Opinion
F040802.
7-3-2003
THE PEOPLE, Plaintiff and Respondent, v. EDWARD L. WARREN, Defendant and Appellant.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, Robert P. Whitlock and Leahann Alcazar, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Edward L. Warren was found guilty after a jury trial of two counts of second degree robbery (Pen. Code, §§ 211 , 212.5, subd. (c), counts one and two). The jury also convicted Warren of misdemeanor possession of an instrument or paraphernalia used to smoke or ingest a controlled substance (Health & Saf. Code, § 11364, count three). The jury found not true allegations Warren used a gun in count one (Pen. Code, §§ 12022.5, subd. (a), 12022.53, subd. (b)). In a bifurcated proceeding, the trial court found true a prior prison term enhancement (Pen. Code, § 667.5, subd. (b)).
Prior to jury deliberations, the court granted Warrens motion for acquittal (Pen. Code, § 1118.1) of the two gun use allegations alleged in count two.
Another prior prison term enhancement was dismissed on the prosecutors motion at the commencement of trial.
The trial court sentenced Warren to prison for the upper term of five years on count two and to one additional year for the prior prison term enhancement for a total sentence of six years. The court imposed a restitution fine and granted applicable custody credits. The court ordered Warren to pay direct victim restitution of $ 1,250.
The court imposed a concurrent five-year term on count one plus a concurrent term of one year for the prior prison term enhancement. The court imposed a concurrent term of 30 days on count three.
On appeal, Warren contends the trial court erred in excluding third party culpability evidence he sought to introduce. Warren contends there was insufficient evidence that he committed count two. Warren also argues the abstract of judgment incorrectly shows the trial court stayed the prior prison term enhancement, which he contends should have been stricken.
FACTS
On November 28, 2001, at 5:45 a.m., Kari Towery arrived at work and parked in an alley. It was dark outside. Towery noticed her car lights were still on. Towery saw a 1988 light blue or light gray Buick Park Avenue drive past her. A woman, who appeared to be Hispanic or White, was driving the car. Towery was gathering her purse and preparing to exit her car when a man ran up to her. Towery described the man as Black, bald, and large — at least six feet tall and around 230 pounds. The man carried a small chrome handgun with a black barrel. Towery did not see a mustache on the robber.
Towery later stated her assailant was "about 200 and something pounds. Towery thought Warren looked larger than her assailant. Towery opined Warren was larger at trial because, "hes been in jail for six months."
The probation report noted Warren is six feet three inches tall and weighs 230 pounds.
The man demanded money, grabbed Towerys purse, and tucked the purse under his arm like a football. The robber placed the gun at Towerys head and patted her down searching for cash. The robber reached into Towerys car and took her lunch. The robber ran away toward the Buick, jumped into the passenger side, and the car "took off." Towery described the car as a Buick Park Avenue. Towery identified the Buick from a photograph taken of the car owned by Warrens parents.
Towerys purse contained a cell phone, prescription glasses, a checkbook, and $ 6 in currency.
On November 30, 2001, at 8:00 a.m., Melissa Searson pulled her car into the driveway of her babysitters home and exited the car. As Searson started to unbuckle her children from their car seats in the rear of the car, she saw a gray four-door American sedan pull up and block her car. A bald, heavy-set Black man jumped from the sedan. He was clean-shaven. The man placed a blue bandana over his face and was holding a silver or chrome handgun in his right hand.
As the man approached Searson, he demanded her money and purse. He motioned with his gun and told Searson to hurry up. Searson showed the robber where her purse was located. The robber reached into the car, knocked over a cup of coffee, grabbed the purse, and returned to the sedan. Searson had between $ 12 and $ 14 in her purse as well as a cell phone, a checkbook, credit cards, keys, a work badge, a Gottschalks gift card, and Dairy Queen gift certificates. Searson eventually received two forged checks drawn on her account. The checks were from Pizza Hut. Searson sent them to an investigating detective.
As the robber entered his car he looked up and noticed Searson was watching him. He called Searson a bitch and told her to look away, to look down. The bandana was no longer covering the robbers face. Searson remembered a partial license plate number, "2JOV." She chose Warren from a photographic six-pack, though she was not 100 percent sure of her identification. Searson identified Warren as the perpetrator at trial. She also identified a picture of the car.
