Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA279299, Bob S. Bowers, Jr., Judge.
Judith Vitek, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, Ryan B, McCarroll, Deputy Attorney General, for Plaintiff and Respondent.
MOSK, J.
INTRODUCTION
A jury convicted defendant and appellant Karen Koshkaryan (defendant) of nine counts of second degree burglary of a vehicle (Pen. Code, § 459 ), one count of unlawfully driving a vehicle (Veh. Code, § 10851, subd. (a)), and 11 counts of receiving stolen property (§ 496, subd. (a)). The trial court found true allegations that defendant suffered a prior “strike” conviction within the meaning of sections 667, subdivisions (b) through (i) and 1170.12, subdivisions (a) through (d) (Three Strikes law), and three prior convictions for which he served a term in prison within the meaning of section 667.5, subdivision (b). The trial court struck the prior strike conviction and sentenced defendant to 13 years, four months in state prison.
All statutory citations are to the Penal Code unless otherwise noted.
On appeal, defendant contends that there is insufficient evidence to support 10 of his convictions, that he was improperly convicted of two counts of receiving stolen property (counts 19 and 20) because the two pieces of property underlying the convictions were stolen from one location on one occasion, that the trial court improperly admitted hearsay evidence concerning the removal of property from his apartment by a person who identified himself as defendant’s brother, and that the trial court’s imposition of an upper term sentence based on facts not found true beyond a reasonable doubt by a jury violated his Sixth and Fourteenth Amendment rights under the Federal Constitution. Because defendant was improperly convicted of two counts of receiving stolen property for two pieces of property received at the same time, we remand this case to the trial court with directions to vacate and dismiss defendant’s receiving stolen property conviction either on count 19 or on count 20. We otherwise affirm the judgment.
BACKGROUND
Hoshang Dubash’s Property (Count 2 – Receiving Stolen Property – § 496)
On September 13, 2004, Hoshang Dubash parked and locked his car in a parking lot off Cahuenga Boulevard. Dubash left various belongings in his car. When he returned to his car about 15 or 20 minutes later, he discovered that a passenger side window was broken and a duffel bag, backpack, and lunch tote were missing. Dubash had not given anyone permission to break into his car and take his property. The police later found Dubash’s duffel bag in defendant’s residence.
Jason Miller’s Property (Count 3 – Second Degree Burglary – §459; Count 4 – Receiving Stolen Property – § 496)
At about 5:00 p.m., on January 7, 2005, Jason Miller parked and locked his car on Santa Monica Boulevard. When Miller returned to his car about five minutes later, he saw that a passenger side window had been smashed. Miller’s laptop computer, checks, I.D., credit card, books, and palm pilot were gone. Miller had not given anyone permission to take his property.
During the evening on January 14, 2005, a 20- to 35-year-old Armenian man approached Aykaz Sarkisyan near a video store in North Hollywood about selling Sarkisyan a palm pilot. Sarkisyan purchased the palm pilot for about $20 to $30. He did not get a good look at the man who sold him the palm pilot and was unable to identify defendant at trial as that man. Although the man gave Sarkisyan a name, Sarkisyan could not remember it. The man gave Sarkisyan his telephone number which Sarkisyan stored on his cell phone.
When Sarkisyan turned on the palm pilot, he noticed that it contained many phone numbers and got the feeling that the seller may not have owned it. One of the numbers in the palm pilot was identified as “owner.” Sarkisyan called the number and determined that the person who answered owned the palm pilot. Miller testified that he received a telephone call concerning the return of his palm pilot. Sarkisyan and Miller arranged to meet at the Cat and Fiddle in Hollywood.
Miller did not meet with Sarkisyan at the Cat and Fiddle. Instead, he called the police and Los Angeles Police Department Officer Shawn Hetherington showed up in his place. Sarkisyan gave Officer Hetherington the palm pilot and the seller’s phone number. A certified document from the custodian of records for “Sprint,” identified defendant as the subscriber for that telephone number. Officer Hetherington returned Miller’s palm pilot to him. Upon receiving the palm pilot, Miller entered his password and confirmed that it was his palm pilot.
Robert Baird’s Property (Count 13 – Unlawfully Driving a Vehicle – Vehicle Code § 10851, Subdivision (a))
At about 8:00 a.m., on January 8, 2005, Robert Baird parked and locked his blue 1986 Chevy S-10 pickup truck on the street in Hollywood. Baird kept a spare key inside the driver’s side door compartment. At about 7:00 p.m., Baird returned to the location where he had left his truck, but it was gone. Baird had not given anyone permission to take his truck.
At about 9:00 a.m., on February 1, 2005, Los Angeles Police Department Officer Christine Labriola saw a blue Chevy S-10 pickup truck in an alley. Officer Labriola determined that the front license plate on the truck had been stolen. Officer Labriola monitored the area and observed defendant walk to the truck, open the door, and remove items. Defendant then entered the A-1 Pawnshop. Defendant returned to the truck and drove away. Officer Labriola conducted a traffic stop and took defendant into custody. Officer Labriola saw various items in the bed of the truck including a monitor and a footlocker. She called Baird and notified him that his truck had been found.
