P. v. Harmon

Filed 3/19/07 P. v. Harmon 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,

Zaven V. Sinanian, Judge. Affirmed in part, reversed in part and remanded.

Patricia J. Ulibarri, 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, Paul M. Roadarmel, Jr., and Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.

______________________________

Devin Maurice Harmon appeals from the judgment entered following his conviction by jury on numerous counts of first degree residential burglary and receiving stolen property, and one count of receiving a stolen vehicle. Harmon contends he cannot be convicted of receiving the same property he stole from the burglary victims, and his conviction of receiving a stolen vehicle is not supported by substantial evidence. We agree his conviction of receiving a stolen vehicle is not supported by substantial evidence and reverse the judgment as to that count only.

FACTUAL AND PROCEDURAL BACKGROUND

Harmon was charged by second amended information with seven counts of first degree residential burglary^[1](counts 1-7), one count of unlawfully driving or taking a vehicle^[2](count 8), seven counts of receiving stolen property^[3](counts 9-15) and one count of receiving a stolen vehicle^[4](count 16). The information further alleged Harmon had suffered two prior serious or violent felony convictions within the meaning of the Three Strikes law.^[5]Harmon pleaded not guilty and denied the special allegations.

Prosecution Evidence

In the early hours of May 19, 2005 property was taken from seven cars parked in gated garages attached to apartment complexes in Burbank and Glendale. In almost every instance a window or door was pried open or broken to gain access to the car. The stolen property included drivers licenses, credit cards, CDs and a cellular phone. None of the car owners knew Harmon or gave him permission to take the property. One victim, Naemah Morris, identified Harmon with 75 percent certainty as the man she saw driving towards her when she was pulling into her garage at around 3:00 a.m. on May 19, 2005.

Count 16: Receiving a Stolen Vehicle

At around 5:00 a.m. on May 19, 2005, Edmond Yagobi drove into the parking garage of his Glendale apartment complex and saw a man near the open trunk of his neighbors car. The man got into a white sedan and drove away alone. Yagobi telephoned the neighbor, Savana Ratousi, and provided a description of the man he had seen and the sedans license plate number, 5LWW946. Ratousi gave this information to Glendale Police Officer Mauricio Barba after she found her car door had been pried open and her CD case and some CDs were missing from the trunk.

At around 6:00 a.m. on May 19, 2005, Officer Barba responded to a gas station where Harmon had already been detained by other officers next to a silver Ford Taurus, license plate number 5LWW906, nearly the same number noted by Yagobi. The gas station was about two blocks away from Ratousis apartment.

Barba asked Harmon what he was doing in the area. Harmon answered, I dont know; I just dropped a friend off. Harmon told the officer the Taurus was not his, but he had been driving the car for a while. Barba noticed a screwdriver sticking out of Harmons front pocket and asked Harmon about it. Harmon said he did not know why he had the screwdriver. Barba looked inside the Taurus. On the front passenger seat, Barba saw a CD case matching Ratousis description. Barba asked and received Harmons permission to look inside the Taurus. Barba retrieved the CD case and took it to Ratousis apartment where she identified it as hers. In a field show up, Yagobi identified Harmon with 99 percent certainty as the man he had seen near Ratousis car in the parking garage, and the Taurus looks like the car.

An inventory of the Taurus yielded the property taken from the cars in the other May 19, 2005 burglaries. Also found were flashlights, screwdrivers, and gloves which are common burglary tools. The Taurus was impounded by police. Detective Tyrone Hunter checked the registration and license plate number of the car and learned from the

Department of Motor Vehicles it was registered to PV Holding Company. Inside the Taurus, Hunter found a Budget Rent-A-Car receipt in the name of Richard Jones II, along with county aid receipts in the name of Roshon Jones, and other paperwork in the name and address of Richard Jones. Hunter received the telephone number of Richard Jones from Budget Rent-A-Car and contacted him.

Jones was the only listed renter on the Taurus rental receipt. The rental contract indicated anyone other than the renter, here Richard Jones II, was not permitted to drive the rented Taurus without Budget-Rent-A-Cars written approval. Harmon had no such approval.