On November 30, 2001, Warren and several other people were at a residence in Bakersfield. Warren said he was hungry and was going to order some pizza. Pizza was delivered from Pizza Hut and was paid for by a check drawn on Searsons account.
Police investigators determined that a gray 1991 Buick LeSabre with a license number "2VOJ382," belonged to Warrens father. On December 4, 2001, Warren was living with his father. Detective Bruce Adair had the home under surveillance on December 4, 2001. Warren drove away in the LeSabre. Adair followed Warren before pulling him over.
On the drivers side floorboard, Adair found a pellet gun underneath Warrens seat. Adair found a plastic toy gun in a jacket located in the car. The toy gun was chrome colored with a black handle and was similar in size to a nine-millimeter semiautomatic pistol. In a jacket, Adair found a silver container with a syringe, which Adair believed was used for injecting illegal narcotics.
Officer Watts searched Warrens bedroom and found two blue bandanas and a glass smoking pipe. When he was arrested, Warren had a slight mustache. On December 5, 2001, a lab technician searched the LeSabre and found the local section of the Bakersfield Californian tucked inside the passenger side sun visor. One headline read, "Gun Toting Robber Still On Prowl." During November and December of 2001, there was a series of robberies in Bakersfield. One robbery occurred after Warren was arrested.
The other two headlines involved a recall issue in Taft and a story about a woman seeking help prior to her death.
The evening of his arrest, Warren made several telephone calls from the Kern County jail. The calls were recorded and played for the jury. While Warren was talking to Robin Howard, he told her there was a copy of the newspaper article covering the robberies in the car. Warren said, "were on the front page." Warren told Howard that when the next paper came out he was "gonna get a front page."
The recordings of the telephone conversations were played for the jury from a CD. Jurors also received transcripts of the conversations.
Warren complained to Howard that someone must have "ratted" on him. Warren told Howard to bury all the guns, the cash, and the jewelry. When Howard asked Warren if she should bury the dope too, he replied, "yeah." Warren discussed with Howard the Dairy Queen stamps taken from a victim who banked out of Northridge and a name on the check was "David and something." Warren, trying to remember another name, repeated the name "Sharon."
The checks stolen from victim Searson had the names David and Melissa Searson printed on them. The checks were from an account of the Northridge Shop Circle branch of Bank of America in Salinas, California.
In another call, Warren spoke with Patrick Burks. Warren asked Burks to tell police that the BB gun found in the car was his. Warren described the other gun as a toy gun. Burks told Warren he was "covered on the guns." Burks would explain the guns belonged to him and two boys.
Polly Warren, appellants mother, testified she owned a gray Buick LeSabre, with license number "2VOJ382." She left home for a hair appointment at 7:30 a.m. on November 30, 2001, and returned later in the morning after two and one-half or three hours. Mrs. Warren testified she had her car on December 1, 2001.
Rochelle Howard, the mother of Robin Howard, testified Warren was at her house at 7:45 a.m. on November 30, 2001. When she left at 8:15 a.m., Warren was still there. According to Howard, the gray car Warren usually drives was not at her home that morning. Howard denied having a conversation with her daughter about creating an alibi for Warren.
EXCLUDED THIRD PARTY CULPABILITY EVIDENCE
Warren contends the trial court erred in excluding evidence he proffered of third party culpability.
A. Third Party Culpability Evidence
The trial court heard the evidence of third party culpability outside the jurys presence. At 9:00 p.m. on December 30, 2001, after Warren had been arrested and was in custody, Charles Conner and his wife, Diana, were leaving a restaurant in Bakersfield when a robber tried to grab Diana Conners purse and pushed her to the ground. Conner grabbed the robbers arm, but the robber slung Conner to the ground.
The robber was a Black male, about five feet ten or eleven inches tall, with no facial hair and a knit cap. The robber was muscular, in his late 20s, and ran away on foot. Diana Conner believed the person looked similar to Warren. Diana Conner positively identified the robber and explained that the man she identified as the robber looked more like her assailant than did Warren. Diana Conner thought Warrens nose, complexion, and hair were similar to the person who robbed her.
