Opinion
B311564
12-22-2021
THE PEOPLE, Plaintiff and Respondent, v. MAURICE AWTOINE FERGUSON, Defendant and Appellant.
Teresa Biagini, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. GA108912, Jared D. Moses, Judge. Affirmed.
Teresa Biagini, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
MANELLA, P. J.
INTRODUCTION
Appellant Maurice Awtoine Ferguson was convicted of one count of first degree residential burglary and one count of attempted first degree residential burglary, and sentenced to imprisonment for four years and eight months. On appeal, Ferguson's appointed counsel filed a brief raising no issues and asking this court to independently review the record under People v. Wende (1979) 25 Cal.3d 436 (Wende). Ferguson filed a supplemental brief challenging the sufficiency of the evidence of his identity as the perpetrator of the charged offenses, and arguing that his speedy trial rights were violated. Having independently reviewed the record, we affirm.
BACKGROUND
A. Pretrial Proceedings
In early 2020, "the usual order" of many government operations was "upended by the COVID-19 pandemic, a public health crisis caused by a newly discovered coronavirus that has spread rapidly around the globe, on a scale not seen in a century." (Legislature of State of California v. Padilla (2020) 9 Cal.5th 867, 873.) "In response to the crisis, the Governor of California declared a state of emergency on March 4, [2020, ] and the President of the United States proclaimed a national emergency under federal law on March 13. As infection rates rose across California and the United States, governments issued stay-at-home orders drastically curtailing daily activities in an attempt to limit the spread of the virus." (Ibid., fn. omitted.) On March 19, 2020, the Governor issued such a stay-at-home order. (County of Los Angeles Department of Public Health v. Superior Court of Los Angeles County (2021) 61 Cal.App.5th 478, 484.)
The next day (March 20, 2020), Ferguson was arrested in connection with this case. Beginning soon thereafter and continuing over the following months, Chief Justice and Chair of the Judicial Council Tani Cantil-Sakauye issued a series of emergency orders extending the period under Penal Code section 1382 for holding criminal trials. (Stanley v. Superior Court of Contra Costa County (2020) 50 Cal.App.5th 164, 167-168; California Courts Newsroom, COVID-19 News Center, Court Emergency Orders, <https://newsroom.courts.ca.gov/covid-19-news-center/court-emergency-orders> (as of Dec. 21, 2021).)
"Unless good cause to the contrary is shown, dismissal is required in a felony case where the defendant is not brought to trial within 60 days after arraignment on the indictment or information." (5 Witkin, Cal. Criminal Law (4th ed. 2021) Criminal Trial, § 334, citing Pen. Code, § 1382, subd. (a)(2).)
On November 4, 2020, Ferguson appeared before the trial court (Judge Terry Smerling), represented by counsel. The court noted the prosecution had requested that the court set bail at $100,000. Ferguson's counsel responded, "[H]e has been in custody for eight months awaiting trial. He's not waived time. [¶] We are asking the court to consider O.R. release or bail reduction." Ferguson's counsel did not suggest his speedy trial rights had been or might be violated. The court set bail at the amount requested by the prosecution. Ferguson waived a preliminary hearing, and arraignment was scheduled for November 12, 2020.
On November 12, 2020, the People filed an information charging Ferguson with first degree residential burglary (Pen. Code, § 459; count one) and attempted first degree residential burglary (id., §§ 459, 664; count two). The same day, Ferguson excusably failed to appear for arraignment, which was trailed to November 25, 2020.
On November 25, 2020, Ferguson was arraigned and pled not guilty to both counts. The court (Judge Teri Schwartz) scheduled trial for January 6, 2021, noting that the period for trial under Penal Code section 1382 would expire on January 11. On January 6, 2021, the court, over Ferguson's objection, continued trial to February 1, 2021, finding good cause to extend the period for trial (by 30 days) to February 10, "based on the state of emergency in light of the COVID-19 pandemic and the most current general order issued on December 31, 2020." On February 1, 2021, the court, over Ferguson's objection, continued trial to March 4, 2021, finding good cause to extend the period for trial (by another 30 days) to March 12, "in light of the emergency conditions arising out of the COVID-19 pandemic, the public health and safety concerns brought forth by the surging pandemic, . . . [and] the general order of the presiding judge of the Los Angeles Superior Court issued on January 28, 2021 . . . ."
