Opinion
E052161 Super.Ct.No. FVA801899
08-30-2011
THE PEOPLE, Plaintiff and Respondent, v. TIMOTHY ALAN TAYLOR, Defendant and Appellant.
Phillip I. Bronson, 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, Steve Oetting, and Lise S. Jacobson, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 San Bernardino County. Ingrid Adamson Uhler, Judge. Affirmed.
Phillip I. Bronson, 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, Steve Oetting, and Lise S. Jacobson, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
All statutory references are to the Penal Code.
Defendant Timothy Alan Taylor entered a residence at night and stole a purse. A jury convicted defendant of first degree burglary, a violent felony under section 667.5, subdivision (c)(21). The court found defendant had a previous conviction for first degree residential burglary. (§§ 667, subds. (a)(1), (b)-(i), and 1170.12, subds. (a)-(d).) The court sentenced defendant to the upper term of six years, doubled pursuant to the the Three Strikes Law for a sentence of 12 years, plus a five-year enhancement for a total prison term of 17 years.
On appeal, defendant claims there was prejudicial instructional error at trial and insufficient corroborating evidence supports defendant's conviction. We affirm the judgment.
II
FACTUAL AND PROCEDURAL BACKGROUND
Lisa Matus (Matus) and Erika Gonzalez (Gonzalez) were neighbors in two Rialto apartments, located on the first floor with front doors facing each other. The subject events occurred on October 27 and 28, 2008.
On October 27, 2008, three visitors, Edna Delatorre (Delatorre), Arsema Abieselom (Abieselom), and defendant, came to Gonzalez's apartment in Abieselom's car. Gonzalez was meeting defendant for the first time. Gonzalez and her guests drank alcohol and used methamphetamine and marijuana in a detached garage. At one point Abieselom overheard defendant and Delatorre discussing whether Gonzalez had money and what she might buy.
According to Abieselom, all four people went to a store at 8:30 p.m. before dropping off Gonzalez at her apartment and Abieselom at home. Abieselom did not see defendant until the next day.
Delatorre testified slightly differently than Abieselom. According to Delatorre, she and defendant returned to the garage after an unsuccessful drug run and Gonzalez was gone. Delatorre and Abieselom departed to get gas and defendant stayed to look for Gonzalez. When Delatorre and Abieselom returned, defendant approached them, carrying a brown purse which he claimed he had found by the other garages. Defendant asked to drive the car and parked near an abandoned house. Abieselom was not present when defendant and Delatorre rummaged through the purse and tossed away some of the contents. Defendant kept the identification and gave the wallet to Delatorre.
Between midnight and 12:30 a.m. on October 28, 2008, Matus went to bed in the apartment she shared with her husband and three children. She had checked to make sure the front door and the sliding glass door from the living room to the patio were locked. Her husband was not at home.
Matus got up at 6:30 a.m. She heard voices close by but she did not observe anything missing. She took her kids to school at 7:00 a.m. and came home. When Matus returned home, she noticed the sliding glass door was wide open, the front door was unlocked, and the security door was open. She called her husband to say she thought someone had broken in. She did not call the police immediately because nothing appeared to be missing.
At 10:00 a.m. on October 28, 2008, Delatorre and defendant returned to Gonzalez's garage. Delatorre had possession of a pink wallet with identification and Gonzalez caught a brief glimpse of an ID or driver's license which appeared to belong to Matus.
Later in the day, as Matus was leaving the apartment, she discovered her purse was missing and called the police. At 6:30 p.m., Matus also encountered Gonzalez and told her someone had broken into her apartment the night before while she was there with her children.
Rialto Police Officer James Dobbs (Dobbs) interviewed Matus and Gonzalez. Gonzalez told Dobbs that Delatorre had possession of a pink wallet like Matus had described as missing from her apartment.
Later that evening, when defendant, Delatorre, and Abieselom returned to the garage, Gonzalez called Dobbs. When Delatorre and defendant spotted a patrol car, they threw the pink wallet in the bushes.
Dobbs sat the trio of defendant, Delatorre, and Abieselom on the curb to be interviewed separately. Delatorre told Dobbs defendant had entered Matus's apartment through the sliding glass door and taken the wallet. Delatorre said defendant had intended to enter Gonzalez's apartment and had entered Matus's by mistake. Delatorre pointed Dobbs to the location of the wallet in the bushes. Delatorre also had possession of a citation and a medical pill bottle for Matus. Delatorre discarded the purse and it was not recovered.
