Opinion
C069210
06-02-2017
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY CLEO BILLINGS, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CR028371)
Defendant Anthony Cleo Billings appeals from a judgment of conviction following a jury trial. Defendant's conviction relates to his involvement in a string of commercial burglaries in three relatively small towns, Susanville, Janesville, and Herlong. He was charged with 36 counts of commercial burglary (Pen. Code, § 459; counts 1-7, 9-31, 34-38, 40), three counts of felony vandalism (§ 594, subd. (a); counts 8, 32-33), vehicle burglary (§ 459; count 39), and possessing stolen property (§ 496, subd. (a); count 41). A prior prison term enhancement was also alleged (§ 667.5, subd. (b)). At the close of evidence, the trial court granted defendant's motion for acquittal as to counts 1 through 4, 7, 20, and 39. Subsequently, a jury found defendant not guilty as to counts 18 and 19 but guilty on all remaining counts. Defendant admitted the prior prison term allegation. Defendant was sentenced to 24 years in prison.
Undesignated statutory references are to the Penal Code in effect at the time of the charged offenses.
On appeal, defendant contends that: (1) the evidence is insufficient to support the verdict as to counts 8 through 16, 21, 23, 30, and 34, primarily because there was insufficient corroboration of accomplice testimony; (2) the trial court prejudicially erred in instructing the jury on accomplice testimony by failing to instruct that two witnesses were accomplices as a matter of law; (3) the trial court abused its discretion in denying defendant's motion for a mistrial after an accomplice witness testified that defendant had previously served time in prison for a prior burglary; (4) defense counsel was constitutionally ineffective in failing to object to the admission of uncharged crimes and testimony about another person's conviction related to this case; and (5) the cumulative effect of these errors requires reversal.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The Trial Evidence
The prosecution's case was based largely on the testimony of two individuals who could be considered accomplices to some of the offenses, a friend, Frank Vierra, Jr., and Jared McMorrow, the son of the person with whom defendant cohabitated.
We summarize the evidence concerning the counts for which defendant was convicted in the order in which they were charged in the information. An asterisk indicates those counts for which defendant contends there is insufficient evidence to support the conviction.
All crimes occurred in 2010.
The first crime for which defendant was convicted was committed on this night.
Napa Auto Parts Burglary, Susanville (Count 5)
Officer Ed Vega testified that around 9:30 p.m., he responded to a call involving an active alarm at the Napa Auto Parts store in Susanville. When he arrived, Officer Vega observed that the front window of the store was smashed open and he found a softball-sized rock in the center of the floor. The alarm was on and Vega described it as being "pretty loud." The store owner joined Officer Vega in inspecting the store, and they determined that the registers were still locked and nothing was missing.
Defendant made admissions to Vierra and McMorrow about this burglary. Vierra testified that defendant told him that "Napa's alarm was loud." McMorrow testified defendant told him that he had "hit" Napa Auto Parts.
May 24
One of the crimes for which defendant was convicted was committed on this night.
Grocery Outlet Burglary, Susanville (Count 6)
Douglas Jones testified that his shift at the Grocery Outlet was to begin at 6:00 a.m. and he was the first employee to arrive that morning. Upon his arrival, he noticed a twelve-pack of beer sitting by the side door. Kenneth Hunter, the manager, arrived and discovered that the sliding glass door at the front entrance was smashed, beer cans were strewn about on the floor inside, and there was a softball-sized rock inside near the smashed door. He called the police and pulled up the store's surveillance video. He testified that the video showed two or three people enter the store through the broken glass door. The burglars attempted to "kick the window out" and when that failed, they used the rock to break the glass and pushed through the glass "like a football charge." Hunter also testified that the burglars wore hooded sweatshirts and masks. Another officer who viewed the recording testified that one of the perpetrators was wearing a red bandana over his face. The burglars only took beer.
The surveillance video was unavailable at the time of trial. Because the DVR was broken, there was no way for the responding police officers to make a copy. Accordingly, they watched the video several times to document its contents.
Officer Ryan Cochran testified that around midnight on the date of this burglary, he was patrolling downtown Susanville and observed an older green Ford Taurus wagon parked with its lights off near a gas pump at a closed Chevron gas station, facing in the direction of the Grocery Outlet. When the car began to move, Cochran made a traffic stop because the car did not have license plates. The driver was Krystle Merino. Merino testified that she knew defendant at the time of the burglary and had lived with him earlier for about two months when they were romantically involved. However, Merino insisted that she was not with defendant that night and stopped at the gas station to adjust her clothing on the way to another gas station to buy some pickles.
May 28
Three of the crimes for which defendant was convicted were committed on this night.
*Baxter Auto Parts Vandalism, Susanville (Count 8)
Officer Alan Inman testified that when he responded to an alarm at Baxter Auto Parts around 3:00 a.m., he observed that the front entrance door's glass was broken. He found a rock just outside the broken glass.
Mark Thomas, the manager of Baxter Auto Parts, arrived in response to a call from the alarm company. He testified that it cost $700 to repair the door.
Vierra testified that he participated in this crime with defendant and McMorrow. He testified that he drove up to Baxter Auto Parts, and defendant got out and threw a rock at the door. He explained that defendant would typically break a window or disturb something to test whether there was an alarm. Because the alarm went off, they left without taking anything from the shop.
McMorrow testified that he was with defendant and Vierra that night. He testified that defendant threw a rock at the glass door and the glass "spidered," but the alarm went off so they moved on. McMorrow also testified that this was the first night he participated in burglaries with defendant and Vierra. He testified that defendant pressured him into it and "wouldn't take no as an answer."
*Young Sing Restaurant Burglary, Susanville (Count 9)
On the same night as the Baxter Auto Parts burglary, defendant, Vierra, and McMorrow burglarized the Young Sing Restaurant. The owner of the restaurant testified that on the morning after the burglary, she discovered that the glass front door of the restaurant was broken and the cash register tray and a stereo were missing. There was a rock on the ground near the broken glass, and the responding officers surmised that the rock was used as an instrument to break in.
Vierra testified that he participated in the Young Sing Restaurant burglary with defendant and McMorrow. He testified that he parked the car on a side street. Defendant got out with a rock, and Vierra heard glass break.
McMorrow also testified that he participated in this burglary and described the events the same way as Vierra described them, adding that he remembered that defendant brought back some change and a radio. He testified that while he did not remember whether he saw defendant with a rock, he thought defendant likely used a rock to break in "[b]ecause that's what he uses."
*Pat Murphy Little League Field Burglary, Susanville (Count 10)
On the same night as the Baxter Auto Parts and Young Sing Restaurant burglaries, defendant, Vierra, and McMorrow burglarized the snack bar at a little league field. The league President, Kenneth Loflin, testified that when he arrived at the field the next day, he found that the door to the snack bar was open and found empty candy boxes and the cash register drawer, which was empty before the burglary, on the floor. He also discovered that a Hewlett Packard laptop computer, fax machine, printer, and an equipment bag were missing. Loflin testified that it appeared the burglars gained access through the second-floor window by climbing a drain pipe because there were muddy footprints on the exterior wall next to the drain pipe.
Vierra testified that McMorrow climbed up to the second-floor window, opened the window, climbed inside, and unlocked the door for defendant and Vierra. He also testified that they took candy and a laptop, and defendant kept the laptop.
McMorrow testified that he participated in the break-in by climbing the wall and opening the window. He testified that they stole an "HP [Hewlett Packard]" laptop and "[a] lot of candy, chips." McMorrow also testified that he took the laptop and it was in his bedroom when the police came to his house.
June 2
Four of the crimes for which defendant was convicted were committed on this night.
*Artisan Café Burglary, Janesville (Count 11)
Sheriff's Deputy Peter Holman testified that he drove by the café around 1:45 a.m. and noticed that the front door glass was broken. When he searched the building, he found a rock on the floor inside. One of the owners testified that he found that the cash register and some handmade glass jewelry were missing.
Vierra testified that he, defendant, McMorrow, and a person named Joe Seaborne participated in the café burglary. He testified that defendant broke the glass and went into the café by himself initially. Vierra testified that he and defendant each took some jewelry.
Seaborne did not testify in this case.
McMorrow testified that he served as a lookout and saw defendant go into the café and return to the car with some handmade jewelry.
*Starbucks Burglary, Susanville (Count 12)
Officer Vega testified that he responded to Starbucks around 4:00 a.m. and observed a smashed drive-thru window. He looked for a rock but did not find one.
Vierra admitted to serving as a lookout during this burglary. McMorrow testified that they drove by and defendant "shot out the window." He explained they then parked the car, and defendant went inside but came out empty-handed because there was nothing in the cash register.
*Health Nut Burglary, Susanville (Count 13)
Officer Bradley Pon testified that he drove by the store around 4:30 a.m. and noticed that the front glass door was shattered. The cash register drawers were open, but according to the owner, nothing was missing because the registers were kept empty overnight.
Vierra testified that defendant got out of the car and he heard a window break, but defendant did not get any money. McMorrow testified that defendant "shot out" the window and that defendant was disappointed that he did not get anything from the store.
*Port of Subs Burglary, Susanville (Count 14)
The Port of Subs is located next to the Grocery Outlet in Susanville. The owner testified that he arrived at the shop around 3:00 a.m. in response to a police call about a break-in. He testified that one of the doors was completely broken and another was damaged, and he found the cash register tray and a bank deposit bag, containing about $800, were missing. In total, about $950 was missing.
A surveillance video showed a white car with black striping drive by, then an intruder broke the door window with an object like a flashlight. The video also showed the intruder, wearing gloves and a bandana over the face, enter the store and empty the cash register.