When Baird retrieved his truck from the impound lot, he noticed that the rear license plate had been replaced with someone else’s plate and in the front was a dealer’s sticker. The rear window was broken. The truck was filled with various items that did not belong to Baird, including a Sony monitor, CD’s, and a DVD player. Baird had the rear window repaired at Vinnie’s Auto Glass. While repairing Baird’s window, Barry Fagala found some credit cards inside the top molding of the truck. Fagala gave the cards to Baird. The cards did not belong to Baird and he had not previously seen the credit cards in his truck. Baird went to the police station and told Los Angeles Police Department Detective Roger Klohr about the items in the bed of his pickup truck. Detective Klohr took custody of, among other things, the Sony monitor, the footlocker, and the credit cards.
Khai Lu’s Property (Count 5 – Second Degree Burglary – § 459)
At about 6:00 p.m., on January 11, 2005, Khai Lu parked and locked his car on Seaward Street. When he returned to his car about 25 minutes later, a passenger side window was broken and a camera, laptop and desktop computers, and other items were missing from his car. Lu had not given anyone permission to enter his car and take his property.
Lu contacted Morgan Spencer, a security guard who worked at the corner of Seaward Street and Lexington. Spencer reviewed a videotape from a security camera that monitored the area. Spencer saw a blue Chevy S-10 truck with a camper shell back up to Lu’s car. Someone got out of the truck and walked back to Lu’s car three times and removed items from the car and placed them in the truck. Spencer could not see the person’s face from the videotape. The videotape was played for the jury.
About a week to 10 days later, Spencer saw a similar blue Chevy S-10 truck drive by. The truck had “distinct” “pill-shaped” windows in the back. The driver glared at Spencer. Spencer identified defendant as the driver of the blue Chevy S-10 truck who glared at him. About a week later, Spencer saw the truck again.
Katherine Watson’s Property (Count 6 – Second Degree Burglary – § 459; Count 7 – Receiving Stolen Property – § 496)
At about 10:45 a.m., on January 18, 2005, Katherine Watson parked and locked her car on Gardener. Watson returned to her car in the evening, and found that a rear passenger window had been smashed and an acoustic base guitar and costume jewelry were gone. Watson had not given anyone permission to enter her car.
Yevgeny Moiseyev managed the A-Plus Pawnshop, in Los Angeles. When a person sells or pawns an item at a pawn shop, the person has to show a picture I.D., sign the pawn ticket, and give a fingerprint. On January 22, 2005, Moiseyev issued a receipt for the purchase of an acoustic guitar from “Koshkaryan.” The parties stipulated that if called, a fingerprint expert would have testified that the thumbprint on the receipt for the guitar matched defendant. The guitar had a serial number on it.
According to Moiseyev, the A-Plus Pawnshop daily sent a floppy disc with a description of items it received, including serial numbers, to the police department to determine if the items were stolen. At some point, the police contacted Moiseyev and picked up the guitar. Watson identified the guitar the police picked up from Moiseyev as her guitar.
Vincent Panettiere (Count 8 – Second Degree Burglary - § 459; Count 18 – Receiving Stolen Property – § 496)
On January 19, 2005, Vincent Panettiere parked and locked his car on Lexington Avenue. When Panettiere returned to his car on January 21, 2005, he found that one of his car windows had been smashed and a footlocker was missing. Panettiere had not given anyone permission to enter his car and take the footlocker. Panettiere’s footlocker was among the items Officer Labriola found in Baird’s truck when she stopped defendant in that truck on February 1, 2005.
Jemma Corfield’s Property (Count 12 – Second Degree Burglary - § 459; Count 22 – Receiving Stolen Property – § 496)
At 12:30 p.m., on January 21, 2005, Jemma Corfield parked and locked her car in her driveway on North Camden Drive. Corfield left her purse in the car. Among other things, her purse contained $300, her glasses, her check book, and her credit cards. Corfield returned to her car five minutes later, and found that the back passenger window was broken and her purse was gone. Corfield had not given anyone permission to break into her car and take her purse. At trial, Corfield identified two of her credit cards. They were among the cards that Fagala found in the inside top molding of Baird’s truck that defendant was found driving on February 1, 2005.
On January 21, 2005, at about 12:30 p.m., Shigeki Kamitakahara, a tour guide, was lying down in the back of his van on Carmelita in Beverly Hills, near North Camden Drive. At some point, Kamitakahara noticed that a man was looking into his van. Kamitakahara asked, “are you looking for something.” The man responded that he was working for the government or the state and asked Kamitakahara if his van was in “legal status.” The man then said the van was “fine” and walked away towards Camden Drive.
On February 16, 2005, Kamitakahara viewed a photographic lineup and identified the person in position number four as the person who had been looking into his van. Officer Hetherington testified that defendant was in position number four. Kamitakahara could not identify anyone in court as the person who looked into his van.
