P. v. Samuels













Filed 3/22/17 P. v. Samuels CA4/1







NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

v.

DWIGHT E. SAMUELS,

Defendant and Appellant.

D070017



(Super. Ct. No. SCD264065)

APPEAL from a judgment of the Superior Court of San Diego County, Amalia L. Meza, Judge. Reversed and remanded.
Suzanne G. Wrubel, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Michael Pulos and Christine Y. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Dwight E. Samuels of three counts of first degree burglary(Pen. Code,[1] § 459; counts 1, 2 and 3); one count of receiving stolen property (§ 496, subd. (a); count 4); and one count of resisting an officer (§ 148, subd. (a)(1); count 5). In a bifurcated proceeding, the trial court found true the allegations that Samuels had one prior serious felony (§ 667, subd. (a)(1)); two prison priors (§ 667.5, subd. (b)); and a "strike" prior (§§ 667, subds. (b)-(i), 668,1170.12).The trial court sentenced Samuels to 23 years four months in state prison. The court also ordered Samuels to pay restitution to the victims as follows: Wallace M.[2]and Elizabeth A., $21,000; William and Pemba S., $5,264; and Ryanand Rachelle S., an amount to be determined.
On appeal, Samuels contends the trial court erred (1) in denying his motions for mistrial after one of the People's witnesses inadvertently testified in contravention of a court order that, at the time of committing the instant offenses,Samuels was on parole for burglary, and after a second prosecution witness testified that Samuels had two sets of fingerprints in the Department of Justice database; and (2) by failing to conduct a proper inquiry during Samuels'sMarsden[3] hearing when he informed the court he had exonerating evidence that his attorney did not investigate. He further contends the abstract of judgment should be corrected to show one-third the middle term, rather than the upper term, for counts 2 and 3, and to show the restitution order calls for joint and several liability with co-defendant Christine Juanita Smith.
As we explain, we conclude the trial court abused its discretion when, instead of granting the mistrial motion or admonishing the jury and giving a curative instruction, as a remedy to the witness' improper testimony that Samuels was on parole for burglary when he committed the instant offenses, the court allowed the witness merely to retake the stand and recant suchtestimony. The court implemented this remedy even after stating the testimony was so poisonous that it could not be cured.Of particular concern to this court, over objection the trial court approved of this procedure based on the fact that the witness had earlier testified Samuels was on parole formere burglary, when in fact Samuels was actually on parole for residential burglary—as if this was a meaningful distinction.
As we discuss, because we conclude the witness was allowed to recant by further testifying the information on which he relied was not true when in fact it was for all practical purposes true, we conclude the trial court erred and thus, reverse and remand the matter for retrial. As such, we need not consider Samuels's alternate contentions, including the second motion for mistrial.
FACTUAL AND PROCEDURAL OVERVIEW[4]
A. Count 1
On November 25, 2013, at around 1:30 p.m., Wallace M. returned to theSerra Mesa home he shared with his significant other, Elizabeth A., and found the front door open and the inside of the home "trashed."Among the items taken from the house were 634 ounces of silver, an iPad,legal documents, and a camcorder. Wallace estimated the value of the stolen property at $24,000.
B. Count 2
On December 10, 2013, Pemba S. returned to her Scripps Ranch home ataround 2:00 p.m. and found the front door had been forcibly opened. Pemba found the inside of her home "a huge mess." Among the items taken from the house were jewelry, $500 cash, bank information, credit cards, camera equipment,gaming consoles, and a laptop.Pemba estimated the value of the stolen property at $7,000.
Gary G. testified that he lived three houses away from Pemba's house and that he was in his garage at around 11:00 a.m. that same day.Gary saw a "black over silver" Chrysler Sebring parked facing Pemba's residence. Around 11:30 a.m. to 11:45 a.m., Gary saw the Chrysler drive down the street.
Also on December 10, 2013, at 1:20 p.m. Officer Matthew Zaitz pulled Samuels over for a speeding violation in the area of 4800 College Avenue. Officer Zaitz testified that Samuels was driving a white Chrysler Sebring andwas accompanied by a female.