The trial court took judicial notice of the fact Bakersfield is a city with a population over 250,000. The court found the connections of race, complexion, and physique were insufficient links to the crime being tried and the robbery of the Conners. The court found that introduction of evidence from the Conners would not lead to additional probative evidence and denied Warrens request to proffer the testimony pursuant to Evidence Code section 352.
B. Discussion
To be admissible, third party evidence need not show substantial proof of a probability that the third person committed the act. The evidence need only be capable of raising a reasonable doubt of a defendants guilt. Any evidence, however remote, need not be admitted to show potential third party culpability. There must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime. The trial courts proper inquiry is limited to whether the evidence could raise a reasonable doubt as to the defendants guilt and then applying Evidence Code section 352. (People v. Hall (1986) 41 Cal.3d 826, 833, 226 Cal. Rptr. 112, 718 P.2d 99; also see People v. Bradford (1997) 15 Cal.4th 1229, 1325, 939 P.2d 259.)
Third party culpability evidence may be excluded where it is only vaguely similar or completely inconsistent with the charged offense. (People v. Von Villas (1992) 10 Cal.App.4th 201, 266.) If third party evidence is relevant, it is admissible unless its probative value is substantially outweighed by the risk of undue delay, prejudice, or confusion. (Id . at p. 265; People v. Hall, supra, 41 Cal.3d 826, 834.)
Respondent correctly notes the proffered testimony here only established there was another Black male who had committed purse snatching. The Conners assailant did not use a weapon and escaped on foot without using a vehicle. The Conners assailant relied on sheer physical force and attacked the Conners during the evening. The two victims in the instant action were attacked during the early morning. They were both in, or next to, their own cars. The robber in the Towery and Searson robberies used a gun, verbal threats, and a car. He did not employ physical force. Warren is apparently taller than the person who robbed the Conners.
We find the proffered testimony from the Conners is only vaguely similar with the charged offenses here. The trial court properly weighed the similarity of the evidence from the instant action, which it had already heard, to the evidence from the Conners robbery. We find no error in the trial courts ruling that evidence of the Conners robbery was inadmissible because it failed to link a third person to the instant offenses and because the probative value of the evidence was substantially outweighed by the risk of undue delay, prejudice, or confusion.
SUFFICIENCY OF EVIDENCE
Warren contends there was insufficient evidence he committed the robbery of Kari Towery (count two). Warren argues that Towery testified she did not get a good look at the robber and that Warren looked larger than the robber. The man who robbed Towery was clean-shaven. Warren had a mustache at trial. Towery testified the robber exited a 1988 Buick Park Avenue while Warrens parents owned a 1991 Buick LeSabre. Warren argues there were significant differences between the Towery and Searson robberies.
In reviewing the sufficiency of the evidence, we review the evidence in the light most favorable for the prosecution and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (People v . Osband (1996) 13 Cal.4th 622, 690, 919 P.2d 640.)
In assessing the sufficiency of evidence, courts look to the whole record, not just the evidence favorable to the defendant. The test is whether, after reviewing the evidence in the light most favorable to the prosecution, including any inferences to be drawn from the evidence, any rational trier of fact could have found the essential elements of the crime. (People v . Holt (1997) 15 Cal.4th 619, 667, 669, 937 P.2d 213.)
In support of the judgment, appellate courts presume every fact the trier of fact could have reasonably deduced from the evidence. On appeal, the test is whether substantial evidence supports the jurys verdict, not whether the evidence proves guilt beyond a reasonable doubt. (People v. Moses (1990) 217 Cal. App. 3d 1245, 1251, 266 Cal. Rptr. 538.)
An appellate court will not substitute its judgment for that of trier of fact merely because the evidence is susceptible to a contrary finding. (People v. Ceja (1993) 4 Cal.4th 1134, 1138-1139, 847 P.2d 55.) Even where identity evidence is weak and alibi evidence is strong, appellate courts defer to the fact finders determination of the relative weight of the testimony. (People v. Westbrook (1976) 57 Cal. App. 3d 260, 262, 129 Cal. Rptr. 143 [rejected on other grounds in People v. Amin (1978) 88 Cal. App. 3d 637, 639-640, 152 Cal. Rptr. 9].)
