Opinion
F086415
09-23-2024
THE PEOPLE, Plaintiff and Respondent, v. CARTER LAMAR JOHNSON, Defendant and Appellant.
Martin Baker, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F22903686. F. Brian Alvarez, Judge.
Martin Baker, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
OPINION
THE COURT[*]
PROCEDURAL BACKGROUND
The District Attorney of Fresno County filed an amended information on October 26, 2022, charging defendant with first degree residential burglary (Pen. Code,§§ 459, 460, subd. (a); count 1) and vandalism resulting in more than $400 damage (§ 594, subd. (b)(1); count 2). The amended information also alleged defendant had one prior "strike" conviction within the meaning of the "Three Strikes" law (§§ 667, subds. (a), (b)-(i), 1170.12, subds. (a)-(d)) and several aggravating factors (Cal. Rules of Court, rule 4.421). Defendant pleaded not guilty to both counts and denied all allegations.
Undesignated statutory references are to the Penal Code.
A jury convicted defendant of both counts on February 7, 2023, and, in a bifurcated portion of the trial, found true all aggravating factors. After defendant waived jury trial, he admitted that he had been convicted of one prior serious felony.
The court dismissed one aggravating factor charged in the amended information at the People's request.
The trial court denied defendant's motion to dismiss his "strike" conviction on May 12, 2023, because he was still on parole at the time of the offense, and sentenced defendant to the upper term of 12 years in prison as to count 1 and a concurrent six-year prison term as to count 2. The court also ordered defendant to pay victim restitution (§ 1202.4, subd. (f)), and various other fines and assessments.
Defendant timely appealed on June 14, 2023.
FACTS
Jamison Norby was employed as a Fresno County Sheriff's Deputy and resided with his wife in a newer neighborhood in a cul-de-sac that was backed by an open field behind. On March 30, 2022, at approximately 10:40 a.m., Norby returned home from his shift to inches of water in his living room. The backyard glass door was broken and a flowing garden hose had been pulled through the sliding door in the kitchen. Water had also seeped into the bedroom from running water and deliberately plugged drains in the sinks and shower in the master bathroom. The drawers to his nightstand and dresser were open and the nightstand had been flipped. Norby's axe, usually stored in the garage, was in the bedroom closet and the axe cover was on the floor by the bed. Norby's firearm safe had a fresh strike mark but was not breached.
Several items (valued at over $12,000) were missing, including a camera, two racing bicycles, and a Glock handgun. The residence was uninhabitable for approximately three weeks and repairs and restoration cost over $15,000.
The circuit breaker on the residence had been flipped to the "off" position and Norby had earlier received a notification at 8:45 a.m. that one of the systems in the house had gone off-line. Norby's Ring doorbell surveilled and recorded the front doorway that morning until the power went out at approximately at 8:41 a.m. or 8:42 a.m. The 10-second long video clip showed a parked red Jeep Compass and an individual dressed in all black from head to toe (wearing a mask) walking towards the residence in a particularly distinctive style. Defendant's stature was consistent with that of the individual in the video and two witnesses identified defendant as having the same walk as the individual in the video. Clothing and shoes (with distinctive characteristics) worn by the individual in the video were found in defendant's residence.
Additional video obtained from nearby residences and businesses showed the red Jeep Compass returned to Norby's residence at 9:33 a.m., left again at 10:11 a.m., and left the area at 10:14 a.m. A license plate reader had recorded the Jeep's license plate and officers tracked ownership to a rental company located at the airport, three to five miles from both Norby's and defendant's residences. The rental company's surveillance video showed defendant picking up the car three days before the burglary and returning the car at 10:59 a.m. the morning of the burglary.
Law enforcement's investigation revealed that no other red Jeep Compass's license plate had been captured in the area of Norby's residence during that time frame.
Defendant's phone was seized during the search of his residence and a text message at 10:16 a.m. indicated that defendant had" 'to drop off a car,'" consistent with the time that the red Jeep was driving from the burglary. Defendant also received an email from the rental company, dated March 30, 2024, at approximately 11:02 a.m. and later admitted to law enforcement that he rented the Jeep because his own car needed repairs.
