Opinion
NOT TO BE PUBLISHED
Superior Court County No. LA061191of Ventura, Dennis E. Mulcahy, Judge.
Allison H. Ting, under appointment by the Court of Appeal, fir Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, Lance E. Winters, Deputy Attorney General, for Plaintiff and Respondent.
YEGAN, J.
Anthony Delorenzo appeals his conviction by jury of first degree burglary (Pen. Code, §§ 459, 460) with special findings that the victim was over the age of 65. (§ 667.9, subd. (a)). Appellant admitted a prior strike conviction (§§ 667, subds. (b) – (i); 1170.12, subds. (a) – (d)), a prior serious felony conviction enhancement (§ 667, subd. (a)) and seven prison prior enhancements (§ 667.5, subd. (b)), and was sentenced to 20 years state prison. We strike a one-year prior prison term enhancement, reduce the aggregate sentence to 19 years, and affirm the judgment as modified. (People v. Jones (1993) 5 Cal.4th 1142, 1150.)
All statutory references are to the Penal Code unless otherwise stated.
Facts
On December 31, 2008, 89-year-old Lee Baker was involved in a traffic collision. Appellant approached Baker at the accident scene, said he was a witness, and said the other driver was injured and wanted to settle for cash. Baker withdrew $300 from an ATM machine and gave the money to appellant to give to the motorist.
Appellant befriended Baker and drove her home. He learned that Baker was a widow and lived alone. Appellant visited Baker, did handyman things around the house, and brought his girlfriend to the house.
Baker noticed that her laptop computer was missing and told appellant that she was disappointed that he had taken it. Appellant claimed his girlfriend took the laptop and returned it to Baker.
Baker noticed other things missing. On January 14, 2009, there were two unauthorized ATM withdrawals from Baker's account at a Rapid 64 gas station. Someone used the ATM card to make a point of sale purchase the same day.
Baker called the police. On January 26, 2009, she told Detective Eduardo Gonzalez about the missing laptop and her encounters with appellant. Detective Gonzalez advised Baker not to let appellant in the house.
That evening, appellant came to the front door and "bang[ed] on the doorbell." The street light was on and illuminated the street and porch area. Baker looked out the window and saw appellant dressed in a white shirt. The street light was "bright as day" Baker had the television turned up loud.
Baker waited for appellant to leave. Moments later, she saw appellant running through the house. Appellant ran from the bedroom to the family room, took Baker's purse, and ran out a patio door. Baker got a quick glimpse of the person and told the police that she recognized appellant by his stature and physique. A wood pole, used to secure a sliding glass door, was leaning against the outside wall.
Detective Gonzalez determined that the sliding glass door was the point of entry and suspected that the ATM withdrawals might be related to the burglary. Baker kept all her financial information, including the ATM personal identification number (PIN), in a binder marked "Financials" that could have been accessed by someone visiting the house.
Detective Gonzalez reviewed the January 14, 2009 video surveillance tapes at the gas station where the ATM withdrawals were made. The video tape showed appellant in front of the ATM machine and purchasing items. Detective Gonzalez called appellant's cell phone number and said he was investigating the traffic accident. Appellant confirmed that he assisted Baker after the accident, visited her, and did odd jobs around the house. Detective Gonzalez asked if he took Baker's property or used her credit cards. Appellant denied having done so, refused to come down to the police station, and said he was leaving for Texas.
At trial, appellant asserted an alibi defense. Family members testified that, in mid-January, appellant went to live with his sister in Arizona. The relatives claimed that he was in Arizona on January 26, 2009, attending a birthday party.
The prosecution called Hughston Dale in rebuttal. Dale, a State of California employee, stated that appellant visited him in a State office building in Van Nuys on January 22, 2009.
Sufficiency of the Evidence
Appellant argues that the conviction is not supported by the evidence because the victim was elderly, had poor eyesight, and did not get a good look at appellant. In a sufficiency of the evidence appeal, we consider the evidence in a light most favorable to the judgment and presume the existence of every fact the jury could reasonable deduce from the evidence in support of the judgment. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) We are precluded from substituting our judgment for that of the jury, or reweighing the evidence or reevaluating the credibility of the witnesses. (Ibid.)
Baker saw appellant standing on the porch ringing the doorbell just before the burglary. The street light was "bright as day." Moments later, Baker saw a man run from her bedroom, through the family room, and out the patio door. The man was wearing a white shirt, similar to the shirt appellant was wearing at the front door. Baker said the shirt was "very, very bright" and billowing behind appellant as he ran. Baker barely saw the man's face but recognized appellant by his statute and physique.
Appellant argues that an identification based on a person's stature or physique "is far from being conclusive, or even satisfying...." (People v. Laird (1924) 69 Cal.App. 511, 513.) But appellant was no stranger to Baker. Identification of a defendant based on his or her physique combined with other circumstantial evidence is sufficient to convict. (Id., at pp. 512-514; In re Corey (1964) 230 Cal.App.2d 813, 826 [witness identification may be based on size, appearance, clothing and other factors].) But, Baker's identification was unequivocal and corroborated by strong circumstantial evidence. Appellant befriended Baker and visited her several times. The night of the burglary, Baker saw appellant on the front porch "banging on the doorbell." Moments later, she saw appellant run through the house and out the patio door. Baker got a brief glance at his face and recognized appellant by his stature, physique, and bright white shirt.
