PEOPLE v. CLEOPHUS PRINCE, JR

Filed 4/30/07

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

)

Plaintiff and Respondent, )

) S036105

v. )

)

CLEOPHUS PRINCE, JR., )

) San Diego County

Defendant and Appellant. ) Super. Ct. No. CR130018

__________________________________ )

Story continued from Part IV .

Statements made by the out-of-court declarant to whom Hughes-Webb referred properly were excluded as hearsay, to the extent they were offered for the truth of the declaration. To the extent they were admissible as describing Hughes-Webbs state of mind, the court excluded the statements because it feared the jury would be unable to avoid considering them for their truth, despite the absence of any evidence establishing the reliability of the identification made by the other woman. Reviewing these evidentiary rulings for abuse of discretion (see People v. Robinson, supra, 37 Cal.4th at p. 625), we uphold them. Defendant had an adequate opportunity to establish that the declarant said something that caused Hughes-Webb to doubt her own identification. If defendant sought to establish that one of the surviving victims or other witnesses positively had identified someone other than himself, defendant could have subpoenaed and examined the woman as a defense witness. Even if the court erred in excluding the proffered evidence, such error would have been harmless under any standard of review, because the court permitted the defense to question the witness to establish that she had doubted the accuracy of the identification she had made.^[1]

Defendant unpersuasively claims the courts ruling denied him his constitutional right to put on a defense, to confront and cross-examine the witnesses against him, and to a fundamentally fair trial and reliable determination of guilt. He also asserts that the ruling constituted a denial of due process of law by arbitrarily depriving him of crucial evidence. There was no error under state law, and as noted above,  [a]s a general matter, the ordinary rules of evidence do not impermissibly infringe on the accuseds [state or federal constitutional] right to present a defense. [Citations.] (People v. Robinson, supra, 37 Cal.4th at pp. 626-627, fn. omitted.) Furthermore, as we have noted, even if the evidence should have been admitted, its exclusion would have been harmless under any standard.

7. Evidence of defense counsels participation in the lineup

Defendant contends he was deprived of his federal and state constitutional rights to the effective assistance of counsel, to a fair trial, and to reliable factfinding when the trial court failed to protect him during the course of testimony given by Jaime Bordine, the homicide detective who conducted the live lineup. Bordine testified that defense counsel were present at the lineup and implied that they had approved the composition of the lineup and selected defendants placement in it.

Defendant contends that by introducing testimony that defense counsel were present at the lineup and had selected defendants placement, the prosecution effectively us[ed] his attorneys as witnesses against him, thereby violating his right to counsel. He claims that the effect of [the] testimony was an unmistakable implication that counsel were given every opportunity to assure that the lineup was fair, and that they approved the conduct of the lineup and the resulting identifications. The resulting prejudice to him was no different than it would have been if counsel had been called as witnesses and had testified that they had been present, that they had been consulted regarding the adequacy of the other lineup participants, and that they had made the decision where their client should be placed. Defendant blames the prosecutor for asking these questions and the court for failing to protect him.

As respondent points out, defendant did not object to Bordines testimony on any of the bases mentioned in the present claim; indeed, he did not object at all during the prosecutions direct examination. Accordingly, his claim is forfeited. (See People v. Cooper, supra, 53 Cal.3d at p. 824.) Moreover, it is not improper for counsel for either side to inquire into the circumstances surrounding a lineup, including the presence or absence of counsel. (People v. Citrino (1970) 11 Cal.App.3d 778, 783; see also Cal. Criminal Law: Procedures and Practice (Cont.Ed.Bar 2006) Lineups and Identification,  22.29, pp. 599-600.)

