P. v. Mosby

Filed 10/19/07 P. v. Mosby CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Charles W. Ervin, Judge. Affirmed.

A jury convicted Maurice Mosby of attempted burglary of a vehicle. (Pen. Code,  459/664.)^[1] Mosby admitted, prior to trial, he had suffered two prior convictions within the meaning of section 1203, subdivision (e)(4) and had served two prior prison terms within the meaning of section 667.5, subdivision (b). The court sentenced Mosby to the upper term for the attempted burglary conviction, and to two consecutive one-year terms for the two prison priors.

On appeal, Mosby argues the trial court abused its discretion by refusing to permit expert testimony on eyewitness identifications and by ruling the jury could be told he had prior convictions for commercial burglary and theft. He also asserts his sentence must be vacated because it violates Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856].

FACTS

A. The Crime

On June 12, 2005, at approximately 6:00 p.m., Mr. Valarezo was walking with his wife and sister in the condominium complex in which he lived. Valarezo noticed two young black men walking from the parking lot where Valarezo's car was parked toward the main gate of the complex. Approximately 10 minutes after he returned to his residence, Valarezo heard his car alarm sound and went to investigate. He discovered damage to his car consistent with someone attempting to break into it.

Several neighbors saw two men in the parking lot in the minutes surrounding the attempted break-in. A few minutes before the alarm sounded, Mr. and Mrs. Magana were walking to their residence when they saw two men, whom they knew were not residents, walking between cars. When the men saw the Maganas, they walked away. The Maganas walked within five feet of the two men and observed the men returning to the parking area. Mr. Magana then saw the men enter a black/grayish car and drive away. Another neighbor, Mr. Gonzalez, was with his wife when he drove into the parking lot and noticed two men hurrying away from Valarezo's vehicle, the alarm of which was sounding. Mr. Gonzalez assumed they did not have any legitimate business there. The men saw Gonzalez, walked hastily to a nearby black car, got in, and drove away. Gonzalez wrote down the license plate number of the black car and contacted police. The witnesses gave police generalized descriptions of the two men.^[2]

B. The Identifications

Police showed a photo lineup to Valarezo and Mr. and Mrs. Gonzalez on June 22 and June 23, respectively. However, Mosby's photo was not in the lineup and neither Valarezo nor the Gonzalezes made an identification of the men they had seen from that photo lineup.^[3] On June 28, Detective Wray went to the home of Mr. Hasten, the registered owner of the vehicle with the license plate number provided by Mr. Gonzalez, to interview Hasten. Mosby was present and told the detective that he had purchased the vehicle (a black Mazda) from Hasten and had been in "sole possession of the vehicle for the past month."^[4]

A second photo lineup, which included a picture of Hasten but not Mosby, was shown to Valarezo and Mr. Magana. They did not identify any of the individuals in the photo lineup. On June 29, a third photo lineup, which included a picture of Mosby, was shown to Valarezo and the Gonzalezes. Valarezo and Mrs. Gonzalez could not identify anyone. Mr. Gonzalez stated that he was "not positive, but number 2 [Mosby] sticks out." Mr. and Mrs. Magana saw the third photo lineup and both immediately identified Mosby as one of the men they had seen in the parking lot.

In late September, Mr. and Mrs. Magana participated in a live lineup of six individuals. Mr. Magana identified Mosby as one of the men in the parking lot but Mrs. Magana did not identify Mosby.