Leigh Matheu’s Property (Count 9 – Second Degree Burglary - § 459; Counts 19 and 20 – Receiving Stolen Property – § 496)
At about 11:00 a.m., on January 23, 2005, Leigh Matheu parked and locked her car on Franklin Avenue. Matheu left her purse in the car. In Matheu’s purse were her wallet, iPod, cell phone, palm pilot, identification, and credit cards. About an hour and a half to two hours later, Matheu returned to her car to find that a back passenger window had been smashed and her purse with her belongings was missing. Matheu had not given anyone permission to enter her car and take her purse. Matheu found a note on her car from someone who had recorded the license plate number of the person who broke into her car. Matheu reported the matter to the police.
Between about 11:00 a.m. and noon, on January 23, 2005, Mathew Kelly parked his car on Franklin Avenue. As he walked away from his car, he noticed a man in a hooded sweatshirt sitting on a ledge. At some point, Kelly heard a noise that sounded like gravel falling. Kelly ran back to investigate. He saw the man in the hooded sweatshirt getting into a blue truck. The man appeared to be carrying a black bag under his arm. Kelly noticed another car with a broken back windshield, and realized that the noise he had heard was the broken glass. Kelly wrote down as the truck’s license plate number the number 6F72295, and left that information with a note under a windshield wiper of the car with the broken back windshield, stating that he had seen the person who had broken into the car. The license plate on Baird’s truck when defendant was stopped while driving it was 6F72295.
On January 24, 2005, assistant pawnbroker Alex Kuprin of the AA Pawnshop in North Hollywood, purchased a palm pilot – Matheu’s palm pilot, a digital camera, and another item for $200 from a customer. The receipt from the purchase lists defendant as the seller. The parties stipulated that if called, a fingerprint expert would have testified that the thumbprint on the receipt matched defendant’s print.
Kristine Jensen’s Property (Count 10 – Second Degree Burglary - § 459; Count 21 – Receiving Stolen Property – § 496)
On January 23, 2005, Kristine Jensen parked and locked her car at work at Project Angel Food on Sunset Boulevard. Jensen left specially made coolers that she used in her work and boxes in her car. Jensen returned to her car at about 1:00 p.m., and found that the driver’s door window had been smashed and the coolers and boxes were gone. Jensen had not given anyone permission to break into her car and take the coolers.
Within 15 to 20 minutes after discovering that her car had been broken into, Jensen checked with a nearby liquor store to determine if its security camera had recorded the break-in. Jensen reviewed the security camera’s tape. The tape showed a truck parked in front of Jensen’s car and a man in a white shirt walking to the area where Jensen’s car was parked. Later, the truck left the parking lot. The tape was played for the jury. Jensen identified the cooler in a photograph taken of a cooler at the apartment of defendant’s brother located with other items that had been removed from defendant’s apartment to his brother’s apartment.
Farnaz Tofigh’s Property (Count 16 – Second Degree Burglary - § 459; Count 23 – Receiving Stolen Property – § 496)
At about 4:30 p.m., on January 26, 2005, Farnaz Tofigh parked and locked her car behind a furniture store on Beverly Boulevard. Tofigh left her purse and a camera in the car. While in the store, a friend heard a noise that caused Tofigh to return to her car. The passenger window was broken, and the car’s alarm had been triggered. Tofigh’s purse and camera were missing. Tofigh had not given anyone permission to break into her car and take her property.
Tofigh saw a man behind a nearby dumpster. The man was holding Tofigh’s purse and another bag. Tofigh asked the man to return her purse. The man walked to a blue pick up truck and got in. Tofigh followed the man and tried to memorize the truck’s license plates. Tofigh noticed that the front and rear plates did not match. The man drove off. A videotape of the incident, recorded on a surveillance camera, was played for the jury. Tofigh identified defendant at trial as the person who took her purse.
Erick Krauter’s Property (Count 14 – Second Degree Burglary - § 459; Count 15 – Receiving Stolen Property – § 496)
At about 4:30 p.m., on January 26, 2005, Erick Krauter and his wife parked and locked their rented van behind a furniture store on Beverly Boulevard. They left their luggage, their children’s backpacks, and an animal print bag containing jewelry in the van and went inside the store to visit a relative. After being notified that the window of another car outside the store had been smashed, Krauter checked on their van and discovered that the right front passenger window had been smashed and the children’s backpacks and the animal print bag with jewelry in it were missing. Krauter had not given anyone permission to enter his van and take those items. One of the rings stolen was found by the police in defendant’s apartment.
Timothy Greenwood’s Property (Count 11 – Second Degree Burglary - § 459; Count 17 – Receiving Stolen Property – § 496)
At about 6:00 p.m., on January 31, 2005, Timothy Greenwood parked and locked his car on Lillian Way. Greenwood left a Sony television monitor, a leather computer bag, and a lunch bag in his car. When Greenwood returned to his car after midnight, his driver’s window was smashed and the property he had left in his car was gone. Greenwood had not given anyone permission to enter his car and take his property. Greenwood’s monitor was among the items Baird found in the back of his truck after the police returned it.
