P. v. Muse

Filed 7/26/07 P. v. Muse CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, Charles E. Horan, Judge. Affirmed.

Rachel Lederman, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr., and Michael R. Johnsen, Deputy Attorneys General, for Plaintiff and Respondent.

____________________________

Van Steven Muse was convicted of one count each of commercial burglary (count 1), petty theft with a prior based on an admitted 2004 grand theft conviction (count 2), assault (count 3), and battery (count 4). (Pen. Code, 459, 666, 240, 242.) He was sentenced to state prison for a term of three years. Muse appeals, contending there were instructional and sentencing errors. We affirm.

FACTS

As Mauricio Villegas (an undercover asset protection specialist at a La Verne Target store) watched, Ignacio Hernando placed a Bose theatre system in a cart. Muse was standing near Hernando, and when Muse pointed to two Apple iPod speaker systems, Hernando put them in the cart, then walked to the toy department with Muse following about ten feet behind him. With Villegas still watching, the two men met in the toy department and exchange[d] some words. Muse gave Hernando a piece of white paper that looked like a receipt, then walked away, keeping his distance from Hernando. Hernando walked toward the back of the store with Muse following about ten feet behind him. Villegas called the police and continued to watch the men as Hernando, still followed by Muse, walked all around the store, headed towards the front lanes[,] . . . passed by the front lanes and exited the store without paying.

Villegas followed Hernando outside, approached him, identified himself as Target security, and handcuffed Hernando. Hernando dropped the receipt (which was retrieved by Roger Fitzpatrick, a uniformed security guard). As Muse attempted to pass by, Villegas grabbed his wrist and asked him to go back inside the store. Muse responded, Im not going anywhere with you and shoved his way past Villegas. When Fitzpatrick stepped in and took hold of Muses shirt, Muse -- with a sharp key chain in his hand -- started swinging his arms like crazy and tried to get away, cutting Fitzpatrick as he did so. Another Target employee grabbed Muse and detained him until the police arrived.

Muse was arrested.[1] After waiving his Miranda rights, he told the police during a taped interview that he was out for a drive when he stopped at the Target store because he was thirsty and wanted a drink. He said he went inside, walked around, looked at some televisions, and left (having changed his mind about the drink). He was adamant that he had never seen [Hernando] before in his life. Muse was charged with the four counts noted above.

At trial, the People presented evidence of the facts summarize above. In addition, a Target investigator testified that the receipt dropped by Hernando was not a valid Target receipt (the transaction number did not exist in the Target system), and the jury saw video images showing Hernando and Muse at two other Target stores earlier on the same day as the charged offenses (one in Montclair, the other in Chino), two more Target stores the preceding day (one in La Habra, the other in Puente Hills), and one store (in Rosemead) two weeks earlier (so that the two men had previously entered five Target stores, each time with Muse following Hernando who had electronic items in his cart). Muse was convicted as charged.

DISCUSSION

I.

Over a defense objection, the trial court admitted the video images based on their obvious relevance to show that, contrary to Muses claim that he had never before seen Hernando, Muse and Hernando had previously -- within moments of one another -- entered five different stores in different parts of the county. Muse now contends the jury instructions regarding evidence of uncharged crimes (CALJIC Nos. 2.50, 2.50.1) unconstitutionally lightened the burden of proof. We disagree.

A.

The jury was instructed according to CALJIC No. 2.50 that evidence of other crimes could not be considered to prove Muse is a person of bad character or that he has a disposition to commit crimes, but could be considered for the limited purpose of determining whether it tended to show (1) a characteristic method, plan or scheme similar to the one used in this case, which would tend to show the required intent, identity, or a clear connection between the charged and uncharged offenses so that it might be inferred that if he committed the other offenses he also committed the charged offenses; (2) the required intent; (3) the identity of the perpetrator; (4) that Muse knew Hernando or possessed the means necessary for commission of the charged crimes; or (5) that the crimes charged were part of a larger plan or scheme. (See Evid. Code, 1101.)

