Opinion
A118080
7-1-2008
THE PEOPLE, Plaintiff and Respondent, v. GARY JOHNSON, Defendant and Appellant.
Not to be Published
Defendant Gary Johnson appeals his conviction on two counts of false imprisonment of an elder adult by use of violence, menace, fraud, and deceit (Pen. Code, § 368, subd. (f)), claiming the trial court erred by denying his request for a pretrial lineup, and by foreclosing him from offering evidence of third party culpability. He also appeals his sentence, asserting that his 1988 conviction in a Pennsylvania burglary case does not qualify as a prior strike. We affirm the judgment and sentence.
Unless otherwise specified, all further statutory references are to the Penal Code.
FACTUAL BACKGROUND
Ms. Janice C.
In May 2000, Ms. C., who was 86 years old, was living alone in her house on Van Ness Avenue in San Francisco. Around this time, a man came to her door claiming that he was writing a book on architecture and asked if he could see the inside of her home. She agreed and let him view the first two levels of the house. Some days later, he stopped by a second time but a worker was in her house using her phone and the man left.
On May 8, 2000, the man came to Ms. C.s house again and rang the doorbell. She let him in. When they were on the second floor landing, he grabbed her by the waist and dragged her up to the third floor. He took her to a bedroom, threw her on the bed, and tied her hands and feet with nylon stockings. He asked her for her money and jewelry. He then dragged her down the hall to another bedroom, threw her on the floor, and tied her to the legs of a heavy chair. He threatened her with a knife and fondled her vaginal area on top of her clothing. In the course of defending herself, she scratched his face. He picked up a rag and wiped her nails, in an apparent effort to remove any DNA evidence. Eventually he left the house and she discovered that a collection of small boxes in the first bedroom had been scattered on the floor. A pair of her earrings was missing. The police were able to obtain a partial fingerprint from the scene. This fingerprint was subsequently identified as that of defendant about two years after the incident.
Ms. Julia F.
On the afternoon of August 4, 2000, Ms. F., age 74, was at home alone in her house on 20th Avenue in San Francisco. The doorbell rang, and she answered the door thinking that it was her daughter, who usually came to the house around that time. Instead, a man, whom she identified as defendant at trial, entered her house and said that he wanted money. She gave him $35 that she had in a bowl in the bedroom. They came out into the dining room and defendant attempted to tie her arms with some twine that he found in the room. She managed to hit him in the chest with her elbow and he ran out of the house. After he left, she noticed that a watch was missing from her bedroom. About two years later, Inspector Totah showed Ms. F. a photo lineup. She identified defendants photograph as that of the perpetrator.
PROCEDURAL HISTORY
On July 18, 2005, an amended complaint was filed charging defendant with nine counts of false imprisonment of an elder adult by use of violence, menace, fraud and deceit. The amended complaint also alleged he had prior convictions in California and Pennsylvania that constituted serious felonies under the Three Strikes law (§§ 667, subds. (d) & (e), 1170.12, subds. (b) & (c)). Several putative victims testified at defendants preliminary hearing, including Ms. C. and Ms. F.
On February 16, 2007, an information was filed charging defendant with three counts of false imprisonment of an elder adult by the use of violence, menace, fraud, and deceit. The information also alleged the two prior strikes. After a jury trial, defendant was convicted of the two counts involving Ms. C. and Ms. F. At sentencing, defendant waived his right to have his priors decided by the jury.
Defendant was ultimately acquitted of a third count involving another elderly woman. We omit any discussion of the factual background of that count as those facts are not relevant to this appeal.
On April 6, 2007, the trial court found true the allegation that defendant had suffered two prior strikes. On May 16, 2007, the court sentenced him to two consecutive terms of imprisonment of 25 years to life. This appeal followed.
DISCUSSION
I. The Denial of Defendants Motion for a Pretrial Lineup.
On October 17, 2005, defendant filed a motion for a pretrial lineup. On November 2, 2005, the magistrate denied the motion "based on the time, and weighing, and balancing all of those . . . ." Defendant claims that this denial violated his constitutional right to due process of law. We disagree.
We decline to address the Attorney Generals contention that defendant forfeited this claim by failing to make a motion in the trial court to set aside the information pursuant to section 995.