C. Count 3
On December 13, 2013, Rachelle S. returned to her Zion Avenue homeat around 1:00 p.m. and found the front door ajar and the interior doorframe laying on the ground. Rachelle noticed a large shoeprint on the front door. Among the items taken from the house were gaming equipment, DVDs, video games, a breast pump, a laptop, an iPad, motorcycle helmets, digital cameras, jewelry, and backpacks. Ryan, Rachelle's husband, estimated the value of the stolen property at $8,000.
D. Recovery of Items
At 1:05 p.m. on December 13, Rachelle received an e-mail that her stolen iPad had been reset to factory settings. Ryan used an "app"called "Find my iPhone" to access and lock Rachelle's stolen laptop. At 5:30 p.m. that same day, Ryan received an alert that the computer had been openedand that it was then located at a motel on El Cajon Boulevard. Ryan testified he called the police, who would not respond to the motel unless he was present and knew the room number where the computer was then located.
To get this information, Ryan set off the computer alarm through the app once he arrived at the motel.Ryan next walked by the motel rooms and identified the room number where he heard the alarm sound. As Ryan was returning to his car, a woman, later identified as Smith, exited the room from which Ryan had heard the alarm. Ryan saw the woman carry a baggo behind the motel and remain there for several minutes. When she reappeared, she was no longer carrying the bag.Ryan testified he located the bag the woman had been carrying and found Rachelle's laptop inside.
Ryan called the police and Officers Jill Hupp and Eric Pollock responded to the motel. Officer Hupp testified she saw a man, later identified as Samuels,walk out of room 218 towards a whiteChrysler Sebring parked in the motel lot. Officer Hupp contacted the man and told him he was being detained pending an investigation specifically connected to room 218. The man in response denied staying in room 218, and accordingto Officer Hupp, became "upset and angry."The officersattempted to effectuate an arrest, at which point the man began thrashing on the ground and yelling, "I have epilepsy!" After subduing the man, an officer collected the man's shoes to determine if they matched the shoeprint on Ryan and Rachelle's front door.
At that point,the woman exited room 218 and attempted to leave the motel. Officer Hupp detained the woman, whom she later identified as Smith. Whilepattingdown the woman, Officer Hupp found a checkbook in the waistband of the woman's pants. Pemba's name was printed on the checks.Inside the woman's bag, officers found an iPad with a readily identifiable case, a black box with jewelry, and a store credit card and a Pennsylvania driver's license, both in Pemba's name.
Inside room 218, officers found multiple suitcases, bags, clothing, electronics, jewelry, and jewelry boxes. Ryan testified that 80 percent of the items stolen from his house were inside the motel room. Officers also found Smith's name on a paper ID, Samuels's name on a suitcase tag, and a San Diego Police Department tow impound form bearing Samuels's name. As officers were searching the room,a cellphone bearing Samuels's picture began ringing. Police also determined the Chrysler Sebring in the parking lot was registered to Samuels. Inside the vehicle, officers found jewelry, a camcorder, and a gaming system.
The manager of the motel gave police a form and ID that showed an individual allegedly named Marcus Goodewilliehad paid cash and had rentedroom 218 for two nights.However, officers did not find any information inside room 218 connected to Marcus Goodewillie.
E. Evidence on iPad
Wallace and Elizabeth testified that the iPad found in Smith's bag with the distinctive cover belonged to them. When they viewed theiriPad, they discovered many pictures of Samuels and Smith, including photographs of Samuels with what Wallace testified was his stolen camcorder and iPod. Smith and Samuels had also logged intosocial media and e-mail accountsusingElizabeth's iPad.
F. Footwear Evidence
A criminalist at the San Diego Police Department testified about the shoeprint evidence collected from Ryan and Rachelle's front door. She testified the impression was inconclusive due to the quality of the photograph of the print and the lack of a ruler in the photograph. She did note that the design pattern of the shoeprint was similar to the shoe collected from Samuels, but overall her conclusion was inconclusive.


