Opinion
G044582
08-09-2011
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH LOUIS KEYS, Defendant and Appellant.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Steve Oetting, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 09HF1572)
OPINION
Appeal from a judgment of the Superior Court of Orange County, James Patrick Marion, Judge. Affirmed.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Steve Oetting, Deputy Attorneys General, for Plaintiff and Respondent.
Joseph Louis Keys appeals from his convictions on charges of conspiracy to commit robbery and being a felon in possession of a firearm. He contends the evidence is insufficient to support either conviction because (1) there is no evidence that he and his cohort had agreed to commit a robbery - as opposed to some innocent act or other crime - when they donned their disguises in a car on a Saturday morning, with guns at the ready, and then drove around the corner to a commercial area where the bank was just about to open; and (2) there is no evidence he actually had knowledge of the guns in the car.
We find neither contention persuasive. Keys makes much of the fact that there were disputes in the evidence regarding the location of the bank, so it is unclear whether it was actually in the area where he was observed to slow down and pull his car to the right side, as though "casing" the place. However, a conflict in the evidence is not a basis for reversing the judgment. We must presume the bank was in the location that tends to support the jury's verdict. In any event, even without the evidence that Keys slowed down in front of the bank, we believe the evidence was sufficient to support the conclusion that robbery was the intended plan. An innocent explanation is entirely implausible, given the loaded guns, and the alternative crimes suggested by Keys are either variations on robbery, or simply implausible.
As for the claim there is no evidence Keys was aware of the guns in the vehicle, we note that he made significant efforts to resist being pulled over by police, and did not ultimately acquiesce until after he had stopped his car in the middle of the freeway so his accomplice could jump out of the vehicle and flee across several lanes of the freeway with a bag containing the guns and ammunition. The only other contents of the bag were wigs, makeup, and other items that might be used as part of a disguise. And there is no crime of being a felon in possession of a disguise. The clear inference to be drawn was that Keys was attempting to evade being pulled over until he and his accomplice could figure out how they might dispose of the guns - the only unequivocally damning evidence - before the police had a chance to find them. That evidence, combined with the evidence the disguise he had previously been wearing was found in the same bag as the guns, was sufficient to support the jury's conclusion Keys had knowledge of the guns, and thus to sustain the conviction.
FACTS
At 9:50 a.m. on a Saturday morning, Keys, along with another man, were observed donning disguises in the front seat of a Chevy Tahoe. The car was parked on a quiet residential street in Corona del Mar, one block off Pacific Coast Highway (PCH). When the men had their disguises - including false moustaches and wigs - in place, Keys proceeded to drive the Tahoe southwest down Heliotrope, turning right onto PCH, where he paused before a Bank of America, pulling the car toward the right as though looking for a spot to stop. The Bank of America in Corona del Mar opened at 10:00 a.m. on Saturday.
The witness who observed the Tahoe appearing to pull toward the right and pausing testified he went back and looked at the area where the car slowed "later on," and recalled that the building there was "a Bank of America." However, as Keys explains with some vehemence in his reply brief, the testimony of another witness, a police officer, indicated that the Bank of America in Corona del Mar is actually four blocks south of Heliotrope, at the corner of PCH and Marguerite, and thus the building the car slowed in front of could not have been the Bank of America . Keys suggests we can confirm this fact on the internet, by typing the bank's address into Google Earth.
However, our obligation on appeal is to ascertain whether the evidence in the record is sufficient to support the judgment and we are obligated to affirm the judgment if it is. We cannot entertain arguments about the credibility or accuracy of that evidence. "This court has neither the duty nor the right to resolve conflicts in the evidence, pass on the credibility of the witnesses, or determine where the preponderance of the evidence lies. The trier of fact decides each of these matters; our power on appeal begins and ends with a determination as to whether or not there is any substantial evidence, whether or not contradicted, which will support the conclusion of the trier of fact. We resolve all conflicts in favor of the respondent on appeal and give respondent the benefit of all legitimate and reasonable inferences. Where the facts reasonably support more than one inference, we may not substitute our judgment for that of the trier of fact. Considering only the evidence favorable to respondent, the question is whether that evidence is sufficient as a matter of law. If so, we must affirm the judgment." (In re Walter E. (1992) 13 Cal.App.4th 125, 139-140.)