The arraignment minute order states, "[The] Court and counsel confer regarding issues as to the last day [for trial]. [¶] Jury trial is set within the period to January 6, 2021 . . . . [¶] In the interim, counsel are to brief their arguments as to the last day for the court to adjudicate on the next court date. [¶] For now, the last day remains as January 11, 2021." The record does not include a reporter's transcript (or authorized substitute) concerning the discussion of the statutory period for trial, or related briefing.
On January 28, 2021, Presiding Judge Taylor issued a similar general order, explaining, "As the number of COVID-19 cases in Los Angeles County remain at dangerous levels, the [court] must remain vigilant about operating safely." (Los Angeles County Superior Court, LASC News Center, <http://www.lacourt.org/newsmedia/uploads/14202112915735202 1-GEN-010-00AdministrativeOrderof PJreCOVID-19012821.pdf> [as of Dec. 21, 2021].) On December 31, 2020, Los Angeles County Superior Court Presiding Judge Eric C. Taylor (then Presiding Judge-elect) issued a general order extending by 30 days the period for trial under Penal Code section 1382 in all cases in which the period would otherwise expire between January 4 and January 28, 2021, explaining, "As Los Angeles County faces a dangerous rise in the number of COVID-19 cases, the [court] must take more stringent measures to continue to operate safely." (Los Angeles County Superior Court, LASC News Center, <http://www.lacourt.org/newsmedia/uploads/14202012311123532 0NRNEWORDERRECRIMINALJUVENILEDEP.pdf> [as of Dec. 21, 2021].)
On March 4, 2021, the case was transferred to Judge Jared D. Moses for trial. Trial commenced on March 11, 2021 (within the extended period for trial), and was conducted with several new courtroom procedures developed by the court in consultation with the Los Angeles County Department of Public Health to mitigate COVID-19 transmission risks. There is no indication in the record that Ferguson ever moved for dismissal on the ground of a speedy trial violation.
B. Trial Evidence 1. Burglary
Samuel Marquez testified that around 3:00 p.m. on May 19, 2020, he returned from work to his apartment in Pasadena, located in a three-unit building he owned and shared with tenants. On a chair in his apartment, he discovered a jacket that did not belong to him. The following items belonging to him had gone missing: (1) $10,000 cash; (2) 17, 000 to 20, 000 Mexican pesos; (3) his personal and business checks; and (4) paperwork from his son's application for United States citizenship.
After calling 911 to report a burglary, Marquez viewed surveillance video from outside his apartment building, which was played for the jury and admitted into evidence. The video showed that around 10:30 a.m. on the day of the burglary (while Marquez was at work), a man Marquez did not know looked into the apartment of his tenant Celeste Suarez, before approaching the door to Marquez's apartment and exiting the frame of the video. Minutes later, after the man reentered the frame, he could be seen holding items Marquez recognized as his checks and his son's paperwork. Suarez entered the frame and appeared to speak with the man and give him something.
Suarez confirmed she spoke with the man and gave him a muffin. She did not provide any description of him to the police (aside from noting he had no visible tattoo or scar), and she was unable to make any identification at trial.
A Pasadena Police Department officer testified she responded to Marquez's 911 call and viewed the surveillance video. The man in the video was wearing a white t-shirt bearing a design reading "Vintage American." He was also wearing a jacket when he first appeared, but not when he left the apartment building.
2. Attempted Burglary
In March 2020, Victor Bravo Martinez, Sr. (Bravo Sr.) and his son Victor Bravo, Jr. (Bravo Jr.) were living in an apartment in Pasadena, about 1.5 miles from Marquez's home. Bravo Jr. testified that around 1:30 a.m. on March 20, 2020, he was studying in the living room while his father slept. He heard footsteps outside on the balcony, followed by a "big tug" on the handle of the living room's locked sliding-glass door. He woke Bravo Sr., and they returned to the living room.
Bravo Sr. testified that he opened the living room's sliding-glass door and came face to face with a Black man he did not know, who was standing on the balcony, in the dark. The man was wearing a blanket with a yellow-and-red floral print. Bravo Sr. repeatedly told the man to leave. In response, the man said "'Shhh, '" as if telling Bravo Sr. to be quiet. After Bravo Sr. threatened to the call the police, the man began walking away.