The Search of Defendant’s and Gevorg Koshkaryan’s Apartments
The parties stipulated that as of February 1, 2005, defendant lived in an apartment on Sherman Way in Van Nuys. Irma Torres managed the apartment building on Sherman Way where defendant lived. Torres testified that defendant lived in the building for about six months.
On February 1, 2005, Detective Klohr and Officer Hetherington went to defendant’s apartment. Detective Klohr recovered Dubash’s duffel bag and Tofigh’s camera from defendant’s apartment. Officer Hetherington recovered Krauter’s jewelry from defendant’s apartment. The jewelry was in a small pouch that was wedged between a bathroom sink and a wall. Officer Hetherington recorded the serial number for a silver iPod and pink leather case – Matheu’s iPod and case. He did not remove the iPod from the apartment. On February 2, 2005, Officer Hetherington learned that defendant had been arrested. When Officer Hetherington read the police report for defendant’s arrest, he remembered other crime reports describing a blue truck. Officer Hetherington read those crime reports and matched the stolen property listed to property he had seen in defendant’s apartment on February 1, 2005.
On February 2, 2005, a person identifying himself as defendant’s brother removed all of defendant’s furniture and property from defendant’s apartment. The man provided Torres with identification. Torres photocopied the identification and had him sign a document. The address on the identification was for an apartment on Gilmore Street in Van Nuys. The document states, “My name is Gevorg Koshkaryan. I pick up entire furniture and staff belongs to my brother Karen Koshkaryan, located at 14737 Sherman Way, number 325, Van Nuys California, 91405.” The document was dated February 2, 2005.
On February 3, 2005, Officer Hetherington returned to defendant’s apartment. Defendant’s belongings were gone. Officer Hetherington was directed to the address on the identification defendant’s brother gave to Torres. When Officer Hetherington arrived at the Gilmore address, he recognized some items he had seen at defendant’s apartment two days earlier – they were in a pile in the middle of the living room. Among the items piled on the floor were Matheu’s silver iPod and pink leather case and her Southwest Airlines card, and Jensen’s cooler. The Southwest Airlines card was wrapped in cable and cell phone receipts bearing defendant’s name and his Sherman Way address. Officer Hetherington could not remember if he had seen the cooler at defendant’s apartment. Gevorg Koshkaryan was present at the Gilmore address.
DISCUSSION
I. Defendant Was Improperly Convicted of Both Counts 19 and 20
Defendant contends that he was improperly convicted of both counts 19 and 20 – the receipt of Matheu’s stolen iPod and palm pilot – because both items were taken from one location on one occasion during the burglary of Matheu’s car. We agree.
“[A] defendant may lawfully be convicted of burglary and of receiving property that he stole during the burglary.” (People v. Allen (1999) 21 Cal.4th 846, 866.) The receipt of multiple stolen items on a single occasion constitutes a single offense of receiving stolen property. (People v. Lyons (1958) 50 Cal.2d 245, 275 [receipt of stolen property from multiple victims on a single occasion gives rise to a single offense of receiving stolen property], overruled on another ground as stated in People v. Carrera (1989) 49 Cal.3d 291, 321; People v. Smith (1945) 26 Cal.2d 854, 859 [same].)
At about 11:00 a.m., on January 23, 2005, defendant broke into Matheu’s car and took her purse. Matheu’s iPod and palm pilot were in her purse. Thus, defendant received multiple stolen items – the iPod and palm pilot – on a single occasion, giving rise to a single offense of receiving stolen property. (People v. Lyons, supra, 50 Cal.2d at p. 275; People v. Smith, supra, 26 Cal.2d at p. 859.)
Respondent argues that defendant properly was convicted of two counts of receiving stolen property because, although defendant acquired Matheu’s palm pilot and iPod at the same time, he possessed them at different times. That is, defendant’s possession of Matheu’s palm pilot ended when he sold it to the AA Pawn Shop on January 24, 2005, and his possession of Matheu’s iPod continued until the police recovered it from defendant’s apartment on February 1, 2005 (it was actually recovered from Gevorg Koshkaryan’s apartment on February 3, 2005). Respondent’s argument, which is not supported by any authority, fails.
Defendant’s single offense of receiving stolen property was complete when he came into the simultaneous possession of Matheu’s stolen iPod and palm pilot. (§ 496 ; see People v. Lyons, supra, 50 Cal.2d at p. 275; People v. Smith, supra, 26 Cal.2d at p. 859.) That defendant subsequently broke up the proceeds of his receiving stolen property offense – selling part and retaining part – did not constitute the commission of a new crime of receiving stolen property. We remand this matter to the trial court. The trial court is to vacate and dismiss defendant’s receiving stolen property conviction either on count 19 or on count 20.