Defendant asserts the court had a duty to protect him from what he views as an incursion upon his right to counsel, even though counsel failed to object. He cites People v. Rodriguez (1981) 115 Cal.App.3d 1018, but that case is of no assistance to him. Rodriguez was charged with robbery, and his defense at trial was based on mistaken identity and the asserted suggestiveness of the police identification procedures. Among other subjects, defense counsel cross-examined the identifying witnesses and the arresting officer concerning the manner in which the lineup was conducted and the appearance of the participants. On redirect examination, the prosecutor asked the officer whether defense counsel, who was present at the lineup, had said:  That was not a bad lineup or Its not bad.  (Id. at p. 1020.) The court sustained a hearsay objection, but the prosecutor called defense counsel as a witness, and the court ordered him to testify. Defense counsel ultimately withdrew any objection and testified, confirming that he had made the statement attributed to him by the arresting officer.

Under these circumstances, the Court of Appeal determined that the trial court had failed to protect defendants right to effective assistance of counsel when it ordered defense counsel to testify against his client on a question that was material to the defense. Indeed, the court found that the question completely undercut the misidentification defense, because it bolstered the eyewitnesses identifications. (People v. Rodriguez, supra, 115 Cal.App.3d at p. 1021.) The proceedings undermined the attorneys effectiveness and, the reviewing court stated, would cause the jury to be suspicious of his other efforts on defendants behalf. The jury can hardly avoid inferring the defendants own attorney does not believe in the defense he himself is presenting. It is fundamentally unfair to a criminal defendant to use his own attorneys testimony to convict him, and such a substantial infringement on the right to counsel requires reversal. [Citations]. (Ibid.)

In the present case, the trial court did not make any incursion on defendants right to counsel. It did not order defense counsel to testify. Moreover, the defense did not ask the jury to find that the composition of the lineup had been suggestive, so the evidence of counsels presence at the lineup did not undercut defense counsels credibility or ability to pursue a defense of mistaken identification. Rather, the defense stressed that numerous witnesses were unable to identify defendant at the live lineup, and that the witnesses subsequent identifications were the result of suggestion, primarily from the media coverage that displayed defendants picture for the first time subsequent to the live lineup.

Defendant contends we must address his claim despite trial counsels failure to object, because the court and the prosecutor rendered the trial fundamentally unfair in violation of defendants federal constitutional right to due process of law. He cites Darden v. Wainwright (1986) 477 U.S. 168. There the high court determined that a prosecutors improper remarks infected the entire trial with such unfairness that the resulting conviction constituted a denial of due process. (Id. at p. 181.) We have responded to similar claims by observing that to preserve such an issue on appeal, ordinarily the defendant must object and request an admonition. (People v. Frye (1998) 18 Cal.4th 894, 969.) In any event, the present case is not comparable to Darden v. Wainwright, supra, 477 U.S. 168. The prosecutors questions did not infect the entire trial with unfairness, just as they did not violate defendants right to counsel. Nor has defendant established that the courts failure to protect him rendered the verdict unreliable in violation of the Eighth Amendment.

8. Admissibility of knives

Defendant contends the trial court abused its discretion under state law and violated various of his constitutional rights by admitting into evidence four knives that police seized from defendants automobile upon his arrest in the Miramar Road Family Fitness Center parking lot. In defendants vehicle, police discovered a kitchen knife with an eight-inch blade and a five-inch handle, along with a steak knife and two small folding knives. Defendant asserts the knives simply constituted bad character evidence and were used to support the prosecutors argument that defendant was the kind of person who likes to arm himself with knives.

Defense counsel failed to object when the police officer who performed the search described the knives in his trial testimony. When the parties were discussing the introduction of exhibits into evidence, defense counsel objected on the ground that the admission of the knives would be more prejudicial than probative. (Evid. Code,  352.)^[2] The prosecutor countered that the knives might have been present in the vehicle for potential use in the various stalking episodes and burglaries that followed the commission of the murders.

The court overruled the objection, observing that a knife had been stolen from at least one of the premises defendant had entered and that there was evidence indicating defendant used his automobile to stalk young women. The court noted evidence establishing that defendant sometimes removed kitchen knives from drawers while committing his crimes and that he used kitchen knives similar to the one taken from the defendants vehicle in these homicides. The court concluded that the probative value of the evidence outweighed its potential for prejudice.

