P. v. Thomas









Filed 11/8/10 P. v. Thomas CA




NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, Plaintiff and Respondent, v. KEPHREN THOMAS, Defendant and Appellant.

B214902 (Los Angeles County Super. Ct. No. LA056068)

APPEAL from a judgment of the Superior Court of Los Angeles County, Joseph Brandolino, Judge. Affirmed as modified.
Sheila Tuller Keiter, 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, Lance E. Winters and Russell A. Lehman, Deputy Attorneys General, for Plaintiff and Respondent.
______________



A jury convicted Kephren Thomas of second degree burglary and simple assault. On appeal Thomas contends there was insufficient evidence to support his burglary conviction. He also contends the trial court committed prejudicial error when it admitted evidence of his criminal street gang moniker, denied his request for a continuance and sentenced him for both the burglary and the assault. We modify the judgment to correct the sentencing error and otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Information
Thomas was charged in an amended information with first degree burglary (Pen. Code, §§ 459, 460)^[1] and assault with a deadly weapon, “to wit, [a] glass bottle” (§ 245, subd. (a)(1)). It was specially alleged that another person, other than an accomplice, was present in the residence during the commission of the burglary, making the burglary a “violent felony” within the meaning of section 667.5, subdivision (c). As to the aggravated assault charge, it was specially alleged that Thomas had inflicted great bodily injury (§ 12022.7, subd. (a)). In addition, as to both the burglary and the assault charges, it was specially alleged Thomas had suffered one prior serious or violent felony conviction within the meaning of the “Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and had served a prior prison term for a felony within the meaning of section 667.5, subdivision (b). Thomas pleaded not guilty and denied the special allegations.
2. The Trial
Thomas represented himself at trial. According to the evidence, Thomas and Joye Jackson were involved in a volatile dating relationship. When Thomas used methamphetamine, he became paranoid and violent; and Jackson was often afraid of him. Jackson ended her relationship with Thomas in early June 2007 because she could no longer tolerate Thomas’s emotional and physical abuse.
On June 10, 2007 Thomas drove to Claudette Leverett’s Sherman Oaks apartment to see Jackson, who had recently moved in with Leverett and Leverett’s 20-year-old son, Johnny Leggett. Thomas had gone to the apartment, bearing gifts and roses, to tell Jackson he loved her and to ask her to move with him to Texas. After talking with Thomas outside, Jackson returned to the apartment alone. According to Leverett, Jackson was very upset after meeting with Thomas. Jackson told Leverett she and Thomas had argued and Thomas had hit her because she had not been “sufficiently enthusiastic” about his gifts and romantic gestures.
After Jackson returned to the apartment, Thomas repeatedly called Leverett on the telephone demanding that she tell Jackson to come downstairs to speak with him. Leverett answered the telephone each time and told Thomas, whom she knew by the nickname “Looney,” that Jackson would not come downstairs because she was afraid of him. Leverett told Thomas to stop calling. Thomas told Leverett, “Bitch, Do you know me‌ You don’t know who you’re fucking with. Bitch, I will kill you. I will take out your whole family. You don’t know who you’re fucking with.”
Thomas continued to be belligerent, demanding that Jackson come outside. Leggett, Leverett and Jackson heard a bang on the balcony window; fearful, they took refuge in the back bedroom. Leverett called the police emergency number and spoke to an emergency operator. The three then heard a loud noise at the front door. Leggett left the back room to get a knife to protect his mother and Jackson. Before he could enter the kitchen and grab the knife, however, Leggett saw Thomas kick in the front door, breaking the door frame, and enter the apartment. Leggett, who testified that he was not armed, screamed at Thomas to “get out.” Thomas hit Leggett on the left side of his head; and Leggett fell to the ground, bleeding profusely and momentarily losing consciousness. Leggett thought he had been hit by an object, not by a fist. When Leverett ran to help her son, Thomas punched her in the face.^[2] Jackson screamed at Thomas to stop. Thomas told Jackson to follow him and then ran out the door. Jackson remained in the apartment.
Police officers who arrived at the scene found a heavy glass cognac bottle on the couch. Leggett and Leverett testified they had not seen the bottle before Thomas entered the apartment and had not been drinking that night. Leggett believed (and it was the prosecution’s theory at trial) that Thomas had used the bottle to hit him, although Leggett apparently reported to the medical staff he had been hit with a fist. Leggett suffered a laceration that required 13 stitches to close and left him with a scar. At the time of trial, Leggett still experienced headaches and was receiving psychotherapy as a result of the incident.