The Bravos testified that they directed a flashlight at the man and watched him walk to an adjacent park. As they watched the man walk to a swing set in the park, Bravo Jr. reported the man's movements to a 911 dispatcher, and observed that the man was wearing a blanket with a yellow-and-blue print. The Bravos saw police arrive and arrest the man near the swing set.
Bravo Sr. testified he never directed the flashlight at the man's face. He and Bravo Jr. were unable to describe the man's face or make any identification at trial.
Pasadena police officers who responded to the park around 1:37 a.m. testified to the following: Ferguson was arrested near a swing set in the park. No one else was in the area. Ferguson was wearing a white "Vintage American" t-shirt, which matched the shirt worn by the man outside Marquez's home the day before. Near Ferguson, officers found a blanket with a yellow-and-blue print, which Bravo Jr. testified resembled the blanket worn by the man outside his home (the photo of the blanket shown to Bravo Jr. was admitted into evidence). Ferguson told officers he owned the blanket, as well as a nearby bag. The bag contained documents bearing the names of Marquez, Marquez's son, and Marquez's business. A search of Ferguson's person at the time of his arrest uncovered $372 and 9, 500 Mexican pesos. A more thorough search of Ferguson's person at the time he was booked into jail uncovered $9,200 hidden in one of his socks.
Photos of Ferguson at the time of his arrest and the time of his booking, along with photos of his t-shirt, were admitted into evidence. Ferguson neither testified nor presented any evidence, other than a satellite image showing the Bravos' home and the adjacent park.
C. Arguments, Judgment, and Appeal
In closing arguments, the prosecutor focused on the evidence of Ferguson's identity as the perpetrator of both charged offenses, including: (1) the "very high-definition" surveillance video from Marquez's home, in which the burglar was "clearly" recognizable as Ferguson, and which the jury could compare to Ferguson's booking photos; (2) Ferguson's arrest at the precise location where the Bravos had watched the attempted burglar of their home walk; (3) Ferguson's claim of ownership of the yellow-and-blue blanket, which matched the blanket Bravo Jr. had seen the attempted burglar wearing; (4) Ferguson's wearing a white "Vintage American" t-shirt, which matched the shirt worn by the burglar of Marquez's home in the surveillance video; and (5) Ferguson's possession of Marquez's recently stolen property. Ferguson's counsel did not dispute that the prosecution had proven the elements of the charged offenses. Nor did she dispute the prosecutor's assertion that Ferguson was clearly visible in the surveillance video from Marquez's home. Instead, she challenged the reliability of other evidence of identity, and emphasized the absence of any DNA evidence, fingerprint evidence, or eyewitness identification.
The jury convicted Ferguson on both counts. The court sentenced him to the middle term of four years on count one, and a consecutive term of eight months on count two.
Ferguson timely appealed. After his appointed appellate counsel filed a brief asking us to independently review the record pursuant to Wende, supra, 25 Cal.3d 436, Ferguson filed a supplemental brief, in which he asserted "all my rights were [violated]" and observed: (1) he was not linked to the charged offenses by any DNA evidence, fingerprint evidence, or eyewitness identification; and (2) he was incarcerated for nearly a year between his arrest and trial, without any waiver of his speedy trial rights.
Ferguson's supplemental brief also requested that we replace his appointed counsel with another attorney. On August 23, 2021, we issued an order denying this request.
DISCUSSION
Having independently reviewed the record, we discern no arguable issue. We limit our discussion to those issues raised by Ferguson in his supplemental brief: (1) whether there was substantial evidence of his identity as the perpetrator of the charged offenses; and (2) whether his speedy trial rights were violated.
A. Substantial Evidence of Identity
"When the sufficiency of the evidence to support a conviction is challenged on appeal, we review the entire record in the light most favorable to the judgment to determine whether it contains evidence that is reasonable, credible, and of solid value from which a trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] Our review must presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. [Citation.] Even where, as here, the evidence of guilt is largely circumstantial, our task is not to resolve credibility issues or evidentiary conflicts, nor is it to inquire whether the evidence might reasonably be reconciled with the defendant's innocence. [Citations.] It is the duty of the jury to acquit the defendant if it finds the circumstantial evidence is susceptible to two interpretations, one of which suggests guilt and the other innocence. [Citation.] But the relevant inquiry on appeal is whether, in light of all the evidence, 'any reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt.'" (People v. Zaragoza (2016) 1 Cal.5th 21, 44.)
