P. v. Brunelle

Filed 5/25/10 P. v. Brunelle CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, Carol Koppel, Judge. Affirmed.

Cynthia L. Barnes, 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, Senior Assistant Attorney General, Daniel C. Chang and David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.

_____________________

INTRODUCTION

In a 21-count information, the People charged defendant Marcel Brunelle with the following crimes: unlawful taking and driving of a vehicle (Veh. Code,  10851, subd. (a); count 1); second degree commercial burglary (Pen. Code,  459; count 2); possession of methamphetamine (Health & Saf. Code,  11377, subd. (a); count 3); misdemeanor unauthorized possession of a hypodermic needle or syringe (Bus. & Prof. Code,  4140; count 4); possession of a firearm by an ex-felon (Pen. Code,  12021, subd. (a)(1); count 5); unlawfully carrying a loaded firearm with the intent to commit a felony (id.,  12023; count 6); battery with injury on a peace officer (id.,  243, subd. (c)(2); count 7); misdemeanor escape from a peace officer after being lawfully arrested (id.,  836.6, subd. (b); count 8); first degree residential burglary (id.,  459; counts 9 through 11); second degree burglary of a vehicle (id.,  459; counts 12 through 16); grand theft of an automobile (id.,  487, subd. (d)(1); counts 17 and 18); possession of a short-barreled shotgun or rifle (id.,  12021, subd. (a)(1); counts 19 and 20); and possession of a deadly weapon (i.e., a zip gun) (id.,  12020, subd. (a)(1); count 21).

The People further alleged as to all counts except counts 4 and 8 that defendant suffered two strikes within the meaning of the Three Strikes law (Pen. Code,  667, subds. (b)-(i), 1170.12), one being a felony conviction and the other being a juvenile adjudication.

Defendant waived his right to a jury trial and agreed to have the case decided by the trial court. During trial, the court dismissed counts 11 and 15 through 18 on the Peoples motion. The court found defendant guilty of the remaining 16 counts. The court also found true the allegations that defendant suffered two prior strikes.

The trial court sentenced defendant to state prison for a total term of 350 years to life on the 14 felony counts, imposing a consecutive 25 years to life sentence for each felony. As to defendants misdemeanor convictions, the court sentenced defendant to concurrent jail terms of six months on count 4 and one year on count 8. We affirm.

FACTS

On September 13, 2006, Darryl Robinson (Robinson), a loss prevention employee at the Target store located at 43525 N. 10th Street West in Lancaster, observed defendant in the electronics department over the stores surveillance system. Robinson saw defendant use a knife or a razor blade to cut open a package containing a cellular telephone earpiece. Defendant removed the earpiece from its package and walked out of the store. No attempt was made to detain defendant, in that it was the stores policy not to apprehend an individual armed with a weapon.

On October 25, 2006, Robinson was viewing the stores security cameras when he again saw defendant in the electronics department. Defendant was accompanied by a woman, who later was identified as Antoinette Rossi (Rossi).^[1] Robinson observed defendant remove a cellular telephone valued at $100 from its package and leave the store without paying for it. Defendant and his companion entered a tan Ford F-150 pickup truck in the parking lot.

Los Angeles County Sheriffs Deputies Melissa Sullivan and Dennis Wagner responded to the call regarding the theft. When Deputy Sullivan drove the patrol car into the Target parking lot, a store employee pointed to the Ford F-150 pickup truck and told the officer that the shoplifting suspect was inside. Deputy Sullivan then drove up behind the pickup truck and activated the lights on her patrol car. Deputy Sullivan also sounded the air horn on her vehicle twice, after which defendant, who was seated in the drivers seat of the truck, turned and looked over his shoulder at the officers. Defendant then sped out of the parking lot and onto Avenue K.

Deputy Sullivan pursued the truck using lights and siren while Deputy Wagner sent out a radio call stating they were in pursuit of the pickup truck. Defendant drove eastbound and turned into the driveway of a church, after which he drove onto an ungraded field. Deputy Sullivans patrol car was too low to follow the truck through the field. The deputies thus watched defendant drive across the field and stop the truck near the back fence of the Shady Elms Trailer Park. Defendant and Rossi got out of the truck, climbed over the fence and entered the trailer park. The deputies further determined that the Ford truck defendant had been driving was stolen.

In response to Deputy Wagners radio call, Deputies Jeffrey Williams and Daniel Wolanski drove to the Shady Elms Trailer Park. Upon arriving, the deputies saw defendant running between two mobile homes. They got out of their patrol car and started chasing defendant, who was alone and holding a handgun. Deputy Wolanski ordered him to stop, but defendant did not comply, eventually discarding his handgun, which Deputy Williams retrieved. Deputy Wolanski and other deputies who had arrived on scene eventually apprehended defendant and handcuffed him.