Thomas testified at trial and offered a different version of events. According to Thomas, he and Jackson had had a pleasant conversation and Jackson had agreed to go with him to Texas. At the end of their conversation, he told Jackson he loved her; and the two said goodbye. When he returned to his car, he found some methamphetamine and decided to use it. He immediately suffered an anxiety attack, which frequently happened when he used methamphetamine. He called Leverett and demanded to speak with Jackson. Leverett refused, complaining to Thomas that her apartment manager had seen Jackson and Thomas on the front lawn of the apartment. She told Thomas, if she lost her apartment as a result of him, she would kill both him and Jackson. Leverett reinforced her threat saying, “This is Pueblo Bloods,” which Thomas understood referred to the criminal street gang to which Leverett belonged.
After Leverett hung up the telephone on him, Thomas became “paranoid” that Leverett was going to harm Jackson. When Leverett refused to open the door, he kicked it in, believing he needed to protect Jackson from Leverett. He saw Leggett holding a knife and punched him in self defense. Leggett fell and hit his head on the coffee table. Leverett then ran out of the back room, grabbed the knife from her son’s hands and tried to stab Thomas. Thomas punched her in the face to prevent her from stabbing him. Thomas saw that Jackson looked terrified. He asked Jackson to follow him and then, without Jackson, fled the apartment.
3. The Verdict and Sentence
The jury, instructed on first and second degree burglary, found Thomas guilty of burglary in the second degree. The jury acquitted Thomas on the aggravated assault charge, but found him guilty of the lesser included offense of simple assault (§ 240, subd. (a)). After Thomas waived his right to a jury trial on the prior conviction allegations, the court, in a bifurcated proceeding, found the prior conviction allegations true. The court sentenced Thomas to an aggregate state prison term of seven years six months, consisting of the upper term of three years for the burglary (doubled under the Three Strikes law) plus an additional year for the prior prison term enhancement pursuant to section 667.5, subdivision (b), and a consecutive six-month term for the assault.^[3]
DISCUSSION
1. Thomas’s Burglary Conviction Is Supported by Substantial Evidence
To assess a claim of insufficient evidence in a criminal case, “we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime or special circumstances beyond a reasonable doubt. [Citation.] The record must disclose substantial evidence to support the verdict—i.e., evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. [Citation.] ‘Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]’ [Citation.] A reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support”’ the jury’s verdict.” (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
Section 459 provides, “Every person who enters any house, room, apartment . . . with intent to commit grand or petit larceny or any felony is guilty of burglary.” The trial court instructed the jury in accordance with CALCRIM No. 1700 that, to convict Thomas of burglary, they had to find beyond a reasonable doubt, when Thomas entered Leverett’s apartment, he intended “to commit an assault with a deadly weapon, an assault with force likely to produce great bodily injury, or battery causing serious bodily injury. [Thomas] does not need to have actually committed the assault with a deadly weapon, an assault with force likely to produce great bodily injury, or battery causing serious bodily injury, as long as he entered with the intent to do so.”
Because the jury acquitted him of aggravated assault, Thomas mistakenly insists it could not have found he had the requisite intent to commit a felonious assault or battery. As the jury was properly instructed, however, a defendant need not have committed the aggravated assault or battery to be guilty of the burglary as long as he or she had the requisite intent at the time of entry. (See § 459 [defendant’s intent at time he or she entered residence is controlling]; CALCRIM No. 1700 [same].^[4]) Leverett testified Thomas had threatened to kill her and her family if she did not open the door and allow Jackson to talk to him. When she refused to accede to his demands, Thomas violently kicked in the door and entered the apartment. Whatever basis the jury may have had for acquitting Thomas on the aggravated assault charge, that decision does not negate its finding that he had the intent to commit a felonious assault or battery at the time he entered the apartment, a finding that, as we explained, is amply supported by the evidence. (See People v. Lewis (2001) 25 Cal.4th 610, 656 [“‘Sufficiency-of-the-evidence review involves assessment by the courts of whether the evidence adduced at trial could support any rational determination of guilty beyond a reasonable doubt. [Citations.] This review [is] independent of the jury’s determination that evidence on another count was insufficient.’”], quoting United States v. Powell (1984) 469 U.S. 57, 67 [105 S.Ct. 471, 478, 83 L.Ed.2d 461].)
