focusing exclusively on the fact that only three employees identified King from a photographic lineup and one experienced at least initial uncertainty before identifying King, he argues that this eyewitness evidence was not reliable, especially in light of the strong alibi evidence. He attempts to undermine the five in-court identifications of King as the perpetrator of the crime by observing that none mentioned the teardrop tattoo under Kings eye. He tries to cast doubt on the fingerprint evidence by observing that only one employee testified about the bottle of water being on the table with King, and that the police officer testified that a certain employee told him about the water bottle but she did not testify to telling the police about it or even to seeing the bottle all. He emphasizes the expert witness testimony concerning misidentification and the purported persuasiveness of Kings alibi. With these arguments, King establishes that a rational juror could have concluded that the prosecution had not proven beyond a reasonable doubt that King committed the robberies, but he does not establish that as a matter of law, the evidence was insufficient to support his conviction. When a jurys verdict is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted, which will support it, and when two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the jury. It is of no consequence that the jury believing other evidence, or drawing different inferences, might have reached a contrary conclusion. (People v. Brown (1984) 150 Cal.App.3d 968, 970.)

II. Failure to Preserve Fingerprint Evidence

King argues that his conviction must be reversed because the trial court should have suppressed the fingerprint evidence from the water bottle because the People had intentionally destroyed the evidence. He claims that the failure to preserve the evidence violated his due process rights. The state has a duty to preserve evidence that both possesses an exculpatory value that was apparent before the evidence was destroyed, and is 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, 489 . . . .) Moreover, a constitutional violation is not established unless the authorities acted in bad faith in failing to preserve potentially useful evidence. (Arizona v. Youngblood (1988) 488 U.S. 51 . . . .) (People v. Schmeck (2005) 37 Cal.4th 240, 283.)

The central inquiries here are whether the water bottle had any exculpatory value at the time it was discarded and whether there was bad faith. The questions are interrelated: The presence or absence of bad faith by the police for purposes of the Due Process Clause must necessarily turn on the polices knowledge of the exculpatory value of the evidence at the time it was lost or destroyed. (Arizona v. Youngblood, supra, 488 U.S. at p. 56, fn. *.) King argues that the bottle was destroyed in bad faith. The trial court found that there was no indication that the evidence was exculpatory or that the police acted in bad faith. We review this determination for substantial evidence. (People v. Roybal (1998) 19 Cal.4th 481, 510.)

Substantial evidence supported the trial courts ruling. The fingerprint technician who handled and discarded the bottle was relatively inexperienced: He testified that he had been trained in fingerprinting in May 2005 and that he had lifted fingerprints approximately 15 times prior to taking prints from the water bottle in August 2005. He testified that he was the last person at the scene at the end of the investigation and that after taking the fingerprints and booking them into evidence, he put the bottle in a nearby trash can. He acknowledged that he was not trained to throw evidence away after lifting prints, that usually items that were fingerprinted were left behind with the victims or, if the investigating deputy desired, retained by the deputy to be booked into evidence. When asked if there was a reason why he threw the bottle away, he responded, Just being that they were going to reopen up as soon as I finished my investigation.

There was no indication that the water bottle had any exculpatory value at the time that it was discarded: No matter whose fingerprints were found on the bottle, it is not apparent that the evidence could be exculpatory. If the fingerprints were Kings, that did not tend to exculpate him, although King offered an explanation for how his fingerprints could innocently have come to be on the bottle. If the fingerprints belonged to someone else, that did not exonerate him, either, as the bottle itself did not establish the identity of the perpetrator.

Even if the bottle could possibly have been construed as exculpatory, however, there was no evidence at all that the police knew of any such exculpatory value when the fingerprint technician threw away the bottle, and no evidence that he destroyed the bottle in bad faith. The evidence showed that the technician made an ill-advised choice to throw away the bottle, but this was not entirely inconsistent with police policy to return items to the victims if they were not going to be taken into evidence, because the bottle was worthless to Starbucks. It would have been ideal if the police had booked the bottle as evidence, for this would have preserved it for later defense testing, but the fact that an alternate procedure may have been superior does not establish that the police acted in bad faith. At most it appears that the technician negligently threw the bottle away. There was no evidence that the police knew that this water bottle could form a basis for exonerating King but failed to preserve it as part of a conscious effort to suppress exculpatory evidence or to circumvent constitutional discovery obligations. (California v. Trombetta, supra, 467 U.S. at p. 488.) The trial court properly declined to suppress the fingerprint evidence on the grounds that the destruction of the bottle violated due process.