Deputy Christian Chamness examined the gun that Deputy Williams retrieved. Deputy Chamness observed a highpoint bullet in the chamber of the weapon. In addition, the magazine of the gun was loaded with hollow point bullets.

Defendant was placed in Deputy Chamnesss patrol vehicle. Deputy Chamness advised defendant of his rights. Defendant stated he understood his rights and agreed to speak with Deputy Chamness without an attorney. Defendant stated that he decided to run because he had two strikes and was looking at a third. While being pursued, defendant decided to shoot it out and replaced the magazine in the gun with one loaded with hollow point bullets. Defendant ultimately decided not to shoot it out with the deputies because there were too many of them.

Defendant also admitted that he and Rossi, his girlfriend, had driven to Target for the purpose of stealing a cell phone. They fled when the deputies arrived. Defendant further related that he had an extensive history of stealing. In the previous few months, he stole items from Target and Walmart more than 100 times. A couple of weeks or one month earlier, he had stolen a bluetooth earpiece for his cell phone and another cell phone from Target.

The F-150 truck defendant had been driving and abandoned had been stolen from its owner Fernando Bustos two days earlier, on October 23, 2006, in Palmdale. Bustos did not know defendant or Rossi and did not give either permission to be in his vehicle.

A search of the truck revealed the Samsung cell phone that defendant had stolen from Target. Deputies also found a plastic bag containing a rock-like substance later determined to contain methamphetamine, a black and yellow backpack containing a broken cell phone, a video recorder, a set of cufflinks, a mans watch, a womans watch, a ring, a black and silver pin, a metal case, a key chain with four keys on it, an FM transceiver, a screwdriver, a punch, handcuffs, a 12 volt charger, a black glove, a black shirt, a videotape and a handgun magazine containing ball-round bullets that also fit in the handgun defendant had discarded. Also contained in the truck was a hype-kit used by individuals to inject controlled substances. The kit consisted of a plastic bowl, a black elastic or rubber tube like those used by drug users to make their veins prominent before injecting drugs into their veins, and 11 syringes, one of which contained liquid.

Following his arrest, Deputies Chamness and Kepley drove defendant to the emergency room of the Antelope Valley Hospital, as he had sustained injuries on his face, forehead and lip when he fell off the fence and onto the ground. After defendant was treated, he was sitting down while the deputies completed some paper work. Defendant turned to a state inmate who was sitting nearby and asked if he was doing life. The inmate confirmed that he was, after which Deputy Chamness told defendant to stop talking. Deputy Chamness left to wash his hands, and Deputy Kepley kept an eye on defendant. Defendant managed to slip out of his handcuffs and took off running. Deputy Kepley pursued defendant and tackled him as he ran into a door. The door broke and the deputy and defendant fell to the ground. As Deputy Kepley attempted to re-handcuff defendant, defendant yelled that he could not go to prison as it was going to be his third strike. Defendant eventually said he gave up and did not want to fight anymore. During the struggle, Deputy Kepley sustained a two-inch bleeding abrasion on the side of her neck when defendant scratched her. Defendant later apologized for hurting her. He also apologized for running away.

While Deputies Chamness and Kepley walked defendant back to their patrol car, defendant said he wished they had killed him in the park and he did not want to go back to prison. Defendant further stated he should have shot it out with the deputies. There were so many, however, that he decided to make a run for it. He also stated that he threw a gun away while he ran.

The deputies drove defendant to the station, where they walked by Rossi, who was in the holding tank. Defendant addressed Rossi, Antoinette they know about drugs. Youve got to take something. They already have the gun charge on me. Take the drug charge for me. If you dont I might go away for life.

Deputy Melissa Sullivan also interviewed defendant at the Lancaster Sheriffs Station. Defendant related to the deputy that he had gone to Target to steal a cell phone, in that his was broken. While at Target, he used a razor blade to remove a cell phone from its display case. He then went to another department where he used the razor blade to remove the cell phone from its package, after which he activated the phone with his zip card. Defendant placed the phone to his ear as if he were talking, walked out of the store and got into the Ford F-150 pickup truck. When defendant saw the deputies, he knew he was in trouble and drove off. He got out of the truck and jumped over a fence into a trailer park. Defendant armed himself with a gun because he intended to shoot his way out of his predicament. Defendant changed his mind, however, because there were too many deputies. According to defendant, he bought the gun from a man for $400.