As noted above, defense counsel failed to object to the police officers testimony recounting the discovery of the knives during the search of the vehicle. Accordingly, any error with respect to the admission of the physical evidence must be viewed as harmless in light of the officers testimony describing the knives.

Even if we were to reach the merits of defendants claim, we do not agree that the court abused its discretion. Although none of the knives evidently was used as a murder weapon, it is reasonable to conclude that defendant used one or more of them during the various charged burglaries and attempted burglaries that were committed subsequent to the murders. There was evidence that at least in the Schultz and Keller murders, defendant came armed with his own knife, and the subsequently committed burglaries and attempted burglaries bore enough similarities to those murders (and the burglaries related to those murders) to enable the jury to reasonably conclude he was armed with his own knife (perhaps one of the knives discovered in his automobile) when he committed some of the charged burglaries and attempted burglaries.

Defendants reliance upon People v. Riser (1956) 47 Cal.2d 566 (overruled on another ground in People v. Morse (1964) 60 Cal.2d 631, 648-649) is misplaced. In that case the evidence established that a murder had been committed with a Smith and Wesson .38-caliber Special revolver, which never was recovered. We concluded it was error to admit evidence that defendant possessed a Colt .38-caliber revolver that could not have been the murder weapon. The only purpose of admitting the evidence would be to demonstrate that the defendant is the sort of person who carries deadly weapons. (People v. Riser, supra, 47 Cal.2d at p. 577; see also People v. Archer (2000) 82 Cal.App.4th 1380, 1392-1393.)

The knives seized from defendants vehicle apparently were not used to inflict the fatal wounds upon the murder victims, but the charge of murder was not the only one faced by defendant. As noted, the knives bore some relevance to the weapons shown by the evidence to have been involved in other charged crimes. They did not simply constitute bad character evidence. (See People v. Cox (2003) 30 Cal.4th 916, 956-957 [[w]e have also held that when weapons are otherwise relevant to the crimes commission, but are not the actual murder weapon, they may still be admissible. [Citations.] Thus, in Neely we admitted evidence of a rifle located in the defendants truck parked near the crime scene even though the rifle was not the murder weapon, as it was not irrelevant to the charged offenses. [Citation.] In Lane, we upheld the admission of guns found in an abandoned truck miles from the scene of the homicide, not as relevant to the homicide per se, but as weapons of a character which could be used in armed robbery . . . in furtherance of the criminal plan. [Citation.]].)

Defendant unpersuasively contends the courts ruling denied him his constitutional right to put on a defense, to confront and cross-examine the witnesses who testified against him, and to a fundamentally fair trial. He also claims the ruling denied him due process of law by arbitrarily depriving him of crucial evidence. We conclude there was no error under state law, and  [a]s a general matter, the ordinary rules of evidence do not impermissibly infringe on the accuseds [state or federal constitutional] right to present a defense. [Citations.] (People v. Robinson, supra, 37 Cal.4th at pp. 626-627, fn. omitted.)

Defendant next contends that the prosecutor committed misconduct when in closing argument he relied upon the knives as evidence of defendants bad character. Defendant complains the prosecutor stated that whoever committed the crimes obviously liked to use knives, pointing to the exhibits of knives seized from defendants vehicle and asking why defendant would carry such knives. Defendant also characterizes as misconduct the prosecutors discussion of statements made by defendant concerning knives and the prosecutors subsequent argument: [Defendant] brags about these knives. He has them in his car. He is that type of person that gets his thrills off of imagining knives and blood dripping off those knives.

