Opinion
C080616
12-21-2018
THE PEOPLE, Plaintiff and Respondent, v. RANDELL BRYANT, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 13F05776)
A jury convicted Randell Bryant of three residential burglaries. The trial court sentenced defendant under the Three Strikes Law to 25 years to life in prison as to each count, plus 10 years, with each term to run consecutive to the others.
Defendant now contends the trial court erred in (1) denying his motion to suppress evidence of a witness's identification, (2) sustaining an objection to a portion of defense counsel's closing argument, (3) denying his petition for release of juror information, and (4) believing that consecutive sentencing was mandatory. Finding no merit to defendant's claims, we will affirm the judgment.
BACKGROUND
In September 2013, J. Pratt heard an alarm going off and stopped his car in front of a house (house 1). He asked the people just inside the front door if an alarm was going off. The people explained they were trying to turn the alarm off. Pratt called the police after further conversation with those people.
After moving his car, Pratt observed house 1 for three or four minutes. The alarm stopped. One of the individuals Pratt had talked to came out of the house with a satchel. Pratt followed the person in his car and asked if they got the alarm to stop. The person responded that they handled it. Pratt drove back and saw the other person he had talked to come out of house 1. Pratt followed in his car and tried to talk to the second person then returned to the house. He heard barking and an alarm going off at the house next door (house 2).
Two or three minutes later, two more people exited the front door of house 1, carrying something behind them. Pratt tried to talk to them. One of them, whom Pratt referred to as suspect number three, told Pratt "What the fuck you looking at?" Pratt got a good look at suspect number three. The entire encounter from the time Pratt first saw the people until he lost sight of the last two was 15 to 20 minutes.
Pratt gave Sacramento Police Department Officer Michael Rinehart descriptions of the people he saw about 30 minutes after he saw them. He described the person he referred to as suspect number three as 20 to 24 years old, 5 feet 8 to 5 feet 10 inches tall, about 160 pounds, and having shoulder length dread locks. Defendant's sister Jazzie subsequently testified that defendant was over six feet tall. Pratt testified that someone who was six feet two inches was in the range of the person he described as being 5 feet 8 to 5 feet 10 inches in height.
J. Steed lived at house 1. Her front door had been kicked in and her alarm speaker had been torn off the ceiling. The house had been ransacked. Items missing included a GPS device and a coin pouch containing British currency.
S. Tarter lived at house 2. A sliding glass door in her master bedroom had been removed from its track and the screen door had been cut. The speaker box for her alarm had been pulled off the wall. Ugandan currency and other things were missing.
That afternoon, H. Kaiser saw two males looking over the fence into the backyard of a house on another street (house 3), where a dog was barking. The males climbed over the fence into the backyard. Less than five minutes later, four people left the yard by climbing over the fence. Two of them had backpacks and one carried a computer screen. Kaiser and another witness described the individuals as teenagers. When subsequently asked about dread locks, Kaiser testified he did not recall that any of the males at house 3 had dread locks.
C. Volkers lived at house 3. The French doors at the back of her house were damaged and her house had been ransacked. Various items were missing, including over $9,000 in cash, iPads, an Xbox, a savings bond, and a black Easton backpack.
Later in the day, Volkers informed police that she used an app to trace one of her missing iPads to a house on Cedro Circle, and officers responded to that address. Individuals named Mikeyo and Lorenzo lived there. Savings bonds taken from the Volkers' residence were found in a dresser in the master bedroom, along with mail for Mikeyo. Police found the missing iPads, Xbox and black Easton backpack in a converted garage bedroom.
Police searched defendant's residence. Defendant's brother Samuel had $1,200 in cash on his person, and defendant had $3,835 in his pants pocket. A set of keys defendant identified as belonging to him included keys to the Cedro Circle house.
After being advised of his Miranda rights, defendant ultimately admitted that he stayed in the converted garage bedroom at the Cedro Circle house. He provided different accounts of what he did on the day of the burglaries but admitted he was at the Cedro Circle house on that date. He agreed he had a key to the back door of the Cedro Circle house and he admitted the shoes in the converted garage bedroom belonged to him.
