P. v. Davis

Filed 6/2/06 P. v. Davis CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, William D. Mudd, Judge. Affirmed in part, reversed in part.

I.

INTRODUCTION

Appellant DJ Davis appeals from his convictions stemming from a series of burglaries of fast food restaurants in San Diego County. A jury found Davis guilty of multiple counts of burglary, conspiracy to commit burglary, vandalism, three counts of vehicle theft, three counts of receiving stolen property, two counts of receiving a stolen vehicle, grand theft, possession of methamphetamine, and possession of burglary tools.

On appeal, Davis claims that: (1) the trial court abused its discretion in allowing the attorney for one of Davis's accomplices to testify as to what the accomplice told the attorney about the series of burglaries, and in denying his motion for a new trial on this ground; (2) his trial counsel rendered ineffective assistance in failing to properly object to the attorney's testimony and failing to object to the testimony of a detective that another accomplice had led police to Davis; and (3) the trial court erred in failing to instruct the jury that Davis could not be convicted of both stealing and receiving the same property.

We conclude that the trial court did not abuse its discretion in allowing the attorney of an accomplice to testify as to the accomplice's prior consistent statements because that testimony was elicited only after defense counsel attempted to establish that the accomplice's testimony was recently fabricated. We further conclude that Davis's trial counsel was not ineffective and/or that any errors his counsel may have made were harmless. Finally, we conclude that the trial court erred in failing to instruct the jury regarding the general rule that a defendant may not be convicted of both the theft of, and receiving, the same stolen property. With regard to Davis's convictions for the taking and receiving of one victim's personal property, the court's error was prejudicial. We therefore reverse those convictions.^[1] However, because we conclude that the court's error did not prejudice Davis with regard to his convictions under Vehicle Code section 10851 and Penal Code 496d for the driving and receiving of a victim's truck, we affirm those convictions.

II.

FACTUAL AND PROCEDURAL BACKGROUND

A. Procedural background

Davis was charged by information with conspiracy to commit burglary (Pen. Code, § 182, subd. (a)(1); count 1); 12 counts of burglary (§ 459; counts 2, 3, 7, 9, 10, 11, 12, 13, 15, 16, 20, & 21); three counts of vehicle theft (Veh. Code, § 10851, subd. (a); counts 8, 14, & 19); three counts of receiving stolen property (§ 496, subd. (a); counts 25, 26, & 27); two counts of receiving a stolen vehicle (§ 496d; counts 23 & 24); two counts of felony vandalism (§ 594, subd. (a)(b)(1); counts 6 & 17); one count of attempted vehicle theft (§ 664, Veh. Code, § 10851, subd. (a); count 18); one count of grand theft (§ 487, subd. (a); count 22); one count of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)); and one misdemeanor count of possession of burglary tools (§ 466; count 28). The information alleged that Davis had suffered one prison prior (§ 667.5, subd. (b)) and one strike prior (§§ 667, subd. (b)-(i); 1170.12/668; 667.5, subd.(b)). The prison prior allegation was dismissed before trial.

After a six-day trial, a jury convicted Davis on all counts with the exception of counts 6 (vandalism), 7 (burglary), 10 (burglary), and 18 (attempted vehicle theft). Davis moved for a new trial on the ground that the trial court had erred in allowing a codefendant's attorney to testify for the prosecution. The trial court denied the motion and on March 17, 2005, sentenced Davis to a total prison term of 10 years eight months, comprised of a principal term of two years on count 2; plus a consecutive 8 months (one-third the midterm) on counts 3, 8, 9, 11, 12, 14, 15, 16, 19, 20, 21, 22, & 29; two years concurrent and stayed on counts 1, 13, 17, 23, 24, 25, 26, & 27; and credit for time served as to count 28 (misdemeanor possession of burglary tools). The court struck the strike prior in the interest of justice; fined Davis $200; with Davis's consent, reserved jurisdiction over the issue of victim restitution; and credited Davis with 618 days for time served.

Davis filed a timely notice of appeal on March 17, 2005.

B. Factual background

In January 2004, Davis, Lane Yule, and Stephen Lawrence broke into a number of restaurants in San Diego County, took money from the cash registers and stole the restaurants' safes. The men lifted the safes using bottle jacks, put the safes in the back of stolen pickup trucks, and took them to Davis's house in Ramona. There they cut open the safes with a chop saw, and after taking out the money, dumped the safes and stolen trucks at various locations around the county.

1. The January 14 and 19, 2004 burglaries (counts 2, 3, 8, & 9)

On January 14, 2004, at approximately 8:00 a.m., Davis, Yule and Lawrence broke into an Arby's restaurant (Arby's) on Mira Mesa Boulevard. The men shattered the glass in the front door and entered the restaurant. They pried open the cash registers and removed a safe that had been bolted to the floor. Arby's total loss was $4,235.

Earlier that morning at approximately 3:00 a.m., Davis, Yule and Lawrence broke into a Kentucky Fried Chicken (KFC) restaurant on Alemania Road in Vista/San Marcos by "smash[ing] out" a window. When the men entered the restaurant they triggered an alarm. The restaurant safe was found five feet from its usual location. Video cameras inside the restaurant had been manipulated so that they were pointed toward the ceiling, and a videotape had been removed from the camera. Traces of DNA that matched Yule and Lawrence were found on a Pepsi cup that was left on the front counter. A picture downloaded from a backup digital video recorder showed that the suspects had worn gloves.

Some time between January 8 and 14, 2004, David Tokunaga's 1988 Mazda pickup truck was stolen from the street in front of his house while he was away on a business trip. On January 14, 2004, Tokunaga's truck was found "completely destroyed" in a remote area near Ramona. The Arby's safe and a red equipment box were found in the bed of the truck. The safe had cut marks on it, and a burning smell, like the smell of metal being ground, emanated from the bed of the truck.