Detectives obtained cell phone data from the carrier and cell tower data showed defendant's phone was active in the area of Norby and defendant's residences during the time frame of the burglary and consistent with the video surveillance observations of the red Jeep.
The prosecution also provided evidence that one morning, in 2018, defendant broke into a relatively new residence that backed up to a field. Defendant had entered the backyard, turned off the power, smashed a hole in the sliding glass door, and tossed bedroom furniture and dresser drawers to the ground Officers later found the missing items of jewelry, a blue tooth speaker and prescription medication in defendant's residence. During a later search of defendant's car, officers found pry tools, a sledgehammer, a palm-sized piece of granite rock, an axe and a pair of shoes similar to those worn by the individual seen in a surveillance video just prior to the burglary. Officers also found a broken spark plug in defendant's belongings that could have been used to break the glass doors to residences.
Defendant testified and admitted that he committed the burglary in 2018 but denied committing the instant offense and testified that the manner in which the instant burglary was committed was not consistent with his method of committing burglaries. He admitted that he possessed the axe seized in 2018 and used it to crack safes that were small enough to "walk off with." Defendant admitted that he rented the Jeep Compass but testified that he did so because his own car had mechanical troubles. The day of the burglary, defendant dropped his kids at school before 8:30, received a call at 8:48 a.m. from his cousin who needed assistance, and then went to the cousin's residence, within the same general area of the cell towers where his phone was used, until approximately 10:30 a.m. Defendant was not driving the rental car earlier that day but picked it up from a friend's home where it was parked, and then returned it.
DISCUSSION
Counsel for defendant submitted a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, summarizing the facts with citations to the record, raising no issues and asking this court to conduct an independent review of the record on appeal. We then offered defendant the opportunity to present his own brief by way of a letter. Defendant submitted a response raising a number of issues. Following our complete review of the record on appeal, and the separate issues raised by defendant, we affirm.
We do, however, address the issues raised by defendant in his letter brief.
I. Admission of Prior Burglary Pursuant to Evidence Code Section 1101, Subdivision (b)
A. Background
The People, over defendant's objection, moved to introduce evidence of defendant's 2018 prior burglary conviction pursuant to Evidence Code section 1101, subdivision (b) to show defendant's intent and common scheme or plan. Defense argued that the method of entry was different, and defendant used his own car, did not conceal his identity during the earlier burglary and committed the burglary with much less sophistication. The trial court granted the prosecutor's motion after lengthy consideration of the facts and applicable case law and weighing the potential prejudice against the probative value. The court also granted the prosecutor's motion to use the burglary conviction to impeach defendant should he testify.
The trial court instructed the jury that before considering the evidence of the 2018 burglary the jury was required to find that defendant committed it by a preponderance of evidence and, if it did, then to consider it for the limited purpose of proving whether defendant had a plan or scheme to commit residential burglary in this case (CALCRIM No. 375). The court instructed the jury not to conclude from the evidence that defendant had a bad character or was disposed to commit the crime, but to consider the similarity of the prior burglary to the charged burglary.
Reviewing the trial court's decision to admit evidence under Evidence Code sections 1101 and 352 for abuse of discretion, (People v. Thomas (2023) 14 Cal.5th 327, 358), we find none. "Evidence of uncharged crimes is admissible to prove identity, common design or plan, or intent only if the charged and uncharged crimes are sufficiently similar to support a rational inference of identity, common design or plan, or intent." (People v. Kipp (1998) 18 Cal.4th 349, 369.)
The crimes were similar enough in that both residences were in newer developments and backed up to a field so that neighbors would not hear breaking glass, both crimes were committed in mid-morning when occupants were likely at work, involved power shut offs, and entry was made through breaking glass sliding doors. While defendant disguised himself, rented a car, and did not still have the stolen items when arrested, this change in method is easily explained by having learned from mistakes made from his earlier conviction.