The jury was next instructed according to CALJIC No. 2.50.1: Within the meaning of the preceding instruction, the prosecution has the burden of proving by a preponderance of the evidence that a defendant committed crimes other than those for which he is on trial . . . . [] If you find other crimes were committed by a preponderance of the evidence, you are nevertheless cautioned and reminded that before a defendant can be found guilty of any crime charged in this trial, the evidence as a whole must persuade you beyond a reasonable doubt that the defendant is guilty of that crime. (Italics added.)

B.

Muse contends that because every fact essential to complete the chain of circumstances establishing his guilt of the charged crime must be proved beyond a reasonable doubt (In re Winship (1970) 397 U.S. 358, 364; People v. Carter (1957) 48 Cal.2d 737, 757-761; People v. James (2000) 81 Cal.App.4th 1343, 1353), the instructions are flawed -- because, taken together, they permitted the jury to find by a preponderance of the evidence that he committed prior thefts and, from that fact, infer (based on the clear connection between the charged and prior crimes) that he committed the charged crimes. According to Muse, where (as here) circumstantial evidence is an essential part of the proof against him, there is an unresolved tension between the preponderance standard of CALJIC No. 2.50.1 and the reasonable doubt standard applicable to all inferences essential to establish guilt as stated in CALJIC No. 2.01 (sufficiency of circumstantial evidence) which was also given to the jury.[2]

We see Muses point (the issue is discussed at length in People v. James, supra, 81 Cal.App.4th at pp. 1358-1360) but believe both instructions were properly given in this case for the reason explained in People v. Reliford (2003) 29 Cal.4th 1007, 1016 -- that where the instructions, taken as a whole, could not have been interpreted to authorize a guilty verdict based solely on proof of uncharged conduct, there is no instructional error. (Id. at pp. 1012-1013.) Here, as in Reliford, [n]othing in the instructions authorized the jury to use the preponderance-of-the-evidence standard for anything other than the preliminary determination whether defendant committed a prior . . . offense . . . . The instructions instead explained that, in all other respects, the People had the burden of proving defendant guilty beyond a reasonable doubt. . . . Any other reading would have rendered the reference to reasonable doubt a nullity. (Id. at p. 1016.)

More to the point, the error, if there was error, was harmless by any standard. (Chapman v. California (1967) 386 U.S. 18, 24.) Although the evidence against Muse was mostly circumstantial -- because it was Hernando, not Muse, who put the items in the cart and took them from the store without stopping to pay -- it was overwhelming. Villegas watched as Muse pointed to the items and Hernando put them in the cart, and he watched as the two men walked through the store, stopping to talk in the toy department where Muse passed the false receipt to Hernando. When Muse was stopped outside the store, he attempted to flee and fought aggressively. The evidence of other crimes was superfluous, and we are satisfied that, without it, the verdict would have been the same.

II.

Muses sentence consists of a three-year upper term on count 1 (burglary), a stayed three-year upper term on count 2 (petty with a prior), and concurrent 90-day sentences on counts 3 and 4 (assault and battery). We reject Muses contention that the upper term sentence cannot survive Cunningham v. California (2007) __ U.S. ___, 127 S.Ct. 856.) It is based primarily on his recidivist conduct, including numerous prior convictions and the fact that he was on probation when these crimes were committed. Because any one factor is sufficient to support the upper term sentence, and because recidivism is outside the scope of Cunningham (Cunningham v. California, supra, 127 S.Ct. at pp. 860, 864-865), there is no Cunningham error. (People v. Black (2007) ) ___ Cal.4th ___, 2007 WL 2050875.)

DISPOSITION

The judgment is affirmed.

NOT FOR PUBLICATION.

VOGEL, J.

We concur:

MALLANO, Acting P.J.

ROTHSCHILD, J.

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[1] Hernando was also arrested and charged with one count of burglary. He entered a guilty plea before trial and is not a party to this appeal.

[2] As relevant, former CALJIC No. 2.01 states that each fact which is essential to complete a set of circumstances necessary to establish the defendants guilt must be proved beyond a reasonable doubt. In other words, before an inference essential to establish guilt may be found to have been proved beyond a reasonable doubt, each fact or circumstance on which the inference necessarily rests must be proved beyond a reasonable doubt.