Detective Richard Warner testified that after reviewing the video and taking the measurements of the counter heights at the sub shop, he concluded that the height, shape, and hair of the person depicted in the video was consistent with defendant. Additionally, he identified the distinctive car captured in the video as Vierra's white Honda.
Vierra testified that the car depicted in the surveillance video was his Honda. The vehicle is white and has a black hood. Vierra testified that defendant chose the target.
McMorrow testified that defendant "shot out" the glass door of the sub shop with a BB gun. He testified that defendant then entered and returned with some money while the others sat in the car.
July 30
One of the crimes for which defendant was convicted was committed on this night.
*Watson's Café Burglary, Susanville (Count 15)
Officer Inman responded to an alarm call at the café around 4:40 a.m. and observed that a front window was broken. There was a rock inside the café on the floor. The owner found that about $400 was taken from the cash register tray together with the register drawer and petty cash bag.
Vierra and McMorrow testified that they did not participate in this burglary. Vierra testified that defendant later told him that he burglarized Watson's Café, got cash, and wanted to go back. Defendant returned to Watson's Café a second time on August 26, 2010, this time with Vierra. McMorrow also testified that defendant told him that he had "hit Watson's Café."
August 4
Two of the crimes for which defendant was convicted were committed on this night.
*Port of Subs Burglary, Susanville (Count 16)
Officer Pon responded to an alarm call around 1:25 a.m. and found that the window glass had spidered but was still intact and there were three to four small holes in the door and window that appeared to be shot by a BB or pellet. Surveillance video showed a small dark-colored truck drive by the shattered window slowly.
Vierra testified that he participated in this burglary with defendant and McMorrow and drove a red Dodge truck with a black hood. The truck came from the McMorrow residence. He explained that one of the others shot at the window with a BB gun and the alarm went off when the window cracked. He could not remember who fired the gun.
McMorrow testified that he was the one who drove the red Dodge truck while defendant shot the sub shop window with a BB gun. He did not recall that Vierra was with them that night.
Jack in the Box Burglary, Susanville (Count 17)
The Jack in the Box assistant manager, George Acuna, testified that when he arrived for work at approximately 5:15 a.m., he found that the safe was open and the register drawers were out and had been emptied. He also found that a window near the drive-thru was shattered and there was a large rock that appeared to be a piece of asphalt on the floor. He testified that the safe did not appear to be damaged but instead, accessed with a code. There were three former employees who had recently left Jack in the Box and had access to the safe codes, and one of them, Enrique Deanda, was asked to leave. While Deanda had the codes to both the top and bottom parts of the safe, only the top part of the safe had been opened during the burglary. Acuna viewed the surveillance video of the break-in but the single subject depicted in the video was not the same body type or height as Deanda. The person was short and stocky. Deanda, who was about six foot two inches, was taller.
Vierra testified he did not participate in this burglary, but then said it was possible that he did; he did not remember.
McMorrow testified that he participated in this burglary with defendant by driving the red truck. Vierra was not with them. McMorrow testified that defendant broke in through the drive-thru window while he waited in the red truck. Defendant told McMorrow that he had a code for the safe from an "insider," but when he came back to the car, defendant said the code only opened part of the safe. McMorrow testified that defendant took about $600 in cash.
August 26
Two of the crimes for which defendant was convicted were committed on this night.
*Watson's Café Burglary, Susanville (Count 21)
Officer Pon responded to an alarm at the café at about 1:00 a.m. He observed that the front glass door was smashed and there was a rock lying on the floor inside. The owner reported to Officer Pon that after suffering two prior burglaries, she stopped leaving cash in the café overnight, and there was only about $7.50 in change that was taken from the register drawer.
Vierra testified that he and McMorrow served as lookouts from the roof of another building while Seaborne drove defendant to the café, where defendant broke in with a rock.
McMorrow also testified that he and Vierra were lookouts while Seaborne drove defendant to the café.
Jack in the Box Burglary, Susanville (Count 22)
A Jack in the Box employee, Danee Davis, testified that when she arrived for work around 5:30 a.m., she discovered that lights were on in the office and there were tools and pieces of the safe on the floor, but the safe was unopened. The safe code was changed after the August 4 burglary. Davis also testified that she found that the drive-thru window appeared to have been forced open.
The surveillance video showed two subjects enter through the drive-thru window, go to the office, and remove a second video camera there. One of the subjects was wearing a ski mask. After removing the office camera, they returned to the main floor where one of the subjects left through the drive-thru window while the other returned to the office for a period of time before exiting through the same window.
Vierra testified that he was in the car while Seaborne and defendant went into the Jack in the Box together.
McMorrow testified that he participated as a lookout in this burglary and that defendant and Seaborne entered through the drive-thru window.
September 4
Six of the crimes for which defendant was convicted were committed on this night.
*Payless Shoe Store Burglary, Janesville (Count 23)
The manager testified that after receiving a call from the store's alarm company, she went to the store and discovered that the front door's glass was shattered, a window was broken, and the window screen was ripped off. She also observed rocks on the floor inside. The store surveillance monitor was on the floor and there was a footprint on it. The manager kept the store's money in a secret hiding place, and no money or merchandise was stolen during this burglary. However, the surveillance recording device was missing.
Vierra testified that because there was an increased police presence in Susanville that night, they strategically shifted their activities to Janesville and Herlong. McMorrow was not with them. Vierra testified that after breaking the glass, defendant went in the store. Vierra testified that he did not think defendant took anything.
Nails by Jackie Burglary, Susanville (Count 24)
The owner of the salon was McMorrow's foster parent at the time she testified, and he had previously lived with her also. She testified that around 7:00 a.m., she received a call from the police about a break-in at her salon. A window was broken and there was a rock inside. Nothing was missing, but it appeared that someone had rifled through the salon.
Vierra testified that he participated in this burglary with defendant, but McMorrow was not with them. He said they did not know the salon was owned by McMorrow's foster mother. He also testified that after defendant broke in with a rock, defendant returned to the car with only a little radio.
McMorrow testified that defendant later told him he had broken into the salon. McMorrow was angry because of how he cared about his foster mother.
Jenkins Realty Burglary, Herlong (Count 25)
Sheriff's Detective John McGarva responded to a call about a missing security system from the Janesville Payless and searched the area until he got calls about break-ins at Jenkins Realty, the Gas House Deli, the Herlong Barber Shop, and the Herlong Thrift Store, which are in the same commercial building in Herlong. When he arrived at Jenkins Realty, he observed that several windows appeared to be broken with rocks, which created a hole big enough for a person to crawl in, but the interior of the office appeared undisturbed. The owner testified at trial that a Hewlett Packard Presario laptop with a black case and a black Kodak digital camera were missing.
Vierra testified that Jenkins Realty was one of the establishments he and defendant burglarized on September 4. He testified that defendant tried to break the window but it cracked rather than fully breaking, so he moved on to another business in the same building.
Gas House Deli Burglary, Herlong (Count 26)
A cook testified she observed that the glass door was broken, glass was everywhere, there was a rock inside, the deli was ransacked, and some Farberware knives and various food products, including energy drinks, were missing.
Vierra testified that defendant got out of the car and broke the glass. After they did not hear an alarm, they both went inside the deli and took some energy drinks and chips.
McMorrow testified that he did not participate in this burglary but explained that defendant later told him that he broke into a sandwich shop and some other businesses in Herlong.
Herlong Barber Shop Burglary, Herlong (Count 27)
Detective McGarva testified that he observed broken glass and a rock inside the shop, and he also found that the shop had been ransacked. Nothing was missing other than the cash box, which contained about a dollar in change.
Vierra testified that he saw defendant break the window of the barber shop with a rock and crawl inside. He also testified that defendant returned to the car with another little stereo.
Herlong Thrift Store Burglary, Herlong (Count 28)
Officer McGarva testified that when he responded to a call from the thrift store, he found the door was broken, a big bay show window was shattered, glass was everywhere, and there was a rock inside. He also found a missing cash register from the thrift shop, which was broken, on the pavement at the Sierra Army Depot. According to the manager, about $50 in cash was missing from the register and $35 from a donation box. The manager further testified that defendant had worked at the thrift store as a volunteer in April of that year, and during that time, was living nearby in Herlong with Krystle Merino.
Vierra testified that defendant broke the door window, entered the store, and returned with a cash register and fundraising jar. He testified that they then drove to a school or park and broke open the cash register. He remembered that there was cash inside the register but could not recall how much.
September 11
Three of the crimes for which defendant was convicted were committed on this night.
Payless Shoe Store Burglary, Janesville (Count 29)
The store manager testified that she received a call about the cash register's alarm system going off, and when she arrived at the store, she found that the front window was shattered and there was a rock inside near the broken window. She testified that the cash register area had been rifled and the door to the safe was open; however, the safe itself was unopened and only about $4 was taken from the register. She also testified that a plastic garbage bag (missing from a garbage can) and several pairs of shoes were missing, including two pairs of men's white Champion tennis shoes, size 9½; one pair of men's black Airwalk skate shoes, size 9½; one pair of men's tan Airwalk skate shoes, size 9½; and three pairs of Dunkman basketball shoes, size 10, in solid white, black and white, and solid black. The manager identified exhibit No. 28 as a red, white, and black pair of Dunkman shoes that was also missing from the store.
Detective Warner testified that he obtained a security video from a Safeway store located across the street from the Payless, which showed a red Dodge Dakota pickup truck in the Safeway parking lot.
Vierra testified that he drove the red truck. Defendant broke the window to the shoe store with a rock, went inside, and returned with a big plastic bag filled with shoes in sizes that did not fit Vierra.
