Filed 5/23/17 P. v. Sullivan CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE


THE PEOPLE,
Plaintiff and Respondent,
v.
BRADLEY SULLIVAN,
Defendant and Appellant.

A146464

(San Mateo County
Super. Ct. No. SC080452A)


Following a jury trial, defendant was convicted of residential burglary and grand theft. He contends the trial court committed prejudicial error when it instructed the jury with CALCRIM No. 371 that it could consider an accomplice’s attempted suppression of evidence as a circumstance tending to show defendant’s consciousness of guilt. Defendant also contends the abstract of judgment should be modified to accurately reflect the sentence imposed. We conclude the trial court properly instructed the jury, but the abstract of judgment must be modified to indicate the sentence actually imposed by the trial court.
I. FACTUAL AND PROCEDURAL BACKGROUND
Mr. and Mrs. H., along with their son, lived in a home located on Neuman Lane in Woodside. On March 28, 2012, the H.’s son left the house around 7:00 a.m., Mrs. H. departed at 8:00 a.m., and Mr. H. left 15 minutes later. When Mr. H. returned home later that day at 1:00 p.m., he saw the door from the master bedroom to the deck was open, and “it didn’t feel right.” Upon entering the bedroom, he observed the armoire door had been ripped off and “stuff strewn around.” After calling 911, Mr. H. stepped out of the house, and within two minutes, the police arrived. Upon reentering his home, Mr. H. noticed his daughter’s costume jewelry was missing, and “[p]retty much all” of his wife’s jewelry was also missing from the top drawer in the master closet. In total, approximately $70,000 in personal property had been stolen.
Security cameras located at the H.’s next-door neighbor’s residence pointed at the driveway and the street. On March 28, 2012, at 11:27 a.m., the cameras captured a four-door Chevy Malibu with two occupants, driving eastbound toward the dead-end of the street. One minute later, the car drove away in the opposite direction. Then at 11:34 a.m., the car returned to the same street, but this time going backwards in an eastbound direction, eventually stopping under the driveway camera. Two White males exited the vehicle, Michael Wallen, the driver, and defendant, the passenger.
The surveillance video showed the two men talking. Defendant, who was located at the passenger side, pointed westbound and walked in that direction. As Wallen used a black object or piece of cloth to cover the car’s rear license plate, defendant walked on the driveway of a nearby residence. Shortly thereafter, defendant emerged from the same driveway onto the street and walked eastbound. From 11:36 a.m. until 11:43 a.m., Wallen remained in the car, and then drove away out of view of the surveillance cameras. During the incident, defendant was in possession of gloves, which he put in his rear pants pocket, and a small crowbar-type tool, which he removed from the rear side of the vehicle and placed inside his jacket. Wallen had a two-way radio hanging around his neck. In his right hand, he had a slim-jim tool.
A sheriff’s detective testified at trial that a two-way radio, slim-jim, gloves, and a crowbar are tools of the burglary trade. A two-way radio is useful if someone nearby also has a radio. A slim-jim can be used to pop open a vehicle door, gloves conceal fingerprints, and a crowbar is an easy way to force entry through a locked door or sliding glass window.
Defendant and Wallen traveled from Phoenix, Arizona to San Francisco on March 27, 2012, rented a car, and left San Francisco, flying back to Phoenix on March 29, 2012. Both men’s names were listed on a rental agreement for the car involved in this incident. The agreement indicated the vehicle was rented from March 27, 2012 at 9:56 p.m. and returned on March 29, 2012 at 2:14 p.m.
As part of the investigation into the burglary, on March 20, 2013, police executed a search warrant at a house located in Glendale, Arizona. Defendant, Wallen, and another individual, Bridgette Gilbert, lived in the residence and were present when the search warrant was executed. In a bedroom, police found “thousands of items of jewelry” along with several items bearing defendant’s name. Photos of two of the items, a bracelet and a single earring, were sent to Mrs. H. She identified both pieces of jewelry as belonging to her.
Defense witnesses testified the bracelet was a mass-produced, very common piece sold by Ralph Lauren and other retail stores.
An amended information was filed charging defendant with one count of residential burglary (Pen. Code, § 460, subd. (a)), one count of grand theft (§ 487, subd. (a)), and one count of receiving stolen property (§ 496, subd. (a)). It was further alleged defendant had previously suffered three serious felony convictions. (§§ 667, subd. (a)(1), 1170.12, subd. (c)(1).) On motion of the prosecution, two of these prior convictions were stricken. A jury found defendant guilty of residential burglary and grand theft. In a bifurcated court trial, all prior conviction allegations were found true. Defendant was subsequently sentenced to 13 years in state prison.