Finally, even if the trial court abused its discretion in admitting evidence of the 2018 burglary, such error was harmless under People v. Watson (1956) 46 Cal.2d 818 because it was not" 'reasonably probable'" defendant would have received a more favorable result had the evidence been excluded. (People v. Johnson (2022) 12 Cal.5th 544, 611.) The evidence against defendant was circumstantial but convincing, the evidence was not more inflammatory than the charged offense, and the fact of defendant's prior residential burglary conviction was admitted to impeach him so the jury would have learned of it in any event. Finally, the court's limiting instruction was sufficient to ensure that the jury would not use the evidence for an improper purpose.
II. Sufficiency of the Evidence
In reviewing the sufficiency of the evidence to support a conviction, we examine the entire record and draw all reasonable inferences therefrom in favor of the judgment to determine whether it discloses substantial, credible evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Brooks (2017) 3 Cal.5th 1, 57.) We do not redetermine the weight of the evidence or the credibility of witnesses. (People v. Albillar (2010) 51 Cal.4th 47, 60; People v. Young (2005) 34 Cal.4th 1149, 1181 ["Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact."].) We must accept logical inferences that the trier of fact might have drawn from the evidence even if we would have concluded otherwise. (People v. Streeter (2012) 54 Cal.4th 205, 241, overruled on other grounds as stated in People v. Harris (2013) 57 Cal.4th 804, 834.) "If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding." (Albillar, at p. 60.) We will reverse for insufficient evidence only if"' "it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support'" the jury's verdict.'" (People v. Penunuri (2018) 5 Cal.5th 126, 142; see People v. Zamudio (2008) 43 Cal.4th 327, 357.)
For burglary, the prosecution must prove that the accused entered a specific structure with the intent to commit theft or any felony. (People v. Wallace (2008) 44 Cal.4th 1032, 1077.) Assuming the requisite intent is present, burglary is technically complete upon entry. (People v. Munguia (2016) 7 Cal.App.5th 103, 111.) Evidence of an accused's state of mind is generally circumstantial, "but circumstantial evidence is as sufficient as direct evidence to support a conviction." (People v. Manibusan (2013) 58 Cal.4th 40, 87.)
Defendant argues that the cell phone location evidence shows that his phone was in a different area when surveillance video observed the suspect car arriving at the residence at 9:33 a.m. He testified that he was visiting his cousin in the area and could not have been at the residence. However, the jury could have disbelieved defendant's testimony, and the cell phone location evidence did not exclude defendant as the burglar. Ample circumstantial evidence supported the jury's verdict.
III. Ineffective Assistance of Counsel Regarding New Trial Motion "In order to establish a claim for ineffective assistance of counsel, a defendant must show that his or her counsel's performance was deficient and that the defendant suffered prejudice as a result of such deficient performance." (People v. Mickel (2016) 2 Cal.5th 181, 198, citing Strickland v Washington (1984) 466 U.S. 668, 687-692.) "To demonstrate deficient performance, [a] defendant bears the burden of showing that counsel's performance '"' "fell below an objective standard of reasonableness ... under prevailing professional norms." '"' [Citation.] To demonstrate prejudice, [a] defendant bears the burden of showing a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different." (Mickel, at p. 198.)
Defendant argues that defense counsel was deficient in failing to file a written new trial motion. However, defense counsel did make an oral motion for a new trial and argued that the trial court had erroneously admitted evidence of the 2018 burglary as a prior scheme or plan and that the verdict was contrary to the evidence. The trial court denied the motions and, as we have found neither legal argument to be meritorious, defendant was not prejudiced by defense counsel's failure to file a written motion. We conclude that defendant has failed to demonstrate that his trial counsel was ineffective.
IV. Conclusion
Following an independent review of the record, we find no reasonably arguable factual or legal issues exist.
DISPOSITION
The judgment is affirmed.
[*] Before Hill, P. J., Detjen, J. and Franson, J.