Opinion
F075560
10-31-2018
THE PEOPLE, Plaintiff and Respondent, v. RACE MCKINLEY BOWEN, Defendant and Appellant.
Erin J. Radekin, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Jennifer Oleska, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Kings Super. Ct. No. 16CMS3817)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kings County. Steven D. Barnes, Judge. Erin J. Radekin, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Jennifer Oleska, Deputy Attorneys General, for Plaintiff and Respondent.
Before Poochigian, Acting P.J., Meehan, J., and Snauffer, J. --------
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Defendant Race McKinley Bowen contends on appeal (1) admission of evidence of his prior misdemeanor conviction for spousal battery was prejudicial error, and (2) the minute order and abstract of judgment do not reflect the oral pronouncement of trial. We remand for amendment of the minute order and abstract of judgment, and otherwise affirm.
PROCEDURAL SUMMARY
On March 27, 2017, the Kings County District Attorney charged defendant with first degree burglary (Pen. Code, § 459; count 1), misdemeanor possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a); count 2), and misdemeanor possession of paraphernalia (Health & Saf. Code, § 11364, subd. (a); count 3). The information further alleged that count 1 was a serious felony (Pen. Code, § 1192.7, subd. (c)) and that another person was present in the residence during the burglary (Pen. Code, § 667.5, subd. (c)).
On March 28, 2017, the jury found defendant guilty on all counts, but found not true the allegation that another person was present in the residence during the burglary.
On April 26, 2017, the trial court sentenced defendant to the upper term of six years on count 1, 365 concurrent days on count 2, and 180 concurrent days on count 3. The court imposed various fines and fees, awarded a total of 237 days of presentence custody credits, and found defendant in need of drug treatment (Pen. Code, § 1203.096).
On October 26, 2017, defendant filed a notice of appeal.
FACTS
Alexis D. was living in an apartment with her boyfriend, Bradley H. On December 28, 2016, Bradley was out of town. Around 7:00 or 8:00 p.m., Alexis left the apartment to spend the evening with some friends. She cleaned the house before she left and she locked the door. The sliding glass door was locked and secured with a broomstick placed in the track. The next morning, when Alexis returned home at 9:00 or 9:30 a.m., the whole apartment was a mess and defendant was inside. She had known him since elementary school. He had been to the apartment one time, about two or three months earlier, just to say hi to Bradley. Defendant and Bradley were acquaintances and had grown up together. For a while, they were pretty close, hung out with each other a little, and played basketball together. Bradley had not seen defendant for about six months. There was no reason, however, anyone would have thought Bradley was dead.
Alexis asked defendant what he was doing there. He answered, and kept repeating, " 'It wasn't me.' " He told her the door had been open. She suspected he had taken something, so she told him, " 'Empty your pockets and your backpack because I need to see your pockets.... I need to see your pockets, I need to see them empty.' " He emptied everything onto her table and couch. He produced her diamonds, a radio, a camera, boxing gloves, a plastic bracelet, a little bouncy basketball, and other items. Alexis kept her diamonds in a box in her purse, which had been rifled through. She noticed the television was unplugged and the laptop and Xbox video game console had been moved. She saw that the sliding door was open and the broomstick removed from the track and lying nearby. Defendant told her he thought both she and Bradley were dead, and he was there getting "memories." She said she was going to call the police. He left the apartment and took the little basketball, which he refused to give her, and the plastic bracelet.
Officer Alvaro Santos apprehended defendant within a mile of the apartment. Defendant had the backpack, which contained various items, including the little basketball. Defendant told Santos he had been inside an apartment belonging to his friend, Bradley. He said he had heard that Bradley's girlfriend had killed him, so he was in the apartment searching for Bradley. Defendant said the apartment was already trashed when he got there. Defendant told Santos he was going to leave because he did not want to talk to Santos. Before Santos patted him down, defendant admitted he had methamphetamine and a pipe. Santos found the pipe in his pocket. Defendant said his cell phone was not working and he wanted to call Bradley to tell him he was in the apartment, which was not initially trashed, but became trashed when defendant was looking for evidence. He said the front door was wide open when he arrived at 1:00 a.m., and he was trying to play the Xbox.
Corporal Kyle Reynolds contacted defendant at the police station. Defendant pulled a bindle containing 0.1 grams of methamphetamine out of his sock and said, " 'Here's the meth.' " Defendant told Reynolds he had arrived at the apartment around 1:00 a.m., knocked on the front door, and no one answered. Then he jiggled the knob and the door opened. He went inside to look for memories of his friend, Bradley. The apartment had already been ransacked. He told Santos, " 'On my life, sir, it was already thrashed.' " He said he sat on the couch and started calling people. He admitted taking the little basketball and the bracelet, which he was now wearing. The bracelet belonged to Bradley and he took it because it was a memory of Bradley. He found the computer memory cards and the laptop in the closet. He wanted to put the memory cards in the computer to look for messages or other information regarding Bradley's death. Defendant admitted that when Alexis returned home, the memory cards were in his pockets. He told Reynolds he had tried to call Bradley, but someone must have reset his phone because he could not make any calls.