McMorrow testified that he was walking to Vierra's house when defendant and Vierra drove by, and defendant told him they had just "hit Payless" and were waiting to go back. McMorrow waited at Vierra's house for their return. When defendant and Vierra returned to Vierra's house, they had a plastic bag of shoes with them and they gave McMorrow a pair of black Airwalks.
*Papa Murphy's Pizza Burglary, Susanville (Count 30)
The owner testified that when she arrived at the restaurant in the morning, she observed a hole in the drive-thru window and broken glass. She testified that she was told that a rock was used to break the window. She also testified that she observed that "the safe had a knife sticking out of the money slot" and "the flooring around the safe was chipped away." Knives, toilet paper, cat food, a portfolio of important papers, a cash register tray, and coin from both register trays containing about $60 were all missing.
Detective Warner collected security camera videos from Veteran's Memorial building near Papa Murphy's. He testified that the red Dodge Dakota pickup truck was seen in a video outside Papa Murphy's Pizza. From the surveillance videos, he identified Vierra as the driver of the truck. Detective Warner found that the registered owner of the truck was Melissa Deanda, the wife of Enrique Deanda, the former Susanville Jack in the Box employee.
Vierra testified that he drove the truck to Papa Murphy's and defendant broke the window, went into the restaurant, and returned with a cinnamon pizza, sodas, and four or five knives.
McMorrow testified that this burglary took place after defendant and Vierra returned with shoes from Payless. He was with them when they went to Papa Murphy's. McMorrow testified that he and defendant went through the drive-thru window, attempted to break into the safe, and successfully removed about $90 from the safe through the deposit slot using knives like chop sticks.
Happy Garden Restaurant Burglary, Susanville (Count 31)
The owner testified that when she arrived at the restaurant in the morning, she discovered broken windows, a big rock inside the restaurant, and the cash register was broken. She testified that a total of about $30 was missing from the register and about the same amount from the tip jar.
Vierra testified that he participated by driving the red truck to the restaurant with defendant. He and McMorrow both testified that defendant broke the window with a rock, went inside the restaurant, and came back with some change.
September 20
Four of the crimes for which defendant was convicted were committed on this night.
Health Nut Vandalism, Susanville (Count 32)
Officer Cochran testified that he was on patrol around 2:50 a.m. when he observed that one of the large front windows of the Health Nut store was shattered.
While nothing was missing, the owner testified that the cost to replace the window was $437.93. The owner also identified defendant in court as someone who came into the store within two weeks after the vandalism with an older woman with blond and pink hair and a young boy. He testified that the store still has plywood over the window area, and he found defendant and the woman "very solicitous about what had happened." He said that because they were so "over the top" and "very concerned" about the window, he and a co-worker suspected that they may have been involved in the vandalism and reported the incident to Detective Warner.
Vierra and McMorrow each testified that they were with defendant in the car when he shot out the store window with a BB gun. Vierra testified that they never intended to enter the Health Nut store, and defendant shot out the window on a whim while they drove by.
McMorrow said he was surprised when defendant shot; there was no advance discussion about doing that and no attempt to break in.
Idaho Grocery Vandalism, Susanville (Count 33)
The owner of the grocery store found that there were two BB holes in two plate glass windows, which would cost approximately $1,500 a piece to repair.
Both Vierra and McMorrow testified that, like the Health Nut vandalism, this vandalism was unplanned and they were surprised when defendant shot the windows with a BB gun as they drove by.
*Pizza Factory Burglary, Janesville (Count 34)
The Pizza Factory is next door to the Artisan Café, which was burglarized on June 2, as discussed ante. Upon responding to an alarm at the restaurant, Officer Ken McCormick observed that the glass door was shattered and a large rock was inside the restaurant. An animal shelter donation collection box of change was missing from the counter.
Vierra testified that he participated in this burglary with defendant and McMorrow. He could not remember whether defendant used a rock or a BB gun to break the door. Vierra testified that defendant told him he chose the Pizza Factory because "they save their tips all year" and there was "supposed to be a bunch of money in the tip jar." Defendant went inside the restaurant but could not find the money. McMorrow testified that defendant broke the restaurant window and came out with a tip jar that only had a couple of dollars in it.
Tum-A-Lum Lumber Burglary, Susanville (Count 35)
The Tum-A-Lum manager testified that when he arrived for work in the morning, he found that a window closest to the employee entrance was broken, two other windows had bullet or pellet holes in them, and a six-foot ladder that had been inside the building was outside on the sidewalk. There were chunks of asphalt near the broken glass and a Makita screw gun was missing.
Detective Warner obtained surveillance videos from a nearby Safeway showing a red Dodge Dakota truck with a black hood entering the Safeway parking lot at 3:51 a.m. on September 20, and showing a subject that Warner identified as defendant go into the store while two other subjects stood outside near the truck.
Vierra testified that while driving back from Janesville, defendant suggested they burglarize Tum-A-Lum Lumber. He explained that defendant got out and shot at the store with a BB gun, then returned to the Dodge truck and left. They drove into Susanville and then drove back. It seemed all clear, so defendant went inside the store and returned with an extension cord and two drills, including a Makita; one was orange and the other was greenish blue. Vierra kept the Makita, which was later found in his home.
McMorrow testified that he participated in this burglary as a lookout but was too far away to see the actual break-in. He testified that defendant took a drill and an extension cord.
September 28
One of the crimes for which defendant was convicted was committed on this night.
Post Office Burglary, Janesville (Count 36)
The Janesville Postmaster testified that when she arrived for work around 7:20 a.m., she discovered there were open packages and other mail strewn around the post office. Postal Investigator Steve Hofheins testified that a large glass door was shattered with a rock and another door had a BB hole in it, he also found a rock near the counter line, and two BBs near the shattered glass. After sending Janesville postal customers a mail theft alert, Hofheins heard from 10 to 12 people reporting missing mail. Among the missing items were seven certified Silver Eagle collector's coins, a Sony X-Box video game console that was being sent out for a repair (identifiable by a crack near the USB port), Netflix DVDs, and prescription medications.
Detective Warner obtained surveillance videos from a nearby Safeway showing a red Dodge truck entering the Safeway parking lot around 4:00 a.m. on September 28 and showing subjects the officer identified as Vierra and McMorrow go into the store.
Vierra testified that he participated in this burglary with defendant and McMorrow. He testified that defendant said he wanted to burglarize the post office because he had obtained the combination for its safe. Defendant broke the interior door window, which leads to the customer service area, with a rock to test whether there was an alarm. When no alarm sounded, all three men went inside the post office and "ransacked the place." Vierra testified that they found silver coins, a pocket knife, a wallet, prescription pills, and an X-Box. He kept four silver coins and the pocket knife, but later gave the knife to McMorrow. Additionally, McMorrow got the X-Box and a silver coin. Defendant got one silver coin and some other items Vierra could not remember.
The door leading into the post office is unlocked so people with P.O. boxes can access them 24 hours a day. The broken interior door to the customer service area (where customers buy stamps, mail packages, etc.) is locked during non-business hours.
McMorrow also testified that he participated in the post office burglary. He testified that they drove the red truck that night and the three of them took turns trying to crack the safe open without success. McMorrow said defendant took the X-Box and it was placed in McMorrow's mother's bedroom. Other items were placed in McMorrow's bedroom
October 13
Two of the crimes for which defendant was convicted were committed on this night.
Hart's Café Burglary, Susanville (Count 37)
When the owner arrived to open in the morning, he found a glass door was smashed and there was a softball-sized rock inside on the floor. He testified that the cash register was missing, but there had been no cash inside it.
Officer Vega testified that while on patrol early that morning, he observed a red Dodge truck with a black hood parked in the parking lot east of Hart's Café around midnight or 1:00 a.m. He testified that he knew that truck was a vehicle of interest in prior burglaries in the area, and he saw a person he identified at trial as defendant in the passenger side of the truck. He saw the truck again driving up and down Main Street in Susanville at 2:00, 3:00, and 3:30 a.m. He testified that he received what turned out to be a false 911 call about "shots fired" from a pay phone at the other end of downtown; he believed that this call was designed to lure him away from following the red truck.
Vierra testified that he, defendant, and McMorrow participated in the café burglary. He testified that they parked in a parking lot near the café, he served as a lookout while defendant went to the café, and he heard a window break. Defendant then came back to the red pickup, drove away with McMorrow, and then returned and went inside the café again. Defendant took a cash register, but it only had $1 inside. Vierra testified that he walked to the other side of Main Street away from the café and made the false 911 call to distract the police. He testified that he encountered an officer while walking down the street who questioned why he was out so late at night, and he told the officer that he was going to check his work schedule.
McMorrow confirmed Vierra's description of events that night, adding that he drove the truck to pick up Vierra after the false 911 call and returned to the café but did not see defendant. He testified that he then got a call from defendant that he was at the USA Gas station, and he and Vierra picked him up there. He testified they then went to the Diamond Mountain Mini Mart and purchased gas there.
Chinese Kitchen Burglary, Susanville (Count 38)
Officer Pon was patrolling the area when he observed that Chinese Kitchen, which was across the street from Hart's Café, had a broken glass door. There was a rock just inside the door.