On January 19, 2004, at approximately 4:00 a.m., the alarm at a KFC on Miramar Road was triggered. A rock had been used to break a glass window next to the front door. The alarm keypad had been removed from the wall with a prying tool, and red pry marks near the safe indicated that someone had attempted to remove it.

2. The January 26, 2004 burglaries (counts 11, 12, 13)

On or around January 22, 2004, Matthew Deskovick's garage in Ramona was burglarized. A paint sprayer, tool box, and several tools were stolen.

On January 26, 2004, Davis, Yule, and Lawrence burglarized a Taco Bell restaurant on North Rancho Santa Fe Road in the Vista/San Marcos area. The men broke the window in a door, triggering the burglar alarm. When a sheriff's deputy arrived at the scene, he discovered another door propped open. The cash registers were open, but the safe was still in the store. The deputy then responded to a burglar alarm at a KFC down the street from the Taco Bell. At the KFC, the window in a door had been broken and the cash registers were open, but the safe was intact. Shortly thereafter, the deputy responded to another burglary call back at the Taco Bell. The deputy found the doors open, a broken window, and "a large safe just outside of the doors." The safe had been removed from the floor inside the store.

3. The January 29, 2004 burglaries (counts 14, 15, 16, & 17)

On or about January 28, 2004, Davis, Yule, and Lawrence stole Dennis Walsh's Mazda pickup truck, which had been parked in front of Walsh's home in Ramona.

On January 29, Davis, Yule, and Lawrence burglarized an Arby's in Lakeside. They broke a glass door, entered, and removed the safe. There was no cash in the safe, however, because workers at the store had stopped keeping money in the safe after the store had been repeatedly burglarized. The total loss from damage to the store was $2,854. The Arby's safe was found on January 30, dumped at an off-road location, in a canyon area in Ramona. Also on January 29, the three burglarized a Taco Bell in Lakeside. They broke a glass door that cost $600 to repair.

Walsh's truck was found in a creek bed approximately four miles from Davis's home. The camper shell was upside down in the bed of the truck, and the ignition and the outside passenger door lock were broken. The back window had metal shavings on it, and the truck smelled like burned or ground metal.

4. The January 30, 2004 burglaries (counts 19, 20, 21, & 22)

On January 29, 2004, Steve Sellin's Mazda pickup truck was stolen from in front of his house in La Jolla.^[2] On January 30, 2004, at about 3:00 a.m., police responded to an alarm at a Napa Auto Parts store on Convoy Court in San Diego. Davis, Yule, and Lawrence had broken a window and stolen bottle jacks, socket sets, and a shop light. There were rocks left behind in the store.

At approximately 4:45 a.m. on January 30, Davis, Yule and Lawrence burglarized a Taco Bell on La Jolla Boulevard. They broke a glass door with a rock, entered the restaurant, and removed the safe. The men attempted to lift the safe into Sellin's truck, but the safe was too heavy. They left the safe at Taco Bell and drove around La Jolla, looking for a trailer. Approximately a mile from the Taco Bell, they stole a trailer that belonged to Chris McCredie, a musician who kept his band's equipment in the trailer. The equipment included band merchandise, banners, speakers, a $10,000 drum set, and a fog machine. Davis, Yule and Lawrence dumped some of the trailer's contents and returned to the Taco Bell. They then loaded the safe into McCredie's trailer and drove it to Davis's house. Yule cut open the safe with a chop saw, and the three of them split the contents of the safe, which included cash, rolled coins, and "Taco Bell bucks."

5. Matthew Deskovick's tools

Some time in January 2004, Matthew Deskovick's garage was burglarized. Several of his tools, including a red toolbox, paint sprayer, retro washer, chop saw, and air compressor were taken. Deskovick's tools were labeled. Deskovick knew Davis from high school, but he never gave Davis permission to use his property.

6. Davis's arrest

On January 23, 2004, police went to the Ramona home of Theodore Terazos in conjunction with their investigation of the burglaries and auto thefts. Police found two bottle jacks in the back of a truck inside Terazos's garage. One bottle jack was missing a handle. A red bottle jack handle had been found at the scene of the KFC burglary on Alemania Road. Shoes taken from Terazos's house matched footprints found at the scenes of the Alemania Road KFC and the Woodside Street Arby's. Police arrested Terazos, who appeared to be under the influence of methamphetamine at the time. He implicated Yule and Davis in the burglaries and auto thefts.

On January 30, 2004, while investigating a stolen safe found approximately a mile from Davis's home, San Diego County Sheriff Detective Robin Enns noticed Sellin's red Mazda pickup truck parked in Davis's driveway. Enns parked her car in a nearby driveway and while awaiting the arrival of other officers, she heard yelling and the sound of a saw cutting metal coming from Davis's house.

Police officers arrived and surrounded the house. As Enns and other police officers walked up the driveway, they saw Davis running around to the back of the house. Davis banged on a window or screen door and yelled inside, grabbed a camouflaged hooded sweatshirt, slowed to a fast walk, and then entered the garage through a rear door. Ramona Police Officer Steven Brewer kicked down the garage door, drew his gun, and arrested Davis. At the time of his arrest, Davis had in his possession .67 grams of methamphetamine, a glass smoking pipe, and $969 in small bills.

Officers found a fog machine, drumsticks, and McCredie's band equipment in Davis's house. They also found several rolls of coins. Plastic bags containing coins were located on a shelf in the laundry room. Several large glass jars containing coins were found on the living room table. Officers found rolled coins in plastic with burned ends in a purse that belonged to Davis's wife, Fawn. They also found gloves, two-way radios, flashlights, maps, and tools in Davis's kitchen.

