Opinion
E052513 Super.Ct.No. RIF10002586
10-20-2011
THE PEOPLE, Plaintiff and Respondent, v. JERRY WAYNE HARRIS, Defendant and Appellant.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, William M. Wood and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of Riverside County. W. Charles Morgan, Judge. Affirmed.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, William M. Wood and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant took tools, saws, and cabinets from several apartments being renovated and a storage area located in a Riverside apartment building. He was convicted by a jury of burglary. (Pen. Code, § 459). In addition, after a bench trial, defendant was found to have suffered four prior serious or violent felony convictions (§§ 667, subds. (c) & (e)(2) and 1170.12, subd. (c)(2)(A)), and to have served one prior prison term (§ 667.5, subd. (b)). He was sentenced to the indeterminate sentence of 25 years to life.
All further statutory references are to the Penal Code unless otherwise indicated.
At sentencing, the trial court struck the prior prison term pursuant to section 1385.
Defendant claims on appeal that the trial court erred and violated his right to due process and a fair trial by excluding third party culpability evidence and denying him the opportunity to make an adequate offer of proof as to the admission of that evidence.
Defendant additionally argued in his opening brief that the trial court erred by failing to give the jury a unanimity instruction. However, after the People pointed out in their respondent's brief that in fact a unanimity instruction had been given, defendant, understandably, withdrew this argument.
I
FACTUAL BACKGROUND
Hao Ta was the property manager for the Crestview Apartments located at 3000 Canyon Crest Drive in Riverside. Constance Harris, defendant's estranged wife, was the assistant manager and lived at the building. Ta oftentimes saw defendant at the apartment building.
Ta was also referred to as Norman by some of the witnesses, but he advised the clerk his first name was Hao.
On July 28, 2009, Ta was renovating some of the apartments at the Crestview complex. Five of the apartments were occupied. Jorge Salguero was assisting him. They used many tools to complete the renovations. That night, Ta completed his work for the day and put his tools inside a storage area by the pool. He locked the doors of the apartments. Salguero recalled that they also locked the storage area.
On July 29, 2009, Ta received a call from Natalie Green, one of the tenants who lived in apartment 13, that someone had broken into some of the apartments. Green had worked a graveyard shift the night before and arrived home about 6:00 a.m. on July 29, 2009. Steven Koppelman, her roommate, was asleep when she got home.
Both Green and Koppelman had previous misdemeanor convictions involving moral turpitude.
As Green was getting ready for bed, she heard dragging noises and voices coming from apartment 12 (which was being renovated and was unoccupied). Green woke Koppelman up. She looked out the peephole of her apartment door and said, "Who's there? What are you doing?" A man responded that his name was Frank and that they were doing work for Ta. Green recognized the voice as belonging to defendant. Green heard another voice, which she did not recognize. Koppelman heard at least two people. Green also heard what sounded like a box being dragged down the stairs.
Koppelman and Green opened the door. Green saw defendant leaving the apartment complex. Green did not recall seeing defendant dragging anything. When Green looked inside apartment 12, she noticed some materials that she had seen the night before were missing.
Green then noticed that the door leading to apartment 2 had been kicked in. Green saw two other doors had been kicked in. She also saw that the storage room had been broken into. Green went to Constance's apartment to tell her about the damage. Green told Constance she suspected defendant. Green and Koppelman went back to their apartment but did not call the police. Green called Ta and reported the damage.
Koppelman testified that when he and Green went outside, they saw a black truck outside the gate. The truck sped away, and he and Green went back to their apartment. After this, they came out again, and Koppelman observed defendant return to the apartment complex with another person and enter and exit apartment 2. Koppelman did not see them carrying anything out of apartment 2. At this point, Green called Constance. Green and Koppelman then went outside and met with Constance. They told Constance that defendant had been at the apartment building. Koppelman then noticed that the storage area door was open.
Although both Green and Koppelman had previously seen defendant walk with a cane, he did not have a cane that day.
Approximately 20 minutes later, defendant came to Green's and Koppelman's apartment. Defendant was very upset and told them to mind their own "fucking" business. He then left.
Defendant knew the code for the front security gate. It was also possible to access the apartment building where there was not a security gate. Green never saw defendant enter or leave apartment 12. Koppelman indicated that defendant appeared intoxicated.