II. DISCUSSION
Defendant raises several issues. First, he contends the trial court erred by instructing the jury on suppression of evidence indicating consciousness of guilt because the given instruction, CALCRIM No. 371, was not supported by substantial evidence. Second, he contends that given the inherently prejudicial nature of evidence of concealment, the instruction was prejudicial to the jury’s consideration of the case. Third, defendant claims the instruction lessened the prosecution’s burden of proof. Finally, he argues the abstract of judgment should be modified to reflect the term actually imposed for the grand theft conviction. We conclude the trial court properly instructed the jury with CALCRIM No. 371, but the abstract of judgment should be modified to reflect the actual sentence imposed.
A. CALCRIM No. 371
The court instructed the jury under CALCRIM No. 371: “If someone other than the defendant tried to conceal evidence, that conduct may show the defendant was aware of his guilt, but only if the defendant was present and knew about that conduct, or if not present, authorized the other person’s actions. It is up to you to decide the meaning and importance of this evidence. However, evidence of such conduct cannot prove guilt by itself.”
As he argued in the trial court, defendant maintains this instruction should not have been given because there was insufficient evidence supporting the inference defendant knew about Wallen’s concealment of the license plate or authorized him to do so. Defendant focuses on his distance from the rental car when Wallen attempted to cover the vehicle’s license plate. Because, according to defendant, he “simply was not there when the plate was covered,” he cannot be linked to the concealment.
We find defendant’s myopic view of the evidence unpersuasive. “A trial court properly gives consciousness of guilt instructions where there is some evidence in the record that, if believed by the jury, would sufficiently support the inference suggested in the instruction.” (People v. Bowman (2011) 202 Cal.App.4th 353, 366.) It is also “an elementary principle of law that before a jury can be instructed that it may draw a particular inference, evidence must appear in the record which, if believed by the jury, will support the suggested inference. [Citation.] Whether or not any given set of facts may constitute suppression or attempted suppression of evidence from which a trier of fact can infer a consciousness of guilt on the part of a defendant is a question of law. Thus in order for a jury to be instructed that it can infer a consciousness of guilt from suppression of adverse evidence by a defendant, there must be some evidence in the record which, if believed by the jury, will sufficiently support the suggested inference. Furthermore, the determination of whether there is such evidence in the record is a matter which must be resolved by the trial court before such an instruction can be given to a jury.” (People v. Hannon (1977) 19 Cal.3d 588, 597–598, disapproved on other grounds in People v. Martinez (2000) 22 Cal.4th 750, 762.)
Here, substantial evidence supported the trial court’s instruction. Defendant and Wallen lived together in Arizona, traveled together to San Francisco, and drove together to Neuman Lane. Several minutes before the commission of the burglary, both men conversed on Neuman Lane, defendant pointed westbound, and then walked in that direction. Soon thereafter, as defendant walked on the driveway of a nearby residence, Wallen covered the car’s license plate. Each also possessed burglary tools; defendant had gloves and a crowbar, and Wallen held a slim-jim. He also had a two-way radio around his neck. And as defendant burglarized the H.’s home, Wallen remained in the car, presumably as a lookout. Finally, in March 2013, police discovered one of Mrs. H.’s bracelets and an earring, along with thousands of other jewelry pieces in defendant and Wallen’s residence. Thus the evidence demonstrates defendant and Wallen engaged in a well-planned and coordinated residential burglary. Though defendant was not standing by the car when Wallen covered the license plate, the jury could infer from the evidence defendant knew and authorized the concealment.
Defendant next contends the instruction was prejudicial to the jury’s consideration of the case, and it lessened the prosecution’s burden of proof. We disagree.