Chris McCredie's stolen trailer was found inside Davis's garage, along with some stereo speakers. In the trailer, officers discovered the stolen La Jolla Taco Bell metal safe, along with bank bags, Taco Bell wrappings, and change drawers. Also in Davis's garage, police found a paint sprayer and other labeled tools believed to belong to Deskovick, a NAPA chop saw and bottle jack box, and other tools similar to those that were taken from the Napa Auto Parts store on Convoy. The police also found glass jars full of coins, slim-jims, which are used to unlock car doors, beanie caps, and a beige knit cap with a bill.^[3] Detective Enns noticed a photograph of Chris Paschke, Yule's roommate, in Davis's living room.

7. Lane Yule's testimony

Lane Yule was also arrested on January 30, 2004, after he ran from police. He was found hiding in a dry-docked boat. Yule had Taco Bell "bucks" and Arby's gift certificates in his possession at the time of his arrest.

Yule entered into a plea agreement with the district attorney. Before he was sentenced, Yule testified for the prosecution against Davis. Yule had told police that there were certain people he was not willing to discuss, including Paschke.

At trial, Yule testified that in 2004 he became part of a group that stole safes from fast food restaurants. The group usually worked in teams of two to three men at a time, and the thefts were committed at various locations around the county. Yule admitted that he was addicted to methamphetamine and that he spent between $500 and $600 per week on his habit.

According to Yule, the men used flashlights and screwdrivers to open the restaurants' cash registers. On most occasions, they wore gloves. If they could not get a safe out of a restaurant or onto a truck, they would leave the safe at the restaurant. The men took the safes that they were able to remove to Davis's house. Yule testified that Davis had participated in a couple of these burglaries, but that different people had committed different break-ins. Consequently, Davis was not always aware of when a safe would be brought to his house. Every time Davis's garage was used, however, Davis received some portion of the stolen goods or money. Yule believed that the first time a safe was taken to Davis's house was in early January 2004. Yule testified that Davis was involved in the burglaries from the beginning.

Yule thought that the group had stolen approximately 10 safes. They removed the safes using a bottle jack, and sometimes used bricks as leverage for the bottle jacks. They would use different stolen trucks to haul the safes away, and would dump the vehicles after the burglaries. The group preferred to use Mazda trucks because they were particularly easy to steal. They always took safes to Davis's house because Davis had a garage. They cut the safes open using a chop saw and then divided the proceeds equally. They dumped the safes in various locations around the county.

Yule stated that he and a man named Dave Holman burglarized the Alemania Road KFC and the Arby's on Mira Mesa Boulevard. Yule testified that Terazos went on at least one job with them, but that the three main participants were Yule, Davis, and Steve Lawrence.

Yule testified that on January 29, 2004, Fawn Davis drove him and Lawrence to the location where they stole Sellin's truck. After they returned to Davis's house with the stolen truck, Yule, Lawrence, and DJ Davis left Davis's house in Sellin's truck and broke into the Napa Auto Parts store to steal some bottle jacks, because at the time Terazos was arrested, Yule's bottle jack was in his car. The men then went to the La Jolla Taco Bell where they broke in, using a rock. Because they could not lift the safe into the truck, they stole McCredie's trailer to transport the safe. Once they picked up the safe, the men returned to Davis's house and parked the trailer in the garage. They used a chop saw to open the safe, and divided the cash and coins they found inside.

Yule testified that he, Davis, and Lawrence committed the burglaries of the Rancho Santa Fe Taco Bell, the Woodside Arby's, and the Woodside Taco Bell, and that these three also stole Sellin's truck. For the most part, however, Yule could not remember who had participated in each of the thefts.

Yule testified that after his first day of testimony, Davis had called him a rat and a snitch, and threatened him. Elisabeth Traina, a deputy sheriff at the San Diego Central Jail, corroborated Yule's testimony, but did not know who had made the statements.

Yule's attorney, Stephen Cline, testified that Yule had told him that Davis was a "player" in the offenses. Yule had made it clear to Cline that Davis participated in the last burglary. Yule stated that all of the offenses began and ended at Davis's house, and that Davis had been involved in a number of burglaries for which he had not yet been charged.

8. The defense

Davis testified that he had incurred a prior felony conviction for residential burglary. He denied that he had threatened Yule or that he was involved in any of the charged offenses, except possession of methamphetamine. He admitted to having purchased $30 to $80 worth of methamphetamine approximately every two weeks.

Davis worked as a mechanic for his brother, and earned approximately $1,800 per month. Fawn worked as a waitress and often received cash tips. Beginning in June or July 2003, Fawn received $30,000 in $10,000 increments from an inheritance. Davis believed that by January 30, 2005, she had only approximately $5,000 left. Davis testified that he deals in cash and often keeps coins around.

Davis testified that a few weeks before his arrest, he gave Lawrence permission to store some property in Davis's garage. Lawrence brought a red toolbox, a pressure washer, and a couple of toolboxes. Davis noticed that the tools were labeled.

Davis stated that on January 29, 2004, he was helping a friend detail big rig trucks. The following morning as he was getting ready to go fishing with a friend, he saw the McCredie fog machine and trailer, and some tools that had not been there the night before, on his kitchen counter. He asked Fawn about the equipment. Davis believed Lawrence had driven a red Mazda truck to his house on the day Davis was arrested. He denied having heard any metal grinding that day.