Defense Evidence

Harmon testified in his own defense. He admitted he had prior convictions in 1996 for first degree residential burglary, second degree residential burglary, and receiving stolen property, as well as a 1995 or 1996 conviction for receiving stolen property. He was charged with committing burglaries in 2004, for which he was acquitted.^[6]

As of 2005, Harmon had known Richard Jones for over ten years. At around 5:30 a.m. on May 19, 2005, Jones picked up Harmon to take him to the Department of Motor Vehicles and social security office. He was driving a grey Ford Taurus. Harmon had no transportation of his own, and he wanted to arrive at the DMV early. Jones stopped at a gas station in Glendale, where Harmon pumped gas into the car while Jones paid for it. When a Glendale police officer drove up, Harmon noticed that Jones was walking across the street to a fast food restaurant.

Harmon had been in the Taurus before. He testified he did not pay attention to any items in the car when he was in it. Harmon denied accessing the trunk of the Taurus that morning, placing any stolen property there, or committing the charged burglaries. He testified to having attempted to reach Richard Jones without success. Harmon denied having a screwdriver in his pocket or saying anything to Officer Barba.

Verdict and Sentencing

The jury convicted Harmon on counts 1 through 7, first degree residential burglary; counts 9 through 15, receiving stolen property, and count 16, receiving a stolen vehicle. The jury was unable to reach a verdict on count 8, unlawfully driving or taking a vehicle, and it was dismissed on the prosecutions motion.

In bifurcated proceedings, the trial court found Harmon had suffered two prior serious or violent felony convictions within the meaning of the Three Strikes law, based on Harmons admissions.

Harmon was sentenced to eight consecutive 25-years-to-life terms on the counts of first degree residential burglary and receiving a stolen vehicle for an aggregate state prison term of 200 years to life. Sentences on the counts of receiving stolen property were stayed pursuant to Penal Code section 654. Harmon was ordered to pay restitution to three of the burglary victims.

DISCUSSION

1. Harmon was properly convicted of multiple counts of first degree residential burglary and receiving stolen property

We reject Harmons contention his convictions on counts 9 through 15 for

receiving stolen property must be reversed because, notwithstanding his first degree residential burglary convictions, he was incorrectly convicted of both stealing and receiving the same items of personal property.

Common law has long established a person may not be convicted of both stealing and receiving the same property.^[7]  The Legislature later codified this principle.^[8]In People v. Allen^[9]the California Supreme Court explained the rule prohibiting dual convictions for stealing and receiving the same property was not violated by multiple convictions of burglary and receiving stolen property.

In this case Harmon was convicted of seven counts of first degree residential burglary by entering apartment garages with the intent to steal and take away personal property from the victims cars.^[10] Prior to argument by counsel, the court properly instructed on first degree residential jury and told the jury statements made by counsel during the trial are not evidence.^[11]Harmons claim the jury was somehow misled by the prosecutors argument into viewing the burglary charges as thefts because the prosecutor never argued the taking was separate from the receiving is without merit. As an initial matter, by failing to object to any statements the prosecutor made during argument Harmon has waived or forfeited his objections for appeal.^[12] In any event, the record fails to establish the prosecutors argument misstated the law or misled the jury in any way; her statements were properly directed at the factual issue before the jury -- whether it was Harmon who committed the offenses as charged. Harmon is not challenging the sufficiency of the evidence to support his burglary convictions, which are indeed supported by substantial evidence.

2. Harmons conviction of receiving a stolen vehicle is not supported by substantial evidence.

In considering the sufficiency of the evidence, we review the record in the light most favorable to the prosecution to determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.^[13] If the judgment is supported by substantial evidence -- evidence which is reasonable, credible and solid -- we will affirm.^[14][R]easonableness [is] the ultimate standard under the substantial evidence rule. The appellate court must determine whether a reasonable trier of fact could have found the prosecution sustained its burden of proving the defendant guilty beyond a reasonable doubt. . . . [Citation.] Evidence which merely raises a strong suspicion of the defendants guilt is not sufficient to support a conviction. Suspicion is not evidence, it merely raises a possibility, and this is not a sufficient basis for an inference of fact. [Citation .]^[15]

