P. v. Murray

Filed 10/30/06 P. v. Murray 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

Gary Maurice Murray appeals from the judgment following his jury trial and conviction of one count of first degree robbery and three counts of second degree robbery. (Pen. Code, §§ 211, 212.5, subds. (a) & (c).)[1] The trial court found true prior serious felony conviction and prison term allegations. (§§ 667, subd. (a)(1), 667.5, subd. (b).) The trial court sentenced appellant to 110 years to life, including four consecutive 25-year-to-life terms, and a 10-year consecutive term for two prior serious felony convictions. Appellant claims that the trial court erred in denying his motion to suppress his statements to investigating officers, that there is insufficient evidence to support his conviction of the robberies, and that he is entitled to one additional day of presentence conduct credit. We agree that appellant should receive one additional day of presentence conduct credit and affirm all other aspects of the judgment.

FACTUAL AND PROCEDURAL HISTORY

On July 29, 2004, at 10:30 or 11:00 a.m., 81-year-old Esther Keyser drove alone to the Bank of America on Sepulveda Boulevard near National Boulevard in West Los Angeles. She entered the bank, cashed a $680 check, and put the cash in her purse. While driving toward her apartment building on Barrington Avenue, Keyser saw a "cobalt" blue car behind her. Keyser parked her car in the apartment building's garage. The blue car entered the alley without entering the garage. Keyser opened her car door and stood outside her car, with the strap of her purse in the crook of her elbow. A man came and grabbed her purse, which held about $1,600 in cash. Keyser tried to hold onto her purse, but the suspect grabbed it away, and caused her arm to bleed. The suspect ran toward the blue car and left. Keyser described him as a tall black man (about 5'8 or 5'9"), with short, curly hair, who wore a T-shirt and jeans, and appeared to be 25 to 27 years old.

The police showed Keyser a "six-pack" photographic line-up that included appellant's photograph. She could not identify anyone. Keyser also could not identify appellant at the preliminary hearing or at trial. Keyser saw a photograph of appellant's blue Geo Metro and thought that it was the same color as the suspect's car.

On August 25, 2004, 70-year-old Hetti Czekalla drove alone to the Bank of America at Sepulveda and National. Czekalla used the ATM and drove to her home on Greenfield Avenue. She parked and approached a gate in her driveway. Before she could open the gate, a man pulled on her purse, which held about $40 or $50, a credit card and her identification. The man pulled on her purse with enough force to drag her across her lawn and tear her rotator cuff before she dropped the purse.

After taking Czekalla's purse, the suspect entered the passenger side of an old, blue Honda Civic parked nearby and left. Czekalla described the suspect as a tall black man, with short, curly hair, who wore a T-shirt, jeans and sunglasses, and appeared to be about 30 years old. The police showed Czekalla a six-pack photographic display, and she identified appellant as the person who "resemble[d] the man who took [her] purse based on the facial features, in particular nose and shape of the face." At the preliminary hearing, Czekalla testified that the person who took her purse was not in court. She saw a photograph of appellant's Geo Metro and said that her assailant's car was "more square in the back."

On September 15, 2004, at 1:30 or 2:00 p.m., 75-year-old Marcia Fischbach drove alone to two stores in West Los Angeles, including the Trader Joe's Market at Sepulveda and Palms, where she shopped for approximately 45 minutes. She then stopped at a nearby Nordstrom's for perhaps 15 minutes before driving home. While entering the alley near her home, Fischbach saw a "bright blue" car facing her. She backed into her parking space, and the blue car sped down the alley. After taking groceries out of her car and locking the car door, she found herself "crouched down" with a man "behind [her,] trying to pull [her] up." The man grabbed her purse from under her arm, and ran away, toward the alley. Fischbach's purse held her wallet, driver's license, credit cards and money. During the incident, Fischbach received head, arm and shoulder injuries.