G. Cell Phone Evidence
The police found photographs on Elizabeth's iPad of Smith with a phone number below it. Police conducted an Internet search for the phone number in the photograph and discovered advertisements online with photos of Smith and listing the same phone number. The phone number was subscribed to Samuels. The phone found in room 218was also subscribed to Samuels.Phone records connected to each of the numbers and cell phone tower records showedthat on the dates of the victims' burglaries, the two cell phones were communicating with each other in the area of each of the victim's residences. Phone records for other dates were not examined.
DISCUSSION
A. Brief Additional Background
Samuels contends the trial court erred in failing to grant his mistrial motion because the prosecution's witness, Sergeant Brian Avera, inadvertently testified that Samuels "was on parole for burglary and had a Fourth [Amendment] Waiver search."Avera made the statement in response to the prosecutor's open-endedquestion asking him to describe the events when he arrived at the motel.Avera made the statement on Thursday afternoon, January 21, 2016.The record shows defense counsel immediately objected and requested a sidebar conference.
In chambers, defense counsel moved for a mistrial as a result of Avera's testimony that Samuels was on parole for burglary when he committed the instant offenses. Defense counsel argued this testimony was highly prejudicial and was in contravention of an earlier court order excluding such evidence. The record shows the trial court in response sought additional briefing from the parties in connection with the mistrial motion and then offered to admonish the jury when proceedings resumed.Believing an admonishment "would draw more attention to what's just been done," defense counsel refused that offer.
The next day, the trial court held a hearing on Samuels's mistrial motion.Although the court found the parole reference was inadvertent, it went on to note that, "even if it's not intentional, is it so poisonous that it cannot be cured." However, somewhat inexplicably, the court stated this "was the case until [the court] read the brief submitted by [the prosecutor]."
At the heart of the instant dispute, the prosecutorin briefing suggested Avera be recalled the following Monday and be allowed to testifythat, after further investigation, he learned that the information that Samuels was on parole for burglary when he committed the instant offenses was based on incorrect information. Defense counsel objected, noting this would not cure the error because the proposed statement Avera would testify to was not true.
The record shows the trial court in response noted that Samuels was on parole for residential burglary, not burglary. Defense counsel again objected, and noted that residential burglary and burglary are not "two different things." In response, the trial court asked, "[w]ithout splitting hairs, doesn't that cure it?"Defense counsel argued that the jurors spent the entire weekend believing Samuels was on parole for burglary and with this cure they will speculate if he is on parole for a different crime.The trial court ultimatelyheld that the statement "resulted in such a miscarriage of justice that the defendant cannot get a fair trial now," but then added the prosecutor's proposed solution "takes care of the problem in my mind."
When the court reconvened on Monday, January 25, the prosecutorrecalled Avera to the witness stand and asked him if, on further investigation, Samuels was on a Fourth Waiver and was on parole for burglary. Avera in response testified he had investigated the matter further and "found that that was incorrect information." The record shows the court then admonished the jury to disregard any statement regarding parole made by Averathe previous Thursday.
B. Governing Law
The decision of a trial court to grant or deny a motion for mistrial is reviewed under the abuse of discretion standard. (People v. McLain (1998) 46 Cal.3d 97, 113.)
"'A mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions. [Citation.]' [Citation.]" (People v. Wallace (2008) 44 Cal.4th 1032, 1068; see People v. Clark (2011) 52 Cal.4th 856, 990
["'A trial court should grant a mistrial only when a party's chances of receiving a fair trial have been irreparably damaged . . . .' [Citations].")
The trial judge is in the best position to assess the impact of the improper evidence and to determine whether a remedy, less than granting a mistrial, will cure the harm caused by the error. (People v. Allen (1978) 77 Cal.App.3d 924, 934-935.)"[A] trial court can almost always cure the prejudice of an improperly volunteered statement by granting a motion to strike and charging the jury with an appropriate curative instruction."(People v. Navarrette (2010) 181 Cal.App.4th 828, 836.)An abuse of discretion occurs when the trial court's determination is arbitrary, capricious, or exceeds the bounds of reason. (People v. Carbajal (1995) 10 Cal.4th 1114, 1121.)
C. Analysis
Here, we independently conclude that the trial court improperly exercisedits discretion in adopting what can only be considered an unorthodox and frankly, unacceptable means to cure what it itself acknowledged was an error of such a magnitude that it likely could not be cured by striking the parole statement and admonishing the jury.