Davis explained that he had been in a hurry on the day of his arrest because his friend was urging him to rush so they could leave to go fishing. He banged on a window shortly before his arrest because he had been picking oranges at Fawn's request and his hands were full. Davis was on his way to the garage to get his fishing pole when police kicked in the garage door. He explained that he had $969 in his pocket at the time he was arrested because his rent was due soon and he had just been paid from his job as a mechanic. Davis stated that he was paid in $10 and $20 bills, and said that he had obtained the stack of $1 bills in his pocket from gambling at a casino.

Davis said that he had never seen Yule gather tools at his house and then take off, and that he knew Paschke only from his association with Yule. Davis claimed to know Terazos only through mutual acquaintances.

Lillian Wurst, Davis's sister, lived with Davis in January 2004. She testified that she never saw or heard any criminal activity at the house. She admitted, however, that she was rarely home because her job kept her away from home Sunday through Thursday, and she often stayed with her boyfriend when she was not working. Wurst knew Lawrence and Yule as friends who would visit, but she did not know Paschke or Terazos, and knew Holman only vaguely. On January 30, 2004, Wurst was home getting ready for work between 6:00 and 7:00 a.m. She did not see anything unusual, although she did see the red Mazda.

III.

DISCUSSION

A. The trial court did not abuse its discretion in allowing Yule's attorney to testify

1. Procedural background

After Yule testified for the prosecution against Davis, the prosecution called Stephen Cline, Yule's attorney, as a witness. Davis's attorney objected to portions of Cline's testimony on the grounds that the testimony was irrelevant, that it was inadmissible hearsay, and that the testimony constituted improper vouching for Yule. The trial court overruled these objections. Davis challenges the following testimony:

"[Prosecutor]: Now, had you received any police reports prior to sitting down with Mr. Yule and discussing what his criminal involvement was?

"[Defense Counsel]: Objection. Relevance.

"The Court: Overruled.

"[Cline]: The initial discovery that I received was [sic] reports from that last Taco Bell burglary and the theft of the truck used for that offense.

"[Prosecutor]: Do you remember there being the other numbers of reports for each of the other crimes we are involved with today?

"[Cline]: I don't know that I had those when I had my initial discussions with [Yule] about--it was kind of unusual I don't normally do that--when I receive the Information from Mr. Bost [the district attorney]. My initial concern was even if he pleads now, his exposure is going to multiply tenfold if I don't get to the bottom of what else is out there. So I think I had those initial discussions with him before I saw all those new reports that came out later.

"[Prosecutor]: And when you had those, that discussion with him, Mr. Davis was a charged defendant.

"[Cline]: Yes.

"[Prosecutor]: And Mr. Davis' wife was a charged defendant.

"[Cline]: Correct.

"[Prosecutor]: And Mr. Paschke was a charged defendant.

"[Cline]: At that time, yes.

"[Prosecutor]: Now when you had that conversation with Mr. Yule, did he tell you of the involvement of Mr. DJ Davis?

"[Defense Counsel]: Objection. Hearsay, Your Honor.

"The Court: Overruled. The witness [Yule] has testified to it. You may answer, Mr. Cline.

"[Cline]: He was very clear with me about who the players were. Mr. Davis was in fact named as one of the players.

"[Prosecutor]: And do you recall what Mr. Yule told you was Mr. Davis' involvement as a player in this?

"[Defense Counsel]: Objection. Hearsay.

"The Court: It is duly noted. Overruled. You may answer.

"[Defense Counsel]: Your Honor, may there just be a continuous objection to this line?

"The Court: It will be noted as a continuing objection.

"[Defense Counsel]: Thank you, Your Honor.

"[Cline]: He was very clear about the last burglary and that Mr. Davis was present. He was very clear that all of the offenses apparently started at the Davis home and that all of them eventually finished at the Davis home and that Mr. Davis was involved in a number of the ones that hadn't been charged yet.

"[Prosecutor]: Did he have a clear memory of each of the places that he burglarized?

"[Cline]: No. His memory is pretty much about the same as it was here.

"[Prosecutor]: And you were present during his testimony both on Friday and this morning, is that correct?

"[Cline]: Correct.

"[Prosecutor]: And how does--how is Mr. Yule's demeanor now and his physical appearance compared to when you first contacted him in February of 2004?

"[Cline]: When I first met him in February, he was very, very gaunt and about thirty pounds lighter. Clearly somebody had been on meth[amphetamine] for a long time.

"[Prosecutor]: Prior to your talking to Mr. Yule, did you stress the importance of being honest with you?

"[Defense Counsel]: Objection, vouching.

"The Court: Overruled. You may answer.

"[Cline]: I did in this case because this situation caused me a lot of concern. I got the impression from Mr. Bost that there was a substantial string of uncharged burglaries.

"[Defense Counsel]: Your Honor, I'm going to object to that as hearsay.

"The Court: Overruled. You may conclude your answer.

"[Cline]: As a result of that I was compelled at that point to sit down with Mr. Yule and strongly urge him to tell me the whole story as opposed to the portion of the story that related only to what he was charged with.

"[The Prosecutor]: Now, you dealt with Mr. Bost, who is a deputy D.A. in my office.

"[Cline]: Correct.

"[Prosecutor]: You also dealt with Miss Sueing-Jones, who is a deputy D.A. in my office.

"[Cline]: I think early on, yes.

"[Prosecutor]: And then finally I ended up taking the case some time in July.

"[Cline]: Correct.

"[Prosecutor]: And do you recall the preliminary hearing was after I took over the case?

"[Cline]: Yes.

