P. v. Townsend

Filed 3/28/07 P. v. Townsend CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

Defendant Henry Lee Townsend was charged by information with second degree robbery (Pen. Code, 211-212.5, subd. (c)), receiving stolen property (Pen. Code, 496, subd. (a)), and using a stolen access card, a misdemeanor (Pen. Code,  484g, subd. (a)-488).[1] On December 13, 2005, the jury found defendant not guilty of robbery and guilty of the two remaining counts. The court found true the allegations of two prior convictions. On March 24, 2006, the trial court sentenced defendant under the Three Strikes law to 25 years to life for receiving stolen property and to a concurrent term of six months for the misdemeanor use of a stolen credit card. On appeal, defendant claims the court (1) erred in instructing the jury, pursuant to CALJIC No. 2.15, that it could infer guilt from possession of stolen property and slight corroborating evidence; (2) abused its discretion by allowing the use of five prior convictions to impeach defendant; and (3) erred in failing to stay the concurrent sentence for the misdemeanor count pursuant to section 654. We find no error and affirm the judgment.

I. Background

On September 12, 2004, at approximately 9:30 p.m., a man snatched Trinh Tuyet Trinhs purse as she parked her car in front of her home. The purse contained a wallet, checkbook, credit card and cell phone. Trinh followed the man onto the street and saw him get into a white truck driven by another person. She flagged down a car and told the occupants, Gabriel Medina and Randall Kennedy, that someone had stolen her purse. She pointed to a white Explorer that was driving away, and Medina and Kennedy followed.

The Explorer, exceeding the speed limit, drove through two red lights on surface streets before entering the freeway. Medina and Kennedy lost the Explorer after it crossed several lanes to make a sudden exit. They returned to where they had left Trinh and gave the Explorers license plate number to the police. A tow hitch on the Explorer obscured the view of the license plate, causing Kennedy and Medina to misidentify one character, but the police eventually focused on an Explorer registered to defendant. They located the vehicle in San Jose in the very early hours of the morning. The hood of the Explorer was warm, indicating it had been driven recently. Looking into the vehicle, Officer Edward Perea observed a credit card with Trinhs name and a couple of cell phones in the center console.

The officers knocked on defendants door and arrested defendant, telling him it was in connection with an earlier incident involving his vehicle. When defendant first saw the officers, he burst into tears. He said he did not know that the guy was going to do what he did and offered to show the officer where that person lived. Defendant identified the place where he said he had dropped off his passenger. Officer Perea knocked on doors in the neighborhood and eventually located Tavita Wooden, who matched a description Trinh had given him of the man who had taken her purse. Officer Perea was unable to arrest Wooden at that point.

After being read his rights, defendant agreed to talk and told Officer Perea that Anthony Johnson, a friend, had asked him for a ride to the Motel 6. When shown a photograph of Wooden, defendant identified him as Anthony Johnson. After they were on their way, defendant said Wooden told him to stop in another location and Wooden got out of the vehicle. When Wooden came back to the Explorer, he told defendant to hurry away and defendant complied. Defendant said he did not know he was being followed but that he was scared. He told Officer Perea that Wooden was clutching a black purse when he returned to the car and started going through it as they drove away. Wooden pulled out various items, including a cell phone and credit card. Defendant admitted that the cell phone and credit card Officer Perea had seen in the Explorer came from the purse. He also admitted that he had used the credit card to purchase gasoline at a Unocal 76 station.

Defendant testified on his own behalf at trial and further explained that Wooden was an acquaintance who had asked defendant for a ride home. On the way to Woodens house, Wooden asked defendant to stop in the general area of the Motel 6, where Wooden needed to make a quick run. Wooden left the car and defendant waited for about 20 or 25 minutes for Wooden to return. Defendant did not know Wooden was going to commit a robbery.

Wooden returned to the vehicle and told defendant to go, go, go. Wooden seemed jittery and anxious and was clutching an object that defendant later saw was a purse. He asked Wooden what had happened, but Wooden just told him to go and get out of there. Defendant was scared and thought Wooden had done something wrong. Defendant had been to prison before and wanted to get away quickly for fear of being incarcerated again. He started the truck and left. When defendant saw Wooden rifling through the purse, he believed that Wooden had done something and gotten defendant involved in it. At one point, defendant asked Wooden, what did you do, you just robbed somebody[,] and Wooden confirmed his suspicion.