2. The Jury Instruction on Second Degree Burglary Was Not Prejudicial
The information charged Thomas with first degree burglary, and the evidence was undisputed that Leverett’s apartment was an inhabited dwelling. Accordingly, Thomas argues, there was no reason for the court to instruct the jury pursuant to CALCRIM No. 1701,^[5] if it found him guilty of burglary, it must then decide whether it was burglary in the first or second degree: Any burglary in this case was necessarily first degree. However, Thomas, who represented himself at trial, did not object to this instruction and now fails to provide any plausible explanation as to how this unnecessary instruction could possibly have prejudiced him. To the contrary, because the jury apparently disregarded the undisputed evidence (see generally People v. Lewis, supra, 25 Cal.4th at p. 656 [“an inconsistency may show no more than jury lenity, compromise or mistake, none of which undermines the validity of a verdict”]), Thomas benefited from its leniency in convicting him of only second degree burglary with its significantly lower punishment (a middle term of two years rather than four years). (See People v. Powell (1949) 34 Cal.2d 196, 206 [“appellant is precluded from complaining that he was convicted of a lesser offense than the one of which he is guilty according to undisputed evidence, or according to that view of the evidence which, it indisputably appears, the trier of fact accepted”]; see also People v. Maroney (1895) 109 Cal. 277, 279 [“The jury found the defendant guilty of burglary in the second degree, and this is claimed to be error in that the crime as disclosed by the evidence could only have been burglary in the first degree. . . . [I]t is a sufficient answer to such objection to say that the defendant is not prejudiced by the error complained of.”]; People v. Barnhart (1881) 59 Cal. 381, 384 [“it may be conceded that the evidence in the case would have justified a verdict of guilty of burglary in the first, instead of the second degree; but it does not follow therefrom that the verdict found [second degree burglary] . . . should be set aside”].)
3. The Trial Court Did Not Commit Reversible Error in Allowing Leggett To Refer to Thomas as “Looney”
During her trial testimony Leverett was allowed to refer to Thomas as “Looney,” the name by which she knew him. Thomas objected under Evidence Code section 352, contending, outside the presence of the jury, the reference to his gang moniker was far more prejudicial than probative. (See Evid. Code, § 352 [“[t]he court in its discretion may 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 trial court overruled Thomas’s objection, concluding Leverett could continue to refer to him by the name she knew him as long as no evidence was presented that Looney was a gang moniker or that Thomas was a gang member.^[6]
Thomas contends the court abused its discretion in allowing Leverett to refer to him by his nickname, which he contends was an “obvious gang moniker.” Contrary to Thomas’s contention, the court’s ruling was well within its discretion. The court permitted Leverett to make limited references to Thomas’s nickname while excluding any evidence connecting the nickname to Thomas’s involvement in a criminal street gang. (Indeed, as a result of that ruling, no evidence concerning Thomas’s gang membership was admitted.) Nothing in this record suggests the ruling was arbitrary, capricious or patently absurd as to constitute an abuse of the court’s broad discretion. (People v. Avila (2006) 38 Cal.4th 491, 578; People v. Hovarter (2008) 44 Cal.4th 983, 1004 [court enjoys broad discretion under Evid. Code, § 352; its ruling “‘will not be disturbed, and reversal of the judgment is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice’”].)
4. The Trial Court Did Not Prohibit Thomas from Introducing Evidence of Leverett’s Gang Association
After the court ruled any evidence of Thomas’s gang involvement would be excluded, the People requested that Thomas be similarly prohibited from asking witnesses whether they were affiliated with a criminal street gang.^[7] The court responded to that request by ordering both parties to “only ask questions if they have a reasonable basis for asking them. You need to have a good-faith basis for asking the questions.”