During deliberations, the jury asked to have Yule's and Attorney Cline's testimony read back to them. Davis's attorney objected to allowing the jury to hear Attorney Cline's testimony, on multiple grounds. He argued that Cline's testimony constituted hearsay that fell under no known exception, and that the jury should not be exposed to it a second time. Davis's attorney also contended that the prosecution had made full use of Cline's testimony in closing argument as corroborating Yule's testimony. The prosecution maintained that Cline's statements were admissible under Evidence Code section 791 as prior consistent statements because, during cross-examination of Yule, defense counsel had suggested that Yule made up his story only after he had heard the evidence at the preliminary hearing.

The court pointed out that defense counsel had made this argument to the jury during his closing argument, and that Cline's testimony was relevant to show that the prosecution had made no concessions to Yule in exchange for his testimony and to establish that Yule's story had been consistent from the very beginning. The trial court ultimately allowed the read back of Cline's testimony, commenting: "[T]hat's exactly the reason that the court allowed Mr. Cline's testimony. [¶] It was very apparent where you were going, . . . , and what you argued to the very same jury is that this was all fabricated and that he had heard everything at the preliminary hearing, and that as a result of that he in essence picked out your client in order to get one year in state prison knocked off."

After the jury returned its verdict, Davis's attorney moved for a new trial on the grounds that the trial court should not have allowed Cline to testify and that the court erred in failing to give a limiting instruction as to the use of the testimony. At a hearing on the motion, the prosecution asserted that Cline's testimony fell within the prior consistent statement exception to the hearsay rule. The court denied Davis's motion.

Davis contends on appeal that the trial court should have excluded Cline's testimony in its entirety, or, at a minimum, limited Cline's testimony solely to rehabilitating Yule. Davis further contends that to the extent his trial counsel failed to object to Cline's testimony on specific federal constitutional grounds, his counsel was ineffective.^[4]

2. Standards

Davis's claims regarding Cline's testimony are two-fold. He contends first that the trial court should not have allowed Cline to testify about what Yule had told him, and second, that the court should have granted his motion for a new trial on the ground that Cline's testimony constituted prejudicial, improper vouching for a key witness.

On appeal, we review a trial court's ruling on a motion for a new trial for an abuse of discretion. (People v. Davis (1995) 10 Cal.4th 463, 524.) "'"The determination of a motion for a new trial rests so completely within the court's discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears."' [Citation.]" (Ibid.)

We also apply the abuse of discretion standard of review to a trial court's rulings regarding the admissibility of evidence. (People v. Rowland (1992) 4 Cal.4th 238, 264.) Under this standard, a trial court's ruling will not be disturbed unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)

3. Analysis

Davis contends that Cline's testimony was improper for a number of reasons. Davis argues that some of the testimony was irrelevant, that Cline was not qualified to testify as an expert as to whether Yule had the appearance of a person who had been using methamphetamine for a long time, that this testimony did not constitute a proper layperson opinion, and that Cline's lay opinion about the veracity of particular statements made by Yule was not proper character or reputation evidence. Davis argues in the alternative that even if some of Cline's testimony was admissible, the court should have limited Cline's testimony to stating whether Yule's trial testimony was or was not consistent with what Yule had told Cline prior to Yule's preliminary hearing. We disagree with these contentions.

Davis asserts that "Cline's testimony had no tendency in reason to prove or disprove the veracity of Yule's statements or whether he was gaunt from on-going drug use and was simply irrelevant." However, Cline's testimony did relate to the veracity of Yule's trial testimony because it tended to rebut Davis's counsel's suggestion that Yule had fabricated his version of events only after having heard the testimony at the preliminary hearing. Prior consistent statements are not generally admissible for the purpose of establishing credibility. However, Evidence Code section 791 provides that evidence that tends to corroborate the credibility of a witness may be admissible if it is offered after:

"(a) Evidence of a statement made by him that is inconsistent with any part of his testimony at the hearing has been admitted for the purpose of attacking his credibility, and the statement was made before the alleged inconsistent statement; or

(b) An express or implied charge has been made that his testimony at the hearing is recently fabricated or is influenced by bias or other improper motive, and the statement was made before the bias, motive for fabrication, or other improper motive is alleged to have arisen."

Evidence that falls within the scope Evidence Code section 791 may also be admissible as substantive evidence, and not simply rehabilitative evidence, pursuant to Evidence Code section 1236, which provides that such evidence constitutes an exception to the general rule prohibiting the admission of hearsay statements: "Evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement is consistent with his testimony at the hearing and is offered in compliance with Section 791."

Cline's testimony regarding what Yule had told him about Davis's participation in the offenses before Yule heard the testimony at the preliminary hearing is within the scope of Evidence Code section 791. On cross-examination of Yule, Davis's counsel suggested that Yule had named Davis as a participant in order to receive a lighter sentence, and further suggested that Yule had made up his story only after he heard the evidence against Davis at the preliminary hearing.

During cross-examination, Davis's counsel implied that Yule's testimony at Davis's trial might affect Yule's sentence:

[Defense Counsel]: Mr. Yule, your sentencing apparently is going to be held once you've been able to speak your mind. Is that right?

"[Yule]: As in?

"[Defense Counsel]: Once you testified and we see how it comes out, then we are going to get you sentenced, is that it?

"[Yule]: That's how it's working out to be I guess. It wasn't . . .

"[Defense Counsel]: You weren't going to be sentenced before you did this testifying, were you?

"[Yule]: As far as I knew, I was supposed to be sentenced last week.

"[Defense Counsel]: It was held in abeyance and stopped until we heard how you performed today, right?"

Defense counsel also questioned Yule about his having sat through the preliminary hearing before his tape-recorded interview with the prosecutor:

"[Defense Counsel]: And at that time in September [when the tape-recorded conversation took place] you had been to the preliminary hearing, hadn't you?

"[Yule]: Correct.