Wooden left some of the items that he had taken in defendants car. Defendant purchased gasoline with Trinhs credit card about two or three hours after dropping off Wooden. As defendant was pumping the gas, he stopped because he realized he was doing something wrong. He later said that he took the card from the center console to buy gas, mistaking it for his, and stopped pumping gas when he realized it was not his card.[2] At home, defendant told his wife what had happened and they discussed what he should do next. About a half hour later, the police knocked at the door. He did not call the police because he was afraid that as a convicted felon he would be implicated in the crime, but he tried to be helpful by leading them to Wooden.

Defendant initially pleaded no contest to count one and guilty to counts two and three, but the People stipulated to a withdrawal of his plea prior to sentencing. The court accepted the stipulation and the case was tried to a jury, which acquitted defendant of robbery but found him guilty of receiving stolen property and using a stolen access card. Defendant filed a timely appeal.

II. Discussion

A. CALJIC No. 2.15

Defendant argues that the courts use of CALJIC No. 2.15 violated his due process rights.[3] Specifically, he contends the jury instruction shifted the burden of proof to defendant and reduced the burden of proof by permitting conviction upon conscious possession coupled with slight evidence of guilt[.] Defendant acknowledges, however, that the California Supreme Court has repeatedly upheld CALJIC No. 2.15 against due process claims. (See, e.g., People v. Yeoman (2003) 31 Cal.4th 93, 131 (Yeoman); People v. Prieto (2003) 30 Cal.4th 226, 248 (Prieto); People v. Holt (1997) 15 Cal.4th 619, 677 (Holt).)

In Yeoman, supra,31 Cal.4th 93,131, the California Supreme Court rejected the argument that CALJIC No. 2.15 violates due process by creating mandatory inferences or conclusive presumptions that shift the burden of proof to the defense. The court explained that the instructions permit, but do not require, the jury to draw the inferences described, and that [a] permissive inference violates the Due Process Clause only if the suggested conclusion is not one that reason and common sense justify in light of the proven facts before the jury. (Ibid., internal citations omitted.) In this case, reason and common sense justify the conclusion that defendants possession of Trinhs recently stolen property tended to show that he was guilty of receiving stolen property. (See id.at pp. 131-132.) There is strong corroborating evidence that defendant withheld the property knowing it was stolen. Defendant testified that he saw Wooden return with the purse and take items out of it, including the cell phone and card. When defendant asked Wooden if he had robbed someone, Wooden said yes. Defendant found the card and cell phone in the car after dropping off Wooden and moved the items to the center console of the car. Finally, defendant used the credit card knowing (or, at least, belatedly realizing) that it was not his.

The high court also has found that there is no possibility that giving the jury the additional admonition that it could not rely solely on evidence that defendant possessed recently stolen property would be understood by the jury as suggesting that it need not find all of the statutory elements of [the crimes charged] had been proven beyond a reasonable doubt. (Holt, supra,15 Cal.4th at p. 677; see also Prieto, supra,30 Cal.4th at p. 248 [rejecting argument that instructions reference to slight corroborating evidence lowers the prosecutions burden of proof].) In this case, moreover, the court expressly reiterated the reasonable doubt standard within the CALJIC No. 2.15 instruction.

We are bound by the California Supreme Courts determinations regarding the constitutional validity of CALJIC No. 2.15 (see Auto Equity Sales, Inc. v. Superior Court of Santa Clara County (1962) 57 Cal.2d 450, 455), and find no basis for defendants due process claim.

B. Use of Prior Convictions for Impeachment

In an unreported conference in chambers on December 5, 2005, the trial court heard defendants Castro[4] motion to limit the admission of defendants prior convictions for impeachment purposes. The court subsequently noted its determinations on the record. The court excluded the use of defendants 1987 conviction for battery with serious bodily injury, conviction for sodomy, 1991 conviction for receiving stolen property, and 1992 conviction for use of an access card. The court ruled that it would permit defendant to be impeached with his 1986 burglary, 1991 petty theft, 1991 felony forgery, 1992 petty theft, and 1994 robbery. Defendant testified and correspondingly admitted a first degree burglary in 1986, misdemeanor petty theft and felony forgery in 1991, felony theft in 1992, and armed robbery in 1994. Defendant argues that the court abused its discretion in allowing admission of these offenses. We disagree.

