Opinion
E051558
10-18-2011
THE PEOPLE, Plaintiff and Respondent, v. CHEVY LUIS LOPEZ, Defendant and Appellant.
Cindy Brines, 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, and Natasha Cortina and William M. Wood, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FSB1001246)
OPINION
APPEAL from the Superior Court of San Bernardino County. Bryan Foster, Judge. Affirmed.
Cindy Brines, 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, and Natasha Cortina and William M. Wood, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Chevy Luis Lopez appeals after he was convicted of burglary and possession of burglary tools. He contends the trial court erred in joining the misdemeanor burglary tools charge with the other charges (first degree residential burglary and receiving stolen property), as the evidence was not cross-admissible, and the two charges, weak when standing individually, were improperly bolstered by the joinder. We affirm the judgment.
FACTS AND PROCEDURAL HISTORY
In February 2010, Enoc Medina lived in a residence in Highland with his family. On February 27, Medina left the house with his family about 2:00 p.m. Medina's wife was the first to return home, about 6:00 p.m.; she found that the house had been broken into, so she called her husband. When Medina came home, he discovered that a number of items of personal property were missing, including a computer tower, a flat screen television, two different video game systems, a pink child's blanket, a jackhammer, circular saw, drills, a compressor, and other tools, as well as his wife's purse, some jewelry, and some clothing. Medina called the police.
At 10:30 p.m., Deputy James Diaz was dispatched to Medina's residence, where he took the report of the burglary. Deputy Diaz discovered some plywood, which had been removed from covering a window; inside the residence at that point an armoire had been knocked over. He determined the window was the likely point of entry. The sliding patio door was the likely point of exit. There were items strewn, and some drag marks, across the backyard from the patio to the rear fence, where a cinderblock wall was unfinished at the corner, leading to access to the wash behind the house.
The next day, in daylight, Medina observed some shoe prints outside the bedroom window, which was the likely entry point. Medina informed the police again and said the shoe prints looked like they were made by work boots. He also remembered that, a week earlier, defendant had approached Medina while he was working in the yard and had asked for work. Medina paid defendant $5 to wash his car and gave defendant some food. Medina remembered that defendant had been wearing work boots.
Medina drove around the neighborhood and saw defendant carrying something wrapped in a blanket; it was the same pink child's blanket that had been stolen from Medina's house. Medina used a mobile telephone to call police, and then drove to the area where he had seen defendant. Defendant was in the garage of a residence, talking to the homeowner, Clyde Morris. Medina's television was also there.
Medina got out of his car and approached the men in the garage. Morris explained that defendant had offered to sell him the television, as well as a compressor that defendant said was stored at a vacant house nearby. Medina confronted defendant, wanting to know why defendant had "done that to me?" Defendant denied doing anything, but he ran away when Medina said he would call the police. Morris told Medina about the compressor in the vacant house; they walked to the house three doors away, where Medina found the compressor that had been stolen from his shed in the burglary.
Deputy Joann Quiroz responded to Morris's home, where she saw the blanket, the television, and the compressor that Medina had recovered. Medina and Morris were able to give the officer defendant's first name and full name, respectively.
About a week later, on March 3, 2010, Medina's wife telephoned him to say that she had just seen defendant at a business intersection in town. Medina and a friend, with whom he was working at the time, drove to the area but did not see defendant. While Medina and his friend were eating lunch in a restaurant nearby, however, they spotted defendant going into a liquor store across the street and called the police.
Medina and his friend detained defendant at the liquor store while they waited for the police to arrive. Defendant asked them to let him go, saying he knew where Medina's tools were. Deputy Marcel Silva arrived and took defendant into custody. The deputy searched defendant's backpack and found a ski mask, gloves, bolt cutters, a knife, and a flashlight. Defendant explained he had borrowed the bolt cutters to cut a chain off a bicycle he had chained to a fence at his grandmother's house. He needed the ski mask and gloves for warmth when he slept at night, as he was homeless. He denied committing any burglary, and blamed two high school students. He said that the students had sold Medina's property to some Black males. Defendant refused to show Deputy Silva where he could locate the high school students.
Defendant was charged by a felony complaint with first degree residential burglary (Pen. Code, §§ 459, 460) and receiving stolen property (Pen. Code, § 496, subd. (a)). He was originally given a notice to appear on a misdemeanor charge for possession of burglary tools (Pen. Code, § 466), but after defendant had appeared on the misdemeanor charge, the prosecutor filed a motion to consolidate the matter with the felony complaint. Defendant opposed the motion on the ground that the felony charge was being unfairly bolstered by the addition of the misdemeanor charge. The trial court granted the motion over defense objection.
A jury convicted defendant of first degree burglary and possession of burglary tools. It acquitted him, however, on the receiving stolen property charge. In a bifurcated proceeding, the trial court found true an allegation that defendant had a prior prison term conviction. (Pen. Code, § 667.5, subd. (b).) The court sentenced defendant to the middle term of four years on the felony conviction, plus one year for his prior prison term. Defendant received a sentence of 102 days in local custody for the misdemeanor, with credit for time served.
He now appeals, raising the single issue that the misdemeanor charge was improperly consolidated with the felony counts.
ANALYSIS
Penal Code section 954 governs the joinder of criminal charges in pleadings and their severance for trial. Defendant concedes that the charges here met the statutory requirements for joinder in that they were crimes of the same class. He argues, however, that even though joinder was statutorily permissible, the trial court nevertheless abused its discretion in joining the cases because there was a substantial danger of prejudice. (See People v. Lynch (2010) 50 Cal.4th 693, 735.)