Thomas, who never asked Leverett any questions during cross-examination about her gang affiliation, now contends on appeal the court improperly prohibited him from doing so, thus denying him the fundamental right to cross-examine witnesses against him. The record, however, does not support his contention. The court simply instructed the parties to ask only those questions for which they had a good faith basis. The court never ruled on the propriety of cross-examination testimony regarding gang membership, and Thomas never attempted it.^[8] In any event, Thomas was allowed to introduce evidence, through his own testimony (and over the People’s objection) that Leverett had threatened him with violence by invoking the name of “Pueblo Bloods,” the criminal street gang to which (he claimed) Leverett belonged. Whatever the relevance of Leverett’s gang affiliation to this case,^[9] on this record we find neither error nor prejudice.
5. The Trial Court Did Not Err in Denying Thomas’s Request for a Continuance
On January 5, 2009 Thomas advised the court that his legal materials had been taken from his cell and destroyed a month earlier, after the Los Angeles County Sheriff’s Department had allowed people to go into his cell and destroy his documents under the mistaken impression Thomas had gone home rather than to court. Asked by the court to identify what was destroyed, Thomas told the court he was missing a trial notebook, jury instructions, legal theories on which he was relying, a statement from Jackson, police reports, documents relating to his prior convictions and Leggett’s medical records. The court ordered the Los Angeles County Sheriff’s Department to investigate the incident and to report what had occurred to the court.
On January 9, 2009, the day trial was scheduled to begin, Thomas requested a continuance, asserting the loss of his materials had prejudiced his ability to be ready for trial. The prosecutor argued Thomas was engaging in delay tactics, noting Thomas had been representing himself since July 28, 2008 and had received numerous continuances since that time for one reason or another. To counter the accusation that he was using the request to delay going to trial, Thomas provided a declaration from a prisoner residing with him at the county jail that, liberally construed, confirmed Thomas’s account that his materials had been accidentally destroyed. After expressing some frustration at the Los Angeles County Sheriff’s Department for not responding to the court’s request to inform the court what had happened to Thomas’s materials, the court ordered the People to produce additional copies of all the information it had previously provided to Thomas, including medical records and prior conviction documents. The court also told Thomas it would make sure he received a copy of the preliminary hearing transcript Thomas specifically requested.
When court reconvened on January 13, 2009 Thomas confirmed he had received all of the materials from the People (as well as the preliminary hearing transcript) on January 9, 2009 but argued he was still not ready to proceed to trial because he was waiting to receive medical records he had subpoenaed that would support his claim he suffered from hallucinations due to a head injury sustained in 2005. After Thomas conceded, following questioning by the court, that he had only issued the subpoenas a few days prior to the scheduled trial date, the trial court denied the motion for a continuance, finding Thomas had had ample time to prepare for trial, even with the temporary loss of his legal materials, and thus had not demonstrated the requisite good cause to support the request. (See § 1050, subd. (e) [“[c]ontinuances shall be granted only upon a showing of good cause”].)
Thomas contends the court abused its discretion when it denied him a continuance following the loss of his legal materials. However, as Thomas acknowledges, the prosecutor had replaced the lost or destroyed documents and the medical records purportedly showing he suffered from hallucinations, which Thomas had only recently subpoenaed, were not part of the materials allegedly destroyed. After carefully considering Thomas’s request for a continuance and examining him in detail as to the materials he needed to go to trial, the court concluded Thomas had not demonstrated good cause to support his request for a continuance. The record amply supports that conclusion. (See People v. Samayoa (1997) 15 Cal.4th 795, 840 [“[i]n the absence of a showing of an abuse of discretion and prejudice to the defendant, a denial of his or her motion for a continuance does not require reversal of a conviction”]; see also People v. Beeler (1995) 9 Cal.4th 953, 1003 [“‘[a]n order of denial [of a continuance] is seldom successfully attacked’”].)
6. Thomas’s Sentence Must Be Modified Pursuant to Section 654