Pursuant to Penal Code section 496d, subdivision (a) a person is guilty of receiving stolen property if he or she receives any motor vehicle . . . that has been stolen or that has been obtained in any manner constituting theft . . . knowing the property to be stolen or obtained . . . . The elements of this offense are: (1) stolen property; (2) knowledge that the property was stolen; and (3) possession of the stolen property.^[16]

Missing in this case is sufficient evidence the Taurus had been stolen. It is undisputed the Taurus was registered to PV Holding Company, had been rented to Richard Jones by Budget-Rent-A-Car, and was in Harmons possession when he was apprehended. However, there was no testimony on behalf of either PV Holding Company or Budget-Rent-A-Car the Taurus had been stolen; nor was there evidence either entity had reported the vehicle stolen to police. Nothing in the record suggests the Taurus, particularly its ignition, had been damaged or altered to indicate it had been stolen.^[17] Although the prosecution argued Harmon had been driving the Taurus without Budget-Rent-A-Cars knowledge or consent because Richard Joness rental contract only authorized him to drive the car, this fact fails to support an inference the Taurus had been stolen. We agree with the Peoples argument Harmons explanation as to how he came into possession of the Taurus was unsatisfactory, but it could only suggest Harmons guilty knowledge once the theft of the car had been established.^[18]As there was insufficient evidence the Taurus was stolen, Harmons conviction for receiving a stolen vehicle must be reversed.

DISPOSITION

The judgment is reversed as to count 16, receiving a stolen vehicle, and the cause remanded to the trial court with instructions: (1) to dismiss count 16 and vacate the sentence and (2) to modify the sentence to reflect imposition of seven consecutive 25-years-to-life terms on the counts of first degree residential burglary for an aggregate state prison term of 175 years to life. In all other respects, the judgment is affirmed. An amended abstract of judgment shall be prepared and forwarded to the California Department of Corrections.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

JOHNSON, J.

We concur:

PERLUSS, P. J. WOODS, J.

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^[1] Penal Code section 459.

^[2] Vehicle Code section 10851, subdivision (a).

^[3] Penal Code section 496, subdivision (a).

^[4] Penal Code section 496d, subdivision (a).

^[5] Penal Code sections 667, subdivisions (b)-(i), 1170.12, subdivisions (a)-(d).

^[6] Prosecution evidence of the 1996 and 2004 burglaries was admitted at trial pursuant to Evidence Code section 1101, subdivision (b), over defense objection.

^[7]People v. Allen (1999) 21 Cal.4th 846, 852; see, e.g., People v. Jaramillo (1976) 16 Cal.3d 752, 757; People v. Tatum (1962) 209 Cal.App.2d 179, 183; People v. Bausell (1936) 18 Cal.App.2d 15, 18.

^[8] Penal Code section 496, subdivision (a) provides: [N]o person may be convicted both pursuant to this section and of the theft of the same property.

^[9]People v. Allen, supra, 21 Cal.4th 846, 857, 866.

^[10] See Penal Code section 459; CALJIC No. 14.50.

^[11] Specifically CALJIC Nos. 1.02; 3.31 14.03, 14.50, 14.51, 14.52, 14.52.1.

^[12]People v. Turner (2004) 34 Cal.4th 406, 427.

^[13]People v. Frye (1998) 18 Cal.4th 894, 953.

^[14]People v. Thomas (1992) 2 Cal.4th 489, 514.

^[15]People v. Kunkin (1973) 9 Cal.3d 245, 250.

^[16]People v. King (2000) 81 Cal.App.4th 472, 476, footnote omitted.

^[17] See, e.g., People v. Green (1995) 34 Cal.App.4th 165, 181; People v. Ricketts (1970) 7 Cal.App.3d 441, 477; People v. Windham (1987) 194 Cal.App.3d 1580, 1590.

^[18] See People v. Reyes (1997) 52 Cal.App.4th 975, 985, In re Robert V. (1982) 132 Cal.App.3d 815, 821-822.