We address first the Peoples argument that this issue was not preserved for appeal. The People cite People v. Visciotti (1992) 2 Cal.4th 1 (Visciotti) and section 353 of the Evidence Code as support for their argument. Evidence Code section 353 states: A verdict . . . shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless: (a) There appears of record an objection to or a motion to exclude or to strike the evidence . . . . The Visciotti court, citing Evidence Code section 353, noted that the defendants argument that the trial court should have excluded on its own motion an officers testimony as irrelevant was not preserved for appeal. (Visciotti, supra, 2 Cal.4th at p. 53, fn. 19.) In this case, however, defendant moved to exclude the priors and the court ruled on the motion. The issue is properly before us.

The California Constitution authorizes the use of prior felony convictions without limitation for purposes of impeachment of any person in a criminal proceeding. (Cal. Const., art. I, 28, subd. (f).) Such use is limited only by the demands of the Fourteenth Amendment, which requires that convictions used for impeachment be relevant to the credibility of the witness, and by the broad discretion granted to the trial court pursuant to Evidence Code section 352. (Castro, supra, 38 Cal.3d at pp. 313-314; People v. Hinton (2006) 37 Cal.4th 839, 887-888, quoting Castro.)

Defendant does not argue that his prior convictions for theft-related crimes do not reflect on his credibility. California courts have repeatedly held that prior convictions for burglary, robbery, and other theft-related crimes are probative on the issue of the defendants credibility. (People v. Mendoza (2000) 78 Cal.App.4th 918, 925 (Mendoza), citing cases.) Defendant instead challenges the courts discretionary decision to allow five prior convictions, including an armed robbery. We review the trial courts ruling for abuse of discretion. (See People v. Green (1995) 34 Cal.App.4th 165, 182-183 (Green).)

We first note that there is no limitation on the number of prior convictions with which the defendants credibility can be impeached. (Mendoza, supra, 78 Cal.App.4that p. 927, citing cases.) [W]hether or not more than one prior felony should be admitted is simply one of the factors which must be weighed against the danger of prejudice. (Green, supra,34 Cal.App.4th at p. 183 [affirming admission of six prior convictions].) Defendant nevertheless argues that allowing five convictions in this case was prosecutorial overkill and that because the five admitted priors occurred during a short period of time, they are not probative of his credibility as a witness. However, the asserted short period of time in fact spanned eight years, and indicates a sustained pattern of conduct rather than a temporary indiscretion. California courts have held that the pattern created by the systematic occurrence of felony convictions over a number of years may itself be relevant to a witnesss credibility. (See People v. Muldrow (1988) 202 Cal.App.3d 636, 649; see also Green, supra, 34 Cal.App.4th at p. 183 [affirming the use of six prior auto theft convictions over 16 years for impeachment purposes, reasoning that the defendants series of crimes may be more probative than a single crime].) In this case, the combination of the frequency of the convictions and their relevance to dishonesty is highly probative of defendants credibility. Additionally, the trial court excluded four other prior convictions, which indicates its careful consideration of defendants entire record in ruling on the Castro motion.

Defendant argues that the trial court should have omitted the firearm aspect of the 1994 robbery because its impeachment value is outweighed by its inflammatory effect. We find no abuse of discretion in its admission. First, the armed robbery conviction was not identical to the crimes charged, a fact that increases the potential for prejudice and the potential need for sanitization of the prior conviction. (See generally People v. Foreman (1985) 174 Cal.App.3d 175, 180-182.) Second, the reference to the armed robbery was brief and any impact lessened by the explicit instruction regarding the limited use of the evidence. (See People v. Lepolo (1997) 55 Cal.App.4th 85, 91-92 & fn. 6 [holding that any prejudicial impact of the admission of a prior conviction for brandishing a weapon was kept to a minimum by the manner in which it was introduced to the jurors and by the instruction directing that they may consider such evidence only in assessing [the defendants] credibility].) Finally, the jury acquitted defendant of the crime most similar to the 1994 armed robbery conviction, second degree robbery, which indicates the lack of an inflammatory effect or prejudicial impact.