Again, there was no objection on the basis of prosecutorial misconduct, nor did the defense request that the court admonish the jury. (See People v. Frye, supra, 18 Cal.4th at p. 969.) Even assuming that the courts ruling on defendants objection to the introduction of the knives into evidence rendered further objection futile (see People v. Hill, supra, 17 Cal.4th at p. 820), defendants claim lacks merit. This is not a situation in which the prosecutor asked the jury to draw the inference that defendant had a bad character because he possessed a weapon unconnected with the charged crimes. Rather, the prosecutor legitimately referred to the knives in connection with the matter of motive. He argued that the evidence from the crime scenes established that whoever committed the crimes liked to use knives  implying that employing knives was an aspect of the murderers sexual perversion and that sexual perversion as expressed by the use of knives was the murderers motivation. The prosecutor discussed the similarities among the victims, particularly that they were attractive women, most of whom had been accosted or attacked while scantily clothed. He argued that the women had been stalked, and that whoever killed the victims was motivated by a sexual perversion. Thats the mold of domination, of sexual perversion  wanting to kill to see blood. Somebody who isnt quite right. Somebody who has a desire to dominate, to express his sexual perversion by seeing the breasts of women bleed. Then the prosecutor asked the jury to conclude that defendant was a person who liked to use knives, a circumstance that would support the inference that he shared the motivation of the murderer. In support, the prosecutor pointed to the knives defendant kept in his car and to statements defendant made to friends. The prosecutor did not ask the jury to conclude that defendant was the murderer because other uncharged crimes showed he had a bad character or even because he traveled armed  the prosecutor asked them to conclude defendant was the murderer because there was circumstantial evidence of his motivation. This argument was permissible.

Defendant also contends that the evidence of the knives was inadmissible because the police violated his Fourth Amendment rights by conducting the warrantless search of his automobile in which the knives were discovered. At a hearing held prior to trial pursuant to section 1538.5, the court determined that the police had probable cause to conduct the search in conjunction with defendants arrest. It is unnecessary for us to recite here the events that led to the arrest, the seizure of the automobile, and the inventory search conducted the following day, because even if the knives were to be viewed as the fruit of a search conducted in violation of defendants rights under the Fourth Amendment, any error would have been harmless beyond a reasonable doubt. Although we have concluded that the knives had some relevance, they were of limited probative value  as defendant himself contends. In light of the overwhelming evidence of defendants guilt of the charged crimes, the admission of the knives, if error, would have to be viewed as harmless beyond a reasonable doubt.

9.Sufficiency of the evidence

Defendant contends the presentation of the evidence was confusing and that the jury may have assumed that if defendant was guilty of one crime, he must be guilty of all of the charged crimes. Defendant does not offer any support for this claim. The jury properly was instructed to decide each count separately (CALJIC No. 17.02), and both the prosecution and the defense made the point during closing argument that the jury should consider separately its verdict on each charge. Accordingly we reject this claim.

Defendant attacks the sufficiency of the evidence to support many of the counts charged against him, raising his claims in multiple subparts.

We  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.  (People v. Hillhouse (2002) 27 Cal.4th 469, 496; see also People v. Berryman (1993) 6 Cal.4th 1048, 1082-1083 [same standard under the state and federal due process clauses].) We presume  in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] This standard applies whether direct or circumstantial evidence is involved. (People v. Catlin (2001) 26 Cal.4th 81, 139.)

a. The murder of Tiffany Schultz (Count 1)

Defendant contends there was insufficient evidence to connect him to the murder of Tiffany Schultz. Murder is the unlawful killing of a human being . . . with malice aforethought. ( 187, subd. (a).) Such malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart. ( 188.) Premeditated murder is murder in the first degree. ( 189.)