The manner in which the burglary was carried out showed that the burglar was familiar with the layout of house. Using the sliding glass door as the point of entry, the burglar quickly ran through the bedroom and family room, grabbed the purse, and ran out the patio door. Before the burglary, someone removed the wood pole used to secure the sliding glass door.
Appellant argues that Baker was not wearing her glasses when she saw the burglar and had difficulty identifying appellant at trial. But, the glasses were for reading, not distance vision. Baker suffered from macular degeneration and stated that her eyesight was better a year before the trial when her home was burglarized.
At trial, Baker had to get within six feet of appellant to identify him. But Baker wanted to be sure. Appellant looked different because his hair had changed from black (the night of the burglary) to gray (a year later at trial). Baker's vision was good enough to identify appellant at the preliminary hearing, three months before the trial, at a distance of 12 to 14 feet. It corroborated her testimony that her eyesight was better when she saw appellant burglarize her house a year earlier.
Appellant complains that Baker could not identify him from photographs. This misstates the evidence. Baker was shown some photos but did not look at them because she did not have her reading glasses. The glasses were in her purse and taken in the burglary.
The crime of burglary and the identification of the perpetrator are often proven by circumstantial evidence. (People v. Naughton (1969) 270 Cal.App.2d 1, 7-8.) Here the eyewitness identification was unequivocal and corroborated. Although appellant claims that Baker was too visually impaired to make the identification but the jury credited her testimony and in-court identification. "[W]e must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder. [Citations.]" (People v. Jones (1990) 51 Cal.3d 294, 314.) The testimony of a single witness is sufficient to support a conviction unless the testimony is physically impossible or inherently improbable. (People v. Young (2005) 34 Cal.4th 1149, 1181.)
Other Crimes Evidence: ATM Withdrawals
Appellant claims that the trial court erred in admitting evidence of the ATM withdrawals as circumstantial evidence of intent. (Evid. Code, § 1101, subd. (b)).) The trial court overruled an Evidence Code section 352 objection and instructed that the evidence could be considered by the jury to infer intent, knowledge, identity and common plan or scheme.
Appellant argues that the ATM evidence is inadmissible character evidence but forfeited the claim by not objecting on that ground at trial. (Evid. Code § 353; People v. Alexander (2010) 49 Cal.4th 846, 912 [objection on Evidence Code section 352 grounds does not preserve claim under Evidence Code section 1101]; People v. Doolin (2009) 45 Cal.4th 390, 437 [same].)
Had this claim been preserved, we would reject it. The burglary and the unauthorized ATM withdrawals were sufficiently similar to show identity, motive, intent, knowledge, and common plan or scheme. (People v. Ewoldt (1994) 7 Cal.4th 380, 402-403.) The not guilty plea put in issue all of the elements of the charged offense, including intent. (People v. Balcom (1994) 7 Cal.4th 414, 422.) "Evidence that [appellant] committed uncharged similar offenses would have some relevance regarding [appellant's] intent in the present case." (Id., at p. 423.)
Appellant contends that other crimes evidence violates firmly established principles of Anglo-American jurisprudence and his constitutional right to due process. Our Supreme Court has rejected similar arguments (People v. Falsetta (1999) 21 Cal.4th 903, 913-914.) Appellant's reliance on McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378 is inapposite. The court in McKinney concluded that the admission of other crimes evidence can violate due process if there are "no permissible inferences the jury may draw from [it]." (Id., at p. 1384.) Evidence of uncharged crimes is admissible where, as here, the burglary charge and uncharged crimes are sufficiently similar to support a rational inference of knowledge, identity, common design or plan, or intent. (People v. Ewoldt, supra, 7 Cal.4th at pp. 402-403.) "[A] broader range of evidence may be presented to show motive, intent and identity where the prior misconduct and charged offense involves the identical perpetrator and victim. [Citations.]" (People v. Linkenauger (1995) 32 Cal.App.4th 1603, 1613.)
Here the victim was the same, the ATM withdrawals involved the theft of property from the same house (and perhaps the same purse), and the ATM withdrawals and burglary occurred over a short period of time. Baker kept the ATM PIN information in a marked binder that appellant could have accessed during his visits. Before the house visits, appellant induced Baker to make a $300 ATM withdrawal to payoff a motorist. Appellant insisted on driving Baker home and returned the next day.
The trial court did abuse its discretion in finding that the probative value of the ATM evidence outweighed the potential for prejudice. (Evid. Code, § 352; People v. Kipp (1998) 18 Cal.4th 349, 371.) The unauthorized ATM withdrawals were relevant to show not only a common plan but appellant's intent to permanently deprive Baker of her property. (Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1222-1223.) Although appellant defended on the theory of misidentification, the prosecution still had to prove intent. (Id., at p. 1223.)