The court's remedy to cure the impermissible parole statement by Avera was improper because under the facts here, there is no meaningful difference between "burglary" and "residential burglary."Indeed, section 460, subdivision (a) states "Every burglary of an inhabited dwelling house . . . is burglary of the first degree." The Penal Code does not define residential burglary and burglary as two different crimes; it only distinguishes between the degrees of burglary. The difference in degrees of burglary does not equate to a difference in meaning so vast as to render burglary and residential burglary two different crimes. Quite simply,Samuels was on parole for burglary at the time of his arrest, and Avera's testimony otherwise is equivalent to an untruth. To have a witness testify to what amounts to a falsehood—one sanctioned by the People and the court—was wholly improper and violated Samuels's fundamental right to a fair trial. This abuse of discretion by the trial court deprived Samuels of his Fourteenth Amendment right to due process and his Sixth Amendment right to a fair trial.(People v. Mello (2002) 97 Cal.App.4th 511, 517.)
We note that the remedy adopted by the People and the trial court was also ineffective because of the length of time between Avera's improper statement and the subsequent testimony and admonishment to the jury. Indeed, the record shows Avera gave his parole testimony on Thursday afternoon and continued testifying after the sidebar conference. However, the remedy to the improper testimony—having Avera recant and testify to what amounted to a falsehood—did not take place until Monday morning, or three days later.
"There is little doubt exposing a jury to a defendant's prior criminality presents the possibility of prejudicing a defendant's case and rendering suspect the outcome of the trial. [Citations.]" (People v. Harris (1994) 22 Cal.App.4th 1575, 1580.) The possibility of prejudice to Samuels was exponential due to the lapse in time between the statement and the (improper) remedy. (See ibid.) Although, understandably, defense counsel agreed not to have the jury immediately admonished, ultimately it was ineffective for the trial court to adopt the remedy it did after letting three days pass. For this separate reason, we conclude Samuels's convictions must be reversed.
In addition, Avera'stestimony on the Monday morning that the "information was not correct"regarding Samuels's parole status did not resolve the issue, as intended by the People and the court. Instead, as Samuels points out on appeal, the jury could have inferred that he was on parole for a different crime or that he had indeed committed burglary, but was not on parole at the time of his arrest. As such, for this additional reason we conclude the remedy adopted by the court allegedly to cure the substantial prejudice to Samuels was ineffective.
Finally, we note this is not a situation where the weight of the evidence of guilt as to the three counts of burglary was overwhelmingly strong.[5]Weight of evidence has been considered important on the issue of prejudice in prior cases. (Compare People v. Allen, supra, 77 Cal.App.3d at p. 935 [an extremely close case makes it more probable a result more favorable to the appellant would have been reached had prejudicial information not been divulged to the jury] with People v. Harris, supra, 22 Cal.App.4th at p. 1581 [any error to deny defense's motion for mistrial was harmless due to evidence of guilt that was overwhelming and undisputed at trial].)
An examination of the record reveals that the hotel room where the stolen property was found was registered to Marcus Goodewillie. The analysis of the shoeprint found on Ryan and Rachelle's front door was inconclusive. Phone records for dates other than the dates of the three burglaries were not examined to see if the cell phones were frequently in contact in these areas. Based on these circumstances,the direct evidence connecting Samuels to the burglaries, as opposed to the counts for being in possession of stolen property,was not overwhelming.


DISPOSITION[6]
The judgment of conviction is reversed as to all counts and the matter is remanded for further proceedings consistent with this opinion.


BENKE, Acting P. J.

WE CONCUR:




O'ROURKE, J.




DATO, J.





Publication Courtesy of San Diego County Legal Resource Directory.
Analysis and review provided by El Cajon Property line Lawyers.
San Diego Case Information provided by www.fearnotlaw.com


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

[2] California Rules of Court, rule 8.90(b) requires appellate courts to "consider referring to" certain individuals "by first name and last initial" to protect those individuals' privacy. Accordingly, we refer to the victims in this case by their first names and last initials, and thereafter by first names only. Our use of first names is not intended as a sign of disrespect.

[3] People v. Marsden (1970) 2 Cal.3d 118.
[4] We view the evidence in the light most favorable to the judgment of conviction, to the extent there is a conflict in the evidence. (See People v. Osband (1996) 13 Cal.4th 622, 690.) Certain portions of the factual and procedural history related to defendant's claims of alleged error are discussed post.
[5] We make no decision on the guilt or innocence of the defendant.
[6] In light of the reversal, we decline to address Samuels's February 16, 2017 motion to augment the appellate record.