Section 496, subdivision (a) provides, in pertinent part:
II. Sufficient Evidence Supports Defendant’s Convictions
Defendant contends that there is insufficient evidence to support 10 of his convictions. We set forth defendant’s specific contentions below. Sufficient evidence supports each of defendant’s convictions.
A. Standard of Review
“‘In reviewing the sufficiency of evidence under the due process clause of the Fourteenth Amendment to the United States Constitution, the question we ask is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”’ ([People v.] Rowland [(1992)] 4 Cal.4th [238,] 269, quoting Jackson v. Virginia (1979) 443 U.S. 307, 319 [61 L.Ed.2d 560, 99 S.Ct. 2781].) We apply an identical standard under the California Constitution. (Ibid.) ‘In determining whether a reasonable trier of fact could have found defendant guilty beyond a reasonable doubt, the appellate court “must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.”’ (People v. Johnson (1980) 26 Cal.3d 557, 576 [162 Cal.Rptr. 431, 606 P.2d 738].) The same standard also applies in cases in which the prosecution relies primarily on circumstantial evidence. (People v. Maury (2003) 30 Cal.4th 342, 396 [133 Cal.Rptr.2d 561, 68 P.3d 1].)” (People v. Young (2005) 34 Cal.4th 1149, 1175.) In deciding the sufficiency of the evidence, “a reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. [Citation.]” (People v. Young, supra, 34 Cal.4th at p. 1181.)
B. Defendant’s Convictions for Second Degree Burglary of a Vehicle – Counts 6, 8, 11, and 12
Defendant contends that there is insufficient evidence to support his second degree burglary of a vehicle convictions for burglarizing Watson’s car on January 18, 2005 (count 6), Panettiere’s car between January 19 and January 21, 2005 (count 8), Corfield’s car on January 21, 2005 (count 12), and Greenwood’s car on January 31, 2005 (count 11). Defendant contends that there was no evidence linking him to those burglaries except for his possession of the items stolen in the burglaries, and possession of recently stolen items without any corroborating evidence is insufficient evidence to support a burglary conviction.
“When, as here, a defendant is found in possession of property stolen in a burglary shortly after the burglary occurred, the corroborating evidence of the defendant’s acts, conduct, or declarations tending to show his guilt need only be slight to sustain the burglary convictions. [Citations.]” (People v. Mendoza (2000) 24 Cal.4th 130, 176.) Evidence that multiple crimes share a modus operandi is such sufficient corroborating evidence. (See People v. Robinson (1960) 184 Cal.App.2d 69, 77 [listing the “marked similarity” in the modus operandi by which two stores were burglarized among the evidence corroborating the defendant’s guilt].)
The modus operandi used in committing the nine vehicle burglaries of which defendant was convicted provides corroborating evidence of his guilt. In each of those nine vehicle burglaries, the offense was committed in exactly the same manner – the car’s window was smashed and property left inside the car was removed. Defendant does not contest the sufficiency of the evidence of three of these vehicle burglaries – the burglaries of Miller’s, Matheu’s, and Tofigh’s cars – and we hold below that there is sufficient supporting two other vehicle burglaries – the burglaries of Lu’s and Jensen’s cars. Thus, independent of the vehicle burglary convictions defendant challenges here, his guilt and modus operandi in five other vehicle burglaries is established. Accordingly, defendant’s possession of the items stolen from Watson’s, Panettiere’s, Corfield’s, and Greenwood’s cars coupled with the corroborating modus operandi evidence is sufficient evidence to support defendant’s second degree burglary of a vehicle convictions on counts 6, 8, 11, and 12. (People v. Mendoza, supra, 24 Cal.4th at p. 176; People v. Robinson, supra, 184 Cal.App.2d at p. 77.)
Additional corroborating evidence supports defendant’s conviction for burglarizing Corfield’s car. (People v. Mendoza, supra, 24 Cal.4th at p. 176.) Defendant was seen in the area of the Corfield vehicle burglary, at the time of the burglary, acting suspiciously. Kamitakahara testified that defendant looked into Kamitakahara’s van and, when confronted, defendant told Kamitakahara that he worked for the government or the state and asked Kamitakahara if his van was in legal status.
C. Defendant’s Convictions for Receiving Stolen Property – Counts 17, 18, and 22
Defendant’s section heading reference to count 23 appears to be in error. Count 23 concerns the theft of a camera. Count 22 and defendant’s discussion concern the theft of credit cards.
Defendant contends that although the items stolen from Greenwood (count 17), Panettiere (count 18), and Corfield (count 22) were stolen at different times, the only evidence of his receiving the stolen items was that they were found in his possession at the time of his arrest. Thus, defendant reasons, this single occasion of possessing multiple items of stolen property constitutes only a single offense of receiving stolen property. (See People v. Lyons, supra, 50 Cal.2d at p. 275; People v. Smith, supra, 26 Cal.2d at p. 859.)