Here, there was substantial evidence of Ferguson's identity as the perpetrator of both the burglary of Marquez's home (count one) and the attempted burglary of the Bravos' home (count two). The evidence of Ferguson's identity as the burglar of Marquez's home included: (1) the surveillance video showing the burglar outside Marquez's home, in which the burglar was allegedly recognizable as Ferguson (his counsel did not argue otherwise), and which the jury could compare to photos of Ferguson taken the next day; (2) Ferguson's wearing a white "Vintage American" t-shirt, which matched the shirt worn by the burglar; and (3) Ferguson's possession of Marquez's recently stolen property, including property that was distinctive in Pasadena (thousands of Mexican pesos) or unique (checks and paperwork bearing the names of Marquez, his business, and his son). The evidence of Ferguson's identity as the attempted burglar of the Bravos' home included: (1) Ferguson's presence mere minutes after the attempted burglary at the precise location where the Bravos testified they had watched the attempted burglar walk, and where police officers testified no one else was present; and (2) Ferguson's claim of ownership of a nearby blanket with a yellow-and-blue print, which matched the blanket Bravo Jr. had seen the attempted burglar wearing. In reliance on this evidence, the jury could reasonably have deduced that Ferguson was the perpetrator of both offenses. (See People v. Zaragoza, supra, 1 Cal.5th at 44.) Because this evidence alone was substantial, it is immaterial that the prosecution did not also produce any DNA evidence, fingerprint evidence, or eyewitness identification. (Cf. id. at 45 ["The evidence that defendant was the shooter was entirely circumstantial -- but it was sufficiently substantial to uphold his convictions"].)
B. Speedy Trial
"A California defendant generally has three sources of the right to a speedy trial: (1) the Sixth Amendment to the federal Constitution, as applied to the states through the due process clause of the Fourteenth Amendment; (2) article I, section 15 of the California Constitution; and (3) statutory enactments, such as Penal Code section 1382." (People v. Bradley (2020) 51 Cal.App.5th 32, 38 (Bradley).) "[S]tate speedy trial rights 'will be deemed waived unless the defendant both objects to the date set [for trial] and thereafter files a timely motion to dismiss.' [Citation.] The same is not true of the federal constitutional right to a speedy trial ..... '[A] defendant's mere silence in the face of a continuance does not waive the [federal] constitutional right to speedy trial . . . .'" (Id. at 39.)
"To determine whether the federal speedy trial right was violated, we evaluate four factors: 'Length of delay, the reason for the delay, the defendant's assertion of his [or her] right, and prejudice to the defendant.'" (People v. Lomax (2010) 49 Cal.4th 530, 558, quoting Barker v. Wingo (1972) 407 U.S. 514, 530 (Barker).) "The first Barker factor, the length of the delay, encompasses a 'double enquiry.' [Citation.] 'Simply to trigger a speedy trial analysis, an accused must allege that the interval between accusation and trial has crossed the threshold dividing ordinary from "presumptively prejudicial" delay . . . . If the accused makes this showing, the court must then consider, as one factor among several, the extent to which the delay stretches beyond the bare minimum needed to trigger judicial examination of the claim.'" (People v. Williams (2013) 58 Cal.4th 197, 234 (Williams).) "[T]he importance of presumptive prejudice varies with [the second Barker factor, ] the reason for the delay. . . . [D]elay occasioned by diligent prosecution would be 'wholly justifiable' and would not support a defendant's speedy trial claim absent a showing of 'specific prejudice to his defense.'" (Id. at 237.) "In assessing the third Barker factor (i.e., [the] defendant's assertion of his [or her] speedy trial right), we note 'the weight ascribed to complaints of pretrial delay ordinarily depends upon their frequency and force.' [Citation.] 'As the Supreme Court stated in Williams, [supra, at 238, ] "'"The issue is not simply the number of times the accused acquiesced or objected; rather, the focus is on the surrounding circumstances, such as the timeliness, persistence, and sincerity of the objections . . . ."'" (Bradley, supra, 51 Cal.App.5th at 42.) The final Barker factor -- viz., whether the defendant suffered prejudice as a result of the delay -- "must be assessed in light of the interests the speedy trial right was designed to protect: '(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.'" (Williams, at 235.) Impairment of the defense is the "'most serious'" type of prejudice. (Id. at 236.)