Defendant admitted to Deputy Sullivan that the methamphetamine and the hypodermic syringes that were recovered from the truck belonged to him and Rossi. Defendant claimed that he obtained the pickup truck from a friend and did not know it was stolen. When Deputy Sullivan asked for the name of defendants friend, defendant changed his story and said he got the pickup truck from a girl. Upon further inquiry by the deputy, defendant said he did not know the girl and then changed his story once again, stating that he got the truck from the Target parking lot.

Defendant also told Deputy Sullivan that the black and yellow backpack recovered from the pickup truck was not his but that the video camera found inside the backpack was his. Defendant also stated that the handcuffs were already in the truck when he borrowed it from a friend two days earlier. At this juncture, Deputy Sullivan reminded defendant that he said he had gotten the truck from the Target parking lot.

On the evening of October 25, 2006, Los Angeles Sheriffs Detective Kimberly Shelton interviewed defendant at the Lancaster Sheriffs Station. Defendant waived his rights and agreed to speak with the detective without an attorney. Defendant told Detective Shelton that he had borrowed the truck from a friend named Marie, whom he met two days earlier while they both were staying at a motel in Palmdale. Defendant had been driving his mothers truck. Marie asked defendant to trade vehicles with her because she wanted a smaller truck to drive. Defendant made the trade even though he had known Marie for only two days. Defendant trusted her because they were staying at the same motel. Defendant had no idea the truck he got from Marie was stolen.

A few days before defendant was arrested, specifically October 21, 2006, Deputy Lance Lindsay received a report that a stereo had been stolen from an Infiniti automobile belonging to Elizabeth Stevens (Stevens). Deputy Lindsay went to Stevenss residence in Palmdale and observed that the stereo had been removed from her car.

After speaking with Stevens, Deputy Lindsay went to 36831 Regency Place in Palmdale, where earlier that day he observed two people working on another Infiniti. The Infiniti was still parked in the driveway of the residence. The deputy was unable to verify the owner of the Infiniti because it did not yet have license plates. When Deputy Lindsay walked up to the Infiniti, he observed that the dashboard had been taken apart and that someone was in the process of installing a stereo. The deputy ran the vehicle identification number of the Infiniti and learned it was stolen. He then searched the car, observing that the stereo being installed was one year newer than the vehicle itself. At that point, Deputy Lindsay suspected that the stereo being installed may have been stolen from Stevenss car. During his search, Deputy Lindsay found a loaded magazine containing 9-millimeter hollow point bullets that appeared to be from an AK-47 firearm, a knife, a flashlight, a mask and a pair of gloves. Deputy Lindsay also found a temporary drivers license belonging to Rocio Andaela in the Infiniti on Regency Place. Andaelas temporary license had been taken when her Nissan Sentra was burglarized between September 27 and 28, 2008 in Palmdale. The stereo was removed from the Infiniti and returned to Stevens. The stereo fit in Stevenss car.

Deputy Lindsay also observed a black Pontiac registered to defendant on the property. The registration had expired, however. A partially stripped Toyota Corolla was located in the garage of the Regency Place residence.

After obtaining a search warrant for the Regency Place residence, Deputy Lindsay, along with another deputy, returned to the home and searched it. He observed graffiti on the walls of the house. On one wall L.A.P.D. was written and then crossed out. The number 187, referring to Penal Code section 187, which defines murder, was written nearby. Deputy Lindsay also observed baby items in the house. These included diapers, toys, clothing and a play pen.

Also seized during a search of the residence were eviction paperwork in the name of Lorraine Brunelle, defendants birth certificate, a birth announcement bearing defendants and Jessica Collinss names and announcing the birth of their son, a birth certificate from the hospital and a large manila envelope bearing Rossis name.

Approximately 25 items found inside the Regency Place residence had been taken from the residence of Robert Schmidt of Canyon Country during a burglary that took place on September 30, 2006. These items were returned to Schmidt. Items found in the Ford F-150 pickup truck that were stolen from Schmidt were a video camera, a digital camera, a Samsung camera, a set of cufflinks and a wristwatch. These too were returned to Schmidt.

Also found inside the Regency Place residence were a sawed-off shotgun, a black-powder loader, two rifle magazines, a nylon rifle scope holder, and another shotgun belonging to Harry and Susan Bertram. These items, which were stolen from the Bertrams when their home was burglarized on September 8, 2006, were returned to the Bertrams. Mr. Bertram refused to take back a Ruger that also had been taken during the burglary because its barrel had been sawed off. Also returned to the Bertrams were the following items found in the Ford F-150 pickup truck: two handgun magazines containing bullets, a womans wristwatch and handcuffs. The handgun defendant discarded while being pursued by sheriffs deputies also was returned to the Bertrams.