Defendant’s contention depends on a holding that there was insufficient evidence that he burglarized Greenwood’s, Panettiere’s, and Corfield’s cars because, if he was properly convicted of those burglaries – each of which occurred on a separate date – then he necessarily would have possessed these victims’ property at separate times. Because we hold above that sufficient evidence supports defendant’s convictions for burglarizing Greenwood’s, Panettiere’s, and Corfield’s cars, there is sufficient evidence to support defendant’s separate convictions for receiving the property stolen in those burglaries.
D. Defendant’s Conviction for Burglarizing Lu’s Car – Count 5
Defendant contends that insufficient evidence supports his conviction for burglarizing Lu’s car. Defendant notes that no fingerprints were recovered from the car, he was not found in possession of any of the property taken from the car, and the videotape of the burglary played for the jury was insufficiently clear to show the perpetrator’s face. Defendant concedes that he was seen driving a similar truck in the area about a week and a half later, but argues that there is no evidence that he was driving the truck at the time of the Lu car burglary. The prosecution’s case, based on circumstantial evidence, was sufficient.
“Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant’s guilt beyond a reasonable doubt. “‘If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.’” [Citations.] ‘Circumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt.’ [Citation.]” (People v. Bean (1988) 46 Cal.3d 919, 932-933.)
The evidence adduced at trial showed that Baird’s blue Chevy S-10 pickup truck was taken on January 8, 2005. Lu’s car was burglarized three days later on January 11, 2005. Security guard Spencer did not see the burglary as it took place; he later saw it on a videotape taken by a security camera that monitored the area. The videotape showed that the person who burglarized Lu’s car was driving a blue Chevy S-10 truck with a camper shell. A week to 10 days later, Spencer saw defendant drive past in a “similar” or “very similar” blue Chevy S-10 truck and glare at him. Spencer testified that that truck had “distinct” “pill-shaped” windows in the back. The prosecutor showed Spencer a photograph of Baird’s Chevy S-10 pickup truck and asked him if there was anything about the truck that was significant to him. Spencer responded, “Yeah, the main thing that I took as noticeable were, yeah, these two pill-shaped windows in the back of it, that it was a blue older model Chevy S-10.” On cross-examination, defense counsel asked Spencer, “after seeing the tape and noticing the kind of truck that was potentially involved in the burglary, you sort of kept an eye out for it if you saw it again?” Spencer responded, “That’s correct.” Defense counsel continued, “And then you mentioned two instances after January 11 where you thought you saw the same exact truck?” Spencer responded, “Correct.” Defendant was taken into custody on February 1, 2005, after having been stopped while driving Baird’s pickup truck. Based on this evidence, a reasonable juror could have concluded that defendant had possession of Baird’s pickup truck between January 8, 2005, and February 1, 2005; that defendant was the person driving Baird’s truck on January 11, 2005; and, accordingly, that defendant burglarized Lu’s car. (People v. Bean, supra, 46 Cal.3d at pp. 932-933.)
E. Defendant’s Convictions for Burglarizing Jensen’s Car and Receiving Her Stolen Cooler – Counts 10 and 21
Defendant contends that there is insufficient evidence to support his conviction for burglarizing Jensen’s car and receiving her stolen cooler. Sufficient evidence supported both convictions.
The evidence adduced at trial showed that Baird’s blue Chevy S-10 pickup truck was taken on January 8, 2005. Jensen’s car was burglarized on January 23, 2005. The videotape of the burglary of Jensen’s truck, although not entirely clear, appears to show a truck consistent with Baird’s truck parked in front of Jensen’s car and a man in a white shirt walking to the area where Jensen’s car was parked. Later, the truck left the parking lot. The tape was played for the jury. On February 1, 2005, Officer Labriola stopped defendant while he was driving Baird’s truck and took him into custody. Jensen’s cooler was found in the center of the living room of defendant’s brother’s apartment as part of or near a pile of items from defendant’s apartment that included Matheu’s iPod and pink leather case and her Southwest Airlines card, defendant’s cable and cell phone receipts, and various other items the police had seen in defendant’s apartment only two days earlier.
Although Officer Hetherington could not remember if he had seen Jensen’s cooler at defendant’s apartment on February 1, 2005, the circumstances under which the cooler was recovered from Gevorg Koshkaryan’s apartment on February 3, 2005 – as part of or near a pile of items from defendant’s apartment that included at least one item stolen in a separate vehicle burglary – support defendant’s conviction for receiving Jensen’s stolen cooler. In turn, defendant’s possession of Jenson’s stolen cooler shortly after the burglary of Jensen’s car when coupled with the corroborating evidence that a pickup truck appearing to be Baird’s pickup truck was used in the burglary and that defendant possessed Baird’s pickup truck on February 1, 2005, is sufficient evidence to support the defendant’s conviction for burglarizing Jensen’s car. (People v. Mendoza, supra, 24 Cal.4th at p. 176.)