We conclude the court acted within its discretion in allowing the admission of the five prior convictions for impeachment purposes.

C. Stay Pursuant to Section 654

Defendant contends the trial court violated Penal Code section 654 by imposing a prison term for count three, use of a stolen access card, concurrent to the prison term for count two, receiving stolen property. Section 654, subdivision (a) provides, in relevant part: 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. The initial inquiry in any section 654 application is to ascertain the defendants objective and intent. If he entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct. (People v. Beamon (1973) 8 Cal.3d 625, 639; see also People v. Harrison (1989) 48 Cal.3d 321, 335 [[I]f all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent . . . . ].) The purpose of section 654 is to ensure that the punishment imposed is commensurate with the defendants culpability. (People v. Latimer (1993) 5 Cal.4th 1203, 1211.)

Whether a defendant held multiple criminal objectives is a factual issue. (People v. Osband (1996) 13 Cal.4th 622, 730-731.) The trial courts finding, whether express or implied, will be upheld on appeal if it is supported by substantial evidence. (Ibid.)

Defendant argues that the prosecution focused on his use of the card as evidence that he knew it was stolen, and, thus, the jury evidently found [defendant] to be in possession of stolen property based on his possession of the credit card. He contends he cannot be punished for both possession of the stolen card and its use.

We first reject defendants assertion that the jury relied entirely on defendants possession of the credit card, as evidenced by its use, to find him guilty of count two. Intent to use the stolen property is not an element of receipt of stolen property (People v. Rowland (1971) 21 Cal.App.3d 371, 376 (Rowland)), and defendants use of the card was only one of many corroborating facts in evidence, and in the prosecutors argument, for finding defendant guilty of receiving stolen property. Defendant saw Wooden return to the car with the purse, saw Wooden take the items out of the purse, and said he believed that Wooden had robbed someone.

Additionally, defendants possession of the cell phone undermines an argument that both his receipt of the stolen goods and his use of the card were driven by a singular intent and objectiveuse of the credit card. (Cf. Rowland, supra, 21 Cal.App.3d at pp. 374-376 [section 654 did not prohibit separate punishment for receipt of stolen property, which included wallet and identification cards in addition to credit cards, and for acquiring credit cards unlawfully with intent to use].) Defendant put both the card and the cell phone in the center console of the car (where the police later found both items) and left both items in the car when he went inside his home. It is unlikely that defendant withheld the cell phone with the sole intent to use the credit card. Furthermore, by defendants own admission, several hours passed between his initial retention of the items (when he dropped Wooden at home) and his use of the credit card. This also suggests that defendants use of the card was not part of a single course of conduct, but an independent criminal act.

People v. Butler (1996) 43 Cal.App.4th 1224, defendants authority for the argument that he cannot be punished separately for possession and use of the credit card, is distinguishable. In that case, the court found it improper to punish the defendant separately for convictions under section 484e, subdivision (c), receipt of an access card (a cloned cellular telephone with illegally obtained serial numbers) with intent to defraud, and section 502.7, possession of an instrument (the same cloned telephone) with intent to avoid lawful telephone charges. (Id. at pp. 1229, 1244, 1248.) The court found a single act with a single objective because both sets of convictions necessarily involved the possession of the telephone with the intent to use it. (See id. at p. 1248.) In this case, the convictions addressed two separate actsdefendants possession of the credit card and cell phone (receipt of stolen property) and his subsequent use of the credit card (use of a stolen access card).

We find no error in the courts imposition of a concurrent sentence under count three.

III. Disposition

The judgment is affirmed.

_______________________________

Mihara, J.

WE CONCUR:

_____________________________

Bamattre-Manoukian, Acting P.J.

_____________________________

Duffy, J.

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

[2] He also testified, however, that he picked up the credit card and cell phone from the floor and put them in the center console when he got home, but that he did not go home before going to get gas.

[3] As given in this case, CALJIC No. 2.15 states, in part: If you find that a defendant was in conscious possession of recently stolen property, the fact of that possession is not by itself sufficient to permit an inference that the defendant is guilty of the crimes charged in counts 1 and 2. [] 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. [] Please, remember that to convict the defendant of the crimes charged, you must be satisfied beyond a reasonable doubt.

[4] People v. Castro (1985) 38 Cal.3d 301 (Castro).