Police stopped defendant's brother Koleon as he drove toward defendant's residence. Police found a coin purse containing British currency, a plastic bag containing Ugandan currency, and a Garmin GPS device in Koleon's car. They found $869 in Koleon's wallet.
Lorenzo arrived at defendant's residence and he was placed under arrest for an unrelated violation of probation. Police interviewed defendant's brother Samuel about the burglaries and also arrested him. In addition, they arrested an individual named Dominique.
Steed, Tarter and Volkers identified property recovered by the police as items taken from their homes. Pratt identified defendant as suspect number three at a live lineup. He said defendant's facial features and voice were similar to the person who told him, "What the fuck you looking at." At trial, Pratt again identified defendant as the person who told him, "What the fuck you looking at?"
Defense expert Dr. Geoffrey Loftus testified about memory. He said people can be very confident about a memory even if it is false. He explained that divided attention, stress, distance and length of observation can affect a person's ability to receive information. Dr. Loftus also testified that people are less able to identify members of other races, they are most likely to remember a person's height and build, and a police officer administering a lineup who knows which person is the suspect can unconsciously provide information to the witness about the suspect.
The jury convicted defendant on three counts of first degree burglary, and the trial court found true the allegation that defendant was previously convicted of a serious felony. The trial court denied defendant's motion to dismiss a prior strike allegation and sentenced him to 25 years to life in prison on each count, plus 10 years for his prior convictions, with each term to run consecutively.
DISCUSSION
I
Defendant argues the trial court erred in denying his motion to suppress evidence of Pratt's identification at the live lineup. He claims it was error because defendant's counsel was not allowed to be present during the identification.
A
Officer Rinehart's preliminary hearing testimony indicated that Pratt did not make an identification in the lineup room. Officer Rinehart interviewed Pratt outside the room immediately after the lineup, and the interview was audio-recorded. During that interview, Pratt told Officer Rinehart that he contemplated picking the person in the number two position, but he was sure the person he saw during the burglary was the person in the number four position (defendant), and he identified defendant as the person he saw on the date of the burglaries. Nevertheless, according to Officer Rinehart, Pratt asked if he should pick the person in the number two position if he was not sure.
At trial, Pratt denied asking Officer Rinehart if he should have picked the person in the number two position. Pratt testified that the person in the number two position did give him pause, but he had enough time to think about it and he identified the person in the number four position. Pratt testified he was not unsure when he signed the identification form.
Defendant moved to suppress Pratt's live lineup identification, arguing the identification violated his right to counsel. Defense counsel said he was in the lineup room during the lineup, but Pratt was taken out of the room after the observation. When counsel asked what was going on and asked when Pratt would make the identification, he was told that Pratt had already made the identification. Defendant did not dispute that Officer Rinehart's interview of Pratt, including the identification, was audio-recorded. But defense counsel argued there was no way to know what part of the interaction was recorded and whether Officer Rinehart gave Pratt any signals. The trial court denied defendant's motion to suppress because the audio-recording informed defense counsel of the circumstances surrounding the identification.
B
The live lineup with Pratt occurred after defendant had been charged with the Steed, Tarter and Volkers burglaries. A post-indictment pretrial live lineup is a critical stage of the criminal prosecution at which the defendant is entitled to the presence of counsel because there is a grave potential for prejudice in such lineup which may not be capable of reconstruction at trial, and the presence of counsel can often avert prejudice and assure a meaningful confrontation at trial. (United States v. Wade (1967) 388 U.S. 218, 236-237 [18 L.Ed.2d 1149, 1163] (Wade); Gilbert v. California (1967) 388 U.S. 263, 272 [18 L.Ed.2d 1178, 1186] (Gilbert).) A defendant's right to counsel during a post-indictment pretrial live lineup includes the right to presence of counsel when the identification is made immediately thereafter. (People v. Williams (1971) 3 Cal.3d 853, 856-857 (Williams).) In Williams, defense counsel was present at the live lineup, the witness was immediately removed from the viewing room to make his identification, and defense counsel requested but was refused permission to be present at the identification. (Id. at p. 857.) The California Supreme Court held that under those facts, counsel should have been permitted to be present at the time the identification was made. (Ibid.)