Fischbach described her assailant as a black man, who was about 5'8" to 5'9" tall, wore a white sweatshirt, and was approximately 35 years old. She identified appellant in a photographic lineup as the man who took her purse. Appellant's and Fischbach's cars were videotaped in the alley behind her residence at the same time on September 15, 2004. The videotape shows a black man parking appellant's car, briefly leaving the car, approaching the vicinity of Fischbach's parking space, and returning (first walking, then running) toward his car, and driving away. Fischbach identified the cars in the videotape as her car and the same blue car that she saw just before the robbery on September 15.

On September 21, 2004, sometime between 11:00 a.m. and 1:00 p.m., 81-year-old Rosalynd Kosven drove alone to the Bank of America at Sepulveda and National, entered the bank, and deposited some checks. She then drove to her home on Clover Avenue and parked in her driveway. After locking her car and preparing to open the trunk, Kosven saw a man, wearing a pullover sweater and khaki pants, walking toward her. The man grabbed her purse, which had been hanging by its strap on her shoulder. While trying to hold her purse, Kosven was knocked to the ground. The man ran away with her purse, which held approximately $80, a credit card, and a check book. Kosven received injuries on her knee, arm, shoulder and face during the robbery.

Kosven described her assailant as a light-complected black man, who was at least 6' tall, clean shaven, with very short hair, and in his late 20's or early 30's. She identified a photograph of appellant as "look[ing] like the person who took [her] purse," and indicated that she "remember[ed] him having a lighter complexion." At trial, Kosven could not say appellant was her assailant, but she said that "he resemble[d] him."

On October 4, 2004, around 12:00 noon, appellant was in his turquoise blue Geo Metro car, in a parking space at the Pet Depot, which is adjacent to the Bank of America at Sepulveda and National. As a marked Los Angeles Police Department vehicle entered the parking lot, appellant's car moved north. When the police vehicle activated its lights, appellant stopped his car.

Because appellant's car looked like the car in a police crime alert bulletin, the officers detained him and notified Officers Lopez and Bopp who had been investigating several crimes involving elderly women who were followed and robbed at home after banking at the Bank of America at Sepulveda and National. Lopez and Bopp came to the scene and interviewed appellant in the field. They also interviewed appellant later at the police station. Appellant admitted that he had robbed two old ladies who he followed home from the bank because he needed money for drugs.

The Admission of Appellant's Statements to the Investigating

Officers Does Not Constitute Reversible Error

Appellant argues that his conviction must be reversed because the trial court erred in admitting statements that he gave to police officers. We disagree. After appellant was booked, and before giving him an admonition pursuant to Miranda v. Arizona (1966) 384 U.S. 436, Officers Lopez and Bopp asked him a few questions at the station. That entire pre-Miranda interview follows:

"[Lopez]: Do you know why you're here?

"[Appellant]: Is it a robbery?

"[Lopez]: Is it a robbery? You think? Do you deserve to be here?

"[Appellant]: No.

"[Lopez]: No?

"[Appellant]: (Inaudible)"

Appellant argues that these "pre-Miranda questions and comments gave the obvious impression that [he] was under suspicion for robbery and that the police were not mistaken in suspecting him," and that his responses were incriminatory because they tended "to show he was aware that a robbery had been committed." We disagree. Taken together, appellant's statements indicate that he did not deserve to be held for the robbery that the police were investigating. With or without the above statements, the jury saw and heard overwhelming evidence linking appellant to several robberies, including a videotape of his car and Fischbach's car in very close vicinity to the Fischbach robbery site immediately before, during and after that robbery. Thus, even if the trial court erred in admitting the above statements, any such error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.)

Appellant also argues that he did not make a knowing, voluntary and intelligent waiver. We disagree. Appellant argues that the record does not show that he understood the right to remain silent. He claims that he did not reply when asked if he understood the right to remain silent but merely observed that he "already [was] questioned," and that "they . . . already wrote reports." Appellant also asserts that he never indicated that he understood that anything he said could be used against him. According to Officer Lopez, when she asked appellant if he understood these rights, he replied, "Yeah" and "Yes."