When Ta arrived to inspect the apartments, the doorjambs on apartment numbers 1, 2, and 3 had been broken off. Cabinets that had not yet been installed were missing from apartment 12, but the doorjamb was not broken. Items were taken from the storage area, but the door was not damaged. Missing tools included several saws, a tool used to clean out drains, and nail guns. Two of the saws weighed about 50 pounds each. A granite stone countertop was also missing from the parking lot and weighed about 300 pounds. Ta did not give anyone permission to take the tools. Ta was the only person with keys to the apartments. Salguero also testified that the tools that had been locked up the night before in the storage area were missing on July 29. Salguero believed the storage area door had been opened by use of a screwdriver.
Riverside Police Officer Javier Cabrera arrived at the Crestview Apartment around 8:30 a.m. Officer Cabrera had been advised he was responding to a threats call. He then observed that the doors to apartments 1 and 2 had been kicked in. No report was made that apartment 3 had been burglarized. Officer Cabrera did not remember being told about the storage room being burglarized. Green did not tell Officer Cabrera that she saw defendant that day; she only told him she recognized his voice.
Riverside Police Sergeant Chris Wagner interviewed Koppelman and Green in August 2009. Both Koppelman and Green identified defendant from a six-pack photographic lineup. Green told Detective Wagner that she saw defendant dragging a box down the stairs with another man when she opened the door after hearing noises from apartment 12. Koppelman told Detective Wagner that when defendant came to their apartment, he told them to watch their backs. The missing tools were never found. Ta never told Detective Wagner that someone broke into the storage area and apartment 3.
Dr. Sonny Lee, who specialized in internal medicine, had seen defendant in February and April 2009. He also saw him in early 2010. In February 2009, defendant was treated for chronic pain in his knee and was prescribed a strong painkiller (Oxycontin). In April 2009, defendant was complaining of low back pain. Dr. Lee believed he referred defendant to an orthopedic surgeon for his knee. Dr. Lee did not prescribe a cane for defendant. In 2010, defendant was continuing to complain about chronic pain, and his pain prescription was continued. Dr. Lee did not believe that defendant's mobility was so restricted as to require a cane to walk.
Constance was still married to defendant although they had been separated for 10 years. Defendant was not living with her on July 29, 2009; she believed that he was living in Los Angeles. Defendant did not stay at her house on July 28. Constance had called the police around 7:30 a.m. on July 29 because defendant had threatened her during a phone conversation that morning, not because of the burglaries. Constance saw no evidence that the storage room had been broken into. Defendant did not have a car, and she did not know if he had a friend named Frank.
II
THIRD PARTY CULPABILITY EVIDENCE
Defendant contends the trial court erred by excluding evidence that there were prior burglaries at the Crestview apartments as third party culpability evidence. He complains that the trial court denied him the opportunity to present a defense by refusing to allow him to provide an offer of proof of the evidence. He insists that the trial court's ruling resulted in the denial of his right to due process and to present a defense under the federal Constitution.
A. Additional Factual Background
During direct examination of Ta, the People asked him if any of the Crestview apartments had been broken into prior to July 29, 2009. Ta testified that this was the second time that there was property missing from the apartments.
During defense counsel's cross-examination, the following exchange occurred:
"Q: And you mentioned that there were prior burglaries. When were those prior burglaries?"
"[PROSECUTOR]: Objection. Relevance.
"THE COURT: Sustained.
"Q: Well, at some point, you mentioned that you replaced the tools; correct?
"A: Yes.
"Q: When did you replace the tools?
"A: After the . . . first incident happened, the burglary.
"Q: And do you know when that was that you replaced the tools?
"[PROSECUTOR]: Objection. Relevance.
"THE COURT: Sustained."
Defense counsel's request for a sidebar conference was denied by the trial court. After the jury was excused for the day, defense counsel stated, "Your Honor, I just wanted to put on the record, and I know the Court would disagree, but with respect to some of the . . . " The trial court interrupted and stated, "We already have. You already have it on the record where I sustained the objection and you wanted to come forward. And that's irrelevant. That information's irrelevant, and . . . that's it. You tried, and it's in there. And if it[] . . . becomes a bone of contention, you've already tried . . . ." (RT 108-109.}
When Salguero testified, he volunteered that the tools had been taken a second time. Defense counsel on cross-examination asked him, "Now, you said that when you came to look at what tools were missing, this was the second time this had happened?" The People's relevance objection was sustained. Later, Salguero explained that he had two sets of tools. One of the sets was stolen prior to the instant burglary.