We reject defendants challenge to the sufficiency of the evidence connecting him to the murder of Tiffany Schultz. There was sufficient evidence from which the jury could infer defendants identity as the murderer. Defendant recently had moved into the apartment complex across the street from where Schultz was murdered. The jury could infer that on the morning of the murder, defendant was seen, not in his own apartment complex, but near Schultzs apartment, an hour or two prior to the murder, giving a false account for his presence and in a position where he could have observed Schultz sunbathing at her open doorway. The jury could have drawn these inferences from the testimony of Dorothy Curtiss, the manager of the Canyon Ridge Apartment complex where Schultz lived, who testified she saw Schultz sunbathing in a bikini in the doorway of her apartment around 10 a.m. on the morning of her murder. Schultzs next door neighbor saw Schultz sunbathing in the same location at approximately 12:20 p.m. Schultz spoke to a friend between 10 and 10:30 a.m., but failed to call the friend later in the morning, as the friend had expected. Telephone calls to her placed around 12:30 p.m. went unanswered, and about the same time witnesses heard sounds in Schultzs apartment that were consistent with a violent struggle.

Curtiss further testified that between 10:30 and 10:45 on the morning of Schultzs murder, she encountered a man in front of her office whom she was relatively certain was defendant. The office abutted the stairs leading to Schultzs second-story apartment. The man requested a hanger, stating he had locked himself out of his automobile. Curtiss retrieved a hanger from her nearby apartment and gave it to the man. To Curtisss surprise, the man proceeded toward the back of the complex rather than out to the street, where he had indicated his automobile was located. Curtiss departed on an errand at some time between 11 and 11:30 a.m., and did not see anyone working on an automobile on the street at that time or upon her return.

In addition, the jury could infer the identity of Schultzs murderer from evidence establishing substantial similarities among this murder and the other murders: the similarities between Schultz herself and the other murder victims; the type of clustered, deep stab wounds inflicted on Schultz and the other murder victims; the partially disrobed or nude condition of the bodies in all the murders, including that of Schultz; the proximity of the location of the Schultz murder to the location of the ensuing similar murders of Weinhold and Tarr; and other evidence establishing that defendant was a habitual burglar who preyed primarily on young White women whom he followed to their homes.

In addition, the interior and exterior doorknobs of the door leading into the room where Schultzs body was found were marked with bloody handprints in a honeycomb or cross-hatch design consistent with a sock or gloves. Witness Beasley testified that defendant wore socks over his hands when they committed burglaries together. Similar bloody marks were discovered at some of the other murder scenes.

In light of all the evidence, a jury reasonably could conclude defendant was guilty of murdering Schultz despite minor distinguishing marks consisting of her having been stabbed more times than the other victims and suffering an additional cut across her throat, and despite nothing apparently having been stolen from her apartment.

Defendant also contends there was insufficient evidence of premeditation and deliberation to support a first degree verdict as to the murder of Schultz.

 Generally, there are three categories of evidence that are sufficient to sustain a premeditated and deliberate murder: evidence of planning, motive, and method. [Citations.] When evidence of all three categories is not present, we require either very strong evidence of planning, or some evidence of motive in conjunction with planning or a deliberate manner of killing. [Citation.] But these categories of evidence, taken from People v. Anderson (1968) 70 Cal.2d 15, 26-27, are descriptive, not normative. [Citation.] They are simply an aid [for] reviewing courts in assessing whether the evidence is supportive of an inference that the killing was the result of preexisting reflection and weighing of considerations rather than mere unconsidered or rash impulse. [Citation.]  (People v. Elliot (2005) 37 Cal.4th 453, 470-471.)

