Opinion
H043575
08-23-2017
THE PEOPLE, Plaintiff and Respondent, v. DEVON SINCLAIR ENGLISH, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. Nos. SS150764; SS150370A)
Defendant Devon Sinclair English was convicted by a jury of nine felony charges for his role in a home invasion robbery, and sentenced to 14 years and eight months in prison. He contends the evidence was insufficient to support the verdicts and that the trial court erred by not applying Penal Code section 654 to stay several of the prison terms imposed at sentencing. As we will explain, we find no error affecting defendant's convictions, but Penal Code section 654 requires that some of the prison terms be stayed. We will therefore reverse the judgment and remand for resentencing.
I. BACKGROUND
On an afternoon in September 2014, the robbery victim was at home with a female acquaintance when he heard knocking at the front door. Three men with guns—two of them wearing masks—forced their way in, knocking the victim to the ground in the process. They bound his hands and feet with zip ties, and put a strip of duct tape over his eyes.
After finding the female acquaintance in a bedroom, the intruders made her lie on the floor and held her at gunpoint. Duct tape was placed over her eyes and her hands were tied behind her back. The intruders rummaged through the house for 30 or 40 minutes, demanding the victim tell them the location of valuables. They found and took several guns, marijuana plants, a computer, and two video game consoles. At one point, one of the intruders placed a pair of pliers on the victim's thumb and squeezed it until he revealed the location of additional valuables. While squeezing the pliers, he threatened the victim, saying, "You want to lose a thumb?"
After the intruders left, the victim freed himself from the restraints and called law enforcement. A police officer arrived and took statements from the victim and his acquaintance (neither of whom could identify the perpetrators), and collected the zip ties and pieces of duct tape as evidence. The police sent that evidence to the crime lab for fingerprinting. Several months later, a latent print analyst with the California Department of Justice examined the tape that had been over the male victim's eyes and found an identifiable fingerprint, along with several other prints (two of which, though not of sufficient quality to positively identify, were consistent with defendant's fingerprint pattern). The print analyst ran the identifiable print through an FBI database, which returned a list of possible matches. By comparing the print to the matches generated by the database, the analyst identified the fingerprint on the tape as belonging to defendant.
After defendant's fingerprint was identified, police interviewed him in May 2015 and asked whether he had handled any duct tape during the previous September. Defendant said he had not, and also denied knowing the victim or having ever been in the victim's house. He was arrested and charged with first degree robbery (Pen. Code, § 212.5, subd. (a); count 1); first degree burglary (Pen. Code, § 459; count 2); attempted torture (Pen. Code, §§ 664, 206; count 3); false imprisonment by violence (Pen. Code, § 236; counts 4 and 5); assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1); counts 6 and 7); making criminal threats (Pen. Code, § 422, subd. (a); count 8); and extortion (Pen. Code, § 520; count 9). A sentencing enhancement for being armed with a firearm (Pen. Code, § 12022, subd. (a)(1)) was alleged for each count.
A jury found defendant guilty on all charges and found the enhancements to be true. The trial court sentenced him to 14 years and eight months in prison: nine years for the robbery in count 1, and, consecutive to that, two years and four months for the attempted torture in count 3; one year for assault with a deadly weapon in count 6; one year for assault with a deadly weapon in count 7; one year for the firearm enhancement in count 1; and four months for the firearm enhancement in count 3. The court imposed concurrent terms of four years on the burglary charge in count 2; two years on each of the false imprisonment charges in counts 4 and 5; two years for making criminal threats in count 8; and three years for extortion in count 9. Concurrent one year terms were imposed for the firearm enhancements in counts 2, 4, 5, 8, and 9, and the enhancements in counts 6 and 7 were stricken.
On the same date, defendant was sentenced to a consecutive one-year term for his conviction in a separate case (case No. SS150370A), where he pleaded no contest to possession of drugs for purposes of sale (Health & Saf. Code, § 11351). After filing his notice of appeal, defendant filed an amended notice that included the drug case. But he does not raise any issues related to that case so we do not discuss it further.