Appellant contends that he invoked his right to remain silent during the interrogation when he made statements such as the following: "[I]f you know I did it . . . ain't no need to even talk to you," and "You already got your mind made up." Our Supreme Court has rejected similar arguments in cases where defendants made equivalent statements. (See, e.g., People v. Jennings (1988) 46 Cal.3d 963, 977 ["'That's it. I shut up'"]; and In re Joe R. (1980) 27 Cal.3d 496, 515 ["'That's all I have got to say'"].) Appellant did not invoke his right to remain silent during the interrogation.

Appellant also argues that he did not waive his rights voluntarily because the officers used coercion during the interrogation. "Under both state and federal law, courts apply a 'totality of circumstances' test to determine the voluntariness of a confession. [Citations.] Among the factors to be considered are '"the crucial element of police coercion [citation]; the length of the interrogation [citation]; its location [citation]; its continuity" as well as "the defendant's maturity [citation]; education [citation]; physical condition [citation]; and mental health."'" (People v. Massie (1998) 19 Cal.4th 550, 576; People v. Thompson (1990) 50 Cal.3d 134, 166.) In determining whether a statement is the result of coercion, courts may also consider the accused's "prior experience with the criminal justice system." (In re Shawn D. (1993) 20 Cal.App.4th 200, 209.)

Appellant claims that his statements were coerced, among other reasons, because the officers accused him of lying, said that numerous robbery charges would be filed against him independently rather than jointly so that he could not possibly serve concurrent terms, and implied that he would not be subject to a 25-year-to-life sentence if he confessed. We reject this claim.

At the time of the interrogation, appellant was neither young nor unsophisticated. He was 37 years old and had served multiple prison terms for several serious felony convictions. Moreover, his statements do not sound like those of an unsophisticated, impressionable or intimidated suspect. He repeatedly told the officers he wanted to see the "pictures showing [him] snatching somebody[']s purse." Upon learning that the officers were investigating four or more robberies, appellant made comments that reflect his familiarity with the criminal justice system: "You said, 'Just four.' Shit that-- . . . That's like, man. . . . That's like, 25 to life right there." Appellant also stated, "That's a felony. I got two strikable offenses in the past and they gonna try to use that."

Other comments of appellant indicate that the officers did not intimidate him: "It's gonna be on court record. . . . I'm innocent until proven guilty. . . . That's as far as I go. I just have to go to court and whatever . . . . You can't be the judge, the--. . . . [I]f I'm up against it right now, and if I can go to court tomorrow and tell them I'm wrong and still give me some treatment . . . I'd admit and whatever.". . . . . . . . . Do what you gotta do cause I'm sitting up here talking, you trying to--."

Although we independently review the trial court's rulings regarding the voluntariness of a statement, we give great weight to the trial court's conclusions and accept its resolution of disputed facts and credibility issues when supported by substantial evidence. (People v. Massie, supra, 19 Cal.4th 550, 576; People v. Whitson (1998) 17 Cal.4th 229, 248.) Applying this standard, we affirm the trial court's ruling admitting appellant's statements.

There is Sufficient Evidence to Support Appellant's Robbery Convictions

Appellant argues that there was insufficient evidence to support the jury's conclusion he was the perpetrator of the robberies. In reviewing a claim of insufficient evidence to support a conviction, we view the evidence most favorably to the People and presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Johnson (1980) 26 Cal.3d 557, 576-578.) The test is whether, after considering the evidence most favorably to the prosecution, any rational trier of fact could have found the elements of the crime to be true beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 319; Johnson, at pp. 576-578.)