However, in People v. Carpenter (1999) 21 Cal.4th 1016 (Carpenter), the California Supreme Court held the facts were distinguishable from those in Williams and resulted in no violation of the right to counsel. In Carpenter, the defendant moved to suppress identification evidence from a live lineup on the ground that two witnesses made the identifications after the lineup, in defense counsel's absence. (Id. at p. 1045.) The Supreme Court concluded that because the post lineup interviews and identifications were audio-recorded, there was no basis to exclude the identification evidence because the recording minimized the concerns which led to the adoption of the Williams rule. (Carpenter, at p. 1046.) Although it declined to overrule Williams, it said Williams was narrowly decided. (Carpenter, at p. 1046.)
Here, defendant had a right to the presence of counsel during the live lineup. (Wade, supra, 388 U.S. at pp. 236-237; Gilbert, supra, 388 U.S. at p. 272.) But consistent with Carpenter, evidence of the pretrial identification was admissible because the post lineup interview of Pratt, and Pratt's identification, were audio-recorded. "[C]ounsel here could listen to the recording of the interview, and thus be 'fully apprised' of what occurred." (Carpenter, supra, 21 Cal.4th at p. 1046.) Thus, defense counsel was able to cross-examine Pratt and Officer Rinehart about what Pratt said during the identification and argue that Pratt was not confident in his identification. Nothing in the record supports defense counsel's suggestion that only part of the post lineup interaction between Officer Rinehart and Pratt was recorded. The trial court properly denied defendant's suppression motion.
II
Defendant next contends the trial court erred in sustaining an objection to a portion of defense counsel's closing argument.
Defendant's trial counsel argued to the jury that Lorenzo very closely matched Pratt's initial description of suspect number three and that Lorenzo was connected to the Cedro Circle house. Lorenzo was about 5 feet 11 inches tall and 165 pounds. Defense counsel argued, "Because one thing that Mr. Pratt said is he was dark complected. And [Lorenzo] is dark complected and he has shoulder length braids that are dreads and he has a gaunt face and he is about the same height and weight of somebody that's about a 160 pounds and about five eight and five ten which is exactly what [defendant] is not." The trial court sustained the prosecutor's objection "as to facts not in evidence." It instructed the jury to "[c]onsider only the facts that were presented . . . during the trial[,] not comments from counsel."
A defendant has a constitutional right to have counsel present closing argument to the trier of fact (People v. Simon (2016) 1 Cal.5th 98, 147), and counsel should be given wide latitude in closing argument (People v. Farmer (1989) 47 Cal.3d 888, 922, disapproved on another ground in People v. Waidla (2000) 22 Cal.4th 690, 724, fn. 6). But the trial court has broad discretion to control the scope of closing arguments and may ensure that argument does not " 'stray unduly from the mark.' " (Simon, supra, 1 Cal.5th at pp. 147-148.) Counsel may not state or assume facts in argument that are not in evidence (People v. Stankewitz (1990) 51 Cal.3d 72, 102), and we review a trial court's decision to limit defense counsel closing argument for abuse of discretion (Simon, supra, 1 Cal.5th at pp. 147-148).
Here, the trial court did not abuse its discretion. Pratt described suspect number three as a black male. He referred to other burglars, who he also described as black males, as having a medium complexion or a dark complexion, but he never said suspect number three had a dark complexion. The trial court could properly restrict defense counsel from making a factually unsupported statement. Because we do not know from this record whether or not defendant had a dark complexion, we cannot say the trial court erred in sustaining the objection to defense counsel's comment. Moreover, the trial court's instruction did not prevent defendant from presenting the defense that someone other than defendant committed the burglaries. In fact, defense counsel made that argument. He argued, without objection, that Pratt's description of the suspect's height and weight was "not even close to what" defendant looked like. And after the challenged ruling, defense counsel urged the jury to look at the record to see what Pratt told the officer on September 3. Defense counsel asked the jury to look at all of the things which showed that defendant was not the person who committed the burglaries and to find defendant not guilty if the jury had any reasonable doubt about defendant being one of the burglars.