II. DISCUSSION
A. SUFFICIENCY OF THE EVIDENCE
Defendant contends the evidence was insufficient to support the judgment because the only thing linking him to the crimes was his fingerprint on the duct tape placed over the victim's eyes. Alternatively, defendant contends that even if there was enough evidence to convict him on the other charges, there was insufficient evidence to support the conviction on the extortion charge.
In reviewing a claim of insufficient evidence, we determine whether there is substantial evidence in the record such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Manibusan (2013) 58 Cal.4th 40, 87.) "Substantial evidence" is evidence that is reasonable, credible, and of solid value. (People v. Ortiz (2012) 208 Cal.App.4th 1354, 1363.) The evidence must be viewed in the light most favorable to the judgment, and we will presume the existence of every fact the jury could have reasonably deduced. (People v. Manibusan, supra, at p. 87.) We will reverse a judgment for insufficient evidence only if it appears that upon no hypothesis whatsoever is there substantial evidence to support the conviction. (People v. Cravens (2012) 53 Cal.4th 500, 508.)
1. The Fingerprint Evidence is Sufficient to Support the Verdict
Fingerprint evidence is strong evidence of identity, and is ordinarily sufficient alone to identify a defendant. The jury is entitled to draw inferences about how and when a defendant's prints came to be on an object and to weigh the evidence including the opinion of a fingerprint expert. (People v. Gardner (1969) 71 Cal.2d 843, 849.)
Defendant argues that a fingerprint found on a movable object at a crime scene cannot, standing alone, establish he was one of the perpetrators of the robbery, because there was no evidence of how or when the print was impressed on the duct tape. He relies principally on Birt v. Superior Court (1973) 34 Cal.App.3d 934 (Birt), where the court held that a fingerprint found on a cigarette lighter inside a rental van used to commit a burglary was insufficient to support the defendant's conviction. That case is distinguishable because the cigarette lighter was found in a van parked outside the home where the burglary occurred, and "there was no evidence that [the defendant's] fingerprints were found either on the burglarized premises or on any of the stolen property." (Id. at p. 938.) Here, defendant's print was found not only inside the burglarized premises, but on an immediate instrumentality of the crime. Further, the Birt court supported its conclusion with evidence not present in this case: that the rental van was available to the general public, which provided a potential innocent explanation for how the fingerprints came to be there.
Defendant also relies on Mikes v. Borg (9th Cir. 1991) 947 F.2d 353 (Mikes), where the Ninth Circuit Court of Appeals found that evidence of the defendant's fingerprint on a turnstile post used to commit a murder was insufficient for a conviction. We first note that in Mikes, as in Birt, the court gave significant weight to the fact that the object where the print was found was "fully accessible to the general public" before the crime. (Id. at pp. 358-359.) Given that accessibility, the court found the evidence "wholly insufficient to preclude the reasonable possibility" of an innocent explanation for the presence of the defendant's fingerprint on the murder weapon. (Ibid.) In contrast, there was no evidence the duct tape found here was accessible to the general public before the crime, making Mikes distinguishable on that basis.
In addition to the case being factually inapposite, the Second District Court of Appeal expressly declined to follow Mikes in People v. Figueroa (1992) 2 Cal.App.4th 1584 (Figueroa). Noting that decisions of intermediate federal appellate courts on questions of constitutional law are not binding on California courts, the Second District relied on People v. Bean (1988) 46 Cal.3d 919, 932-933, emphasizing the sufficiency of circumstantial evidence linking a defendant to a crime. (Figueroa, at p. 1587.) We agree with the Second District that Mikes is inconsistent with controlling California precedent. Mikes states that when the prosecution's theory is that fingerprints were placed on an item at the time a crime was committed, "the record must show that the object was inaccessible to the defendant or that the defendant did not have access to the crime scene, during the relevant period prior to the crime's commission." (Mikes, supra, 947 F.2d at p. 361.) We find that standard to be incompatible with People v. Gardner, supra, 71 Cal.2d 843, 849, where the California Supreme Court held that fingerprint evidence alone is ordinarily sufficient to identify a defendant and a jury is entitled to draw its own conclusions about how and when the fingerprint came to be on an item. We also observe, as did the Second District in Figueroa, that the Ninth Circuit itself has held in at least two other cases "fingerprint evidence alone is sufficient to convict." (Figueroa, at p. 1587, citing United States v. Crenshaw (9th Cir. 1983) 698 F.2d 1060, 1063-1064, and United States v. Scott (9th Cir. 1971) 452 F.2d 660, 661-662.)