"In Evans v. Superior Court (1974) 11 Cal.3d 617, 625 [114 Cal.Rptr. 121, 522 P.2d 681] (Evans), [the California Supreme Court] concluded that `due process requires in an appropriate case that an accused, upon timely request therefor, be afforded a pretrial lineup in which witnesses to the alleged criminal conduct can participate. The right to a lineup arises, however, only when eyewitness identification is shown to be a material issue and there exists a reasonable likelihood of a mistaken identification which a lineup would tend to resolve. (Fn. omitted.)" (People v. Farnam (2002) 28 Cal.4th 107, 183; see also People v. Rodrigues (1994) 8 Cal.4th 1060, 1155.) "The questions whether eyewitness identification is a material issue and whether fundamental fairness requires a lineup in a particular case are inquiries which necessarily rest for determination within the broad discretion of the magistrate or trial judge. . . . [A]s in all due process determinations, the resolution here to be made is one which must be arrived at after consideration not only of the benefits to be derived by the accused and the reasonableness of his request but also after considering the burden to be imposed on the prosecution, the police, the court and the witnesses." (Evans, supra, at p. 625.)
Our review of the record does not suggest there was a "reasonable likelihood of a mistaken identification" that would have been resolved by a pretrial lineup. First, both Ms. C. and Ms. F. selected defendant from a photo lineup that was presented to them two years after the crimes occurred. Defendant has not established that those photo lineups were in any way impermissibly suggestive. The women also testified at the preliminary hearing and, in the case of Ms. F., at trial that he appeared to be the man who invaded their homes. Both witnesses saw the perpetrators face, and Ms. C. had interacted with him on two occasions prior to the crime. Thus, there was not a reasonable likelihood of mistaken identification. Moreover, the identification in Ms. C.s case was corroborated by the presence of defendants fingerprint.
Whatever justification that may have existed for conducting a lineup was outweighed by the inconvenience to the witnesses. Both victims were elderly and the burden of having them come to court to view a lineup was substantial. For example, at the preliminary hearing, Ms. C. indicated that she experienced discomfort when sitting for too long because she had suffered a broken pelvis. She was 91 years old at the time of the hearing. By the time of the trial, she was physically unable to testify and a videotape of her preliminary hearing testimony was played at trial. The other victim, Ms. F., was 79 years old at the time of the preliminary hearing.
We also note that prior to the preliminary hearing, the magistrate granted defendants motion under People v. Greene (1973) 34 Cal.App.3d 622 to require the victims to testify regarding his identity outside of his presence. At the hearing, the two victims were able to describe their attacker in some detail. Their descriptions of the perpetrator, although not identical, were fairly consistent and, as best we can determine from the record, match defendants appearance.
Ms. C. testified that the perpetrator was about six feet tall and had a "husky" build. He appeared to be mixed race, part Caucasian and part of some other race that she could not identify. He had a round head. His hair was short, he did not have any facial hair. He spoke English without any accent and walked normally. He appeared to be around 40 years old. Later in the hearing, when defendant was present, she said that he looked familiar and could be the perpetrator, but that she couldnt say for sure.
Ms. F. testified that the perpetrator was dark and looked Mediterranean, was about five feet and eight or nine inches tall, and was around 38 or 40 years old. He had a stocky build. His hair was close shaven and he did not have any facial hair. He did not speak with any accent. He had a round face and dark eyes. When defendant was present in the courtroom she stated that he "kind of looks like" the man who attacked her. In describing the photo spread she viewed two years after the incident, she was "very sure" at the time that she had selected the photo of the perpetrator.
Finally, defendant was provided with the statements and descriptions of the witnesses, along with all of the information associated with the photo lineups. He thus had ample opportunity to challenge the identifications at trial, even without a pretrial physical lineup. Indeed, his efforts appear to have been partially successful, as he was acquitted of the charges as to one of the victims. We are convinced that an additional pretrial lineup would not have yielded any different testimony by the witnesses, or cast doubt upon any of the identifications made by them. We find no abuse of discretion in the trial courts denial of defendants motion for a lineup. (People v. Williams (1997) 16 Cal.4th 153, 235-236.)