Towery could only view Warren during dawn when the lighting conditions were less than ideal. It is not surprising she might have seen Warren as a different size at the time of trial. Towery, however, did note Warren had been in jail and could have grown larger. Warrens mustache can also be attributed to the passing of time. Warren was arrested in early December of 2001 but his trial did not commence until early May of 2002. There was more than enough time for Warren to gain weight and to grow a mustache after Towery was robbed. Though Towery described the car used by the robber as a Buick Park Avenue, she identified a photograph of the Warrens car, a Buick LeSabre, as the car used by the robber.
Warren is correct in noting there were differences between the Towery and Searson robberies. Searson did not see an accomplice driving the car and the robber wore a mask, unlike Towerys robber. Respondent accurately points out the similarities between the robberies. Both robberies were perpetrated during the early morning hours. In both robberies, the assailant used a gray Buick sedan. The robber brandished the same chrome colored gun at both victims but did not employ physical force. The assailant in both crimes was a tall, African-American male who was muscular. Searsons description of the license plate number had a correct number and three correct letters, though she had the sequence of the letters backward.
While Towerys identification of Warren was not perfect, her identification of his car from a photograph was a key identifying fact that he was the assailant who robbed her. So too was the robbers use of the same chrome colored gun. Warren also made admissions linking him to the robberies during telephone conversations from the jail. We find there was substantial evidence to support Warrens conviction in count two.
ABSTRACT OF JUDGMENT
Warren contends the abstract of judgment incorrectly shows the trial court stayed a prior prison term enhancement when it should show the enhancement was stricken. Respondent contends the abstract of judgment accurately reflects the trial courts sentence concerning the enhancement, but omits Warrens misdemeanor sentence on count three.
The trial court granted the prosecutors motion at the beginning of trial to dismiss one of two alleged prior prison term enhancements. The abstract of judgment indicates a one-year sentence for the prior prison term enhancement was imposed on count two and ordered to be served consecutively to count two for a total sentence of six years. The sentence on the same enhancement was imposed consecutively to Warrens sentence on count one, but sentence on the enhancement and the sentence on count one were made concurrent to Warrens sentence on count two.
It does not appear the trial court stayed the dismissed prior prison term enhancement. It appears, however, that the trial court took the single remaining prior prison term enhancement and applied it consecutively to count two and then applied it consecutively a second time to count one, though the court made the sentences on count one and the prior prison term enhancement applied to count one concurrent to the remainder of Warrens sentence. This was error.
Sentences for prior prison term enhancements do not attach to particular counts but are added just once as the final step in computing the total sentence. (People v. Tassell (1984) 36 Cal.3d 77, 90, 201 Cal. Rptr. 567, 679 P.2d 1 [overruled on other grounds in People v. Ewoldt (1994) 7 Cal.4th 380, 387, 398-401, 867 P.2d 757].) Thus, the trial court could not impose a single prior prison term enhancement twice even though the second imposition of the enhancement was imposed concurrently.
We will remand this case for the trial court to correct the abstract of judgment to reflect there is a single consecutive prior prison term enhancement, which is not attached to either count.
Respondents contention concerning the absence in the abstract of judgment of the count three misdemeanor sentence is not compelling. The Judicial Council has statutory authorization to determine the contents of what is to appear in the abstract of judgment. (Pen. Code, § 1213.5; People v. Hong (1998) 64 Cal.App.4th 1071, 1082.) Because this case is being remanded to the trial court for amendment of the abstract of judgment, the trial court will have the opportunity to use the most recent abstract of judgment forms authorized by the Judicial Council beginning January 1, 2003. We note these forms do not have entries for misdemeanor offenses. They do permit entries for "other orders." An entry noting a misdemeanor conviction could apparently be made as an "other order," though such an entry does not appear to be legally required. The ultimate purpose of the abstract of judgment is to act as a synopsis of the trial courts judgment for prison authorities that are responsible for the execution of the defendants sentence. (People v. Mitchell (2001) 26 Cal.4th 181, 185; In re Black (1967) 66 Cal.2d 881, 889-890, 59 Cal. Rptr. 429, 428 P.2d 293; People v. Hong, supra, 64 Cal.App.4th 1071, 1076.)
DISPOSITION
The case is remanded to the trial court to correct the abstract of judgment to show there is a single consecutive prior prison term enhancement, which is not attached to either count. The judgment is otherwise affirmed.