CALCRIM No. 371 “made clear to the jury that certain types of deceptive or evasive behavior on a defendant’s part could indicate consciousness of guilt, while also clarifying that such activity was not of itself sufficient to prove a defendant’s guilt, and allowing the jury to determine the weight and significance assigned to such behavior.” (People v. Jackson (1996) 13 Cal.4th 1164, 1224.) Furthermore, the cautionary nature of the instruction “benefits the defense, admonishing the jury to circumspection regarding evidence that might otherwise be considered decisively inculpatory.” (Ibid.) As such, this instruction permits, but does not require, the jury to draw a particular inference, and the admonishment the evidence of concealment alone cannot prove guilt mitigates against any possible prejudice. In short, the consciousness of guilt instruction did not improperly endorse the prosecution’s theory or lessen its burden of proof. (Ibid.)
Even assuming the trial court erred by giving this instruction, defendant suffered no prejudice as a result. Considering the permissive nature of the instruction, and the overwhelming evidence noted above linking defendant to the burglary, it is not reasonably probable defendant would have obtained a more favorable outcome had the jury not heard the instruction. (People v. San Nicolas (2004) 34 Cal.4th 614, 667 [error in giving consciousness of guilt instructions reviewed for prejudice under People v. Watson (1956) 46 Cal.2d 818, 836].)
B. Abstract of Judgment
When defendant was sentenced to a term of 13 years, the trial court imposed the midterm of four years for the residential burglary, doubled to eight years in accordance with section 1170.12, subdivision (c)(1) (hereafter section 1170.12(c)(1)), and added five consecutive years pursuant to section 667, subdivision (a)(1). As to the grand theft conviction, pursuant to section 654, the court imposed and stayed an eight-month sentence, one-third the midterm. Defendant received 1,193 days of credit for time served.
The abstract of judgment, however, reflects the court imposed a four-year term for the residential burglary, a consecutive eight-month term for the grand theft, stayed pursuant to section 654, a five-year term pursuant to section 1170.12(c)(1), plus a consecutive four-year term pursuant to section 667, subdivision (a), totaling 13 years. The abstract also states punishment for the section 1170.12(c)(1) and 667, subdivision (a) enhancements was struck.
Both parties contend the abstract of judgment does not accurately reflect the sentence imposed by the trial court. We agree the abstract of judgment must be modified to indicate the court imposed a four-year enhancement term (doubling the four-year burglary term to eight years) pursuant to section 1170.12(c)(1), not section 667, subdivision (a), and a five-year enhancement pursuant to section 667, subdivision (a)(1), not section 1170.12(c)(1). The abstract must be further modified to reflect the punishment on the 667, subdivision (a)(1) and 1170.12(c)(1) enhancements was not struck.
Moreover, as to the grand theft conviction, the Attorney General correctly points out the trial court erred when it imposed and stayed an eight-month sentence (one-third the midterm) pursuant to section 654. When a trial court determines that section 654 applies to a particular count, it should impose the term normally applicable to the crime. (People v. Alford (2010) 180 Cal.App.4th 1463, 1466, 1469.) The court, in other words, should not have imposed one-third the midterm for the grand theft as a subordinate term, and in its place should have imposed either a 16-month, two-year, or three-year term, doubled it pursuant to the “Three Strikes Law,” and stayed the sentence pursuant to section 654. (§ 1170, subd. (h)(1).)
Although we could remand this case for a new sentencing hearing, “[t]he futility and expense of such a course militates against it.” (People v. Alford, supra, 180 Cal.App.4th at p. 1473.) Thus, as requested by the Attorney General, and pursuant to People v. Alford, we will exercise our authority and modify the judgment. (§ 1260.)
We impose a midterm of two years for grand theft believing that is the sentence the trial court would have undoubtedly imposed because the grand theft involved essentially the same conduct as the residential burglary. We double the sentence to four years for the strike (§ 667, subd. (e)(1)), and stay execution of the grand theft sentence (§ 654).
III. DISPOSITION
The judgment is modified by imposing and staying the sentence on the charge of grand theft in the manner stated in the decision. The trial court is directed to prepare an amended abstract of judgment reflecting the modification and to send a copy of the amended abstract to the Department of Corrections and Rehabilitation. As so modified, the judgment is affirmed.







_________________________
Margulies, J.


We concur:


_________________________
Humes, P.J.


_________________________
Banke, J.