During cross-examination of Green, defense counsel asked her, "Had you ever told Mr. Ta before the 29th that you had noticed tools missing from the apartment complex?" The People's relevance objection was sustained.
Defendant called Constance as a defense witness. Defense counsel asked if there had been any prior burglaries. The People objected on relevance grounds. However, before it was sustained by the trial court, she responded, "Yes." The People's motion to strike was granted.
B. Analysis
All evidence having any tendency in reason to prove or disprove a disputed fact is admissible. (Evid. Code, § 210.) "In general, third party culpability evidence is admissible if it 'rais[es] a reasonable doubt of defendant's guilt.' [Citation.] This does not mean, however, that no reasonable limits apply. Evidence that another person had 'motive or opportunity' to commit the charged crime, or had some 'remote' connection to the victim or crime scene, is not sufficient to raise the requisite reasonable doubt. [Citation.] . . . [T]hird party culpability evidence is relevant and admissible only if it succeeds in 'linking the third person to the actual perpetration of the crime.' [Citations.]" (People v. DePriest (2007) 42 Cal.4th 1, 43.) "[E]vidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant's guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime." (People v. Hall (1986) 41 Cal.3d 826, 833.)
Here, prior to trial, defendant made no offer of proof as to third party culpability evidence but, rather, sought by cross-examination to introduce the evidence. The only evidence of third party culpability on the record was that a prior burglary had occurred at Crestview apartments where similar tools had been taken. There was no indication that a third party had even committed the other burglary. Defendant's argument assumes that the prior burglaries were committed by another person. However, it is just as reasonable to assume that the prior burglaries were also committed by defendant and his cohort. As defendant himself admits, the prior burglaries were substantially similar to the current burglary. Defendant clearly had access to the apartment building and was seen there on numerous occasions. Without identification of a potential suspect of those burglaries, the trial court did not abuse its discretion in excluding the evidence as third party culpability evidence.
Further, even if the prior burglary was committed by some third person, no doubt burglaries occurred at this apartment building and other apartment buildings all the time. The pool of suspects is seemingly endless. Defendant did not ask Ta whether another person had committed a prior burglary; rather, he asked if a previous burglary at the apartment building had occurred. There was nothing before the trial court to show that a third party committed the prior burglary, much less that the perpetrator of the prior burglary was involved in the instant case. Here, evidence of a prior burglary at the apartment complex, without more, was properly excluded by the trial court.
Defendant complains that the exclusion of such evidence violated his federal constitutional rights to due process and a fair trial by disallowing him the opportunity to present a defense. "As a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused's right to present a defense." (People v. Hall, supra, 41 Cal.3d at p. 834.) Defendant was not foreclosed from presenting a defense. He explained that he was present at the Crestview apartments in order to see Constance and not to commit the burglary. During closing argument, defense counsel alluded to the prior burglaries and noted that Ta and Salguero were not clear that the property taken was taken in the burglaries on January 29 or in the prior burglaries. That the jury rejected his defense does not amount to him being foreclosed from presenting a defense.
Defendant relies on Holmes v. South Carolina (2006) 547 U.S. 319 [126 S.Ct. 1727, 164 L.Ed.2d 503] to support his claim that his due process rights protect his right to present third party culpability evidence in his defense. In Holmes, the court held that an evidentiary rule that a defendant could not introduce third party culpability evidence if the prosecution introduced forensic evidence that strongly supported a guilty verdict violated the defendant's federal constitutional rights to a fair trial and to present a defense. (Id. at pp. 330-331.) The Holmes court concluded that "by evaluating the strength of only one party's evidence, no logical conclusion can be reached regarding the strength of contrary evidence offered by the other side to rebut or cast doubt." (Id. at p. 331.)