"[Defense Counsel]: You had seen all the evidence that was played out in respect to what the folks in this case had allegedly done, right?

"[Yule]: Correct.

"[Defense Counsel]: And you heard about what Mr. Davis supposedly did, didn't you?

"[Yule]: Correct.

"[Defense Counsel]: You heard what you supposedly did, didn't you?

"[Yule]: Yes."

Through this line of questioning, defense counsel was clearly implying that Yule had recently fabricated his testimony, after he heard the evidence at the preliminary hearing, and also that Yule hoped to receive a more lenient sentence in exchange for testifying against Davis. Under these circumstances, Cline's testimony as to Yule's prior consistent statements was admissible pursuant to Evidence Code section 791. Davis's argument that the court should have limited Cline to testifying only as to whether Yule's trial testimony was or was not consistent with what Yule had told Cline prior to the preliminary hearing, and that Cline should not have been allowed to testify as to the specifics of what Yule had said to him, is without merit. Testimony regarding the substance of Yule's prior consistent statements was clearly admissible. Davis provides no legal basis for his assertion that Cline should have been limited to stating only whether Yule's testimony was or was not consistent with his trial testimony. When the credibility of a witness's trial testimony has been attacked, as it was here, allowing the jury to hear the specifics of what that witness said before the alleged fabrication occurred allows the jury to assess credibility and to determine what, if any, of the witness's trial testimony it should believe.

Davis also contends that Cline should not have been permitted to testify that he had stressed to Yule the importance of being honest with him. Davis claims this testimony was improper and that it was designed to "gain sympathy for Yule" and to "stamp[] the imprimatur of truth-telling on Yule." Davis contends that Cline was not qualified as an expert on judging Yule's truthfulness or credibility. He argues that although an attorney hopes his client will be truthful, there is no guarantee that the client will in fact be. The flaw in Davis's argument is that Attorney Cline did not testify that he believed Yule had been truthful or that Yule was credible. Rather, Cline testified that he had advised Yule that it would be wise to be truthful with him. Further, the jury observed Yale's demeanor while he was testifying and was thus able to assess Yule's credibility on its own.

In fact, Cline did not offer an opinion as to Yule's truthfulness until defense counsel opened the door:

"[Defense Counsel]: Now, you told us that you wanted to get to the bottom of it, like a good defense counsel, right?

"[Cline]: Yes.

"[Defense Counsel]: And you took the various documents that you were provided by the People, the prosecutor, and you questioned Mr. Yule about the various things contained in those documents, right?

"[Cline]: The only one I was able to question him about with the documents were the ones that I had at that point.

"[Defense Counsel]: Okay. [¶] As they became available, you would approach him about these and test him on these various allegations, right?

"[Cline]: No. I didn't test him on each police report or what was contained in it, no.

"[Defense Counsel]: Okay. [¶] But you did want to make sure that he was telling you the whole truth, right?

"[Cline]: I felt he was telling me as much as he could at that point, yeah." (Italics added.)

Cline's opinion that Yule had been truthful with him was elicited by defense counsel, and tellingly, Davis does not complain about this portion of Cline's testimony on appeal. We find no error in the court's admission of Cline's statement on direct examination that he advised Yule that it would be wise to be truthful with Cline. To the extent there was any vouching as to Yule's veracity by Cline, such vouching was invited by Davis's attorney on cross-examination of Cline, and is not challenged on appeal.

Davis further contends that Cline was not qualified as an expert regarding the effects of methamphetamine use on a person, and thus, that his statements that Yule had the appearance of a person who had used methamphetamine for a long time, were improper. We question the relevance of Cline's opinion that when he first met Yule, Yule looked like a long-time methamphetamine user. However, the admission of this statement was harmless. Yule testified that he had been addicted to methamphetamine. Cline's statement added nothing new. Further, this information appears to be immaterial to the issues at trial, and not prejudicial to Davis.

B. Davis has not established that his trial counsel was ineffective

Davis contends that his attorney rendered ineffective assistance when he failed to object to Cline's testimony on the grounds that the testimony was irrelevant and that it lacked foundation. Davis further contends that his trial counsel was ineffective because he failed to properly object that Detective Dwayne Glazewski's testimony regarding how detectives came to investigate Yule and Davis was based on inadmissible hearsay, and that admitting this testimony was error under Crawford v. Washington (2004) 541 U.S. 36 (Crawford).

1. Standards

To prevail on a claim of ineffective assistance of counsel, a defendant must demonstrate (1) that "counsel's representation fell below an objective standard of reasonableness" and (2) that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland v. Washington (1984) 466 U.S. 668, 688, 703 (Strickland).) "If the defendant makes an insufficient showing on either one of these components, the ineffective assistance claim fails." (People v. Holt (1997) 15 Cal.4th 619, 703.) The inquiry as to counsel's performance "must be whether counsel's assistance was reasonable considering all the circumstances." (Strickland, supra, 466 U.S. at p. 688.) This means that "[r]eviewing courts will reverse convictions on the ground of inadequate counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission." (People v. Fosselman (1983) 33 Cal.3d 572, 581.) A reasonable probability is "'a probability sufficient to undermine confidence in the outcome.'" (In re Cordero (1988) 46 Cal.3d 161, 180, quoting Strickland, supra, 466 U.S. at pp. 693-694.)

Davis contends that his counsel rendered ineffective assistance because there was no rational reason for failing to object to Cline's testimony, on numerous grounds, or for failing to object to Glazewski's testimony on confrontation clause grounds. Davis points out that the record demonstrates that his counsel was aware of the problems with both Cline's and Glazewski's testimony, as evidenced by counsel's strenuous objections to Cline's testimony and multiple objections to Glazewski's testimony. Davis claims, however, that his counsel failed to make the appropriate objections.