With regard to planning, there is evidence from which the jury could infer defendant noticed Schultz sunbathing in her bikini up to two hours prior to the murder, giving him ample time to consider and plan his crime prior to his return to the scene. The jury could infer he possessed criminal intent prior to his commission of the crime, because he employed a ruse to explain his presence near Schultzs apartment. The bloody hand prints in a honeycomb or cross-hatch pattern that were discovered at the scene support the inference the perpetrator of the murder planned far enough in advance to bring gloves or socks for his hands so he would not leave fingerprints. With regard to motive, evidence of the other crimes committed by defendant indicated he harbored animus against young White women. With regard to method, the clustered stab wounds support an inference of a deliberate killing. (See People v. Elliot, supra, 37 Cal.4th at p. 471 [Three potentially lethal knife wounds . . . [and] 80 other stab and slash wounds to her body [could have been] construed . . . as intimating a preconceived design to kill].) The similarities between the Schultz murder and the other murders support the inference defendant went to Schultzs home armed with a knife and with the intent to kill. (See People v. Carter, (2005) 36 Cal.4th 114,. 1184-1185 [the circumstances of three similar murders by strangulation occurring in a short period of time strongly indicate the killings were premeditated, and the record as a whole is inconsistent with any suggestion that the killings were not willful, premeditated, and deliberate]; People v. Catlin, supra, 26 Cal.4th at pp. 140-141 [a common scheme among charged and uncharged murders supplied evidence of the defendants guilt of murder with malice aforethought].)

In sum, sufficient evidence supports the verdict of guilty as to the first degree premeditated murder of Schultz.

b. The murder and rape of Janene Weinhold and the burglary of her residence (Counts 2, 3, and 4)

Defendant contends there was insufficient evidence to establish that he was responsible for the murder and rape of Janene Weinhold. It is unclear whether he also challenges the sufficiency of the evidence regarding the burglary of Weinholds apartment.

We disagree with defendants claim that the evidence was insufficient as to any of the charges involving Weinhold. As noted, [m]urder is the unlawful killing of a human being . . . with malice aforethought. ( 187, subd. (a).) Murder in the course of certain enumerated felonies, including rape and burglary, is murder in the first degree. ( 189.) Forcible rape is an act of sexual intercourse that is accomplished against a persons will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person of another. ( 261, subd. (a)(2).) A person who enters a dwelling with intent to commit grand or petit larceny or any felony is guilty of burglary. ( 459.)

There was ample evidence demonstrating that defendant was responsible for the murder of Weinhold. A neighbor observed defendant seated on the steps leading to Weinholds apartment close to the time of the murder. The murder fit the pattern of the other murders  Weinhold was a young White woman who was murdered in her home at the Buena Vista Gardens apartment complex in the middle of the day. Her body lay positioned on the floor wearing only a bra. She had suffered 22 deep stab wounds closely clustered in the chest area and administered with force sufficient to penetrate bone. As in some of the other murders, the assailant used a kitchen knife belonging to the victim. DNA evidence strongly connected defendant to the crime. With respect to the rape verdict, the evidence indicated that the victim was not involved in any intimate relationships and that defendant was unknown to the victim, circumstances supporting an inference that sexual intercourse occurred against her will. Two months after the commission of this crime, defendant told an acquaintance that he had gone on a date and forced himself on the woman. Defendant much later remarked to a coworker that he had sexual relations with a woman named Janene. Seminal fluid found at the scene indicated a match with defendants DNA that would occur in one out of 120,000 persons. It reasonably could be inferred from all the evidence that defendant entered the apartment with the intent to commit larceny or rape.

Defendant contends that his statements to his acquaintance were made after the crime was committed and did not clearly refer to the victim or to any charged offense. Nonetheless, they supplied a reasonable inference in support of the verdicts. Defendant objects that the DNA evidence demonstrated that there were 20 other African-American persons in the San Diego area who could have left the semen stains at the scene. But the circumstance that defendant was one of 20 persons who could have done so, when considered with all the other evidence linking him to the crimes, constituted weighty evidence of his guilt.

Defendant points to various distinctions between the murder of Janene Weinhold and the other murders. According to defendant, the murder of Weinhold was the only one in which a sexual assault accompanied the murder, and there was no evidence the perpetrator had stolen her property or that she had been followed from a swimming pool or a fitness center.