Figueroa viewed People v. Bean as standing for the proposition that fingerprint evidence alone is sufficient to support a conviction, although the evidence found to be sufficient in Bean included more than fingerprints. (Bean, supra, 46 Cal.3d at pp. 933-934 [noting that in addition to fingerprint evidence, there was evidence that the defendant had been seen observing the house where the crime was committed and lived nearby].) Regardless, as the Second District correctly pointed out in Figueroa, the California Supreme Court has "repeatedly emphasized that fingerprints are the strongest evidence of identity and ordinarily are sufficient by themselves to identify the perpetrator of the crime." (Figueroa, supra, 2 Cal.App.4th at p. 1588.)
Defendant cites United States v. Corso (4th Cir. 1971) 439 F.2d 956, 957, which held that a defendant's fingerprints found on a movable object at the scene of a burglary was insufficient to support a conviction, in the absence of "direct evidence" to show that the fingerprints were impressed on the surface at the time of the burglary. We are not persuaded by that case because it, too, is inconsistent with People v. Gardner, supra, 71 Cal.2d at p. 849.
Defendant also cites United States v. Lonsdale (5th Cir. 1978) 577 F.2d 923, 926, but that case has been overruled and is no longer good law. (See United States v. Fernandez (5th Cir. 2009) 559 F.3d 303, 329 ["(Defendant) claims that the only real evidence against him was the fingerprint, and invokes what he calls the 'fingerprint only doctrine' as requiring a finding that the evidence was insufficient. See United States v. Lonsdale, 577 F.2d 923, 926 (5th Cir. 1978); United States v. Stephenson, 474 F.2d 1353, 1354-55 (5th Cir. 1973). If any such doctrine ever existed, it no longer does, since both cases cited by (defendant) were decided under a former rule applying a now-abandoned standard of review for convictions based solely on circumstantial evidence."].)
Applying the correct standard (fingerprint evidence alone is ordinarily sufficient and the jury is entitled to determine how and when the prints came to be there), we find sufficient evidence to support the conviction here. Defendant argues, as he did to the jury, that he could have touched the tape "months or even years" before the robbery, that his height does not match the victim's description of the suspects, and that it is unlikely he left the print during the robbery because the victim testified the only intruder not wearing gloves was Caucasian, and defendant is African-American. But the jury rejected those arguments in favor of the prosecution theory that defendant's fingerprint was left on the duct tape at the time of the robbery, and there was sufficient evidence to support that conclusion. (People v. Gardner, supra, 71 Cal.2d at p. 849.)
2. Sufficient Evidence to Support the Extortion Conviction
Defendant contends there was insufficient evidence to support his conviction on the extortion charge because the evidence showed the intruders intended to simply take the property by force, and therefore evidence of a necessary element for extortion—the intent to induce the victim to consent to the taking of the property—is missing. (People v. Torres (1995) 33 Cal.App.4th 37, 50.) Penal Code section 518 defines extortion as "the obtaining of property from another, with his consent, ... induced by a wrongful use of force or fear, or under color of official right." "Fear for purposes of extortion may be accomplished by a threat '[t]o do an unlawful injury to the person or property of the individual threatened or of a third person ... .' " (Chan v. Lund (2010) 188 Cal.App.4th 1159, 1170, quoting Pen. Code § 519(1).) The evidence supporting the extortion charge includes the fact that after tying the victim up and rummaging through the house for valuables, one of the intruders applied pliers to the victim's thumb and squeezed it to convince him to divulge the location of additional valuables. That conduct constitutes sufficient evidence to meet the "intent to induce consent by fear" element of extortion. The distinction drawn by defendant between coercing a victim into revealing the property's location and coercing a victim to consent to the taking is not meaningful here, because there was evidence from which the jury could infer the victim consented to the taking of the property—given that the threatened alternative was a severed thumb.