2. Cline's testimony

Davis's attorney raised a number of objections to Cline's testimony, and sufficiently indicated his opposition to the admission of Cline's statements. Once the trial court overruled his objections, it was reasonable for Davis's attorney to conclude that the court would overrule any further objections, and that it would thus be futile to continue to object. This would have been a rational, tactical reason for not objecting further to Cline's testimony.

To the extent Davis contends that his counsel was ineffective for failing to object to Cline's testimony on foundational grounds because Cline was not qualified to render an opinion as to Yule's use of methamphetamine, Yule's faulty memory, or whether Yule had told him the truth, we reject this contention. Cline did not offer an opinion as to why Yule's memory was faulty, or whether Yule had told him the truth. Thus, any objection on these grounds would have been meritless. Further, Cline's statement that Yule was gaunt and 30 pounds lighter when they first met was not improper. Cline was simply commenting on Yule's appearance.

While there was no apparent reason for Cline to describe Yule as "[c]learly [somebody who] had been on meth[amphetamine] for a long time," Davis's attorney may have found this statement to be inconsequential, particularly considering the fact that Yule had already testified about his methamphetamine addiction. Davis's counsel may reasonably have determined that it was not worth objecting to this testimony. In any event, Davis could not establish that if his attorney had objected to this statement, the outcome of the trial would have been different. Cline's comment about Yule's past methamphetamine use was so insignificant that the failure to object was harmless.

Davis also asserts that his counsel was ineffective for failing to request a limiting instruction pertaining to Cline's testimony, so that the jury would not be permitted to consider the testimony for its truth. However, we are not convinced that there is any reason the jury could not consider Cline's testimony as substantive evidence, in addition to considering it for its impeachment value. With respect to Cline's testimony regarding Yules's prior consistent statements, Evidence Code section 1236 provides that prior consistent statements may be admissible under an exception to the general rule prohibiting the use of hearsay evidence. Unless the statements are inadmissible on some ground other than that they constitute hearsay, such as being the product of a Miranda^[5] violation or raising a confrontation clause issue, they may be admitted for their substantive truth in addition to their rehabilitative impact. (See People v. Cannady (1972) 8 Cal.3d 379, 387-388 [admission of prior consistent statements as substantive evidence did not violate right of confrontation where declarant testified as witness].) As the Law Revision Commission Comments to Evidence Code section 1236 note:

"Section 1236 . . . permits a prior consistent statement of a witness to be used as substantive evidence if the statement is otherwise admissible under the rules relating to the rehabilitation of impeached witnesses. See Evidence Code § 791. [¶] There is no reason to perpetuate the subtle distinction made in the cases [limiting admission to rehabilitation of witnesses under section 791]. It is not realistic to expect a jury to understand that it cannot believe that a witness was telling the truth on a former occasion even though it believes that the same story given at the hearing is true." (Cal. Law Revision Com. com., Deering's Ann. Evid. Code (2006) foll. § 1236.)

In this case, Yule testified at trial and was subject to cross-examination by Davis's counsel. Therefore, the admission of his prior consistent statements did not violate Davis's Sixth Amendment right to confrontation, and the court was well within its discretion to admit Cline's testimony as substantive evidence. (See Cannady, supra, 8 Cal.3d at pp. 387-388.)

The jury was instructed with CALJIC No. 2.13, regarding prior consistent and inconsistent statements. The instruction the court gave provided in pertinent part:

"Evidence that at some other time a witness made a [statement] [or] [statements] that [is] [or] [are] inconsistent [or consistent] with [his] [her] testimony in this trial, may be considered by you not only for the purpose of testing the credibility of the witness, but also as evidence of the truth of the facts as stated by the witness on that former occasion."

In light of the fact that it was not improper to allow the jury to consider Cline's testimony as substantive evidence pursuant to Evidence Code section 1236, the instruction the trial court gave was adequate and no limiting instruction was required. Consequently, defense counsel's failure to request a limiting instruction cannot be considered ineffective assistance.

3. Detective Glazewski's testimony

Dwayne Glazewski, one of the lead detectives in the case, testified regarding how detectives came to arrest Yule and Davis. The relevant colloquy began:

"[Prosecutor]: Now, did you talk to Mr. Terazos regarding the safe series?

"[Glazewski]: I did.

"[Prosecutor]: And did he in his conversation lead you in the direction of anyone else?

"[Defense Counsel]: Objection. Hearsay. Aranda/Bruton.

"The Court: That can be answered yes or no. Yes or no, detective.

"[Glazewski]: Okay, your Honor. Yes."

The attorneys then engaged in a sidebar discussion with the court during which the prosecutor argued that defense counsel had opened the door to this evidence by asking Yule about Terazos during cross-examination. The prosecutor said:

"Your Honor, I know that this has areas of Aranda/Bruton as well as Crawford, and that's why I want to go--the real question is counsel had opened up the door with Mr. Yule regarding Mr. Terazos, has opened up the door and pointed towards them. And that's what this witness would in fact testify to, which corroborates Mr. Yule's statements."

Defense counsel disagreed, arguing that Terazos's name had been mentioned by other witnesses. The court ultimately determined that it would admonish the jury that the detective's answer was to be considered only as a prior consistent or inconsistent statement, and not for its truth. As defense counsel noted, however, what Terazos had said was not known, so it could not be used as a prior consistent or inconsistent statement. The trial court then ruled that it would allow in evidence the detective's statement that the information Terazos provided to police had led them to investigate Yule and Davis:

"We do know that he fingers these guys and that as far as it goes, that's exactly what Yule testified to. That's exactly what Yule testified to. This is a week before Terazos fingers these guys, including Yule. [¶] I think the way I'll do it is leave it at Yule. Leave it at Yule, and then we will go from there. Then that way we don't run into too much of a problem with this guy."