The search of the Regency Place residence also disclosed the presence of miscellaneous credit cards belonging to David Perez, as well as Perezs wifes drivers license. These items had been stolen from Perezs Chevrolet Tahoe, which was burglarized on October 19, 2006 in Palmdale.

Sometime after October 21, 2006, the owner of the Regency Place residence forwarded to Detective Gordon mail addressed to defendant, Jessica Collins and Rossi. The tenant of record on October 21 was Lorraine Brunelle.

On November 9, 2006, Detective Gordon spoke with defendant in the lockup at the Antelope Valley Courthouse. Defendant claimed ownership of the following items taken during the search of the Regency Place residence: photographs (depicting defendant, his dogs and Jessica Collins, the mother of his son), defendants birth certificate, defendants sons birth announcement and hospital birth certificate, a snowboard, and a tattoo kit. Defendant stated he did not recognize photographs depicting the remaining items that were seized during the search of the Regency Place residence.

DISCUSSION

A. Sufficiency of the Evidence

Defendant challenges the sufficiency of the evidence to support his convictions for the residential burglaries charged in counts 9 and 10 and the vehicular burglaries charged in counts 12, 13 and 14. In evaluating the sufficiency of the evidence, we review the record in the light most favorable to the judgment below and determine if that record discloses substantial evidence such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Abilez (2007) 41 Cal.4th 472, 504.) The standard of review is the same regardless of whether the prosecution relies primarily on direct or circumstantial evidence. (Ibid.)

Although the jury must acquit the defendant if it finds that circumstantial evidence is susceptible of two reasonable interpretations, one suggesting guilt and one suggesting innocence, it is the jury, not the appellate court which must be convinced of the defendants guilt beyond a reasonable doubt. (People v. Abilez, supra, 41 Cal.4th at p. 504.) If the circumstances reasonably justify the trier of facts findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. (Ibid.)

In conducting our review, we presume in support of the judgment the existence of every fact the trier of fact could reasonably have deduced from the evidence. (People v. Farnam (2002) 28 Cal.4th 107, 143.) We will not set aside the judgment unless it is shown that upon no hypothesis whatever is there sufficient substantial evidence to support [it]. (People v. Bolin (1998) 18 Cal.4th 297, 331.)

Reason and common sense justify the inference that conscious possession and use of recently stolen property tends to show guilt of theft crimes such as burglary and robbery. (People v. Parson (2008) 44 Cal.4th 332, 356; People v. Yeoman (2003) 31 Cal.4th 93, 131.) Only slight corroboration is necessary when the defendant is in possession of recently stolen property. (People v. Mendoza (2000) 24 Cal.4th 130, 176; People v. Anderson (2007) 152 Cal.App.4th 919, 949.) Thus, [w]hen . . . a defendant is found in possession of property stolen in a burglary shortly after the burglary occurred, the corroborating evidence of the defendants acts, conduct, or declarations tending to show his guilt need only be slight to sustain the burglary convictions. (Mendoza, supra, at p. 176.)

Whether possession of stolen property occurred recently after a theft offense is a question for the trier of fact. (People v. Anderson (1989) 210 Cal.App.3d 414, 421-422.) In reaching this conclusion, the Anderson court refused to announce a bright-line rule dictating when possession is recent. The court explained: We believe that, like other factual determinations, it is for the jury to conclude what time period qualifies as recent. We are unwilling, as apparently other courts have also been, to attempt demarcation of any bright line between recent and stale time periods. Under the circumstances of this case, we believe it to have been well within reason for a jury to have determined that possession within four and a half months, and certainly possession within approximately one month, of the theft should lead to an inference of knowledge of the stolen nature of the property. (Id. at p. 422.)

Defendant was found in possession of property stolen during the burglaries alleged in counts 9, 10, 12, 13 and 14 on October 21 and 25, 2006. The burglary of Robert Schmidts residence alleged in count 9 took place on September 30, 2006; the burglary of Harry Bertrams residence alleged in count 10 was committed on September 8, 2006; the burglary of Elizabeth Stevenss Infiniti alleged in count 12 was committed between October 20 and 21, 2006; the burglary of David Perezs Chevrolet Tahoe alleged in count 13 was committed on October 19, 2006; and the burglary of Rocio Andeolas Nissan Sentra alleged in count 14 was committed on or between September 27 and 28, 2006.^[2] Thus, all five burglaries were committed between 5 and 48 days before defendants arrest. In finding defendant guilty, the trial court necessarily found defendant to be in possession of recently stolen goods. (See CALJIC No. 2.15.^[3]) We have no basis upon which to disturb the trial courts finding.