Defendant also asserts the evidence was insufficient because "one cannot be convicted of both robbery and extortion of the same property." He cites no authority in support of that proposition, and we need not decide the issue in any event because, as we have discussed, the evidence indicates the perpetrators obtained some property by robbery, and then used the pliers threat as a means to obtain different property.
B. STAYING OF PRISON TERMS UNDER PENAL CODE SECTION 654
Defendant contends the trial court erred by not applying Penal Code section 654 (hereafter section 654) to stay the prison terms imposed for most of his offenses. He maintains that statute requires a stay of all the prison terms other than those imposed for the robbery in count 1, the assault with a deadly weapon as to the female victim in count 7, and the criminal threats in count 8.
Section 654 provides in relevant part, "[a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." The effect is that when a defendant has engaged in an act that violates more than one criminal statute, he or she may be convicted of multiple offenses but punished for only one of them. (People v. Coleman (1989) 48 Cal.3d 112, 162.) Section 654 applies not only where there was one act in the ordinary sense, but also where an indivisible course of conduct violates multiple statutes. (People v. Brown (1958) 49 Cal.2d 577, 590-591.) To determine whether a course of conduct is divisible into discretely punishable acts, we look to the intent and objective of the actor. (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) If all the offenses were incident to a single objective, section 654 applies and the defendant can be punished for only one of those offenses. (People v Latimer, supra, at p. 1208.) On the other hand, if each offense was committed with a different intent and objective, section 654 does not apply. (People v. Blake (1998) 68 Cal.App.4th 509, 512 ["Where a defendant entertains multiple criminal objectives independent of and not merely incidental to each other, he may be punished for more than one crime even though the violations share common acts or are parts of an otherwise indivisible course of conduct."].)
When a trial court sentences a defendant to separate terms without making an express finding the defendant entertained separate objectives, the court is deemed to have made an implied finding that each offense had a separate objective. (People v. Osband (1996) 13 Cal.4th 622, 730-731.) We review the trial court's finding of separate objectives under the substantial evidence standard. (People v. Blake, supra, 68 Cal.App.4th at p. 512.)
Defendant asserts that all his offenses, with the exception of the criminal threats charge in count 8, were committed with a single objective: to unlawfully obtain the victim's property. Since he was punished for this conduct by the nine-year prison term imposed for the robbery conviction in count 1 (and the attendant one-year firearm enhancement), he argues that he cannot be separately punished for the other offenses that were committed to further the same purpose as the robbery.
We agree with defendant on that point as it applies to the conviction for burglary in count 2. Burglary is the entry of a dwelling with the intent to commit a felony. (Pen. Code, § 459.) When a defendant is convicted of both burglary and the intended felony underlying the burglary, section 654 does not allow punishment for both crimes. (People v. Islas (2012) 210 Cal.App.4th 116, 130; see also People v. James (1977) 19 Cal.3d 99, 119-120 [defendant could not be punished for both burglary and robbery when the burglary was the means of perpetrating the robbery].) There is no evidence that defendant committed the burglary in this case for any reason other than to perpetrate the robbery. The trial court's implied finding of a separate objective for the burglary charge in count 2 is therefore not supported by substantial evidence. The prison term for the burglary conviction in count 2 should have been stayed under section 654. This is so despite the sentence having been imposed concurrent with the sentence for the robbery. (See People v. Duff (2010) 50 Cal.4th 787, 796 [§ 654 applies to concurrent sentences because they are considered punishment; when § 654 is triggered, the proper procedure is to impose but stay execution of the duplicative term, with the stay becoming permanent upon completion of the unstayed term].)