ANALYSIS

A. The Expert Witness

Mosby contends the court erred by denying his motion to present an expert witness to testify about factors that may undermine the accuracy of an eyewitness identification. The decision to admit or exclude expert testimony on this topic "remains primarily a matter within the trial court's discretion" and the Supreme Court has emphasized that evidence "will not often be needed." (People v. McDonald (1984) 37 Cal.3d 351, 377, overruled on another ground by People v. Mendoza (2000) 23 Cal.4th 896, 914.) McDonald held that excluding the testimony constitutes error only when eyewitness identification is a key element of the prosecution's case and is not substantially corroborated by other evidence. (Id. at p. 377.) As the court in People v. Sanders (1995) 11 Cal.4th 475, 509 explained, "In McDonald, no evidence linked the defendant to the crime, apart from eyewitness identification. The eyewitness testimony was equivocal; several witnesses testified that their view of the crime was partially blocked and obscured by rush-hour traffic; one eyewitness asserted that the defendant was definitely not the killer. The defendant also had a strong alibi defense. We concluded that the eyewitness identifications were not corroborated by evidence that would lend them independent reliability." In Sanders, as in McDonald, "eyewitness testimony was a key element of the prosecution's case," but "unlike McDonald, [it] was not the only evidence linking the defendant to the crime." (Sanders, at p. 509.) It is not an abuse of discretion to exclude the proposed expert testimony when substantial corroborating facts are present. (Ibid.; accord, People v. Walker (1988) 47 Cal.3d 605, 628 ["ample circumstantial evidence linked defendant to the crimes and gave the identifications an independent source of reliability"]; People v. Plasencia (1985) 168 Cal.App.3d 546, 555 ["the prosecution's case was not premised solely on eyewitness testimony"].)

Here, evidence corroborated the various witness identifications. The physical descriptions given to police at the scene were consistent with Mosby's appearance. Moreover, no one was able to identify the perpetrator from the photo lineups that did not contain Mosby's picture, but after his picture was inserted, the two separate witnesses who had the closest look at Mosby (Mr. and Mrs. Magana) were able positively to identify him in the photo lineup.^[5] Finally, the car found in Mosby's presence matched the description and license plates of the getaway car, and Mosby admitted he had acquired the car and been in sole possession of the car for the previous month.^[6]

All of these details were independent of the eyewitness identification. "Although none of these items points unerringly towards defendant's guilt, they constitute links in the chain of evidence against him and thus provide some corroboration of [the witness's] identification . . . ." (People v. Sanders (1990) 51 Cal.3d 471, 506.) Under these circumstances, the court did not abuse its discretion in declining to permit expert testimony on eyewitness issues.

B. The Prior Conviction

Mosby next asserts the trial court abused its discretion by permitting the prosecution to inform the jury, by way of stipulation, that Mosby had previously suffered convictions for commercial burglary and grand theft of personal property.^[7]

Trial Court Proceedings

Mosby moved in limine to exclude evidence that he had been convicted of commercial burglary and grand theft. The prosecution argued the prior crimes were admissible for the limited purpose of showing that Mosby possessed the requisite intent to steal, rather than having an innocent purpose, at the time he attempted to enter the vehicle. The court ruled the evidence was admissible under Evidence Code section 1101, subdivision (b), and the probative value of the evidence outweighed its prejudicial impact under Evidence Code section 352, and therefore ruled the prosecution could introduce the evidence. Based on this ruling, the jury was informed by way of stipulation that Mosby had been convicted of commercial burglary and grand theft.

Governing Law

"Evidence Code section 1101, subdivision (a) generally prohibits the admission of [an uncharged] criminal act against a criminal defendant 'when offered to prove his or her conduct on a specified occasion.' Subdivision (b), however, provides that such evidence is admissible 'when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity . . .).' " (People v. Harrison (2005) 35 Cal.4th 208, 229.)

In People v. Ewoldt (1994) 7 Cal.4th 380, 402 (Ewoldt), the Supreme Court explained the theory underlying the admissibility of evidence of an uncharged offense to prove a defendant's intent in committing the charged offense: " '[T]he recurrence of a similar result . . . tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such an act . . . .' [Citation.] In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant ' "probably harbor[ed] the same intent in each instance." [Citations.]' [Citation.]" Ewoldt went on to state that "[t]he least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent. [Citation.]" (Ibid.)

However, even where a defendant's commission of other crimes is relevant for some purpose under Evidence Code section 1101, subdivision (b), to be admissible, such evidence " 'must not contravene other policies limiting admission, such as those contained in Evidence Code section 352. [Citations.]' " (Ewoldt, supra, 7 Cal.4th at p. 404.) Evidence Code section 352 authorizes a trial court to "exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." " ' "The prejudice which [Evidence Code section 352] is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence." [Citations.] "Rather, the statute uses the word in its etymological sense of 'prejudging' a person or cause on the basis of extraneous factors. [Citation.]" [Citation.]' [Citation.]" (People v. Mullens (2004) 119 Cal.App.4th 648, 658.)