III
Defendant also claims the trial court abused its discretion in denying his petition for release of juror information because he presented a prima facie case of juror misconduct.
Defendant sought the release of juror information after the jury rendered its verdict. His petition was supported by a declaration by his sister Jazzie, who had testified as a defense witness. She averred in her declaration that during the trial, a juror tried to communicate with her by waving her over. She said the juror was someone who attended parties with her brother Koleon. Koleon was a codefendant in defendant's case who had pled guilty to burglary charges. Based on the description provided by Jazzie, the trial court determined she was referring to Juror No. 9.
The trial court denied defendant's petition for release of juror information, finding that nothing in Jazzie's declaration showed misconduct by Juror No. 9 or what would otherwise be a prima facie showing of good cause to unseal juror information. The trial court determined there was no reason for a prospective juror to expect that Jazzie or Koleon would be a trial witness. It said it could not address whether a juror may have been affected by seeing a picture of Koleon during the trial because such would be inadmissible under Evidence Code section 1150 [no evidence showing influence on juror regarding verdict or concerning juror mental processes]. It concluded that Jazzie did not have a relationship with Juror No. 9 because she did not identify the juror by name but merely recognized him from having seen him before. It found that at most Juror No. 9 waved at Jazzie, and there was no conversation between them. It concluded there was no prima facie showing of misconduct based on the wave.
Upon the recording of the verdict in a criminal jury proceeding, the trial court's record of personal identifying information of trial jurors is automatically sealed. (Civ. Proc. Code, § 237, subd. (a)(2); Townsel v. Superior Court (1999) 20 Cal.4th 1084, 1087 (Townsel).) However, a criminal defendant may, following the recording of the verdict, petition the court for access to personal juror identifying information within the court's records so that the defendant may communicate with jurors for the purpose of developing a motion for new trial or any other lawful purpose. (Civ. Proc. Code, § 206, subd. (g).) Such "petition shall be supported by a declaration that includes facts sufficient to establish good cause for the release of the juror's personal identifying information." (Id. at § 237, subd. (b), see § 206, subd. (g).) "Absent a showing of good cause for the release of the information, the public interest in the integrity of the jury system and the jurors' right to privacy outweighs the defendant's interest in disclosure." (People v. McNally (2015) 236 Cal.App.4th 1419, 1430.)
Good cause " 'requires "a sufficient showing to support a reasonable belief that jury misconduct occurred . . . ." [Citations.]' [Citation.]" (People v. Johnson (2015) 242 Cal.App.4th 1155, 1161-1162.) "Good cause does not exist where the allegations of jury misconduct are speculative, conclusory, vague, or unsupported." (People v. Cook (2015) 236 Cal.App.4th 341, 346.)
"The [trial] court shall set the matter for hearing if the petition and supporting declaration establish a prima facie showing of good cause for the release of the personal juror identifying information, but shall not set the matter for hearing if there is a showing on the record of facts that establish a compelling interest against disclosure. A compelling interest includes, but is not limited to, protecting jurors from threats or danger of physical harm. If the court does not set the matter for hearing, the court shall by minute order set forth the reasons and make express findings either of a lack of a prima facie showing of good cause or the presence of a compelling interest against disclosure." (Civ. Proc. Code, § 237, subd. (b), see § 206, subd. (g).)
In addition to the statutory protection of juror identification information, a trial court has inherent power to limit the parties' ability to contact jurors after trial. (Townsel, supra, 20 Cal.4th at pp. 1087, 1091-1094; see also People v. Tuggles (2009) 179 Cal.App.4th 339, 386-387.) We review an order on a motion for disclosure of juror identification information for abuse of discretion. (Townsel, supra, 20 Cal.4th at pp. 1096-1097; People v. Johnson (2013) 222 Cal.App.4th 486, 492.)
As an initial matter, defendant argues the trial court misunderstood the standard for the release of juror information. But reading the trial court's comments as a whole, we disagree. The trial court said the question before it was whether Jazzie's declaration supported a finding of good cause for the release of juror identifying information. The trial court found that nothing in the declaration showed juror misconduct or what would otherwise present a prima facie showing of good cause to unseal juror information.