Abieselom told Dobbs she had overheard Delatorre and defendant planning to commit a burglary of Gonzalez's residence. The next day, defendant told Abieselom he took a purse from Gonzalez.
In a subsequent videotaped interview, Delatorre told Dobbs she was sleeping in the car when defendant burglarized Matus's apartment. Defendant claimed Gonzalez owed him money. He had entered Matus's apartment through the sliding glass door and taken her purse. Defendant was angry when he realized the purse was not Gonzalez's. He kept the wallet and discarded the purse and its contents.
The jury heard testimony that Delatorre had agreed to plead guilty to burglary and to testify truthfully at trial. Delatorre also pleaded guilty to a separate robbery charge and was on probation for drug possession. The plea bargain allowed Delatorre to withdraw her guilty plea on the burglary charge and have that strike dismissed. All three charges were resolved by a sentence of one year in county jail.
III
CAUTIONARY INSTRUCTION/INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant argues the jury should have been instructed that Delatorre's guilty plea was not substantive evidence of defendant's guilt and that the omission constituted ineffective assistance of counsel. The People respond that no prejudice occurred because of the overwhelming evidence of defendant's guilt.
Defendant relies on a federal case, United States v. Halbert (9th Cir. 1981) 640 F.2d 1000, 1007, which is not binding on this court. The two California cases cited by defendant are distinguishable. In those cases, the codefendants who had pleaded guilty did not testify. The courts held that evidence of the codefendants' guilty pleas operated prejudicially to establish guilt by inference, implication, or association. (People v. Cummings (1993) 4 Cal.4th 1233, 1294-1295; People v. Leonard (1983) 34 Cal.3d 183, 188.)
Here the evidence of defendant's guilt was not inferred, implied or by association. Delatorre testified directly at trial and in a videotaped statement to the circumstances of the burglary. While she and Abieselom were absent, defendant entered Matus's apartment through the sliding glass door and stole her purse. Then defendant and Delatorre rummaged through the purse and Delatorre took the wallet. Other trial testimony and statements by Abieselom and Gonzalez and defendant's own admissions also corroborated Delatorre's testimony and statements.
Additionally, Delatorre's guilty plea was relevant on the issue of her credibility. The jury was warned by defense counsel that Delatorre had a strong motive to lie and to implicate defendant to avoid a prison term. Furthermore, the trial court instructed the jury, based on CALCRIM No. 335 that accomplice testimony inculpating a defendant should be viewed with caution. We presume the jury followed its instructions. (People v. Smith (2007) 40 Cal.4th 483, 517.) In view of the foregoing, it is not reasonably probable a cautionary instruction would have caused a different outcome for defendant. Therefore, any error was not prejudicial and the absence of a cautionary instruction did not constitute ineffective assistance of counsel. (People v. Holt (1997) 15 Cal.4th 619, 703.)
IV
CORROBORATION OF ACCOMPLICE TESTIMONY
In supplemental briefing, defendant argues that insufficient evidence corroborated the testimony of two accomplices, Delatorre and Abieselom. (People v. Najera (2008) 43 Cal.4th 1132, 1136-1137; § 1111.) This argument is partly based on the mistaken premise that Abieselom was an accomplice.
An accomplice is one who is liable for prosecution for the same offense as defendant. (§ 1111.) An accomplice knowingly aids or promotes the commission of the target crime. (People v. Williams (2008) 43 Cal.4th 584, 637.) Mere presence at the crime scene or the failure to prevent a crime does not make a person an accomplice. (People v. Rodriguez (1986) 42 Cal.3d 730, 760.) Abieselom did not act as an accomplice.
Abieselom testified that she accompanied defendant and Delatorre to Gonzalez's residence until they drove her home. Abieselom did not know about defendant's plan to burglarize Matus and she did not witness his participation in that crime. Abieselom told Officer Dobbs she overheard defendant and Delatorre discuss burglarizing Gonzalez, not Matus, and defendant told her the next day that he had taken Gonzalez's purse. Everyone interviewed by Dobbs said Abieselom had "nothing to do" with the burglary. Even Delatorre in her testimony said that, when defendant approached her and Abieselom, he claimed he found the purse near the garages, not that he had burglarized Matus or Gonzalez.
There was simply no evidence that Abieselom knowingly aided or promoted defendant's burglary of Matus. Although defendant drove her car before and after the burglary, Abieselom did not facilitate or participate in the burglary. She was not even present when defendant apparently entered Matus's apartment and took the purse.