We cannot conduct an independent investigation to ascertain the accuracy of the evidence received. Consequently, we decline the invitation to do so.
However, Keys did not actually stop, but instead continued driving the Tahoe north on PCH, before turning right again, onto the next residential street north of Heliotrope. By that time, the police had been dispatched to check out the suspicious activity of the men in the Tahoe, and an officer in a marked police vehicle first spotted the Tahoe from the corner of Heliotrope and 4th Street, as it was traveling southeast on 4th Street back in the direction of Heliotrope. When the Tahoe reached Heliotrope, where the police car was, Keys turned left, and began driving away from PCH, toward 5th Street. The police officer followed. Keys turned left again on 5th Street, and proceeded toward MacArthur Boulevard, turning right on MacArthur and heading inland toward the 73 Toll Road. The Tahoe then got onto the Toll Road, before ultimately merging onto the 405 freeway.
As the police car followed the Tahoe, the officer driving it observed the passenger in the Tahoe to be moving around quite a bit, although due to the tint on the back windows, the officer was unable to clearly discern what he was doing. After the cars merged onto the 405 freeway, the police office attempted to initiate a traffic stop of the Tahoe, by first turning on his roof lights, and then his siren. But rather than pulling over, Keys sped up, and moved over three or four lanes toward the center of the freeway. Approximately a mile and a half later, Keys abruptly stopped the Tahoe in the center emergency lane, and his passenger swiftly exited the vehicle through the rear driver's side door. The passenger, who was carrying a black bag, jumped over the center median on the freeway and ran across the southbound lanes of the 405, before disappearing down an onramp.
Keys didn't hang around either, and again drove off in the Tahoe. The police continued to pursue him, and he finally pulled over about a mile or two farther down the freeway. Keys then exited the Tahoe at the request of police, and was arrested. At the time of his arrest, Keys was wearing neither a wig nor a false moustache.
Keys' passenger was never apprehended, but the police did retrieve the black bag that was in his possession when he fled. Its contents included two loaded revolvers - a Colt King Cobra and a Smith & Wesson - a box of ammunition, two wigs, a pair of gloves, sunglasses, a fake moustache and adhesive of the sort used to attach a fake moustache. The bag also included light colored makeup and a facial hairpiece removal product.
Keys was charged with: (1) conspiracy to commit robbery (Pen. Code, § 182, subd. (a)(1)); (2) being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)); (3) evading a police officer (Veh. Code, § 2800.1, subd. (a)); and (4) attempted second degree robbery of bank employees (Pen. Code, §§ 211, 212.5 & 664.) The information also alleged Keys had been convicted of a serious felony within the meaning of Penal Code section 667, subdivision (a)(1), and a violent or serious felony within the meaning of Penal Code section 667, subdivisions (d) and (e)(1). Keys waived his right to a jury trial on the prior conviction allegations.
At the conclusion of the prosecution's evidence, Keys moved to dismiss the charges for insufficiency of the evidence. He argued there was no evidence to demonstrate any conspiracy to commit "any kind of robbery," and no evidence demonstrating he ever had any knowledge there were guns inside the black bag, or that he personally ever possessed one. With respect to the charge of attempted second degree robbery, Keys argued that, as contrasted with the conspiracy to commit robbery charge, the attempted robbery charge must identify the intended victim or location of the crime.
The prosecutor acknowledged that the information identified "bank employees" as the intended victims of the attempted robbery, but claimed that was merely the result of a computerized program which required that the identity of an alleged victim be included in the charge. She also acknowledged there was some conflicting evidence as to the location of the Bank of America in Corona del Mar. However, the prosecutor unsuccessfully disputed the contention the prosecution was required to identify either the intended victim or the location of an alleged robbery, and claimed that there was sufficient evidence to establish that Keys and his cohort were intent upon robbing some person or business, even if it wasn't necessarily a bank employee or a specific Bank of America location.