We also agree that the false imprisonment charges in counts 4 and 5, and the assault with a deadly weapon charges in counts 6 and 7 all share the same intent and objective as the robbery. There is no evidence that the intruders tied up the victims and held them at gunpoint for any purpose other than to rob them. But only the prison terms imposed for the false imprisonment charge as to the male victim (count 4) and the assault with a deadly weapon charge as to the male victim (count 6) must be stayed. Section 654 does not apply to the false imprisonment charge as to the female victim (count 5) and the assault with a deadly weapon charge as to the female victim (count 7) because of the multiple victim exception. Under that exception to the rule against multiple punishments, when one act has two results, each of which is an act of violence against a separate individual, section 654 does not apply. (People v. Oates (2004) 32 Cal.4th 1048, 1063.) The exception permits one unstayed sentence per victim for each violent crime committed incidental to a single objective. (People v. Garcia (1995) 32 Cal.App.4th 1756, 1781.) Since the false imprisonment and the assault with a deadly weapon as to the female victim are both acts of violence against a different victim than the robbery, section 654 does not apply to counts 5 and 7.
The attempted torture charge in count 3, the criminal threats charge in count 8, and the extortion charge in count 9 all arise from the conduct of squeezing the male victim's thumb with pliers and threatening to sever his thumb to persuade him to reveal the location of additional property. We find substantial evidence in the record to support the trial court's implied finding that those offenses had an intent and objective separate from the robbery. The evidence shows the intruders rummaged through the house and found a number of valuables while the victims were tied up. After finding those valuables, the intruders applied the pliers and threatened the male victim with the objective of finding additional property. A reasonable conclusion from that evidence is that the intruders entered with the intent to commit a robbery, and, after completing that objective, formed a new intent to torture, threaten, and extort the victim to obtain more property. Given an intent and objective separate from the robbery, defendant may be punished for one of the convictions in counts 3, 8, and 9—but not all of them. That is because the attempted torture, extortion, and threats themselves shared a common objective (to obtain additional property after the completed robbery), and section 654 applies to stay sentence on all but the offense with the longest potential term of imprisonment, attempted torture. Sentence must therefore be stayed on counts 8 and 9.
Defendant asserts that the trial court was precluded from finding separate objectives because the prosecutor argued to the jury that all the offenses were part of one transaction. He cites People v. McKinzie (2012) 54 Cal.4th 1302, 1369 (McKinzie), (abrogated on other grounds by People v. Scott (2015) 61 Cal.4th 363), for the proposition that "a prosecution's argument to the jury that multiple crimes were committed with a sole objective is conclusive on the issue and will bar multiple punishment." McKinzie does not hold that an argument to the jury is conclusive regarding the application of section 654. The determination of separate objectives for purposes of section 654 is a question of fact the trial court has discretion to decide at sentencing. (See People v. Green (1988) 200 Cal.App.3d 538, 543-544; 545, fn. 5 [trial court not required to accept a statement by prosecutor conceding that section 654 applied].)
Torture is punishable by a term of life in prison. (Pen. Code, § 206.1.) When a defendant is convicted of an attempt to commit a crime punishable by life in prison, the prescribed punishment is a determinate term of five, seven, or nine years. (Pen. Code, § 664, subd. (a).)
On remand, the trial court must resentence defendant by applying section 654 as follows: Sentence on the burglary charge in count 2, the false imprisonment charge in count 4, and the assault with a deadly weapon charge in count 6 must be stayed because the offenses had the same intent and objective as the robbery in count 1. Sentence on the false imprisonment charge in count 5 and the assault with a deadly weapon charge in count 7 need not be stayed because of the multiple victim exception. Sentence need not be stayed on the attempted torture charge in count 3 because the offense had an objective separate from the robbery. Sentence must be stayed on the criminal threats charge in count 8 and the extortion charge in count 9 because those offenses had the same objective as the attempted torture charge. Sentence must be stayed on all enhancements attached to counts for which sentence is stayed under section 654.
III. DISPOSITION
The judgment is reversed. The case is remanded to the trial court for resentencing to apply Penal Code section 654 as described in this opinion.
/s/_________
Grover, J.
WE CONCUR:
/s/_________ Manoukian, Acting P.J. /s/_________ Mihara, J.