II. Denial of Admission of Evidence of Third Party Culpability
At trial, defendant requested that he be allowed to present the defense that someone else had committed the crimes. As evidence of third party culpability, he offered that Ms. Nadine Madsen, the victim of a crime similar to the crimes committed against Ms. C. and Ms. F., had been tied up with string containing traces of DNA that were later determined not to belong to him. He had initially been charged with the false imprisonment of Ms. Madsen, however, this charge was dropped by the time of trial. In opposing the motion, the prosecution pointed out that the DNA had not been matched to any identified individual.
On March 2, 2007, the trial court denied defendants request to present his proffered "third party culpability" defense stating: "I can see how the DNA evidence in the uncharged crime might be relevant if someone else was identified as the possible donor of the DNA. But this is a little—this is a little bit like character evidence. Its like saying if he didnt commit that crime, then he didnt commit these crimes. But . . . its pure speculation that the same person committed all of the crimes." On March 13, 2007, the court denied defendants renewed request stating: "I think [the theory that the same person committed the crimes is] completely speculative. And I found absolutely no case law that allowed third party culpability evidence to be shown in the negative. And thats what you are trying to do here." Defendant now claims that the court denied him the right to present a complete defense to the count pertaining to Ms. F. because the prosecution relied heavily on modus operandi to prove he had committed the crime.
"In general, third party culpability evidence is admissible if it `rais[es] a reasonable doubt of defendants 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.] Under [People v. Hall (1986) 41 Cal.3d 826, 833] and its progeny, third 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.) In assessing the admissibility of third party culpability evidence, the trial court must "consider whether the evidence could raise a reasonable doubt as to the defendants guilt and whether it is substantially more prejudicial than probative under Evidence Code section 352." (People v. Bradford (1997) 15 Cal.4th 1229, 1325.)
In reviewing an assessment made by a trial court under Evidence Code section 352, we will not disturb the ruling on appeal absent a finding that the trial court abused its discretion. (People v. Lewis (2001) 26 Cal.4th 334, 372-373.) We find no such abuse of discretion here. The DNA that was recovered in connection with the crime against Ms. Madsen did not lead to the identification of a specific person at all, let alone to a third person who could be linked to the perpetration of the crime. Moreover, there was no evidence linking the unknown donors DNA to the crime committed against Ms. F. We agree with the trial court that this purported third party culpability evidence was too speculative to be relevant. (See People v. Babbitt (1988) 45 Cal.3d 660, 682 [evidence is irrelevant if it produces only speculative inferences].)
Defendant also claims that the exclusion of the evidence violated his federal constitutional rights to present a defense and to due process of law. As we have said, there was no state law error. Under such a circumstance, the California Supreme Court has "long observed that, `[a]s a general matter, the ordinary rules of evidence do not impermissibly infringe on the accuseds [state or federal constitutional] right to present a defense. [Citations.]" (People v. Robinson (2005) 37 Cal.4th 592, 626-627.) In any event, "any state law error would be harmless under the `reasonable probability test of People v. Watson (1956) 46 Cal.2d 818, 836[,] and any federal constitutional error would be harmless under the `beyond a reasonable doubt test of Chapman v. California (1967) 386 U.S. 18, 23-24 . . . ." (Robinson, supra, at p. 627.) The modus operandi theory was not essential to the prosecutions case as Ms. F. was able to identify defendant as the perpetrator from a photo lineup as well as at trial. Accordingly, it is not reasonably probable that the outcome would have differed if he had presented evidence of the unidentified DNA from the uncharged crime.
III. Use of Prior Pennsylvania Conviction as a Strike
In 1988, defendant pled guilty to a burglary charge in Pennsylvania. The trial court in the present case found beyond a reasonable doubt that defendant had suffered the conviction and that the conviction constituted a strike, which, along with a 1992 California first degree burglary conviction, made him eligible to be sentenced to an indeterminate term of life imprisonment under the Three Strike law. He claims that the Pennsylvania conviction does not qualify as a strike under Californias Three Strike law. We disagree.