Detective Warner obtained surveillance videos from several nearby businesses showing a red Dodge truck that night. The USA Gas video showed a subject that Detective Warner identified as defendant go into the gas station around midnight; he was wearing Dunkman basketball shoes similar to shoes taken in the Payless Shoe Store burglary. The video also showed a vehicle with the same headlight pattern as the Dodge truck pull into the gas station, and while it was difficult to tell from the glare of store's glass in the video, it appeared to Detective Warner that defendant got inside the vehicle. The Diamond Mountain Mini Mart video showed the red Dodge truck pull in near the gas pumps at 3:15 a.m.; two men Detective Warner identified as Vierra and McMorrow got out of the truck while a third person wearing white clothing remained in the passenger seat. The Safeway video also showed the red Dodge truck enter the parking lot at 3:20 a.m., and three men got out of the vehicle and went into the store and left a few minutes later. Detective Warner identified the men as defendant, Vierra, and McMorrow.
Vierra testified that after they burglarized Hart's Café, they drove to Chinese Kitchen, defendant got out of the truck and broke a window with a rock, they left to wait to see if an alarm went off, and returned to find the police officers, the owners, or someone there. They drove past the restaurant.
McMorrow admitted his participation and testified that they went to Chinese Kitchen after going to the mini mart that night.
December 7
The final burglary for which defendant was convicted was committed on this night.
Shear Oasis Salon Burglary, Susanville, December 7 (Count 40)
After receiving a call about a break-in, the salon owner arrived to find the front glass door smashed in and a rock inside the salon. The salon was ransacked and a blue Dell laptop computer, which was inscribed with the phrase " 'Dance like nobody's watching,' " was missing together with men's shampoo and body wash, a hair dryer, a Makita drill, a cash box with some change, and additional hair products.
Vierra testified that he participated in the salon burglary with defendant without McMorrow. They drove to the salon in the red Dodge Dakota truck; defendant smashed the front door with a rock and then returned to the truck. Thereafter, they drove around and waited to see if there was an alarm. They returned to the salon, and the men took turns going inside and taking things. Vierra testified that defendant took a hair dryer and some shampoo. Vierra took a laptop with something written on it.
McMorrow testified that he did not have specific knowledge of the Shear Oasis burglary, but defendant and Vierra invited him to go out that night to commit a burglary. McMorrow had a visitor and did not go.
Possession of Stolen Property (Count 41)
Three search warrants were executed simultaneously on December 7 around 10:00 or 11:00 a.m. at the residences of defendant and McMorrow, Vierra, and Enrique and Melissa Deanda.
In the room shared by defendant and McMorrow's mother, Jennifer McMorrow, the police found the X-Box missing from the post office. In McMorrow's room, police found a HP laptop in a black case, a Dell laptop, silver coins that were taken from the post office, and a BB gun. McMorrow testified that defendant would store items they had stolen in his bedroom. Additionally, police found two Crew brand salon products, a red bandana, night vision goggles, and a second BB gun in the house. McMorrow testified that defendant covered his face with a red bandana during most of the burglaries. Police also searched the red Dodge truck, which was parked outside the house, and found two pairs of gloves and a pair of Stanley bolt cutters.
At Vierra's residence, police found the Shear Oasis laptop with "Dance like nobody's watching" written on it, four silver coins, bandanas, CO2 cartridges for a BB gun, a drill from Tum-A-Lum Lumber, and gloves.
At the Deanda residence, police found a pair of Champion tennis shoes in size 9½ with a sales tag that had a serial number matching a pair stolen from Payless Shoe Store, a Lassen Community College learning contract with defendant's name on it, two black ski masks, two red bandanas, a container of BBs, and a pair of Dunkman tennis shoes.
Additional Evidence
Melissa Deanda testified at trial that her husband, Enrique, had been convicted for possession of stolen property stemming from this case. She testified that in 2010, Enrique worked at the Susanville Jack in the Box. She identified defendant as Enrique's friend and testified that defendant stayed in the garage at their house when he was having relationship issues with Jennifer McMorrow. She also testified that she owned the red Dodge Dakota truck and was in the process of selling it to Jennifer and defendant at the time of the burglaries; she let Jennifer borrow the truck before the sale was final in September 2010.
FBI Special Agent Glenn Booth testified that he placed a GPS tracking device on the Dodge truck on October 7, 2010. On October 13, the date of the Hart's Café (count 37) and Chinese Kitchen (count 38) burglaries, the tracking device showed that the truck left defendant's home around midnight and drove to the vicinity of the café and then to the Safeway parking lot. Then the truck returned to the café around 12:30 a.m. and then moved behind the Chinese restaurant. At 1:50 a.m., the truck went to Vierra's house and then back to defendant's house. At 2:39 a.m., the truck returned to Safeway and then traveled to a field near the hospital; it remained in that area for a short period of time before returning to defendant's home for the night. Detective Warner testified that he investigated the dirt road near the hospital where the truck had traveled and found two cash drawers and a number of documents, including a cash drawer and employee phone list from Hart's Café. Vierra testified that they used this area as a dumping ground for cash register trays on four or five occasions.
Defense Case
Defendant did not present any testimony in his defense.
Verdict and Sentencing
On May 4, 2011, the jury found defendant not guilty as to counts 18 and 19 and found him guilty on all remaining counts. Defendant admitted the prison prior allegation.
On September 6, 2011, the trial court sentenced defendant to an aggregate term of 24 years, calculated as follows: the upper term of three years for count 5; 30 consecutive eight-month terms (one-third of the two-year midterm) for counts 6, 8 through 17, 21 through 38, and 40; one consecutive year for the prison prior; and a concurrent term of 16 months for count 41.
DISCUSSION
I. Sufficiency of the Evidence Claims
A. Additional Background and Defendant's Contentions
Using CALCRIM No. 334 on accomplice testimony, the court instructed the jury that before it could consider Vierra and McMorrow's testimony, it had to determine whether they were accomplices in the charged offenses. The court instructed that "[a] person is an accomplice if he or she is subject to prosecution for the identical crime charged against the defendant." The court told the jury that if it decided the witnesses were not accomplices, it should evaluate their testimony as they would any other witness. Further, the court instructed that if defendant met his burden of establishing Vierra and McMorrow were accomplices, the jury could not use their testimony to convict defendant unless there was independent supporting evidence tending to connect defendant to the crimes.
The entirety of the instruction was as follows: "Before you may consider the testimony of Frank Vierra Jr. and Jared McMorrow as evidence against the defendant regarding the crimes charged in this case, you must decide whether Frank Vierra Jr. and Jared McMorrow were accomplices to those crimes. A person is an accomplice if he or she is subject to prosecution for the identical crime charged against the defendant. Someone is subject to prosecution if he or she personally committed the crime or if: [¶] 1. He or she knew of the criminal purpose of the person who committed the crime; [¶] AND [¶] 2. He or she intended to, and did in fact, aid, facilitate, promote, encourage, or instigate the commission of the crime or participate in a criminal conspiracy to commit the crime.
"The burden is on the defendant to prove that it is more likely than not that Frank Vierra Jr. and Jared McMorrow were accomplices. [¶] An accomplice does not need to be present when the crime is committed. On the other hand, a person is not an accomplice just because he or she is present at the scene of a crime, even if he or she knows that a crime will be committed or is being committed and does nothing to stop it. [¶] A person may be an accomplice even if he or she is not actually prosecuted for the crime.
"If you decide that a witness was not an accomplice, then supporting evidence is not required and you should evaluate his or her testimony as you would that of any other witness. [¶] If you decide that a witness was an accomplice, then you may not convict the defendant of Burglary based on his or her testimony alone. You may use the testimony of an accomplice to convict the defendant only if: [¶] 1. The accomplice's testimony is supported by other evidence that you believe; [¶] 2. That supporting evidence is independent of the accomplice's testimony; [¶] AND [¶] 3. That supporting evidence tends to connect the defendant to the commission of the crime.
"Supporting evidence, however, may be slight. It does not need to be enough, by itself, to prove that the defendant is guilty of the charged crime, and it does not need to support every fact about which the accomplice testified. On the other hand, it is not enough if the supporting evidence merely shows that a crime was committed or the circumstances of its commission. The supporting evidence must tend to connect the defendant to the commission of the crime. [¶] The evidence needed to support the testimony of one accomplice cannot be provided by the testimony of another accomplice.
"Any testimony of an accomplice that tends to incriminate the defendant should be viewed with caution. You may not, however, arbitrarily disregard it. You should give that testimony the weight you think it deserves after examining it with care and caution and in the light of all the other evidence."
Defendant contends there is insufficient evidence to support his burglary convictions of counts 8 through 14 and counts 21, 23, 30, and 34. He argues that the only evidence supporting these convictions came from his accomplices, and the accomplice testimony was not corroborated. Additionally, he challenges the overall sufficiency of the evidence as to counts 15 and 16. He contends that there was no evidence demonstrating that defendant was the perpetrator in count 15. He contends that his purported act of shooting a window with a BB gun in count 16 was insufficient to constitute an entry, and accordingly, count 16 must be reduced to attempted commercial burglary.
As a shorthand, we refer to these counts as "the contested counts" and the remaining counts for which defendant was convicted as the "the uncontested counts."
The People assume, but do not concede, that Vierra and McMorrow were accomplice-witnesses for the sake of argument. We agree with that approach as to all of the contested counts except counts 15 and 23. As to those counts, we note that uncontradicted evidence showed McMorrow did not participate in those burglaries. Because McMorrow did not participate or otherwise aid and abet, he was not subject to prosecution for the identical crime charged against the defendant as to those counts; thus, he is not an accomplice as to those counts. (§ 1111; People v. Wynkoop (1958) 165 Cal.App.2d 540, 543, 546 (Wynkoop) [testimony of an accomplice to a burglary did not require corroboration as to additional burglaries in which the accomplice did not participate, but for which the defendant made admissions].)