III. The Trial Court Did Not Abuse Its Discretion in Admitting Testimony and Documents Concerning Gevorg Koshkaryan’s Removal of Property from Defendant’s Apartment
Defendant contends that the trial court erred in admitting hearsay testimony by defendant’s apartment manager, Torres, and Officer Hetherington, and documents concerning the removal of property from defendant’s apartment by the person claiming to be defendant’s brother, Gevorg Koshkaryan. We find no abuse of discretion.
A. Standard of Review
“[A]n appellate court applies the abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence, including one that turns on the hearsay nature of the evidence in question [citations].” (People v. Waidla (2000) 22 Cal.4th 690, 725.)
B. Application of Relevant Principles
“Evidence is relevant if it has any tendency in reason to prove a disputed material fact. (Evid. Code, § 210.) ‘“Hearsay evidence,”’ defined as ‘evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated,’ is generally inadmissible. (Evid. Code, § 1200.)” (People v. Guerra (2006) 37 Cal.4th 1067, 1113.)“An out-of-court statement is properly admitted if a nonhearsay purpose for admitting the statement is identified, and the nonhearsay purpose is relevant to an issue in dispute. Citations.” (People v. Turner (1994) 8 Cal.4th 137, 189, overruled on another ground in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5.) “‘[O]ne important category of nonhearsay evidence . . . [is] evidence of a declarant’s statement that is offered to prove that the statement imparted certain information to the hearer and that the hearer, believing such information to be true, acted in conformity with that belief. The statement is not hearsay, since it is the hearer’s reaction to the statement that is the relevant fact sought to be proved, not the truth of the matter asserted in the statement.’ [Citation.].” (People v. Scalzi (1981) 126 Cal.App.3d 901, 907; People v. Turner, supra, 8 Cal.4th at p. 189.)
Defendant contends that Torres should not have been permitted to testify that a person identifying himself as defendant’s brother Gevorg Koshkaryan removed all of defendant’s furniture and property from defendant’s apartment; that Officer Hetherington should not have been permitted to testify that after going to defendant’s apartment on February 3, 2005, he was directed to the Gilmore Street apartment where Gevorg Koshkaryan was present; and that the photocopy of Gevorg Koshkaryan’s identification and the document he signed stating that he was removing defendant’s property from the apartment should not have been admitted as exhibits. The trial court did not err.
In admitting Torres’s testimony, the trial court ruled and gave an instruction that “the brother part is not being admitted for the truth asserted.” The trial court admitted the photocopy of Gevorg Koshkaryan’s identification and the document Gevorg Koshkaryan signed because “those things [Torres] did or happened in her presence, and it goes to the fact that a person showed up and a person removed goods.” During Torres’s testimony, after the prosecution marked as an exhibit for identification Gevorg Koshkaryan’s photocopied identification, the trial court instructed the jury as follows: “This witness has referred to the person in this exhibit as the defendant’s brother. I’m going to allow that response, but to the extent that this witness refers to this person as being the defendant’s brother is not being admitted for the truth of the matter asserted, which means this is not being admitted for proof of the fact that he is his brother, but only the fact that she may have been told that, or she came to some conclusion. [¶] But it’s not the truth that it is his brother.” The trial court ruled that Officer Hetherington could testify that as a result of information he received from Torres, he went to Gevorg Koshkaryan’s apartment where he found the stolen property.
The trial court did not abuse its discretion in admitting the challenged testimony and documents. (People v. Waidla, supra, 22 Cal.4th at p. 725.) That evidence was admissible for a non-hearsay purpose – to show that Officer Hetherington received information about the location of the items that were missing from defendant’s apartment and that he went to Gevorg Koshkaryan’s apartment on Gilmore Street in reliance on that information. (People v. Scalzi, supra, 126 Cal.App.3d at p. 907; People v. Turner, supra, 8 Cal.4th at p. 189.) It also explains why Torres allowed a person to take defendant’s property. The testimony and documents were not hearsay, because it was Officer Hetherington’s reaction to that evidence – he went to defendant’s brother’s apartment – that was the relevant fact that the prosecution sought proved, not that the person claiming to be defendant’s brother was in fact defendant’s brother. (People v. Scalzi, supra, 126 Cal.App.3d at p. 907; People v. Turner, supra, 8 Cal.4th at p. 189.)
Even if the challenged testimony and documents were inadmissible hearsay, their admission was harmless error. (People v. Watson (1956) 46 Cal.2d 818, 836.) In the absence of such evidence, Torres still could have testified that a person removed all of the property from defendant’s apartment on February 2, 2005; and Officer Hetherington still could have testified that he went to an apartment on February 3, 2005, where he found some items he had seen at defendant’s apartment two days earlier and where he found Matheu’s silver iPod and pink leather case, Matheu’s Southwest Airlines card, and Jensen’s cooler.
IV. Defendant’s Upper Term Sentence
Defendant contends that the trial court’s imposition of a three year upper term sentence for his conviction for unlawful driving or taking of a vehicle based on facts not found true beyond a reasonable doubt by a jury violated his Sixth and Fourteenth rights under the Federal Constitution. We hold that there was no error.