With respect to Delatorre, the evidence sufficiently corroborated her testimony. (People v. Hartsch (2010) 49 Cal.4th 472, 499.) Specifically, defendant was present at the scene of the crime and, according to Abieselom, he discussed burglarizing Gonzalez's apartment and admitted taking a purse. This evidence "'"tends to connect the defendant with the crime in such a way as to satisfy the jury that the accomplice [Delatorre] is telling the truth."'" (Hartsch, at p. 499.) Defendant's presence at the scene of a crime, in conjunction with other evidence, sufficiently established corroboration. (People v. Williams (1997) 16 Cal.4th 635, 681; People v. Medina (1974) 41 Cal.App.3d 438, 466.)
Abieselom was not an accomplice and Delatorre's testimony was corroborated by sufficient evidence. We reject defendant's claim on this issue.
V
CALCRIM NO. 401
In further supplemental briefing, defendant maintains the court erred by giving CALCRIM No. 401, the instruction on aiding and abetting liability. Defendant argues there was no substantial evidence that Delatorre burglarized Matus's apartment and it was prejudicial to give the instruction because it lessened the prosecution's burden. Specifically, defendant theorizes the instruction allowed the jury to disregard the additional instruction (CALCRIM No. 335) that it view Delatorre's testimony with caution.
At trial, defendant objected to the court giving CALCRIM No. 401. The court reasoned that, based on Abieselom's testimony that she overheard defendant and Delatorre discussing a burglary of Gonzalez's apartment, the jury could conclude that defendant and Delatorre committed the burglary of Matus together or that Delatorre committed the burglary with defendant helping her. In closing argument, the prosecutor argued defendant was the direct perpetrator or, in the alternative, defendant aided and abetted Delatorre. In his new trial motion, defendant again protested giving CALCRIM No. 401. The trial court denied the motion, stating the instruction was justified because of the "close association" between defendant and Delatorre, their shared opportunity and motive, and the fact that Delatorre was the person in possession of the purse and wallet.
We agree the court had a duty to instruct the jury with CALCRIM No. 401 as part of its obligation to instruct on general principles of law relevant to the issues raised by the evidence. (People v. Avila (2009) 46 Cal.4th 680, 704-705; People v. Flannel (1979) 25 Cal.3d 668, 685.) For the reasons articulated by the trial court, the jury could reasonably have found that Delatorre was the direct perpetrator. Based on Delatorre's possession of the wallet and the other evidence of her involvement, the jury could have inferred she was guilty of burglary (People v. Hernandez (1995) 34 Cal.App.4th 73, 81) and defendant aided and abetted the burglary.
The present case differs from People v. Perez (2005) 35 Cal.4th 1219, 1227, in which the court held a defendant could not be convicted as an aider and abettor without proof of a predicate offense. Defendant contends there is no proof whatsoever that Delatorre committed the burglary. But there is proof that a burglary was committed and, as discussed above, substantial evidence could support an inference that Delatorre was a perpetrator.
In the alternative, any error was harmless for lack of prejudice. When one of multiple theories presented to a jury has no application to the facts of the case, the verdict will nevertheless be affirmed "'unless a review of the entire record affirmatively demonstrates a reasonable probability that the jury in fact found the defendant guilty solely on the unsupported theory.'" (People v. Perez, supra, 35 Cal.4th at p. 1233, citing People v. Guiton (1993) 4 Cal.4th 1116, 1130.) Error in giving an instruction that has no applicability to the facts of the case is subject to review under the state harmless error standard. (People v. Watson (1956) 46 Cal.2d 818, 836.)
Here the evidence strongly supported a jury finding that defendant was the actual burglar. He admitted his involvement to Delatorre and Abieselom. The aiding and abetting was an alternative theory of liability that the jury was free to reject as not being applicable. (CALCRIM No. 200.) There is no reasonable probability that the jury found the defendant guilty solely on an unsupported alternative theory.
Nor did CALCRIM No. 401 instruct the jury it could disregard the additional instruction (CALCRIM No. 335) about viewing Delatorre's accomplice testimony with caution. Even if CALCRIM No. 401 could be so construed, no decision supports "the proposition that section 1111 [concerning corroboration of accomplice testimony] establishes an issue bearing on the substantive guilt or innocence of the defendant or otherwise constitutes an element of a criminal offense." (People v. Frye (1998) 18 Cal.4th 894, 968.) Again any error was harmless under the Watson standard.
VI
DISPOSITION
We conclude no prejudicial instructional error occurred and sufficient corroborating evidence supported defendant's conviction. We affirm the judgment. NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Codrington
J.
We concur: King
Acting P.J.
Miller
J.