B. Analysis
1. Corroboration of Accomplice Witness Testimony
Section 1111 prohibits a conviction based "upon the testimony of an accomplice unless it [is] corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. An accomplice is hereby defined as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given." This definition encompasses principals to the crime, including aiders and abettors and coconspirators. (People v. Manibusan (2013) 58 Cal.4th 40, 93.) For purposes of review, the accomplice corroboration requirement is an exception to the substantial evidence rule. (People v. Romero and Self (2015) 62 Cal.4th 1, 32 (Romero).) Corroborating evidence must tend to connect the defendant with the commission of each crime charged about which the accomplice testifies. (People v. Hillhouse (2002) 27 Cal.4th 469, 492 (Hillhouse) [noting that an instruction that told the jury the corroborating evidence must tend to connect defendant to each charged crime correctly stated the law].)
"To corroborate the testimony of an accomplice, the prosecution must present 'independent evidence,' that is, evidence that 'tends to connect the defendant with the crime charged' without aid or assistance from the accomplice's testimony. [Citation.] Corroborating evidence is sufficient if it tends to implicate the defendant and thus relates to some act or fact that is an element of the crime. [Citations.] ' "[T]he corroborative evidence may be slight and entitled to little consideration when standing alone." ' " (People v. Avila (2006) 38 Cal.4th 491, 562-563 (Avila), italics added.) The corroborating evidence need not independently establish the identity of the perpetrator. (Romero, supra, 62 Cal.4th at pp. 32-33.) And corroborating evidence may be entirely circumstantial. (People v. Lewis (2001) 26 Cal.4th 334, 370.) Moreover, the corroborating evidence " ' "need not corroborate the accomplice as to every fact to which he testifies but is sufficient if it does not require interpretation and direction from the testimony of the accomplice yet tends to connect the defendant with the commission of the offense in such a way as reasonably may satisfy a jury that the accomplice is telling the truth." ' " (People v. Davis (2005) 36 Cal.4th 510, 543, second italics added; People v. Szeto (1981) 29 Cal.3d 20, 27.) "[O]nce the corroboration sufficiently establishes the accomplice's believability, the accomplice's evidence may establish many facts or details not related in the independent testimony." (People v. Maldonado (1999) 72 Cal.App.4th 588, 598.) "[U]nless a reviewing court determines that the corroborating evidence should not have been admitted or that it could not reasonably tend to connect a defendant with the commission of a crime, the finding of the trier of fact on the issue of corroboration may not be disturbed on appeal." (People v. Falconer (1988) 201 Cal.App.3d 1540, 1543; see also People v. McDermott (2002) 28 Cal.4th 946, 986.)
In determining whether an accomplice's testimony is sufficiently corroborated, we consider the entire conduct of defendant and the accomplice-witnesses, their relationships with each other, and their acts during and after the commission of the crime. (Romero, supra, 62 Cal.4th at pp. 32-33; People v. Narvaez (2002) 104 Cal.App.4th 1295, 1305 (Narvaez).) As this court has held, "proof of association in such close proximity in both time and place as to connect [the defendant] with participation" in the crime can be sufficient corroboration. (People v. Davis (1962) 210 Cal.App.2d 721, 729 (Davis).)
Further, proof that a defendant committed similar crimes is sufficient to establish corroboration. (Romero, supra, 62 Cal.4th at p. 34; People v. Blackwell (1967) 257 Cal.App.2d 313, 320-321 (Blackwell) ["similarity in the commission of crimes in a given locality is itself a circumstance tending to corroborate the testimony of an accomplice"]; People v. Comstock (1956) 147 Cal.App.2d 287, 298 (Comstock) [proof that a defendant committed other recent and similar offenses tending to show a consistent plan or method of misconduct may corroborate the testimony of an accomplice].) However, the other crimes must have "some characteristic technique or modus operandi before they 'connect [the] defendant with the commission of the crime.' " (Comstock, at p. 298.)
Defendant does not contest the adequacy of the accomplice testimony or the sufficiency of the evidence as to counts 5, 6, 17, 22, 24 through 26, 28, 29, 31 through 33, 35, and 36. The modus operandi employed in these uncontested counts tends to connect defendant to the crimes charged in contested counts and is thus sufficient to corroborate the accomplice testimony regarding the contested counts. (Romero, supra, 62 Cal.4th at p. 34; Blackwell, supra, 257 Cal.App.2d at pp. 320-321; Comstock, supra, 147 Cal.App.2d at p. 298.) All of the contested and uncontested crimes were committed nocturnally, during predawn morning hours in three small localities situated in relatively close proximity to each other, Susanville, Janesville, and Herlong. All of the burglaries involved commercial establishments. With the exception of count 10, the burglary at the Pat Murphy Little League snack bar in Susanville on May 28, entry was facilitated by smashing a glass door or window to the business. In most of these burglaries, a rock was used to break the glass. And the perpetrators left the rock at the scene to be discovered by the owners and law enforcement. Where the business had a drive-thru window—Starbucks, Jack in the Box, and Papa Murphy's—the perpetrators always gained access through that window. This modus operandi, employed in both the uncontested counts, for which defendant does not contest his complicity, and the contested counts, was more than sufficient evidence tending to connect defendant to the contested counts. As we have noted, the corroborative " ' 'evidence may be slight and entitled to little consideration when standing alone." ' " (Avila, supra, 38 Cal.4th at pp. 562-563, italics added.) But this evidence was far more than just "slight."
As we have noted, the trio sometimes used BB guns to break the windows. However, as to the counts contested on grounds of insufficient corroboration where Vierra and/or McMorrow testified that BB guns were used, there was no evidence independent of their testimony showing that a BB gun was used. Consequently, we do not consider this feature of their modus operandi as corroborating evidence.
Defendant argues that the use of a rock to break a window or door to effectuate entry during these commercial burglaries "does not constitute a legitimate modus operandi." Citing People v. Bradford (1997) 15 Cal.4th 1229, 1316, and other cases involving Evidence Code section 1101 analysis, defendant contends that a " 'distinctive modus operandi' " is required; the common marks must be sufficiently unique so as to constitute a defendant's signature. Defendant is wrong. He confuses what is required to admit potentially prejudicial uncharged crimes evidence for the non-character purpose of establishing identity under Evidence Code section 1101, subdivision (b), with corroborating evidence supporting an accomplice's testimony under section 1111 in the form of other charged crimes for which the sufficiency of corroboration is not challenged. There is no requirement that the evidence of other charged crimes be so unique as to constitute defendant's signature to corroborate an accomplice's testimony. Again, as we have said, the evidence need only be slight (Avila, supra, 38 Cal.4th at pp. 562-563), need only tend to connect defendant to the crime (§ 1111; Romero, supra, 62 Cal.4th at pp. 32-33; Avila, at pp. 562-563; Hillhouse, supra, 27 Cal.4th at p. 493) and need not independently establish the identity of the perpetrator. (Romero, at p. 33.) While it has been said that the other crimes must have "some characteristic technique or modus operandi before they 'connect [the] defendant with the commission of the crime' " (Comstock, supra, 147 Cal.App.2d at p. 298, first italics added), no court has held that that characteristic technique must be unique. Thus, the rules relating to the level of similarity required to establish identity under Evidence Code section 1101, subdivision (b), have no application here. The modus operandi evidence here, which includes the time of night and proximity of the locations where the contested and uncontested commercial burglaries were committed, as well as the method of entry, is sufficient evidence tending to connect defendant to the contested crimes. We could end our substantial evidence review here as to the corroboration for contested counts, but there is more.
We reject defendant's contention that the corroborative evidence "must connect" (boldface & underscoring omitted) defendant to the crime. The plain language of section 1111 and the case law interpreting that statute require that corroborative evidence need only "tend to connect" defendant to the crime. (§ 1111, italics added; Romero, supra, 62 Cal.4th at pp. 32-33; Avila, supra, 38 Cal.4th at pp. 562-563; Hillhouse, supra, 27 Cal.4th at p. 492.) "Must connect" is a much more demanding requirement than "tend to connect."
The additional circumstance that some of the contested counts were committed during the predawn a.m. hours on the same night and in the same locality with uncontested counts in which defendant's involvement is not contested further tends to connect defendant to the contested counts. For example, contested count 21, the first Watson's Café burglary, was committed on August 26, the same night as uncontested count 22, the second Jack in the Box burglary. Contested count 23, the first Payless Shoe Store burglary, was committed on September 4, the same night as the uncontested counts 24, 25, 26, 27, and 28, the burglaries at Nails by Jackie, Jenkins Realty, Herlong Gas House Deli, Herlong Barber Shop, and the Herlong Thrift Store. Contested count 30, the Papa Murphy's Pizza burglary, was committed on the night of September 11, as was the uncontested count 31, the Happy Garden burglary. Likewise, contested count 34, the Pizza Factory burglary, was committed on September 20, as were uncontested counts 32, 33, and 35, the Health Nut vandalism, Idaho Grocery vandalism, and Tum-A-Lum Lumber burglary. And as we have noted, the same general modus operandi was employed in these burglaries. The circumstance that burglaries for which defendant does not contest the sufficiency of evidence establishing his participation were committed during the same predawn morning hours in the same localities as contested burglaries is an additional circumstance tending to connect defendant to the contested burglaries.
Additionally, the relationship between the parties served as further corroboration. (Romero, supra, 62 Cal.4th at p. 32; Narvaez, supra, 104 Cal.App.4th at p. 1305; Davis, supra, 210 Cal.App.2d at p. 729.) Defendant and Vierra were friends and crime partners on the uncontested counts. (See People v. Samaniego (2009) 172 Cal.App.4th 1148, 1178 [circumstance that defendant and other gang members committed a prior crime together was corroboration as to the charged crime].) Not only did McMorrow participate with defendant in most of the uncontested counts, but defendant also resided with McMorrow and McMorrow's mother. Thus, there was association in "close proximity in both time and place" to the contested counts. (Davis, at p. 729.) Consequently, these circumstances also tended to connect defendant to the contested counts.