In People v. Samaniego (2009) 172 Cal.App.4th 1148, the court rejected that the reasoning in Holmes applied in a case where the defendant sought to introduce evidence that a third party committed the murder for which the defendant was accused. It held, "We do not find Holmes controlling here. It dealt with a judicially created rule precluding third party culpability evidence if the prosecution presented strong evidence, especially forensic evidence. It thereby focused the inquiry on the strength of the prosecution's case, not the probative value or potential adverse effects of the third party culpability evidence. Holmes did not consider the extent to which a trial court might consider the strength of the prosecution's evidence in exercising its discretion to determine whether the third party evidence could raise a reasonable doubt as to the defendant's guilt. In the matter before us, the trial court's focus was on the lack of connection between [the third party] and the crime, not on the strength of the People's case. Holmes is also distinguishable on its facts, as the third party in that case was strongly linked to the crime by having told numerous people that the charged defendant was innocent and that the third party himself committed the crime. No such compelling evidence is present here." (Id. at p. 1176.)
Similarly, here the trial court did not explain its reasons for excluding the evidence but stated that it was irrelevant. As set forth, ante, there was nothing on the record to support that any third party existed, much less that he or she could be connected to the current burglaries. Nothing in the record supports that the trial court excluded the evidence based solely on the belief that the People's evidence was strong, and we will not engage in such speculation. The evidence that another burglary occurred, without more, and the fact that the trial court did not appear to rely only on the strength of the People's evidence, distinguish this case from Holmes.
Finally, defendant claims that his due process rights were abridged by the trial court's refusal to allow him to present a more detailed offer of proof on the evidence. Defendant sought to elicit testimony that prior burglaries occurred at the apartment building. As set forth, ante, this evidence was completely irrelevant, as there was no evidence that the perpetrator of the first burglary could be identified or linked to the instant burglary. Defendant's argument rests on the assumption that the offer of proof would reveal such evidence. Defendant's claim is based on pure speculation, and we cannot find a due process violation based on speculation.
Certainly, if such evidence could have been produced, defendant has an adequate remedy of filing a petition for writ of habeas corpus detailing it. However, it seems inconceivable that defense counsel would not offer such evidence in a motion in limine prior to trial or prior to introducing the evidence by way of cross-examination.
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Even if the trial court erred either by not giving counsel an adequate opportunity to make an offer of proof on the third party culpability evidence or by excluding the evidence, any conceivable error is harmless. (People v. Hall, supra, 41 Cal.3d at p. 835; People v. Cudjo (1993) 6 Cal.4th 585, 611-612.) Here, even assuming evidence was admitted that a third person committed a prior burglary at the Crestview apartments, it would "not undermine the significant evidence linking defendant to the" burglary. (Hall, at p. 835.)
Green heard noises coming from apartment 12, including what sounded like a box being dragged down the stairs. When she asked who was there, a person responded that they were working for Ta. Green believed that it was defendant. She confirmed this fact by opening the door and seeing defendant either dragging a box down the stairs or walking down the stairs. At this point, she discovered that items were missing from apartment 12 that had been in the apartment the prior night.
The door to apartment 2 had been damaged, and Ta confirmed the damage had occurred sometime between the night of July 28 to the morning of July 29. Koppelman had seen defendant and another man entering apartment 2 in the early morning of July 29. All of the tools that were present in the apartments and storage area were missing on the morning of July 29, despite having been present on the evening of July 28.
Defendant was not given permission by Ta to work in the apartments, and he was present during the approximate time of the burglary. Defendant lied to Green and Koppelman that he was working for Ta. Further, although defendant presented evidence that he had physical limitations, both Green and Koppelman established that another person was present with defendant. Additionally, after Green and Koppelman reported their suspicions to Constance, defendant came to their apartment and told them to mind their own "fucking" business and to watch their backs. Moreover, no evidence established that anyone besides defendant and his cohort who could be linked to the burglary were present at the apartment complex. Even had evidence been presented that a third person committed another burglary at the apartment building, the jury could reasonably conclude that defendant was the perpetrator or aided and abetted the instant burglary. As such, any conceivable error occurring because of the exclusion of defendant's alleged third party culpability evidence was harmless.
III
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
J.
We concur: RAMIREZ
P.J.
HOLLENHORST
J.