Appellant was identified as the perpetrator of the Fischbach, Czekalla and Kosven robberies. The testimony of a single eyewitness identifying a defendant as the perpetrator is sufficient evidence to support a conviction. (Evid. Code, § 411; People v. Watts (1999) 76 Cal.App.4th 1250, 1259.) We may not reverse a judgment based on eyewitness identification unless the identification is "inherently incredible." (People v. Keltie (1983) 148 Cal.App.3d 773, 782.) Even if identification is weak and strong alibi testimony is provided, courts will defer to the jury's conclusion and not interfere with the verdict. (People v. Westbrook (1976) 57 Cal.App.3d 260, 262.)

Some of the eyewitness identification was weak, and Keyser never identified appellant as her assailant. Much of the evidence linking appellant to the robberies, particularly that of Keyser, was circumstantial. The same standard of review applies in cases in which the prosecution relies on circumstantial evidence to connect the defendant to the crimes. (People v. Stanley (1995) 10 Cal.4th 764, 792.) "'Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court [that] must be convinced of the defendant's guilt beyond a reasonable doubt. '"If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.'" [Citations.]'" (Id. at pp. 792-793.) "'"Circumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt."'" (Id. at p. 793.)

Substantial circumstantial evidence connects appellant to all four robberies, including that of Keyser. In each robbery, the victim was an elderly, unaccompanied woman who suffered physical injury and lost her purse and its contents. Three of the robberies occurred immediately after the victims had banked at the Bank of America at Sepulveda and National, and the fourth occurred after the victim had shopped at a nearby Trader Joe's Market (at Sepulveda and Palms). All four robberies occurred at the victims' homes, after the assailant followed them. The victims' descriptions of the assailant's height (from 5'8" to at least 6'), age (from 25 to 35 years), race (black), sex (male), and hair (short or short and curly) were consistent. The three victims who saw the assailant's car described it as a blue car. Appellant's blue Geo Metro was videotaped in the alley behind Fischbach's residence at the time of her robbery. On October 4, 2004, appellant was parked in the same Geo Metro, in the lot of the Pet Depot store which is adjacent to the Bank of America at Sepulveda and National.

Appellant argues that Czekalla and Kosven could not positively identify him in court although they had identified him out of court. A victim's inability to identify a suspect in court does not necessarily negate the evidentiary value of his out-of-court identification. (People v. Cuevas (1995) 12 Cal.4th 252, 257, 271-272.) Further, victims' identifications of a suspect need not be positive to have evidentiary value. (People v. Midkiff (1968) 262 Cal.App.2d 734, 740.) The jury heard but rejected appellant's attack on the eyewitness identifications. We may not now reweigh the evidence or assess the credibility of witnesses to reach a different conclusion. (People v. Watts, supra, 76 Cal.App.4th at pp. 1258-1259.)

Appellant stresses that Keyser did not identify him as her assailant. Yet, as indicated above, the Keyser robbery strongly parallels the other robberies where the victims had identified appellant. Moreover, the jury could reasonably have inferred that appellant used the $1,600 he took from Keyser on July 29 to travel to Las Vegas and get married on July 30, and to open and deposit money into his own bank account a few days later.[2] There is sufficient evidence to support appellant's convictions of all four robberies.

The Attorney General agrees with appellant's claim that he should have received one additional day of presentence conduct credit. We will modify the judgment accordingly.

The superior court shall modify the abstract of judgment to reflect 316 days of actual custody credit and 47 days of conduct credit, for a total of 363 days. A copy shall be sent to the Department of Corrections. As so modified, the judgment is affirmed.

NOT TO BE PUBLISHED.

COFFEE, J.

We concur:

YEGAN, Acting P.J.

PERREN, J.

James R. Dabney, Judge

Superior Court County of Los Angeles

______________________________

David M. Thompson, 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, Marc E. Turchin, Supervising Deputy Attorney General, David A. Wildman, Deputy Attorney General, for Plaintiff and Respondent

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[1] All statutory references are to the Penal Code unless otherwise stated.

[2] On Friday, July 30, 2004, at about 10:00 a.m., appellant and his future bride were at a wedding chapel in Las Vegas. On August 4, appellant opened a Bank of America account. He deposited money in that account on August 5 ($100) and August 6 ($200).