The prosecutor offered: "I'll ask if he in fact talked to Mr. Terazos and whether he gave him information which led them to investigate Mr. Davis." The court agreed that this approach would be acceptable. Defense counsel responded, "Your Honor, that's essentially a back door way to the very same problem here. We don't have Terazos. We can't call Terazos. Terazos would invoke, whatever. And now we're getting what he supposedly knows, Terazos knows, about Mr. Davis." The court nevertheless allowed the prosecutor to ask Detective Glazewski whether Terazos had led them to investigate Yule and Davis, commenting, "And I think it would be inappropriate not to allow the source of that information in terms of Yule's knowledge and then that confirms his statement. So limit it solely to that. Not specifics."

After the sidebar conference, the prosecutor continued his questioning of Detective Glazewski as follows:

"[Prosecutor]: Did you interview Mr. Terazos?

"[Glazewski]: That's correct.

"[Prosecutor]: When you interviewed him, did he appear to be under the influence of methamphetamine?

"[Glazewski]: Yes.

"[Prosecutor]: Okay. [¶] Now, did he give you information which led you to focus on Mr. Yule and Mr. Davis in terms of your investigation? Yes or no.

"[Glazewski]: Yes."

The prosecutor then moved on to question Detective Glazewski about evidence found at Terazos's home.

Davis contends that his counsel was ineffective for failing to object to Detective Glazewski's testimony on confrontation clause grounds. In Crawford, supra, 541 U.S. 36, the United States Supreme Court concluded that the admission of testimonial evidence of a witness who does not testify at trial violates the Constitution's confrontation clause unless the witness is unavailable and the defendant has had a prior opportunity to cross-examine the witness. (Id. at pp. 60-62.) Davis argues that Glazewski's testimony "raised an inference from an absent[] Terazos suggesting that Yule and Davis were part of a conspiracy to steal safes," and that, as his trial counsel argued, allowing Glazewski to testify that Terazos had provided information that led police to focus on Yule and Davis "was just a back door way of admitting inadmissible hearsay." Davis contends that there is no conceivable tactical reason for his counsel's failure to object to Glazewski's testimony on Crawford grounds. We disagree. As noted above, the prosecutor acknowledged the Crawford problem, and the trial court ruled that the prosecution would be permitted to elicit Detective Glazewski's testimony that Terazos had provided information that led police to investigate Yule and Davis.

Further, during cross-examination of Yule, before Detective Glazewski testified, Davis's counsel elicited from Yule the fact that Terazos led police to Yule and Davis.

"[Defense counsel]: You said [Terazos] got the ball rolling. What do you mean by that?

"[Yule]: He's the one that first led the cops to come to me and to Davis.

"[Defense counsel]: Oh. You're saying he's the first one to snitch everybody out?

"[Yule]: Pretty much, yes."

Glazewski's testimony on this point was thus merely cumulative to testimony Davis's counsel had already elicited.^[6] There is no reasonable probability that if defense counsel had objected to this testimony on confrontation clause grounds, the result of the proceeding would have been different. It is clear that the Crawford issue was raised at trial, and that the trial court was aware of the issue.^[7] Under these circumstances, further objection by Davis's attorney would have been futile, and his failure to object on this ground cannot be said to have been unreasonable.

C. Davis's convictions for taking and receiving the same property

1. Procedural background

The jury found Davis guilty of unlawfully taking and driving Sellin's vehicle (count 19) and of receiving or concealing the same vehicle (count 23). The jury also found Davis guilty of grand theft of McCredie's personal property (count

22) and of receiving or concealing the same property (count 27). Davis contends that he cannot be convicted of both the theft of, and receiving, Sellin's stolen

truck or the theft of, and receiving, McCredie's personal property, and that his convictions for receiving the Sellin truck and McCredie's property must be reversed.

2. Legal principles

As a general rule, a person cannot be convicted for both the taking of, and receiving, the same property. (People v. Jaramillo (1976) 16 Cal.3d 752, 757 (Jaramillo).) However, a person may be convicted for both the theft of, and receiving, the same property (1) "when there is evidence of complete divorcement between the theft and a subsequent receiving, such as when the thief has disposed of the property and subsequently receives it back in a transaction separate from the original theft," or (2) "when a conspiracy between the thief and the receiver is established." (Id. at pp. 759-760, fn. 8.)

3. Analysis

a. McCredie's personal property

The People acknowledge that Davis was convicted of taking personal property from McCredie's trailer (count 22) under Penal Code section 487, subdivision (a)^[8], and of receiving or concealing McCredie's personal property (count 27) under Penal Code section 496, subdivision (a).^[9] The People contend that Davis's convictions for the theft and receiving/concealment of McCredie's property fall within either of two recognized exceptions to the general rule prohibiting conviction for both the theft of, and receiving, the same property. According to respondent, there is evidence of "complete divorcement" and/or a conspiracy between the thief and the receiver in this situation. We disagree.

"The 'complete divorcement' exception to the common law rule, barring dual convictions for theft and receiving, requires more than the mere passage of time. To establish a divorcement between the acts of theft and receiving (or concealing or withholding), there must be a significant break in the defendant's possession and control over the stolen property. [Citation.]" (People v. Garza (2005) 35 Cal.4th 866, 879 (Garza).) Here, the People's description of the evidence establishes that neither Davis nor his accomplices gave up possession of the contents of McCredie's trailer and regained control over that propert