A criminal defendant has a constitutional right to have the charges against him or her determined by a fair and impartial jury. (People v. Duran (1996) 50 Cal.App.4th 103, 111 (Duran).) " 'A juror who conceals relevant facts or gives false answers during the voir dire examination . . . undermines the jury selection process and commits misconduct. [Citations.]' " (Id. at p. 112.) Here, however, the parties' witness lists did not include Jazzie and Koleon's names. Defendant does not cite any portion of the record which shows that Juror No. 9 gave a false answer during voir dire. Defendant failed to establish a reasonable belief that jury misconduct occurred with regard to Juror No. 9's failure to disclose an alleged acquaintance with Jazzie or Koleon.
With regard to Juror No. 9's act of waving at Jazzie, Jazzie averred that Juror No. 9 waved at her in an attempt to talk with her. She did not aver that she spoke with Juror No. 9 or that Juror No. 9 spoke to her. The facts here are distinguishable from those in the cases defendant cites where a juror actually spoke with a non-juror.
Jazzie averred that she recognized Juror No. 9 as someone who attended parties with Koleon. It does not appear from Jazzie's declaration that she knew Juror No. 9's name, that she associated with Juror No. 9, or how well Juror No. 9 knew Jazzie or Koleon. Jazzie did not suggest that Juror No. 9 may have information relating to defendant or his case or suggest that Juror No. 9 may be biased against defendant or her. Under the circumstances, the trial court did not abuse its discretion in determining that Juror No. 9's act of waving at Jazzie did not constitute a prima facie showing of good cause for the release of juror information. There was no showing that Juror No. 9 spoke to Jazzie and no averment of bias, knowledge of extraneous information or conduct likely to have influenced the verdict improperly.
Even when juror misconduct occurs, reversal is not required when an examination of the entire record shows no substantial likelihood that any juror was improperly influenced to the defendant's detriment. (People v. Marshall (1990) 50 Cal.3d 907, 950; Duran, supra, 50 Cal.App.4th at p. 113.) The record does not show that any juror was impermissibly influenced to the defendant's detriment because Juror No. 9 waved at Jazzie some time during the trial.
IV
Defendant further argues that the trial court erroneously believed consecutive sentencing was mandatory.
Where, as here, a defendant is sentenced on multiple felony counts under the Three Strikes Law because he has previously been convicted of at least one serious or violent felony, the trial court must sentence the defendant consecutively on each count unless the current felonies were committed on the same occasion or arose from the same set of operative facts. (§§ 667, subd. (c)(6), (7), 1170.12, subd. (a)(6), (7); People v. Deloza (1998) 18 Cal.4th 585, 590-591 (Deloza).) If the current felonies were committed on the same occasion or arose from the same set of operative facts, the trial court has discretion to impose a consecutive or concurrent sentence. (Ibid.)
The term "same occasion" refers to a close temporal and spatial proximity between the acts underlying the current felony convictions. (Deloza, supra, 18 Cal.4th at pp. 594-595.) A crime is not committed on the same occasion if it is complete when the second crime is being committed. (People v. Durant (1999) 68 Cal.App.4th 1393, 1405-1406.) "Operative facts" refer to the facts of a case which prove the underlying act upon which the defendant was convicted. (People v. Lawrence (2000) 24 Cal.4th 219, 231 (Lawrence).) The nature and elements of the offenses are highly relevant to whether the offenses arise from the same set of operative facts. (Id. at pp. 232-234.)
In Deloza, the defendant entered a furniture store with an armed companion who pointed a gun toward the assistant manager of the store while the defendant grabbed a customer's purse and took money from a cash register and the wallet of a salesperson. (Deloza, supra, 18 Cal.4th at p. 589.) The defendant was convicted of four counts of second degree robbery. (Ibid.) The robberies were committed on the same occasion within the meaning of the Three Strikes Law because the robberies were committed in one location, were brief in duration, and were committed essentially simultaneously against the same group of victims. (Id. at pp. 595-596.) Further, no event separated one "occasion" of robbery from another. (Id. at p. 596.)