Section 654 prohibits separate punishment for multiple offenses arising from the same act or from a series of acts constituting an indivisible course of conduct. (People v. Rodriguez (2009) 47 Cal.4th 501, 507; People v. Latimer (1993) 5 Cal.4th 1203, 1216.)^[10] “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.” (Neal v. State of California (1960) 55 Cal.2d 11, 19; see Latimer, at p. 1208.)
Thomas contends the court violated section 654 when it imposed separate sentences for both the burglary and the simple assault, which he claims the undisputed evidence shows were part of a single intent and objective. To counter this argument, the People assert the evidence showed (and the trial court impliedly found) Thomas’s two crimes were committed with different intents and objectives: One objective was to enter the house to assault Leggett; the other was to enter the house to assault Leverett.
If Thomas had been charged (and found guilty) of assaulting Leverett, as well as Leggett, the People’s argument would have merit. However, Thomas was not charged with assaulting Leverett, and there was no jury finding that he harbored that separate intent. Indeed, the evidence presented, and the instructions given, were directed to Thomas’s intent at the time he entered Leverett’s home to commit the aggravated assault on Leggett with which he was charged. By any measure the evidence supported only a single intent and objective for the burglary and the assault. (See People v. Price (1991) 1 Cal.4th 324, 492 [when burglary of victim’s residence was committed to accomplish victim’s murder, both burglary and murder are part of single indivisible transaction; accordingly, sentence on burglary count should be stayed under § 654]; People v. James (1977) 19 Cal.3d 99, 119-120 [§ 654 prohibited punishment for burglary and intended robbery]; People v. Centers (1999) 73 Cal.App.4th 84, 99 [“ordinarily, if the defendant commits both burglary and the underlying intended felony, [§] 654 will permit punishment for one or the other but not for both”].)
The People alternatively contend the sentence is proper because “‘the limitations of section 654 do not apply to crimes of violence against multiple victims.’” (People v. Oates (2004) 32 Cal.4th 1048, 1063; accord, People v. Felix (2009) 172 Cal.App.4th 1618, 1630-1631.) This exception is justified because “‘[t]he purpose of the protection against multiple punishment is to insure that the defendant’s punishment will be commensurate with his criminal liability. A defendant who commits an act of violence with the intent to harm more than one person by a means likely to cause harm to several persons is more culpable than a defendant who harms only one person.’” (Oates, at p. 1063.)
Although the People are correct that there are multiple victims in this case—the burglary was committed against Leverett, the assault against Leggett—burglary, “‘standing alone, is not a violent crime for purposes of [applying] the multiple victim exception. . . .’” (People v. Hall (2000) 83 Cal.App.4th 1084, 1092; accord, People v. Centers, supra, 73 Cal.App.4th at p. 88; People v. Le (2006) 136 Cal.App.4th 925, 931-932.) To qualify as a crime of violence under the multiple victim exception to section 654, the burglary must have been committed “in conjunction with an act of violence that qualified for treatment as an enhancement.” (Hall, at p. 1092; see Le, at pp. 931-932 [§ 654 prohibited punishment for both burglary and robbery; “burglary does not constitute a crime of violence unless the defendant ‘inflicted great bodily injury in the commission of the burglary’”]; Centers, at p. 88 [although burglary alone not a violent crime for purposes of applying multiple victim exception to § 654’s prohibition against multiple punishment, it may be treated as violent crime when there is a finding that defendant personally used firearm in commission of burglary].)
Because there is no finding of great bodily injury or any other enhancement that would make the burglary a crime of violence for purposes of applying the multiple victim exception to section 654,^[11] the multiple victim exception to the proscription against double punishment in section 654 is not applicable. Accordingly, the trial court erred in imposing, rather than staying, the sentence for simple assault.
DISPOSITION
The judgment is modified to stay imposition of the six-month sentence for the simple assault under section 654. As modified, the judgment is affirmed. The abstract of judgment is ordered corrected to properly indicate that Thomas was convicted by a jury, not by a plea, and to reflect a stay of the imposition of the six-month sentence for simple assault pursuant to section 654. In addition, the abstract of judgment should reflect that all custody credit that Thomas earned should be credited toward his sentence on count 1. The superior court is directed to prepare a corrected abstract of judgment and to forward it to the Department of Corrections and Rehabilitation.



PERLUSS, P. J.


We concur:



WOODS, J.



ZELON, J.


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