In addition to the modus operandi, temporal and geographic proximity, and relationship corroboration, some of the individual contested counts were corroborated by other evidence. As to contested count 10, the burglary at the Pat Murphy Little League snack bar in Susanville, evidence tending to connect the defendant to that crime can be found in the fact that the HP laptop computer stolen in that burglary was found in McMorrow's bedroom, a room in the same home where defendant resided.
Based on measurements Detective Warner took, he opined that the person caught on video in count 14, the June 2 Port of Subs burglary was the same height and shape as defendant and the hair of that person was consistent with defendant's hair. Additionally, the person who committed this burglary wore a bandana to hide his face. So did one of the people who committed the Grocery Outlet burglary, uncontested count 6. And a red bandana was found in the McMorrow home where defendant was residing when law enforcement executed a search warrant there. This evidence, although it might be characterized as "slight," tended to connect defendant with that burglary.
Vierra and McMorrow both testified that McMorrow was not involved in the first Payless Shoe Store burglary, count 23. Thus, McMorrow is not an accomplice to that crime. His testimony about admissions defendant made to him regarding that burglary is direct evidence of defendant's complicity and further corroboration of Vierra's testimony tending to connect defendant to that offense.
In count 30, the burglary at Papa Murphy's Pizza on September 11, the pickup truck defendant and Jennifer McMorrow borrowed and ultimately bought from the Deandas was depicted on the surveillance video parked outside of the business. This circumstance tended to connect defendant to the burglary charged in this contested count.
Defendant was identified on surveillance video going into Tum-A-Lum Lumber burglary in Janesville, uncontested count 35. Two others waited out by his pickup truck while defendant was inside. This was additional evidence tending to connect defendant to the contested count 34, the Pizza Factory burglary, also committed in Janesville on the same night.
We conclude that there was sufficient evidence to corroborate the testimony of Vierra and McMorrow on the counts contested by defendant.
2. Sufficiency of the Evidence on Count 15
Defendant does not contend there was insufficient corroboration on count 15, the July 30 Watson's Café burglary. Rather, defendant contends that count 15 must be reversed because the evidence of the admissions he made to Vierra and McMorrow, who were not accomplices to that burglary, was insufficient to support the conviction on that count. We disagree.
When we review a claim that the evidence was insufficient to support a conviction, "the relevant question is whether . . . any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Jackson v. Virginia (1979) 443 U.S. 307, 319 [61 L.Ed.2d 560, 573].) Under this deferential standard, we "must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578.) " '[We presume] in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence.' " (People v. Catlin (2001) 26 Cal.4th 81, 139.) In other words, we draw all reasonable inferences in support of the judgment. (People v. McElroy (2005) 126 Cal.App.4th 874, 881.) Substantial evidence includes circumstantial evidence and the reasonable inferences flowing from it. (In re James D. (1981) 116 Cal.App.3d 810, 813.)
Defendant initially contends the only evidence that he broke into Watson's Café as alleged in count 15 was the use of a rock. He misstates the evidence. Vierra and McMorrow both testified that defendant told them that he burglarized Watson's Café without them. Some $400 was taken according to the owner in connection with the burglary charged in count 15. After that burglary, defendant told Vierra he wanted to go back because he had been able to obtain cash there, and the two of them did go back on August 26 to commit the burglary charged in count 21.
Because Vierra and McMorrow did not admit participation in count 15, they were not accomplice-witnesses for the purposes of section 1111, and their testimony did not require corroboration. (Wynkoop, supra, 165 Cal.App.2d at p. 546.) The jury was free to consider their testimony about the admissions defendant made to them concerning that burglary as they would any other witness. Their testimony concerning those admissions was sufficient evidence under the deferential substantial evidence test.
Defendant contends that defendant's admissions, which were nonspecific as to the date, may have referred to an earlier Watson's Café break-in on May 20, 2010 (count 3), which was dismissed. Approximately $400 had been taken in that earlier burglary also. Thus, according to defendant, the admissions are insufficient to support the conviction on count 15.
Our state's high court has stated, "Reversal on [on grounds of insufficient evidence] is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' " (People v. Bolin (1998) 18 Cal.4th 297, 331, italics added (Bolin).) Further, " ' " ' If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.' " ' " (Catlin, supra, 26 Cal.4th at p. 139.) We must view the evidence in a light most favorable to the prosecution. (Ibid.) It is true that defendant did not tell Vierra or McMorrow specifically when he burglarized Watson's Café. However, Vierra testified that defendant told him about it the night before the August 26 burglary of Watson's Café in which Vierra participated, charged in count 21.
We conclude that Vierra and McMorrow's testimony about defendant's admissions, together with other evidence is substantial evidence supporting defendant's conviction on count 15. The other evidence to which we refer includes: the use of a rock to break the window to gain entry, which matched defendant's pattern in many of the uncontested burglaries; the fact that the owner testified that cash was taken on this occasion; defendant's statement to Vierra he wanted to go back to Watson's Café because he obtained cash there in a prior burglary; and the evidence indicating that defendant did go back to Watson's Café to commit another burglary, this time with Vierra as charged in count 21. As for the fact that cash was taken in the May 20 burglary which was dismissed and the possibility that this may have motivated defendant to return on August 26, we think it reasonable to infer that defendant would have wanted to go back to such a lucrative target sooner rather than later in light of the totality of the evidence reflecting defendant's crime spree. We further reasonably infer defendant would have told Vierra about this burglary sooner than the night before the August 26 burglary had he been referencing the May 20 burglary. And it seems less reasonable to infer defendant would have committed the May 20 burglary and then not go back until August 26, while committing burglaries of other locations in the interim. Thus, it is reasonable to infer he committed the July 30 burglary and that his admissions to Vierra and McMorrow related to that burglary or to both the July 30 burglary and the May 20 burglary, rather than only the May 20 burglary. Again, we may not reverse on grounds of insufficiency of the evidence "unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' " (Bolin, supra, 18 Cal.4th at p. 331, italics added.) Viewing the evidence in a light most favorable to the judgment, drawing all inferences in favor of the jury's verdict as we must do, we conclude there was substantial evidence supporting defendant's conviction on count 15.
We recognize that a rock was also used in the May 20 burglary at Watson's Café.
The record does not contain an explanation by the trial court for the dismissal of the count involving the May 20 burglary.
3. Sufficiency of the Evidence on Count 16
Defendant does not contend there was insufficient corroboration as to count 16, the August 4 Port of Subs burglary. Rather, he contends that count must be reduced to attempted commercial burglary because there was insufficient evidence of entry. We disagree.
Officer Pon testified that while the window glass was still intact, there were "three or four small holes" in the door and window that appeared to be BB or pellet holes. McMorrow testified that defendant shot the window with a BB gun. Additionally, BB guns were found in defendant's home. Based on this evidence, a rational trier of fact could conclude that BBs, which were under defendant's control, entered the building, creating the small BB holes in the window and door.
"[A] burglary may be committed by using an instrument to enter a building—whether that instrument is used solely to effect entry, or to accomplish the intended larceny or felony as well. Thus, using a tire iron to pry open a door, using a tool to create a hole in a store wall, or using an auger to bore a hole in a corn crib is a sufficient entry to support a conviction of burglary." (People v. Davis (1998) 18 Cal.4th 712, 717-718.) In simple terms, as our high court has observed, "something that is outside must go inside for an entry to occur." (Magness v. Superior Court (2012) 54 Cal.4th 270, 279see also People v. Moore (1994) 31 Cal.App.4th 489, 490 & fn. 4 [finding sufficient evidence where a tire iron used by the defendant violated the air space between a screen door and door of a residence and also violate the plane of the door itself].) Here, there was substantial evidence that defendant used a BB gun to shoot holes into the window and door, as he had done in the past to accomplish entry.
Defendant asserts that because Officer Pon did not expressly testify that the holes went all the way through and did not mention finding BBs inside, the evidence of any entry was insufficient. But Officer Pon described seeing BB or pellet holes in the glass, not indentations or strikes. Viewing this evidence in the best light for the prosecution, we conclude it was sufficient to establish an entry and thus, a completed burglary on count 16.
II. Claim of Instructional Error
A. Background and Defendant's Contentions
As we have noted, the trial court instructed the jurors with CALCRIM No. 334. (See fn. 5, ante) Defendant contends that the trial court erred by failing to instruct that Vierra and McMorrow were accomplices as a matter of law using CALCRIM No. 335, instead giving the permissive instruction in CALCRIM No. 334 and leaving the question of whether Vierra and McMorrow were accomplices to the jury. Defendant contends this was error because the evidence demonstrated that Vierra and McMorrow were accomplices as a matter of law.