We disagree that the other murders lacked sexual overtones. The various victims were fully or partially unclothed and their bodies appeared to be displayed, sometimes with legs apart. Although it does not appear that Weinhold was followed from a pool or fitness center and there is no proof that defendant stole her property, she bore the characteristics of the type of person targeted by defendant, namely young, attractive White women who were alone in their homes during the middle of the day in a certain neighborhood. The distinctions among the murders did not preclude a jury from reasonably concluding that defendant was responsible for the crimes committed against Weinhold.

c. Attempted burglaries of the residence of Sarah Canfield and Stephanie Squires (counts 7 and 8)

Defendant contends the evidence was insufficient to link him to these crimes and to establish the element of intent to steal. As noted, burglary consists of entry into a home or certain other structures with intent to commit grand or petit larceny or any felony. ( 459.) An attempt to commit a crime consists of two elements: a specific intent to commit the crime, and a direct but ineffectual act done toward its commission. ( 21a.)

We are not persuaded by defendants claim that there was insufficient evidence of his identity as the perpetrator of the attempted burglaries. In the first incident, Stephanie Squires recognized defendant (perhaps from her having previously resided at the Buena Vista Gardens apartment complex) when he followed her to the pool at the Torrey Pines Village apartment complex. On both April 25 and April 28, 1990, an African-American man climbed the stairs to Squiress apartment and tried the door handle. Canfield identified defendant as the person who, on April 28, 1990, appeared at her door. Other evidence established that defendants vehicle was seen departing from the parking lot soon after the second incident. A jury reasonably could infer, particularly in light of the modus operandi involved in many of the other crimes, that the man who tried the door on both occasions was defendant. For the same reason, a jury reasonably could determine that his intent was, in part, theft. (People v. Ramirez, supra, 39 Cal.4th at pp. 463-464.) Contrary to defendants claim, there was evidence he already had stolen from his victims, namely, that he had stolen an opal ring from Tarr.

Defendant claims that Canfield was not completely certain of her identification when she viewed the video lineup, and that her identification was tainted by her prior observation of defendants image on television news. Canfield was quite confident of her identification at trial, however, and even at the video lineup she was almost positive. In addition, the testimony of the apartment manager and her husband supported Canfields identification.

d. Burglary of the residence occupied by Leslie Hughes-Webb (Count 9)

Defendant challenges the sufficiency of the evidence to establish that he was responsible for pushing his way into the residence where Leslie Hughes-Webb was staying, in light of the testimony of another witness who testified defendant was at a distant spot in Old Town San Diego until 2:30 p.m. on the day of the attack. The jury was entitled to determine that Hughes-Webb, who positively identified defendant as her assailant, was more credible than the other witness, Christine Fagan. Contrary to defendants assertion that there was no evidence indicating that defendant entered the home with the intent to commit theft, the similar crimes he committed in other homes provided a basis for a jury to reasonably conclude that his intent was, at least in part, to commit theft.

e. Burglary of the residence of Michael Gromme (Count 17)

With respect to the burglary of Michael Grommes residence, although the question is closer than in other counts, we believe the evidence was sufficient to support this conviction. Shirley Beasley testified that he and defendant burglarized an apartment that was right upstairs from their own and removed all the liquor they found in the home in order to provide supplies for a party. Beasley testified that defendant retrieved a knife from the kitchen and walked through the apartment. Beasley further testified that he and defendant spoke with an older couple, the occupants of the apartment, shortly after the burglary and that he commiserated over the burglary, falsely claiming the apartment he shared with defendant also had been burglarized. On the other hand, Beasley claimed he and defendant committed the burglary of the apartment of an older couple whom he saw seated at the apartment complexs pool as the burglary proceeded, even though Gromme resided alone and was at work when the burglary occurred.