Factors increasing probative value include the tendency of the evidence to prove one of the specified facts and the independence of the source of the evidence of uncharged misconduct from the source of the charged offense. Factors increasing prejudice include the absence of a conviction for the uncharged act and the strength and inflammatory nature of the testimony describing that act. (Ewoldt, supra, 7 Cal.4th at pp. 404-405.) The trial court's ruling on an Evidence Code section 352 objection " 'must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]' [Citation.]" (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125, quoting People v. Jordan (1986) 42 Cal.3d 308, 316.)

Analysis

We conclude the trial court's ruling--that the prejudicial effect of admitting evidence of Mosby's prior convictions did not substantially outweigh the probative value of that evidence--was not an abuse of discretion. The evidence was not more inflammatory than the evidence of the charged offense and was not the type of evidence that would evoke an emotional bias against Mosby. Moreover, the jury was specifically instructed that this evidence could only be considered for the limited purpose of proving Mosby's intent at the time he attempted to enter the car, further diminishing any prejudicial impact of the evidence. (People v. Lewis (2001) 25 Cal.4th 610, 637.) We conclude the admission of the evidence in the context of the issues and instructions was not an abuse of discretion.

C. The Sentence

Mosby asserts that selection of the upper term violated Cunningham because it was based on facts not found by the jury beyond a reasonable doubt.^[8] In Cunningham, the court concluded California's determinate sentencing law ("DSL") violates the Sixth Amendment because it "allocates to judges sole authority to find facts permitting the imposition of an upper term sentence[.]" (Cunningham v. California, supra, 127 S.Ct. at p. 870.) Relying on Cunningham, Mosby contends the trial court's imposition of the upper term in this case violated his Sixth Amendment right to a jury trial.

However, our Supreme Court's recent decision in People v. Black (2007) 41 Cal.4th 799 (Black II) concluded a trial court may impose the upper term without offending Cunningham if the defendant "is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles." (Black II, at p. 813.) We conclude Black II controls this case and mandates affirmance of the sentence.

In Black II, our Supreme Court addressed the same issue raised by Mosby here: whether imposition of the upper term violated the appellant's right to a jury trial. The Black II court noted that in Blakely v. Washington (2004) 542 U.S. 296, the United States Supreme Court "explicitly recognized the legitimate role of 'judicial factfinding' in indeterminate sentencing, in which the judge may 'implicitly rule on those facts he deems important to the exercise of his sentencing discretion.' [Quoting Blakely, at p. 309.]" (Black II, supra, 41 Cal.4th at pp. 812-813.) Accordingly, the Black II court concluded that "so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury." (Id. at p. 813.) The Black II court added that "[t]he facts upon which the trial court relies in exercising discretion to select among the terms available for a particular offense 'do not pertain to whether the defendant has a legal right to a lesser sentence--and that makes all the difference insofar as judicial impingement upon the traditional role of the jury is concerned.' [Citation.]" (Ibid.)

After noting that "the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term" under California's DSL, the Black II court concluded that "if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not 'legally entitled' to the middle term sentence, and the upper term sentence is the 'statutory maximum' " for Sixth Amendment purposes. (Black II, supra, 41 Cal.4th at p. 813.) The Black II court then noted the United States Supreme Court "consistently has stated that the right to a jury trial does not apply to the fact of a prior conviction[,] [citations] [and that] 'recidivism . . . is a traditional, if not the most traditional, basis for a sentencing court's increasing an offender's sentence.' [Citation.]" (Black II, at p. 818.) On that basis, the Black II court reasoned a defendant's criminal history alone may render him eligible for the upper term. (Ibid.)