The court granted the motion to dismiss, but only with respect to the attempted robbery charge. In doing so, the court specifically recognized that, based upon the evidence adduced, "we don't know where the bank is," and noted that if it was located where the Tahoe was observed to be pulling over to the right and slowing down on PCH, then that might suggest "they're casing it." Although the court determined the evidence was insufficient to demonstrate an actual attempt to commit the robbery, it commented that "there's plenty to go in front of the jury on the first three counts."
After the court ruled on the motion to dismiss, Keys rested without offering any additional evidence. The jury then convicted Keys of counts one through three.
The trial court denied Keys' motion to dismiss the prior strike conviction, and sentenced him to the midterm of three years for count one, doubled to six because of the strike conviction. The court sentenced Keys to a consecutive eight-month term on count two, doubled to 16 months. The court then imposed a consecutive five-year term for the serious felony enhancement. Keys was also ordered to pay a $200 restitution fine and a $200 parole revocation fine.
I
Keys first challenges the sufficiency of the evidence to demonstrate that he conspired to commit a robbery.
"A conviction of conspiracy requires proof that the defendant and another person had the specific intent to agree or conspire to commit an offense, as well as the specific intent to commit the elements of that offense, together with proof of the commission of an overt act 'by one or more of the parties to such agreement' in furtherance of the conspiracy." (People v. Russo (2001) 25 Cal.4th 1124, 111, quoting People v. Swain (1996) 12 Cal.4th 593, 600.) "Conspiracy is an inchoate crime. [Citation.] It does not require the commission of the substantive offense that is the object of the conspiracy. [Citation.] 'As an inchoate crime, conspiracy fixes the point of legal intervention at [the time of] agreement to commit a crime,' and 'thus reaches further back into preparatory conduct than attempt . . .' (Model Pen. Code & Commentaries (1985) com. 1 to § 5.03, pp. 387-388.)" (People v. Swain, supra 12 Cal.4th 593, 600.)
After an essentially token effort to suggest the evidence adduced at trial is consistent with the conclusion he might have been engaged in some innocent act of dress-up - a 10:00 a.m. costume party, perhaps - Keys essentially admits that it is quite reasonable to conclude he was planning to do something nefarious when he and his friend donned their disguises with loaded guns at the ready. His real point, however, is that the evidence is insufficient to demonstrate what crime they were conspiring to commit, which is a required element of a criminal conspiracy conviction. He suggests the contemplated crime was equally likely to be one of a number of options: "a shooting, a kidnaping, a sexual assault, vehicle theft, or numerous other criminal ventures other than robbery."
While we agree with Keys' legal point, we cannot agree with his factual one. In our view, the evidence was sufficient to demonstrate that Keys' objective was to commit a robbery. First, we'll note that a contemplated "vehicle theft" in which the perpetrators intend to utilize disguises and guns is a contemplated robbery - it would be the taking of personal property from a person through use of force or fear. An intended "shooting," by which we presume Keys is referring to a scenario where the goal is to simply to kill or wound a person, rather than to shoot them for the purpose of robbing them, is not particularly plausible. There is absolutely no evidence to suggest Keys might have had any motive to shoot anyone who might have been in or around Corona del Mar, let alone why he would have chosen to do so at 10:00 on a Saturday morning. The same can be said of a kidnapping, and the timing problem applies to a sexual assault as well. None of those crimes is generally planned for a busy, well-lit time of day, in an area where both vehicle and pedestrian traffic is to be expected. Sexual assault has the added problem that such crimes are generally solitary affairs - not carried out in pairs. We have searched in vain for a reported decision of a daylight sexual assault carried out by two men in theatrical makeup.
In short, no alternative crime suggested by Keys is nearly as plausible as robbery - the one he was found guilty of conspiring to commit.
Moreover, we cannot ignore the evidence suggesting that Keys was - as the trial court described it - "casing" the Bank of America in Corona del Mar. While we acknowledge that Keys disputes the accuracy of the evidence, that dispute is of no moment. The evidence was in the record, and the jury was free to rely upon it, even if it was arguably disputed by other evidence suggesting the Bank of America was in a different location.