Corporal Reynolds concluded defendant was not under the influence of methamphetamine. Reynolds called Bradley for a statement. Bradley said he and defendant had grown up together and had last spoken about six months earlier. Bradley said there was no reason anyone should think he was dead.
A loss prevention officer of Walmart testified that on December 27, 2013, defendant took two Xboxes from the security pegs in the electronics department of Walmart. The pegs normally had to be unlocked by an employee. Defendant walked to another department, concealed the Xboxes in his jacket, then walked out the front door. The officer pursued defendant outside the store and identified himself as the loss prevention officer. Defendant kept walking. The officer asked him to stop, but he would not. Finally, the officer told him, " 'If you're not going to stop at least give us our stuff back.' " Defendant opened his jacket and the two Xboxes fell out. The officer later identified defendant to the police. (RT 502-506)!
Defense Evidence
When defendant took the stand, defense counsel asked him about his three prior misdemeanor convictions. She asked if he had been convicted of misdemeanor driving or taking a car without permission in 2016, misdemeanor battery on a spouse in 2015, and misdemeanor commercial burglary in 2013. He answered affirmatively to each question.
Defendant testified he knew Alexis very well and they had been in the same fourth-grade class. He also knew Bradley very well. They used to play basketball and box with each other. They started hanging out together at about age 14 (defendant was 21 years old at trial). Bradley was his best friend and, at one point, his only friend. Defendant had been to Bradley's apartment about five times.
Defendant explained that he went to look for Bradley that night because Bradley was not responding to his text messages. The front door was slightly open. Defendant knocked for about four minutes, but no one came, so he pushed the door open. He peeked in and called Bradley's name for about one minute. No one came, so he went inside. He looked around, then went outside through the sliding glass door, waited on the patio, and used some methamphetamine. But it was cold, and he came back inside. He sat on the couch and played with the cat. He snorted some methamphetamine, then fell asleep on the couch for about three hours. He had used drugs all day long before going to the apartment and was under the influence when he went there. He used about 0.5 grams of methamphetamine while he was at the apartment. The methamphetamine made him feel paranoid and made him think he was things that he was not.
He explained that when he went to the apartment, he was not planning to take anything. He was just planning to look for Bradley. When he woke up, he began to search the apartment for the bodies of Bradley and Alexis. He thought Alexis might have done something bad because she recently had told him twice that Bradley was not at home. Defendant began to think he was an investigator on the scene looking for evidence, and he started to investigate. Everything was already scattered everywhere, so it was out for him to see. He found the laptop in the closet. He picked up things and put them in his pockets because he was hearing voices saying, " 'What would Brad want you to have?' " He took the little basketball, the bracelet used for balance and power, and the boxing gloves as memories of Bradley. He figured Bradley would want him to have them.
At about 7:00 a.m., someone knocked on the door. Defendant opened the door and Alexis's mother came in. They talked for a few minutes and she left.
Later, Alexis came home and asked for the things he had taken. He gave her everything except the bracelet, which he forgot he was wearing. He got scared when they were arguing, and he walked out without realizing he was holding the little basketball in his hand.
On cross-examination, defendant agreed that he considered Bradley his friend, yet he entered the apartment without Bradley's permission. It was not defendant's intent to steal when he went to the apartment. He was looking for Bradley. Defendant agreed he had never told an officer that the front door was slightly open. He told one officer the door was wide open and told another officer the door was closed, but it opened when he jiggled the knob. He explained he was high at the time and was not making sense.
Defendant also testified that when he knocked on the door for four minutes, the neighbor opened his or her door. He had not told any officer this because he was not in the right state of mind due to the methamphetamine. He testified he was not using methamphetamine when he committed the offense at Walmart in 2013. He was not a user then. He agreed he had never told any officer that he called out Bradley's name when he entered the apartment, that he went out onto the patio, or that he used methamphetamine on the patio. He explained that the sliding door was already slightly open, and the broomstick was lying outside the track. He went out to the patio because he did not want to look like he was committing a crime. Defendant agreed he had the presence of mind to know what was going on even though he was using methamphetamine. He explained that he knew how much methamphetamine he had used even though he was not in the "right state of mind" because it was a "round about answer."