The Black II court, after noting the probation report reflected the defendant in Black II had convictions both numerous (three misdemeanors and two felonies) and of increasing seriousness, next addressed the defendant's argument that, even if the fact of a prior conviction may not be a jury issue, he was nevertheless entitled to a jury trial (under Cunningham) on the issues of numerosity or increasing seriousness. The Black II court, rejecting the argument, explained the defendant "reads the 'prior conviction' exception too narrowly. [Citations.] As we recognized in [People v. McGee (2006) 38 Cal.4th 682], numerous decisions from other jurisdictions have interpreted the Almendarez-Torres [v. U.S. (1998) 523 U.S. 224] exception to include not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions. [Citations.] [] The determinations whether a defendant has suffered prior convictions, and whether those convictions are 'numerous or of increasing seriousness' (Cal. Rules of Court, rule 4.421 (b)(2)), require consideration of only the number, dates, and offenses of the prior convictions alleged. The relative seriousness of these alleged convictions may be determined simply by reference to the range of punishment provided by statute for each offense. This type of determination is 'quite different from the resolution of the issues submitted to a jury, and is one more typically and appropriately undertaken by a court.' [Quoting McGee, supra, 38 Cal.4th at p. 706.]" (Black II, supra, 41 Cal.4th at pp. 819-820, fn. omitted.)

Here, the court specifically noted Mosby's prior convictions were numerous and, indeed, Mosby appears to have suffered even more convictions than the defendant in Black II. Because Mosby's numerous conviction were alone a sufficient basis to make him eligible for the upper term, we are compelled under Black II to conclude Mosby suffered no Sixth Amendment violation by the trial court's exercise of its discretion in selecting the upper term in his case based on facts determined by the trial court. (Black II, supra, 41 Cal.4th at p. 820.)

DISPOSITION

The judgment is affirmed.

McDONALD, J.

WE CONCUR:

NARES, Acting P. J.

McINTYRE, J.

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

^[2] Valarezo described them as "two young black guys." Mr. Gonzalez indicated he had seen the men for "under a minute" and told police they were "not Caucasian." Mr. Magana described the men as African American, "no taller than" five feet eight inches, and could not recall whether he told police one man had light eyes and light skin. Detective Wray, based on his review of Mosby's driver's license and his own observations, described Mosby as a light skinned African American standing 5'8" in height.

^[3] Valarezo did note that one picture portrayed a man with light colored eyes similar to his recollection of one of the perpetrators, but that picture portrayed a man with facial hair not present on the man Valarezo had seen.

^[4] Detective Wray did not record Mosby's statement concerning possession of the car during June. Wray did not open or inspect the vehicle and did not notice any of Mosby's property inside the vehicle.

^[5] Mosby argues the Maganas' photo identification was undermined by Mrs. Magana's inability to identify anyone at the live lineup, and by Mr. Magana's tentative identification of Mosby at the live lineup. However, this live lineup occurred over three months after the crime, and Mosby apparently substantially altered his appearance (by shaving his head and goatee and altering his eyebrows) between the time his photo was taken and the time of the live lineup.

^[6] Mosby notes his possession of the car was not inconsistent with another person using it for criminal purposes, and there was evidence the car was linked to a crime committed by two other black males in mid-May. However, those two males were arrested for stealing the car from the registered owner, Mr. Hasten, and the car was returned to Hasten before the June 12 crime.

^[7] Mosby also complains the trial court ruled the prosecution could introduce evidence that he was on parole at the time of the offense. However, the prosecution disavowed any intent to prove Mosby was in fact on parole. The only apparent reference to Mosby's parole status (a single reference by Detective Wray that he searched for Mosby at addresses obtained from his parole officer) was apparently inadvertent, and the prosecution agreed the defense could have a limiting instruction to disregard that reference. It appears the defense elected not to avail itself of that opportunity. We conclude this issue was abandoned at trial.

^[8] Mosby also appears to assert that imposing two 1-year terms under section 667.5, subdivision (b) and imposing the upper term for his criminal history offends the prohibition against dual use of facts. Mosby cites no relevant authority holding a court may not impose the upper term based on numerosity of convictions when it imposes prison prior term enhancements, and it appears there would be no bar because each relies on different facts: the former is based on the number of Mosby's convictions regardless of whether or not he served a prison term for those offenses, while the latter enhancements are inapplicable unless he actually served a prison term. ( 667.5, subd. (d).)