In Lawrence, the defendant stole a bottle of brandy from a market and ran when store employees gave chase. (Lawrence, supra, 24 Cal.4th at p. 224.) The defendant entered the backyard of a nearby residence and assaulted the resident and his wife when they pursued him. (Ibid.) The defendant was convicted of, among other things, felony petty theft of the brandy and aggravated assault against the wife. (Id. at pp. 224-225.) The Supreme Court held that the defendant did not commit the theft on the same occasion as the assault. (Id. at pp. 228-229.) The theft and assault occurred in separate locations and at different times. (Ibid.) The assault was committed one to three blocks from the market and most likely within two or three minutes after the theft. (Ibid.) Additionally, the assault involved a different criminal act directed at a different victim, and the two crimes were not committed simultaneously. (Ibid.)
In Durant, a jury convicted the defendant of a residential burglary and two attempted residential burglaries. (Durant, supra, 68 Cal.App.4th at p. 1396.) The issue before the appellate court was whether the defendant's offenses were committed on the same occasion or arose from the same set of operative facts within the meaning of sections 667, subdivision (c)(6) and 1170.12, subdivision (a)(6), thereby permitting the imposition of concurrent sentences. (Id. at pp. 1396-1397.) The burglaries and attempted burglaries were committed at three units within a condominium complex and not simultaneously. (Id. at pp. 1397-1398.) With regard to whether the burglary and two attempted burglaries arose from the same set of operative facts, the appellate court said the nature and elements of the offenses were highly relevant. (Id. at p. 1405.) "[W]here the elements of the original crime have been satisfied, any crime subsequently committed will not arise from the same set of operative facts underlying the completed crime; rather such crime is necessarily committed at a different time. For instance, with the crime of burglary, where the offense is complete when there is an entry into a structure with felonious intent, 'regardless of whether the felony or theft committed is different from that contemplated at the time of entry, or whether any felony or theft actually is committed' [citation], the commission after the first burglary of a crime or burglary of another structure necessarily will arise out of different operative facts than those underlying the original offense." (Id. at p. 1406.) The appellate court held that consecutive sentences were required in that case because the duration of each offense did not overlap, each being complete when the defendant attempted to enter or successfully entered a residence and then left to go to another residence. (Id. at pp. 1406-1408.)
The burglaries in this case occurred on the same day but not simultaneously and were at different locations. Pratt heard an alarm going off at house 1 at about 11:30 a.m. The alarm later stopped, and Pratt heard barking and an alarm going off at house 2. Kaiser saw a group of four jump over the fence from the backyard at house 3 in the early afternoon of the same day. Signs of a break in were evident at each house. Each house was ransacked and property was taken.
A person is guilty of burglary when he or she enters a house with intent to commit larceny or any felony. (§ 459.) The burglary of the Steed house was completed when defendant entered that house with intent to commit larceny. (People v. Allen (1999) 21 Cal.4th 846, 863, fn. 18 ["the gist of the offense is entry with the proscribed intent, and . . . such an entry constitutes the completed crime of burglary 'regardless of whether . . . any felony or theft actually is committed.' "], italics omitted.) The burglary of the Steed house was completed before defendant entered the Tarter home and then the Volkers residence with larcenous intent.
The trial court did not misunderstand its sentencing discretion. It said consecutive sentencing was required given that the crimes involved separate victims and houses and did not, for example, involve three victims in one place where the court would have discretion to impose concurrent sentences. Because the record supports the finding that the Steed, Tarter and Volkers burglaries were committed at different times and places and each burglary was complete before the next one was committed, the trial court did not err in imposing consecutive sentences. (Durant, supra, 68 Cal.App.4th at pp. 1405-1408.) Consecutive sentencing was mandated under the present facts. (§§ 667, subd. (c)(6), (7), 1170.12, subd. (a)(6), (7).)
DISPOSITION
The judgment is affirmed.
/S/_________
MAURO, J. We concur: /S/_________
ROBIE, Acting P. J. /S/_________
RENNER, J.