B. Analysis
"Whether someone is an accomplice is ordinarily a question of fact for the jury; only if there is no reasonable dispute as to the facts or the inferences to be drawn from the facts may a trial court instruct a jury that a witness is an accomplice as a matter of law." (People v. Valdez (2012) 55 Cal.4th 82, 145-146, italics added.) The Bench Notes to CALCRIM No. 335 provide the following guidance: "Give this instruction only if the court concludes that the witness is an accomplice as a matter of law or the parties agree about the witness's status as an accomplice. [Citation.] . . . If there is a dispute about whether the witness is an accomplice, give CALCRIM No. 334 . . . ," which instructs the jury to first determine whether the witness was an accomplice, and then to evaluate the witness's testimony based upon its determination. (Judicial Council of Cal., Crim. Jury Instns. (2016) Bench Notes to CALCRIM No. 335, citing People v. Verlinde (2002) 100 Cal.App.4th 1146, 1161 [only give instruction " 'if undisputed evidence established the complicity' "] (Verlinde).) CALCRIM No. 335 is similar to CALCRIM No. 334 except that it declares a named witness is an accomplice as a matter of law, omits the information in CALCRIM No. 334 explaining how to determine whether a witness is an accomplice and the burden of proving that witness is an accomplice. The Bench Notes to CALCRIM No. 334 state, "If the witness was an accomplice to only one or some of the crimes he or she testified about, the corroboration requirement only applies to those crimes and not to other crimes he or she may have testified about. (People v. Wynkoop (1958) 165 Cal.App.2d 540, 546 .) In such cases, the court may insert the specific crime or crimes requiring corroboration in the first sentence." (Judicial Council of Cal., Crim. Jury Instns. (2016) Bench Notes to CALCRIM No. 334, p. 102.) As we have already noted, the court in Wynkoop held that the testimony of an accomplice to a burglary did not require corroboration as to additional burglaries in which the accomplice did not participate, but for which the defendant made admissions. (Wynkoop, at pp. 543, 546.)
The prosecutor did not concede that Vierra and McMorrow were accomplices for all of the crimes about which they testified, and he spoke at length about the definition of accomplice as it related to some of the offenses. He argued that the corroboration rule does not apply unless the witness is an accomplice. For example, he discussed McMorrow's testimony about the September 4 Nails by Jackie burglary (count 24), the fact that McMorrow was not there, and that defendant later admitted to McMorrow that he committed that burglary and was responsible for the boarded up window at the business.
The prosecutor was right. It cannot be said that Vierra and McMorrow were accomplices on all of the counts about which they testified. Neither of them participated in count 5, the Napa Auto Parts burglary, and count 15, the July 30 burglary at Watson's Café. As noted, they provided testimony about defendant's admissions concerning those counts. Defendant even acknowledges that these counts were not subject to the accomplice testimony instruction. Also, according the Vierra, he was not involved in the first Jack in the Box burglary (count 17). And, according to both Vierra and McMorrow, McMorrow did not participate in the first Payless Shoe Store (count 23), the Jenkins Realty (count 25), the Gas House Deli (count 26), the Herlong Barber Shop (count 27), or the Herlong Thrift Store (count 28) burglaries on September 4. Yet in addition to defendant's admission about the burglary at Nails by Jackie that took place on the same night, McMorrow also testified that defendant made admissions about the Payless Shoe Store burglary and a statement that they burglarized a sandwich shop in Herlong, which one could infer was the Gas House Deli. As to count 6, the Grocery Outlet burglary of May 24, another burglary in which Vierra and McMorrow did not participate, their testimony about defendant's chosen modus operandi of using rocks to gain entry provided evidence tending to connect defendant to that crime. The same can be said about counts 5, 15, and 23 in which were they were not involved, but all of which involved the use of rocks. Thus, the trial court could not simply give CALCRIM No. 335 as to all counts. The court would have had to give modified instructions that differentiated between Vierra and McMorrow's testimony on the counts in which the testimony indicated they were not accomplices and those counts where they were accomplices as a matter of law.
There was yet another problem with giving CALCRIM No. 335. In the testimony regarding some offenses, the extent of Vierra and McMorrow's participation was unclear and there was conflicting evidence about whether they were even present. For example, with respect to count 16, the second Port of Subs burglary, Vierra testified that he drove the truck and was with defendant and McMorrow; but McMorrow testified that he was the one who drove the truck with defendant and did not recall that Vierra was with them that night. Additionally, it was not at all clear that Vierra and McMorrow were accomplices to the Health Nut and Idaho Grocery vandalism. Both testified they were with defendant, but they never intended to burglarize those businesses and that defendant simply shot at the windows with a BB gun as they drove by. There had been no advance discussion and they were surprised when defendant did this. If accepted as true, this testimony would mean that neither Vierra nor McMorrow were aiders and abettors to these crimes. Accordingly, the jury had to decide whether they were accomplices in that they shared the requisite intent to commit these acts of vandalism with defendant as aiders and abettors. (People v. Stankewitz (1990) 51 Cal.3d 72, 90-91 (Stankewitz); see also People v. Boyd (1990) 222 Cal.App.3d 541, 557, fn. 13 [presence at the time of the crime or failure to prevent the commission of the crime is not sufficient to establish the witness is an accomplice].)
In a case like this with dozens of counts (some involving repeat burglaries of the same businesses, leading to confusion about who participated in which counts) as well as some conflicting testimony, and where the accomplice-witnesses admit participation in some charged offenses but not others, we cannot say the evidence was clear and undisputed, requiring that the court give CALCRIM No. 335. In our view, it was therefore appropriate for the court to leave the fact-finding regarding who were accomplices to the jury to parse as to each crime. (See Verlinde, supra, 100 Cal.App.4th at p. 1161.) It was prudent to instruct on CALCRIM No. 334 instead of No. 335 or some modified combination of the two instructions that may have caused confusion.
Defendant argues that because of certain preliminary questions and answers that elicited the Vierra and McMorrow's involvement in a general way, the court was required to give CALCRIM No. 335. As defendant notes, at the outset of their testimony, the prosecution introduced their testimony about the crimes for which they were charged or could be charged. Vierra testified that he was in custody "[o]n a case with identical charges." McMorrow testified that he was subject to prosecution for most of the same crimes but had not been charged as of the time of defendant's trial. However, the fact that a witness has been charged or held to answer for the same crimes as the defendant does not necessarily establish that he is an accomplice. (Stankewitz, supra, 51 Cal.3d at p. 90.)
Defendant also contends that because he did not put on any evidence, the jury could have concluded he did not carry his burden of establishing that Vierra or McMorrow were accomplices and thus concluded they were not required to determine if there was independent corroborating evidence. However, our high court has long since observed that the corroboration requirement of section 1111 has "no bearing on the prosecution's proof of any element of the charged crime" and "there is no constitutional impediment to placing on a defendant the burden of proving, by a preponderance of the evidence, a witnesses' status as an accomplice." (People v. Frye (1998) 18 Cal.4th 894, 968 (Frye).) And specifically, there is no burden shifting problem as "[c]ourts have uniformly held that it is proper to allocate to the defendant the burden of proving that a witness is an accomplice." (Id. at p. 969.) Furthermore, although the prosecution argued in closing argument that the accomplice corroboration rule did not apply to every crime McMorrow testified about because he was not always an accomplice, the prosecutor never mentioned the burden of proof or suggested defendant had an obligation to present evidence establishing that Vierra and McMorrow were accomplices.
Even assuming error, we conclude that any such error here was harmless no matter what standard of review is employed. (Compare People v. Watson (1956) 46 Cal.2d 818, 836, with Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711].) Defendant's briefing on appeal does not offer a clear explanation of how instructing with CALCRIM No. 334 rather than CALCRIM No. 335 adversely affected him at trial. He seems to assume that, given CALCRIM No. 335, the jury would have (1) entirely rejected Vierra and McMorrow's testimony, and (2) without their testimony, would not have convicted defendant. But if, as defendant argues, the evidence that Vierra and McMorrow were accomplices was clear and uncontradicted, then no reasonable juror could have found that they were not accomplices as to the evidence establishing their complicity. Accordingly, under CALCRIM No. 334, which the trial court did give, the jurors would have known to view their testimony with distrust.
Without citation to authority, defendant inflates the statutory requirement in section 1111 concerning accomplice witness testimony into a due process requirement requiring application of the Chapman standard. Our high court long ago held, "The accomplice testimony rule is not constitutionally based." (In re Mitchell P. (1978) 22 Cal.3d 946, 949; see also Frye, supra, 18 Cal.4th at p. 968.) Instead, it is a creature of statute.
Any error was also harmless for a separate reason: Even a total failure to give any accomplice instructions whatsoever can be deemed harmless " ' "if there is sufficient corroborating evidence in the record." ' " (People v. McKinzie (2012) 54 Cal.4th 1302, 1353, disapproved on another ground in People v. Scott (2015) 61 Cal.4th 363, 391, fn. 3.) As discussed ante, there was sufficient corroborating evidence; any error was therefore harmless.
We note that defendant appends additional claims of instructional error to his CALCRIM No. 334 argument: he contends that errors in CALCRIM Nos. 300, 301, and 358 somehow compounded the CALCRIM No. 334 error. This argument is moot since we conclude that the court did not err in giving CALCRIM No. 334, but it is also forfeited because defendant failed to object to these instructions or request clarifying language below. (See People v. Valdez (2004) 32 Cal.4th 73, 113.)
Defendant also asserts under this heading that the trial court erred in failing to give the bracketed cautionary language in the 2007 version CALCRIM No. 358, " 'You must consider with caution evidence of a defendant's oral statement unless it was written or otherwise recorded.' " We may disregard arguments not set forth under a separate heading. (In re S.C. (2006) 138 Cal.App.4th 396, 408; Cal. Rules of Court, rule 8.204(a)(1)(B).) In any event, the trial court is under no obligation to give the optional bracketed language defendant cites in the absence of a request. (People v. Diaz (2015) 60 Cal.4th 1176, 1181, 1190.)
III. Motion for Mistrial
A. Background and Defendant's Contentions
Prior to trial, defendant moved in limine for bifurcation of the prison prior enhancement allegation. The trial court granted the motion. Defendant also moved in limine to exclude reference to his prior convictions, and the court put off ruling on that motion to allow counsel to discuss it further.