Defendant testified that he did not go into the apartment with the intent to steal. He never stole in that state of mind. But he now realized that maybe he should not have gone in there and done that. He admitted he had not told any officer that he had gone by the apartment two days earlier and knew Bradley was not there. He repeated that he was taking memories of Bradley. When the prosecutor asked defendant if the voices told him Bradley would want him to have Alexis's diamonds, he said no. He agreed that he overcame the voices and decided on his own to put the diamonds in his pocket because he wanted them.
Defendant explained he understood that he looked guilty when Alexis came home and found him in the apartment. He said he probably would have become obnoxious and scared, just like Alexis, if the same thing happened to him. He got scared because the facts and the evidence made it look like he had entered the apartment with the intent to steal.
Defendant also explained for the first time that he went to the apartment to find Bradley because he needed him to help get his stolen bicycle back. Defendant clarified that he went to Bradley's apartment both to see if he was dead and to get help retrieving the bicycle.
DISCUSSION
I. Evidence of Misdemeanor Convictions
" '[E]vidence of a misdemeanor conviction, whether documentary or testimonial, is inadmissible hearsay when offered to impeach a witness's credibility.' [Citation.] However, Evidence Code section 352 considerations aside, evidence of misdemeanor misconduct is admissible to impeach a witness so long as it involves moral turpitude." (People v. Woodruff (2018) 5 Cal.5th 697, 763, original italics.)
Defendant argues the trial court erred in admitting evidence of his three prior misdemeanor convictions. He concedes that admission of the convictions for driving or taking a car without permission and for commercial burglary was harmless, but he contends admission of the spousal battery conviction resulted in prejudice because it reflected a "greater disregard for the rights of others to be secure in their person and property than taking item from a store or temporarily taking a car without permission." He argues it is reasonably probable that, if the jury had known only that he had previously taken a car without permission and taken items from a store, not that he had committed a battery against a person with whom he was in a dating relationship, the jury would have believed his testimony that he entered the apartment with the intent to check on the welfare of his friend, not with the intent to steal, and would have acquitted him.
The People respond that defendant forfeited these claims by failing to object to admission of the conviction evidence. The People further argue that any error in admitting the evidence was harmless because battery on a spouse is a crime of moral turpitude and evidence of defendant's guilt was overwhelming.
We need not address whether battery on a spouse is a crime of moral turpitude, or whether defendant forfeited these claims at trial, because we can readily conclude any error was harmless.
The evidence of defendant's guilt was overwhelming. The evidence supported the conclusion that defendant entered the apartment with the intent to steal items he wanted—not that he entered the apartment to check on Bradley's welfare, then concluded Bradley was dead, and thereafter became inspired by voices to take memories of Bradley because Bradley would have wanted him to have them. The plastic bracelet and little basketball might have passed as memories of Bradley, but the many valuables, especially Alexis's diamonds, did not. Defendant took diamonds, a radio, and a camera, and he apparently intended to take the other electronic devices he had unplugged or moved. He admitted the voices did not tell him to take the diamonds; he took those because he wanted them. Furthermore, the evidence supported the conclusion that although defendant had no reason to believe Bradley was dead, he concocted the idea to create the story that he was collecting memories instead of stealing property. His story, inconsistent and ever-evolving, may have reached its zenith of absurdity when he claimed that he intended to see if Bradley was dead, and if Bradley turned out not to be dead, he would recruit Bradley to help recover his stolen bicycle. Defendant explained that his methamphetamine-clouded mental status that night led him to believe he had to investigate Bradley's death and collect evidence and memories, and also caused him to inaccurately remember the details and tell inconsistent stories. But this explanation was belied by defendant's rational awareness that the situation appeared to incriminate him, and his self-serving interest in taking items of monetary (not just sentimental) value.
In sum, the evidence of burglary was overwhelming, and it was defendant's own statements and testimony that undermined his credibility, not evidence of his prior misdemeanor conviction for spousal battery. Thus, we see no reasonable probability that a different outcome would have resulted had evidence of the prior misdemeanor convictions not been admitted at trial. (See People v. Marks (2003) 31 Cal.4th 197, 227-229; People v. Watson (1956) 46 Cal.2d 818, 836.)
II. Oral Pronouncement of Judgment
The parties agree the minute order and abstract of judgment fail to accurately reflect the trial court's oral pronouncement of judgment. They agree the court awarded 237 days of presentence custody credit: 119 days of actual custodial credit and 118 days of good and work time credit.
"Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls." (People v. Zackery (2007) 147 Cal.App.4th 380, 385.) Accordingly, the minute order and abstract of judgment must be amended.
DISPOSITION
The matter is remanded to the trial court with directions to amend the minute order and abstract of judgment to reflect an award of 237 days of presentence custody credit (119 days of actual custodial credit and 118 days of good and work time credit). the court is directed to forward certified copies to the appropriate entities. In all other respects, the judgment is affirmed.