The People also presented the necessary slight corroboration, justifying the trial courts guilty convictions on the challenged residential and vehicular burglary counts. Defendant gave inconsistent accounts about how he came to possess the stolen Ford F-150 pickup truck in which property belonging to various victims was found. Defendant first claimed that he got the truck from a friend. Then he claimed that he got it from a girl whose name he did not know, after which he claimed that he took it from the Target parking lot. Later, he claimed he swapped his mothers truck for a truck driven by a woman named Marie. Defendant also claimed ownership of the video camera that was found in the backpack in the truck, which video camera belonged to the Schmidts.

Defendant also admitted to burglarizing Target on the two days Robinson observed him taking items during the thefts. Defendant further admitted that he stole from Target and Walmart more than 100 times, thus permitting the trier of fact to conclude that defendant committed burglaries on a regular basis and had an extensive history of stealing. This corroboration is more than sufficient to uphold the trial courts determination that defendant committed the burglaries charged in counts 9, 10, 12, 13 and 14. We therefore conclude that substantial evidence supports defendants convictions on these counts. (People v. Abilez, supra, 41 Cal.4th at p. 504.)

B. Section 654

Next defendant contends that the trial court improperly sentenced him under Penal Code section 654 for the burglary of the Bertram residence committed on September 8, 2006 (count 10) and for three counts of possessing, on October 21, 2006, weapons stolen during that burglary, namely two short-barreled shotguns and one zipgun (counts 19, 20 and 21). We disagree.

In pertinent part, Penal Code section 654 provides: An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. Under this statutory provision, a defendant may not be punished for two crimes which arise out of a single act or out of an indivisible transaction. (People v. James (1977) 19 Cal.3d 99, 119.) Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one. (People v. Rodriguez (2009) 47 Cal.4th 501, 507.) The determination of whether a defendants acts constitute an indivisible course of conduct is a question of fact for the trial court. As long as the trial courts findings are supported by substantial evidence, they will not be disturbed on appeal. (People v. Williams (1992) 9 Cal.App.4th 1465, 1473.)

In this case, the trial court properly sentenced defendant. The burglary of the Bertram residence occurred on September 8, 2006. The possession offenses with which defendant was charged occurred more than one month later on October 21, 2006. The possession thus was not incidental to the burglary. Rather, it continued well after the burglary. [S]uch possession constituted an offense separate from the burglary in time, place and character. (People v. Martin (1980) 111 Cal.App.3d 973, 978.) As such, section 654 was not violated.

C. The Trial Court Properly Used Defendants Juvenile Adjudication as a Strike

Defendants final contention is that the trial courts use of his juvenile adjudication as a strike for the purpose of imposing sentence under the Three Strikes law violated his right to a jury trial guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution. In support of his contention, defendant relies on Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435] in which the nations high court held that [o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. (Id. at p. 490.) Defendant maintains that since the facts in a juvenile adjudication are determined by the juvenile court, rather than a jury, a juvenile offense cannot qualify as a strike.

After defendant filed his opening brief, the California Supreme Court decided People v. Nguyen (2009) 46 Cal.4th 1007. Therein, the court held that the absence of a constitutional or statutory right to jury trial under the juvenile law does not, under Apprendi, preclude the use of a prior juvenile adjudication of criminal misconduct to enhance the maximum sentence for a subsequent adult felony offense by the same person. (Id. at p. 1028.) We are bound by Nguyen and therefore reject defendants contention. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

DISPOSITION

The judgment is affirmed.

JACKSON, J.

We concur:

PERLUSS, P. J.

ZELON, J.

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^[1] Rossi was charged as a codefendant in counts 1 through 4 of the information.

^[2] None of the burglary victims knew defendant or gave anyone permission to enter their residence or vehicle and take anything.

^[3] CALJIC No. 2.15 provides: If you find that a defendant was in [conscious] possession of recently [stolen][extorted] property, the fact of that possession is not by itself sufficient to permit an inference that the defendant . . . is guilty of the crime of [robbery, burglary, theft and receiving stolen property]. Before guilt may be inferred, there must be corroborating evidence tending to prove defendants guilt. However, this corroborating evidence need only be slight, and need not by itself be sufficient to warrant an inference of guilt.

As corroboration, you may consider [the attributes of possessiontime, place and manner,] [that the defendant had an opportunity to commit the crime charged,] [the defendants conduct,] [[his] [her] false or contradictory statements, if any,] [and] [or] [other statements [he] [she] may have made with reference to the property] [a false account of how [he] [she] acquired possession of the stolen property] [any other evidence which tends to connect the defendant with the crime charged]. (See also CALCRIM No. 376.)