Instructional Error – CALJIC 2.50
Appellant contends that the trial court erred in instructing that other crimes evidence may be considered to show the "defendant had knowledge or possessed the means that might be useful or necessary for the commission of the crime charged." (CALJIC 2.50.) He argues that the ATM withdrawals had nothing to do with the burglary. The ATM withdrawals, however, were similar to the charged offense and circumstantial evidence of identity, intent, and a common plan to take Baker's property. Appellant did not object to the CALJIC 2.50 instruction on those points.
The CALJIC 2.50 instruction stated in pertinent part: "Evidence has been introduced for the purpose of showing that the defendant committed a crime or crimes other than that for which he is on trial. [¶] Except as you will otherwise be instructed, this evidence, if believed, may not be considered by you to prove that defendant is a person of bad character or that he has a disposition to commit crimes. It may be considered by you only for the limited purpose of determining if it tends to show: [¶] A characteristic method, plan or scheme in the commission of criminal acts similar to the method, plan or scheme used in the commission of the offense in this case which would further tend to show the existence of the intent which is a necessary element of the crime charged or the identity of the person who committed the crime, if any, of which the defendant is accused...; [¶] The existence of the intent which is a necessary element of the crime charged; [¶] The identity of the person who committed the crime, if any, of which the defendant is accused; [¶] The defendant had knowledge or possessed the means that might have been useful or necessary for the commission of the crime charged." (Emphasis added.)
Nor did the trial court err in instructing that the ATM withdrawals tended to show that appellant had knowledge or possessed the means that might have been useful in committing burglary. In order to make the ATM withdrawals, appellant had to visit the house to steal the ATM card and PIN number. Based on his visits and the handyman work, appellant had the means to unlock the sliding glass door and fix the doorbell to carry out a stealth-like burglary. Appellant tried to distract Baker by "banging" on the doorbell and entered through the sliding glass door. Appellant's familiarity with the home enabled him to run through the house, grab the purse which was customarily kept on a chair, and exit quickly. Baker testified that appellant was running so fast that the back of his shirt billowed out. The white shirt was "very, very bright." "I could see his profile... [and] see the shirt quite a while" as he ran off into the night.
Assuming arguendo, that the trial court erred in giving CALJIC 2.50, the error was harmless. (People v. Bunyard (1988) 45 Cal.3d 1189, 1226.) The instruction stated that "this evidence, if believed, may not be considered by you to prove that defendant is a person of bad character or that he... has a disposition to commit crimes." It is presumed the jury understood and followed the instruction. (People v. Boyette (2002) 29 Cal.4th 381, 431.) Given the strength of the prosecution's case, Baker's positive identification, and the false alibi, it is not reasonably probable that appellant would have received a more favorable result absent the alleged errors. (People v. McDermott (2002) 28 Cal.4th 946, 999; People v. Bunyard, supra, 45 Cal.3d at p. 1226.)
Appellant asserts that the other crimes evidence and instruction violated his due process rights but waived the claim by not raising it below. (See e.g., People v. Partida (2005) 37 Cal.4th 428, 435.) Waiver aside, it is well settled that the application of ordinary rules of evidence do not implicate a defendant's constitutional rights. (People v. Kraft (2000) 23 Cal.4th 978, 1035.) A defendant is entitled to a fair trial, not a perfect one. (U.S. v. Hasting (1983) 461 U.S. 499, 508-509 [76 L.Ed.2d 96, 106]; People v. Marshall (1990) 50 Cal.3d 897, 945.) Appellant makes no showing that the purported errors, either singularly or cumulatively, denied him a fair trial. (People v. Jenkins (2000) 22 Cal.4th 900, 1056.)
One Year Prison Prior Enhancement
Appellant argues, and the Attorney General agrees, that the trial court erred in imposing both a five-year serious felony conviction enhancement (§ 667, subd. (a)) and a one-year prior prison enhancement (§ 667.5, subd. (b)) based on the same 1984 conviction for first degree residential burglary. (Los Angeles County Super. Ct. Case No. A590403.) "When multiple statutory enhancements provisions are available for the same prior offense, one of which is a section 667 enhancement, the greatest enhancement, but only that one, will apply." (People v. Jones, supra, 5 Cal.4th 1142, 1150.) The one-year enhancement must be stricken. (Id., at p. 1153.)
The trial court sentenced appellant to eight years for burglary (four year midterm, doubled based on the prior strike), plus two years on the elderly victim enhancement, plus five years on the prior serious felony conviction (§ 667, subd. (a)), plus five one-year prior prison term enhancements (§ 667.5, subd. (b)). The five-year serious felony enhancement and one of the prison prior enhancements arise from the same 1984 conviction. (Sup. Ct. Los Angeles County Case No. A590403.)
The judgment is modified to strike the one-year prison prior enhancement, thereby reducing appellant's sentence to 19 years state prison. As modified, the judgment is affirmed. The trial court is directed to a prepare an amended abstract of judgment and to send a certified copy to the Department of Corrections and Rehabilitation.
We concur: GILBERT, P.J., COFFEE, J.