Defendant’s heading for this issue indicates a like challenge to his consecutive sentences. This appears to be a typographical error as defendant’s argument does not address consecutive sentencing. In any event, we note that such an argument would have failed. (People v. Black (2007) 41 Cal.4th 799, 805, 820-823 [a defendant’s constitutional right to a jury trial is not violated when a trial court imposes consecutive sentences based on facts not found by a jury].)
In Cunningham v. California (2007) ___ U.S. ___, 127 S.Ct. 856 (Cunningham), the United States Supreme Court held that California’s determinate sentencing law violated the Sixth Amendment insofar as it authorized trial judges, rather than juries, to make factual findings that expose defendants to upper term sentences. (Cunningham, supra, 127 S.Ct. at pp. 868-871.) Following Cunningham, in People v. Black (2007) 41 Cal.4th 799 (Black), the California Supreme Court held that “so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury.” (Id. at p. 813.) Further, “under California’s determinate sentencing system, the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term. Citation. Therefore, if one aggravating circumstance has been established in accordance with the constitutional requirements . . . the upper term sentence is the ‘statutory maximum.’” (Ibid.)
The Sixth Amendment does not confer a right to a jury trial on either “the fact that a prior conviction occurred” or “other related issues that may be determined by examining the records of the prior convictions” (Black, supra, 41 Cal.4th at p. 819), including “whether a defendant has suffered prior convictions, and whether those convictions are ‘numerous or of increasing seriousness’” within the meaning of California Rules of Court, rule 4.421(b)(2) . (Id. at pp. 819-820; see also Almendarez-Torres v. United States (1998) 523 U.S. 224, 239-247.) Furthermore, although California law requires proof beyond a reasonable doubt of alleged prior convictions used to justify a recidivist sentence (see, e.g., People v. Bowden (2002) 102 Cal.App.4th 387, 392-393, 125 Cal.Rptr.2d 513), facts relating to prior convictions found to be aggravating circumstances for purposes of imposing an upper-term sentence are not subject to proof beyond a reasonable doubt, but may be found by a preponderance of the evidence. (Black, supra, 41 Cal.4th at p. 820, fn. 9.) Accordingly, as the Supreme Court concluded in Black, “imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (Id. at p. 816.)
All rules citations are to the California Rules of Court unless otherwise noted.
In this case, the amended information alleged that defendant suffered one prior conviction within the meaning of the Three Strikes Law and five prior convictions for which he served a term in prison as described in section 667.5, subdivision (b). Defendant waived his right to a jury trial on the prior conviction allegations. The trial court found true allegations that defendant suffered a prior strike conviction and that he suffered three prior convictions for which he served prison terms under section 667.5, subdivision (b). In imposing the upper term, the trial court relied on the aggravating circumstance of “the extensive planning, sophistication, and professionalism of the crimes.”
Defendant contends that his upper term sentence based on the planning, sophistication, and professionalism aggravating circumstance (Rule 4.421(a)(8)) was Cunningham error because that finding was made by the trial court and not by the jury by a preponderance of the evidence. The trial court did not err. Because there is no jury trial right on the fact that a defendant suffered a prior conviction (Black, supra, 41 Cal.4th at p. 819), the trial court’s findings that defendant suffered the four prior convictions were constitutional under Cunningham, supra, 127 S.Ct. 856. Under rule 4.421(b)(2), the fact that a defendant’s prior convictions are numerous or of increasing seriousness is an aggravating circumstance. Defendant’s four prior convictions were “numerous” under rule 4.421(b)(2). (Black, supra, 41 Cal.4th at p. 818, citing People v. Searle (1989) 213 Cal.App.3d 1091, 1098 [three prior convictions are numerous].) As a single aggravating circumstance was established consistent with constitutional principles, defendant was not legally entitled to the middle term sentence, and the upper term sentence was the statutory maximum. (Black, supra, 41 Cal.4th at p. 813). Once defendant was eligible for the upper term, the trial court was free to rely on the planning, sophistication, and professionalism aggravating circumstance. (Ibid.) Accordingly, there was no Cunningham error.
We note that a trial court properly may use the same multiple convictions as the basis for section 667.5, subdivision (b) enhancements and as the basis for imposing an upper term sentence on the ground of numerous prior convictions without violating the dual use proscription in section 1170, subdivision (b). (People v. Hurley (1983) 144 Cal.App.3d 706, 709-710 [construing an older version of section 1170, subdivision (b)].)
DISPOSITION
The judgment is affirmed on all counts except counts 19 and 20. As to counts 19 and 20, the case is remanded to the trial court. The trial court is to vacate and dismiss defendant’s receiving stolen property conviction either on count 19 or on count 20.
We concur: TURNER, P. J., KRIEGLER, J.
“Every person who buys or receives any property that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling, or withholding any property from the owner, knowing the property to be so stolen or obtained, shall be punished by imprisonment in a state prison, or in a county jail for not more than one year.”