During the prosecutor's examination of Vierra in open court, the following colloquy occurred:
"Q [THE PROSECUTOR:] Prior to participating in that first burglary at Port of Subs on June 2, did you become aware of the defendant having participated in burglaries prior to that date within that month timeframe?
"A [VIERRA:] Yes.
"Q [THE PROSECUTOR:] How?
"A [VIERRA:] I just heard around that he went to prison for burglary.
"Q [THE PROSECUTOR:] Okay. And did you, I'm talking about in a month timeframe prior to the Port of Subs."
Defense counsel immediately sought a sidebar conference and the jury was excused. The court agreed with the prosecutor that Vierra's answer was unresponsive. The prosecutor suggested a limiting instruction. The court took another sidebar with counsel off the record. When the court reconvened with the jury present, the court instructed the jury "to disregard the last answer of the witness" and allowed the prosecutor to resume the examination.
The following day, defense counsel moved for a mistrial based on Vierra's testimony. He asserted that both he and defendant noticed that "the jury reacted to that statement." The prosecutor responded that mistrial was not warranted because his question was only asking about defendant's conduct during the month before Vierra became involved, Vierra's testimony was "an inadvertent release of information," and the court gave an appropriate admonition. Vierra's counsel noted for the record that he did not receive information from defense counsel or the prosecutor about the defense's in limine motion to prohibit testimony about defendant's prior conviction. Defense counsel responded that it was the prosecutor's duty to inform the prosecution witnesses of in limine requirements. Citing People v. Harris (1994) 22 Cal.App.4th 1575 (Harris) and People v. Rose (1996) 46 Cal.App.4th 257 (Rose), the trial court ruled that Vierra's inadmissible testimony was no more prejudicial than his admissible testimony, and the court denied the motion for a mistrial.
On appeal, defendant contends the trial court abused its discretion in denying his motion for a mistrial. He emphasizes that Vierra's testimony that defendant went to prison for burglary was irrelevant and extremely prejudicial inasmuch as defendant was being tried for the same crime. Defendant claims the prosecutor's question was "confus[ing] and misleading" because Vierra could have understood the question to mean " 'in the month before participating in the first burglary at Port of Subs, did you become aware of the defendant having participated in prior burglaries?' " He also contends that even if Vierra's answer was unresponsive, "the prosecutor had a duty to warn Vierra and make certain that no such unresponsive answer would be forthcoming." Finally, he contends that even if the prosecutor was not at fault, Vierra's volunteered statement still caused incurable prejudice.
B. Analysis
"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." (People v. Haskett (1982) 30 Cal.3d 841, 854.) Accordingly, we review the trial court's ruling for abuse of discretion. (People v. Ayala (2000) 23 Cal.4th 225, 283.) A witness's volunteered statement can provide the basis for a finding of incurable prejudice. (See People v. Rhinehart (1973) 9 Cal.3d 139, 152-153, disapproved on another ground in People v. Bolton (1979) 23 Cal.3d 208, 213 [witness's inadvertent answer, if error, was not sufficiently prejudicial to justify mistrial].)
Applying these principles, we conclude defendant's claim of incurable prejudice lacks merit. As an initial matter, we note that on appeal, defendant attempts to shoehorn a prosecutorial misconduct argument into his argument about Vierra's volunteered statement. However, this was not the basis for his motion for mistrial in the trial court. In fact, defense counsel conceded that Vierra "inadvertently . . . blurted out" the testimony. The inadvertent witness testimony was the basis for his motion for mistrial, and we will not consider his argument about prosecutorial misconduct for the first time on appeal. (People v. Klavon (1962) 202 Cal.App.2d 765, 768 ["It is well settled that where no objection, exception or assignment of error is made in the trial court, the claim of misconduct of the district attorney cannot be raised for the first time on appeal"].)
It was within the sound discretion of the trial court to determine whether the volunteered statement warranted a mistrial or could be cured by an admonition. (Harris, supra, 22 Cal.App.4th at p. 1581.) The court gave a direct and pointed admonition regarding the volunteered testimony. Although defendant argues the admonishment was disregarded by the jury because "no ordinary person could get it out of his or her mind that [defendant] was a convicted burglar," this is mere speculation. In Rose, one of the cases the trial court cited, after the trial court granted an in limine motion to exclude evidence of two uncharged molestations, a witness inadvertently made several references to the excluded evidence. (Rose, supra, 46 Cal.App.4th at pp. 264-265.) On appeal from denial of the defense motion for mistrial, the appellate court held that the trial court properly denied the motion, reasoning that "[t]he additional testimony was no more damaging or prejudicial than [the witness]'s permissible testimony about the acts appellant committed against her." (Id. at p. 265.) Rose is instructive because there, the witness made multiple inadvertent references to far more inflammatory uncharged misconduct, and the appellate court still did not find an abuse of discretion. Additionally, in Rose, there was affirmative testimony about the defendant's prior acts as opposed to Vierra's reference to a rumor he had "heard around that [defendant] went to prison for burglary." Accordingly, we find no abuse of discretion.
IV. Ineffective Assistance of Counsel
A. Background and Defendant's Contentions
Defendant asserts he was provided constitutionally ineffective assistance of counsel. Specifically, he claims that the prosecutor engaged in misconduct by introducing evidence of multiple uncharged crimes despite his successful motion to bifurcate the prison prior allegation. Because defense counsel did not object to this evidence, resulting in a forfeiture, defendant contends his counsel was constitutionally ineffective for failing to object to the purported prosecutorial misconduct as well as the six areas of evidence: (1) the presence of hashish and smoking devices in the Deanda's garage; (2) Vierra's testimony that he and defendant stole some copper wire that was found during a search of Vierra's residence; (3) McMorrow's testimony that he, defendant, and Vierra committed a few vehicular burglaries at Lassen College; (4) McMorrow's testimony that he and defendant burglarized a Janesville gas station on the night of June 2, 2010, in addition to the charged burglaries of that night; (5) McMorrow's testimony that defendant admitted that he burglarized a railroad museum; and (6) Melissa Deanda's testimony that Enrique Deanda was convicted for "possession of stolen property out of this case." Defendant asserts his counsel was ineffective for not objecting to the introduction of all of this evidence because it had no relevance to his guilt on the charged offenses, and/or it was prejudicial because it permitted an inference he had a propensity to commit thefts and burglaries.
B. Analysis
To establish ineffective assistance of counsel, a defendant must show (1) counsel's performance was below an objective standard of reasonableness under prevailing professional norms, and (2) the deficient performance prejudiced defendant. (Strickland v. Washington (1984) 466 U.S. 668, 691-692 [80 L.Ed.2d 674, 695-696] (Strickland); People v. Ledesma (1987) 43 Cal.3d 171, 216-217 (Ledesma).) " 'Surmounting Strickland's high bar is never an easy task.' " (Harrington v. Richter (2011) 562 U.S. 86, 105 [178 L.Ed.2d 624, 642] (Richter), quoting Padilla v. Kentucky (2010) 559 U.S. 356, 371 [176 L.Ed.2d 284, 297].)
The reason why Strickland's bar is so high is because "[a]n ineffective-assistance claim can function as a way to escape rules of waiver and forfeiture and raise issues not presented at trial, and so the Strickland standard must be applied with scrupulous care, lest 'intrusive post-trial inquiry' threaten the integrity of the very adversary process the right to counsel is meant to serve. [Citation.] . . . It is 'all too tempting' to 'second-guess counsel's assistance after conviction or adverse sentence.' " (Richter, supra, 562 U.S. at p. 105.)
Where it is easier to dispose of an ineffective assistance of counsel claim on the grounds of prejudice, we need not address whether counsel's performance was deficient. (In re Fields (1990) 51 Cal.3d 1063, 1079.) To establish prejudice, "[i]t is not enough 'to show that the errors had some conceivable effect on the outcome of the proceeding.' " (Richter, supra, 562 U.S. at p. 104.) To show prejudice, defendant must show a reasonable probability that he would have received a more favorable result had counsel's performance not been deficient. (Strickland, supra, 466 U.S. at pp. 693-694; Ledesma, supra, 43 Cal.3d at pp. 217-218.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland, at p. 694; accord, Ledesma, at p. 218.) "The likelihood of a different result must be substantial, not just conceivable." (Richter, p. 112.) Given the number of offenses and the evidence supporting the convictions, including the recovery of stolen property, we conclude that nothing about the evidence concerning the uncharged crimes tipped the balance against defendant. That evidence was not inflammatory or otherwise noteworthy. The notion these uncharged offenses prejudiced defendant because that evidence made it appear he had a propensity to steal is farfetched given the abundant evidence related to the charged offenses heard by the jury. In our view, it is not reasonably probable defendant would have received a more favorable result on any of the counts for which he was convicted had counsel objected and evidence of these uncharged offenses been precluded.
V. Cumulative Error
Defendant contends that the cumulative effect of the alleged errors warrants reversal. We reject this contention. The premise behind the cumulative error doctrine is that while a number of errors may be harmless taken individually, their cumulative effect requires reversal. (People v. Bunyard (1988) 45 Cal.3d 1189, 1236-1237.) A defendant is entitled to a fair trial but not a perfect one. (People v. Cunningham (2001) 25 Cal.4th 926, 1009.) We have found no prejudice when considering defendant's claims separately. Viewed cumulatively, our conclusion is the same: defendant has failed to demonstrate prejudice. Accordingly, he was not deprived of a fair trial.
DISPOSITION
The judgment is affirmed.
MURRAY, J. We concur: RAYE, P. J. MAURO, J.