III. Failure to Impose an Additional Sentence Enhancement

The Attorney General argues that the case should be remanded for the purpose of imposing a second five-year serious felony enhancement under section 667, subdivision (a)(1). King admitted that he had two prior robbery convictions within the meaning of section 667, subdivision (a)(1), but received only one five-year enhancement. The imposition of the sentence enhancement under section 667, subdivision (a)(1) is mandatory when a qualifying prior conviction has been established. (People v. Turner (1998) 67 Cal.App.4th 1258, 1269 [When the truth of the allegation of conviction of a crime qualifying for a five-year enhancement has been established, it is mandatory that the enhancement be imposed].) Our Supreme Court has explained, Under section 667(a), when the defendant is convicted of a current serious felony within the meaning of section 1192.7, subdivision (c), and has been previously convicted of a serious felony, the trial court must impose a five-year enhancement for each such prior conviction that was brought and tried separately. The terms of the present offense and each section 667(a) enhancement must run consecutively. (People v. Dotson (1997) 16 Cal.4th 547, 553, footnote omitted, italics added.)

King argues that his admissions were deficient because, after reading all the allegations to King, the trial court did not (1) take admissions to the two robbery convictions separately; (2) take separate waivers with respect to each allegation; (3) advise King as to his confrontation rights; (4) advise him of his right to remain silent; (5) take a waiver as to any constitutional right as to any prior.

King does not cite to any authority in support of his first two contentions, that the admissions were improper or inadequate because they were not taken separately with separate waivers, nor are we aware of any legal authority to that effect. Kings third, fourth, and fifth arguments, concerning advisements and waivers, are directly contradicted by the record. Prior to Kings admissions, the trial court advised him, Mr. King, you have the right to have this jury that just heard this trial hear the Peoples proof as to all of these counts. They can prove these by paperwork, by witnesses, whatever they choose. And the jury would then decide whether or not you areto find all of these allegations true. [] As I said, you have the right to the same jury. Your attorney has the right to confront and cross-examine any witnesses who are called into court to testify against you. Your attorney can subpoena witnesses at no cost to you to testify for you at this further proceeding. You have the right against self-incrimination. That means no one can force you to say anything against yourself. [] Do you understand each of these rights? King answered affirmatively, and then the court asked, Do you give them up? King said, Yeah. King clearly was advised of his confrontation rights and his right to remain silent; and the court took a waiver as to those constitutional rights in the process of taking Kings admissions. After this exchange, the court asked King if he admitted all of these allegations that I read to you as true. King answered, Yes.

King also argues that the Attorney General has waived any objection to the failure to impose the additional enhancement, but this is incorrect. Failure to impose a sentence enhancement under section 667, subdivision (a)(1) when the truth of the qualifying prior conviction has been established results in an unauthorized sentence, which may be addressed for the first time by the reviewing court. (People v. Turner, supra, 67 Cal.App.4th at p. 1269; see also People v. Dotson, supra, 16 Cal.4th at p. 554, fn. 6.) Because imposition of a second five-year enhancement was mandatory, this matter must be remanded with directions that the court impose an additional sentence enhancement under section 667, subdivision (a)(1).

DISPOSITION

The convictions are affirmed. The matter is remanded for the purpose of imposing an additional five-year sentence enhancement under section 667, subdivision (a)(1).

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

ZELON, J.

We concur:

JOHNSON, Acting P.J.

WOODS, J.

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[1] Unless otherwise indicated, all further statutory references are to the Penal Code.

[2] It does not appear that King is attempting to challenge the sufficiency of the evidence on the firearm possession counts, as he states in his briefing that a reasonable jury could arguably reach the conclusion that appellant possessed the guns for purposes of the felon with a gun charge, and focuses on the evidence pertaining to the robbery.