Section 667, subdivision (a)(1) provides that a foreign conviction for a serious felony may be used to enhance a California prison sentence. Section 667.5, subdivision (f), defines a prior conviction as including "a conviction in another jurisdiction for an offense which includes all of the elements of the particular felony as defined under California law . . . ." First degree burglary is a serious felony for purposes of the Three Strikes law. (§ 1192.7, subd. (c)(18).)
Our Supreme Court has stated that " `To qualify as a serious felony, a conviction from another jurisdiction must involve conduct that would qualify as a serious felony in California. [Citations.] As we previously have emphasized, however, `[b]ecause the nature of the conviction is at issue, the prosecution is not allowed to go outside the record of conviction to "relitigat[e] the circumstances of a crime committed years ago . . . ." [Citations.] Instead, the relevant inquiry in deciding whether a particular prior conviction qualifies as a serious felony for California sentencing purposes is limited to an examination of the record of the prior criminal proceeding to determine the nature or basis of the crime of which the defendant was convicted." (People v. McGee (2006) 38 Cal.4th 682, 691.)
In deciding whether a foreign conviction qualifies as a strike, "We examine the documentary exhibits received in evidence at the trial on the prior convictions in the light most favorable to the judgment below to determine whether they disclose 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. [Citation.] Transcripts from preliminary hearings are part of the entire record of conviction and are admissible in evidence." (People v. Garrett (2001) 92 Cal.App.4th 1417, 1433.)
Defendant argues that it is possible to commit burglary under Pennsylvania law without committing burglary in California. He is correct. At the relevant times, in Pennsylvania, "[a] person is guilty of burglary if he enters a building or occupied structure[, or separately secured or occupied portion thereof,] with the intent to commit a crime therein, unless the premises are at the time open to the public or the person who enters is licensed or privileged to do so." (Commonwealth v. Stasiak (Pa. 1982) 451 A.2d 520, 523, citing 18 Pa.C.S., § 3502, subd. (a).) Two differences readily appear between burglary in Pennsylvania and in California. First, in California, the required intent is "to commit grand or petit larceny or any felony." (Pen. Code, § 459.) In Pennsylvania, the intent to commit any crime suffices. Second, for a burglary of the first degree in California the building entered must be "an inhabited dwelling house," (§ 460, subd. (a)) whereas in Pennsylvania the building may or may not be an "occupied structure."
The then-operative provision provided that "Burglary is a felony of the first degree." (18 Pa.C.S. §3502, former subd. (c).)
In finding that the Pennsylvania burglary charge involved an inhabited dwelling, the trial court relied on the complainants testimony at the preliminary hearing. The victim testified that the building defendant entered was his "home." The testimony also established that defendant entered the building under false pretenses (posing as a water department employee), and then went upstairs and stole money from the victims wallet. It is thus reasonable to infer that defendant entered the building with the concurrent intent to commit at least petit larceny, as defined under California law. (See §§ 484, subd. (a), 487, 488; People v. Shannon (1998) 66 Cal.App.4th 649, 653-654.)
Defendants protest that the Pennsylvania statute is "overbroad" is unpersuasive under the circumstances of this case. "The California Supreme Court has held that, in determining the truth of a prior conviction allegation, the trier of fact may look beyond the least adjudicated elements of the offense and instead may consider the entire record of the conviction to determine whether the offense of which the defendant previously was convicted involved conduct which satisfies all the elements of the comparable California felony. [Citations.] This rule applies equally to California and foreign prior convictions. [Citations.] Thus, `the text of the foreign statute is important in only two situations: (1) where the entire record cannot be examined; and (2) where the court records relied upon fail to establish facts disclosing the substance of the offense actually committed. [Citations.] It is only if the record does not disclose the facts of the offense actually committed that a presumption then arises that the prior conviction was for the least offense punishable. [Citation.] [Citation.]" (People v. Whitney (2005) 129 Cal.App.4th 1287, 1297.)
The transcript of the preliminary hearing in Pennsylvania establishes that defendant committed the equivalent of first degree burglary under California law. The use of that conviction to enhance defendants sentence was proper.
Defendants claim in his reply brief that he was deprived of his right to a jury trial regarding the factual finding that he committed a residential burglary is specious given that he voluntarily waived his right to have his prior convictions determined by a jury.
The judgment and sentence are affirmed.
We concur:
Marchiano, P. J.
Margulies, J.