Or, for that matter, that Bank of America, unlike Starbucks, has only one branch in Corona del Mar.
Based upon the entirety of the evidence in this case, we conclude the jury could properly find that what Keys conspired to do was commit a robbery.
II
Keys next asserts there was insufficient evidence to sustain his conviction of being a felon in possession of a firearm. He implicitly concedes that the presence of the guns in his car, with his permission, is sufficient to establish constructive possession. (People v. Mejia (1999) 72 Cal.App.4th 1269, 1272, citing People v. Rogers (1971) 5 Cal.3d 129, 134 [constructive possession "is established by showing a knowing exercise of dominion and control over an item."].) However, Keys asserts there was no evidence demonstrating he actually had knowledge of the guns, and thus no evidence he permitted them in his car or otherwise exercised dominion over them.
But Keys is ignoring all the evidence which supported his conviction for evading police - a conviction he did not even challenge on appeal. Keys drove on the freeway for miles, with a police car behind him displaying lights and a blaring siren, without pulling over as an innocent person would be expected to do.
What Keys did instead was ultimately to pull over to the left side of the freeway - next to the center divider - so that his cohort could jump out and flee across the opposite lanes of traffic (where police could not easily follow) with the bag containing the guns. Keys then immediately sped off again, presumably to draw the police away from his fleeing friend. He didn't actually pull over to the right side of the freeway until he had driven another mile or so away from his friend. This evidence strongly suggests the two men were working together to dispose of evidence they both wanted to keep out of the hands of police.
It also suggests that both men were pretty desperate. Running across several lanes of a freeway is incredibly risky, and although Keys himself was not the one who did that, no one would just drop their passenger in the middle of the freeway so he can make that attempt without a very compelling reason.
Since the only other contents of the bag that Keys' cohort ran off with were the men's wigs, makeup, a fake moustache and other items that might be used as part of a disguise, it's pretty clear that wasn't the stuff the two were desperate to keep from police. The items were not contraband and being a felon in possession of a disguise is not a crime.
As the jury in this case was instructed, a defendant's flight may be relied upon to establish consciousness of guilt. (People v. Navarette (2003) 30 Cal.4th 458, 502.) Moreover, it makes no difference that Keys' flight could also be attributed to his consciousness of guilt about the aborted conspiracy to commit robbery, or some other theoretical crime. The jury is free to rely upon the fact of flight as a basis to infer consciousness of guilt for any crime charged. As explained in People v. Mendoza (2000) 24 Cal.4th 130, 180, "[i]t is for the jury to determine to which offenses, if any, the inference [of consciousness of guilt] should apply."
Keys' planned participation in a robbery would likely be sufficient in and of itself as a basis to infer Keys had knowledge of the guns, since it's highly unlikely he intended to carry out a robbery at 10:00 on a Saturday morning, without a weapon.
Of course, the evidence of flight cannot establish guilt by itself (People v. Roybal (1998) 19 Cal.4th 481, 517), but the evidence here went far beyond that. Keys and his accomplice didn't merely flee, they came up with a plan - a very risky one - to dispose of the evidence in the bag before the police could get a hold of it. It is inconceivable that Keys would have agreed to this plan if he believed the only content of the bag was the disguises.
And finally, as the Attorney General points out, the evidence also suggests that Keys' own disguise - the wig and moustache he was spotted wearing in the beginning, but was not wearing when he finally pulled over to the right side of the freeway and acquiesced to the police stop - was found in the same bag as the guns. It was quite reasonable for the jury to infer that Keys not only put his disguise into the bag when he took it off during the flight from police, but also that he had originally obtained the disguise from that bag before he put it on. Thus, it is equally reasonable to conclude that Keys was aware of the entirety of the bag's contents.
DISPOSITION
Consequently, we conclude the evidence in this case was sufficient to sustain Keys' convictions for both conspiracy to commit robbery and being a felon in possession of a firearm. The judgment is affirmed.
BEDSWORTH, J. WE CONCUR: RYLAARSDAM, ACTING P. J. IKOLA, J.