Here, Ferguson waived his speedy trial rights under state law by proceeding to trial without timely moving for dismissal. (See Bradley, supra, 51 Cal.App.5th at 39.) Although he did not waive his right to a speedy trial under the federal Constitution (see ibid.), the balance of the Barker factors demonstrates that this right was not violated. Most important, the reason for the delay strongly weighs against Ferguson. Ferguson was arrested on March 20, 2020, when "the usual order" was being "upended" by the COVID-19 pandemic (Legislature of State of California v. Padilla, supra, 9 Cal.5th at 873), as reflected in the Governor's issuance of a stay-at-home order the day before Ferguson's arrest (County of Los Angeles Department of Public Health v. Superior Court of Los Angeles County, supra, 61 Cal.App.5th at 484). Ferguson was arraigned less than eight months later, and thereafter brought to trial within the period set by Penal Code section 1382, as extended by 60 days. The extension and preceding delay were justified by the need to assess the grave and evolving risks posed by the pandemic, and to develop new courtroom procedures to mitigate those risks when assembling jurors, witnesses, court personnel, attorneys, and Ferguson himself in one courtroom. (See Stanley v. Superior Court of Contra Costa County, supra, 50 Cal.App.5th at 167-170 [trial court properly concluded COVID-19 pandemic supplied good cause for 90-day extension of period for trial in mid-2020; "Given the grave risks to court personnel, jurors, attorneys, and the defendant himself that would be created by proceeding in accordance with the normal timeline, any other conclusion would have been unreasonable in the extreme"]; cf. County of Los Angeles Department of Public Health v. Superior Court of Los Angeles County, supra, 61 Cal.App.5th at 494 ["As of this writing [published on March 1, 2021], government sources indicate more than 500, 000 Americans have died with COVID-19. As has been widely reported, that grim figure exceeds the number of U.S. soldiers killed in combat in the Vietnam War and both World Wars combined. Approximately 50, 000 of those deaths reportedly occurred in the State of California, with about 20, 000 reported in Los Angeles County alone"].)
None of the other Barker factors -- viz., the length of the delay, prejudice to the defendant, and the defendant's assertion of the speedy trial right -- offset the weight of the compelling reason for the delay. It is true that the length of the one-year delay between Ferguson's arrest and trial was sufficient to meet the threshold requirement of establishing presumptive prejudice. (See Williams, supra, 58 Cal.4th at 234 ["'lower courts have generally found postaccusation delay "presumptively prejudicial" at least as it approaches one year'"].) But because the delay was not so lengthy, in the context of the COVID-19 pandemic, to attribute it to government negligence rather than "diligent prosecution," it does not support a speedy trial violation "absent a showing of 'specific prejudice to [the] defense.'" (Id. at 237.) Ferguson never attempted to show specific prejudice to his defense, and we discern no indication of such prejudice in the record. Relatedly, Ferguson did not assert his speedy trial right with the "'frequency and force'" necessary, on this record, to support finding a constitutional violation. (Bradley, supra, 51 Cal.App.5th at 42.) He did not assert his speedy trial right in the eight-month period between his arrest and arraignment (in his presence, his counsel noted the delay only in requesting reduction of bail or release on his own recognizance), and although he objected to the two subsequent continuances of trial, he proceeded to trial without moving for dismissal. Considering the balance of all four Barker factors, we conclude the compelling reason for the one-year delay and the absence of the "'most serious'" type of prejudice establish that Ferguson's federal speedy trial right, which he asserted only infrequently and with little force, was not violated. (Williams, at 236.)
Even had Ferguson not waived his speedy trial rights under state law, we would conclude they were not violated, given the absence of any indication in the record of specific prejudice to Ferguson's defense. (See People v. Lomax, supra, 49 Cal.4th at 556-557 ["The challenges under [Penal Code] section 1382 and article I, section 15 of the California Constitution . . . fail because defendant has not shown he was prejudiced by the delay of trial. Although a defendant seeking pretrial relief for a speedy trial violation is not required to make an affirmative showing of prejudice [citation], the situation is different after judgment"].)
DISPOSITION
The judgment is affirmed.
We concur: CURREY, J. MICON, J. [*]
[*] Judge of the Los Angeles County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.