When we consider that Grommes apartment was indeed right upstairs from the apartment shared by defendant and Beasley, that Grommes account of the peculiar burglary (in which the perpetrators removed his entire liquor supply) matched Beasleys account, and that Gromme and Beasley both recalled an interaction shortly after the burglary in which Beasley commiserated over the burglary and claimed to have suffered one himself, we believe the evidence as a whole permitted the jury reasonably to conclude that Beasley was mistaken or lied when he stated the apartment belonged to an older couple whom he had seen at the pool. The unusual burglary of Grommes residence was sufficiently similar to the burglary described by Beasley, and Beasleys statements to Gromme were so similar to the statements described by Beasley, that it would be reasonable for the jury to conclude both witnesses were describing the same incident. Although Beasley was an accomplice, his testimony was corroborated by Grommes account of the target and location of the burglary, the other evidence establishing Beasleys and defendants partnership in crime during the relevant period, and Beasley and defendants presence together shortly after the crime. (See People v. Gurule, supra, 28 Cal.4th at p. 628.)

f. Attempted burglary of the residence of Patricia Van (Count 23)

Defendant contends the evidence of attempted burglary of the residence of Patricia Van on December 19, 1990, consisted of nothing more than an innocent knock at the door, accompanied by an inquiry after a friend. We believe, however, that the evidence was sufficient to prove an attempted burglary. A neighbor saw defendant examining the backyards of residences in that vicinity, then witnessed him approach the Van residence through the side yard. Defendant arrived there shortly after Van returned from working out at the Family Fitness Center, and the evidence strongly suggests he had stalked Van and followed her home. His approach to the front door and request for a person who did not reside there was consistent with his approach during the commission of other crimes. In addition, a completed burglary of the home of Patricia Van took place one month after the attempt, and one of Vans stolen earrings was traced to defendant. There was ample evidence that the December 19, 1990 approach to the Van residence also constituted an attempted burglary in which defendants activities went beyond mere preparation but were frustrated by the vigilance of the victims neighbor.

g. Attempted burglary of the residence of Karyl Oldenburg
(Count 22)

Defendant contends there was insufficient evidence to support the guilty verdict of attempted burglary of Karyl Oldenburgs residence. We disagree. The jury reasonably concluded that defendant was stalking Oldenburg and that he followed her home from her workout at the Family Fitness Center. Defendant appeared at her front door and, without knocking or ringing the bell, started manipulating the doorknob. There was evidence suggesting he used a credit card to unlock doors that were not deadbolted, and his activity on this occasion was consistent with such an effort, especially because he seemed to have something in his hands as he turned the doorknob. In addition, Oldenburg witnessed him in her backyard, where he had no legitimate business, approaching a sliding glass door similar to the ones he had used to gain entry to other residences that he had burglarized. There was sufficient evidence to establish that defendant attempted to enter this residence with the intent to steal.

h. Attempted burglary of the Yates residence (Count 24)

Contrary to defendants claim, sufficient evidence supported the verdict that he was guilty of the attempted burglary of the residence occupied by Angela Yates. There was evidence indicating that defendant followed Yates home from the Family Fitness Center, parked at some distance from her residence, then entered the backyard of the residence as Angela showered. He approached a sliding glass door at the rear of the residence, but was frightened off when Angelas mother saw him and screamed and the family dog emerged from the house. Defendant was observed jumping over the fence of the Yates property and driving off at a high rate of speed. In light of the evidence connecting defendant to similar crimes, there was sufficient evidence to establish that he stalked Angela Yates with the intent to enter her residence for the purpose, at least in part, of committing theft.

Story continues as Part VI .

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^[1] Defendant notes that Hughes-Webb stated on cross-examination that when she informed the officer who was driving the patrol car of her doubts, he said she would know when she saw the evening news. Defendant contends this statement constituted a suggestive identification procedure, citing Simmons v. United States (1968) 390 U.S. 377, 384.) Defendant has forfeited this claim because he did not raise it below.

^[2] As respondent points out, defense counsel objected to certain numbered exhibits, and the numbers represented only the steak knife and the folding knives. The transcript of the hearing on the objection, however, makes it clear that the court and counsel assumed the objection went to the larger knife as well.