Penal Code section 954 provides: "An accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts, and if two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated. The prosecution is not required to elect between the different offenses or counts set forth in the accusatory pleading, but the defendant may be convicted of any number of the offenses charged, and each offense of which the defendant is convicted must be stated in the verdict or the finding of the court; provided, that the court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately. An acquittal of one or more counts shall not be deemed an acquittal of any other count."
As defendant notes, "[w]here the statutory requirements for joinder are met," it was incumbent upon him to "make a clear showing of prejudice to demonstrate that the trial court abused its discretion." (People v. Zambrano (2007) 41 Cal.4th 1082, 1128; see also People v. Ramirez (2006) 39 Cal.4th 398, 440.) He argues that the trial court abused its discretion under the following principles: " ' "Refusal to sever may be an abuse of discretion where: (1) evidence on the crimes to be jointly tried would not be cross-admissible in separate trials; (2) certain of the charges are unusually likely to inflame the jury against the defendant; (3) a 'weak' case has been joined with a 'strong' case, or with another 'weak' case, so that the 'spillover' effect of aggregate evidence on several charges might well alter the outcome of some or all of the charges; and (4) any one of the charges carries the death penalty or joinder of them turns the matter into a capital case. [Citations.]" ' [Citation.]" (People v. Ramirez, at p. 439; accord, People v. Geier (2007) 41 Cal.4th 555, 575.) Defendant contends that the evidence on the burglary case and in connection with the burglary tools case were not cross-admissible, and that both the burglary charge and the burglary tools charge were "weak" cases, causing a spillover effect that altered the outcome of the cases.
As to cross-admissibility, the court was required to consider the extent to which evidence of the first charge would have been relevant to a hypothetical separate trial of the other charge, and vice versa. (People v. Soper (2009) 45 Cal.4th 759, 774-775.) To the extent that any evidence would not be, strictly speaking, cross-admissible, the court was required to evaluate the risk that the jury would be unfairly influenced by it. (Id. at p. 775.)
Here, the jury in a trial of the burglary would undoubtedly have had before it virtually all the evidence of defendant's apprehension at the liquor store. He resisted capture and attempted to wheedle his way out of the situation, asking Medina and his companion to let him go, because he "knew where [Medina's] tools were." He also accused the teenagers, attempting to displace blame from himself, but undermined the veracity of his accusation by flatly refusing any further cooperation in verifying his claim.
The only evidence that possibly would not be cross-admissible is the actual possession of the backpack and the burglary tools found inside. But that evidence cuts both ways. There was no evidence that burglary tools, such as bolt cutters, were used to commit the Medina burglary. The jury therefore would have no reason to consider defendant's mere possession of, e.g., the bolt cutters or flashlight (the Medina burglary took place in daylight hours), in connection with the burglary charge; the mere possession of the tools was distinct from and de minimis in respect to the Medina burglary charge. On the other hand, there arguably was some cross-admissible connection: the possession of the gloves, in particular, might have been relevant to explain why no fingerprints were found in the Medina house. Altogether, however, there would be minimal, if any, risk, should the additional burglary tools evidence come in, of a prejudicial spillover effect in the burglary case.
In terms of the burglary tools charge, again, the circumstances of how defendant came to be apprehended would necessarily require introduction of a great deal of the evidence with respect to the Medina burglary. Defendant attempted to evade capture in the burglary tools case by offering up the stolen goods from the Medina burglary. He also attempted to minimize his culpability in the burglary tools case by offering up scapegoats for another crime (the Medina burglary), though his refusal to cooperate in apprehending the "real burglars" cast some doubt on the veracity of his accusation.
Defendant argues that the Medina burglary would not have been relevant to show whether he had the requisite intent for a possession of burglary tools conviction. The possession of the tools, however, effectively speaks for itself.
In any case, defendant acknowledges that the lack of cross-admissibility is not, alone, sufficient to establish that the trial court abused its discretion in declining to sever the charges. (People v. Soper, supra, 45 Cal.4th at p. 775.) The court was also required to consider whether the joinder of the charges was unduly likely to inflame the jury against defendant, and whether, by joining the charges, a weak claim was used to bolster another weak claim to create a strong claim. (Id. at p. 780.)
We conclude there was no undue inflammation of the jury against defendant on the combination of these charges. The burglary tools possession charge was theoretically and legally distinct from the Medina residential burglary, although the circumstances of how defendant came to be found in possession of the tools was factually connected to Medina, who happened to find him. The matters were tried together largely for administrative convenience, because it would have been hard to explain how defendant came to be apprehended in each case without much repetition. The issues were not difficult for the jury to understand.
We also reject defendant's claim that the felony burglary charge was weak, or that the misdemeanor burglary tools charge was weak. Both cases were strong.
Defendant first met the victim, Enoc Medina, only a few days before the burglary. At that time, defendant asked for work, and Medina paid him and gave him food in exchange for washing Medina's car. Defendant wore work boots at that time. Then Medina discovered the burglary on February 27, 2010, when a large number of saleable items were taken, including a television, a compressor, and a blanket. The following day, Medina saw defendant walking the street in the neighborhood, carrying something wrapped in the stolen blanket. A short while later, Medina confronted defendant trying to sell the stolen television to a neighbor. Medina wanted to know why defendant had "done that to me," i.e., stolen his property. Defendant denied stealing the property but ran away when Medina said he would call the police. The neighbor to whom defendant was trying to sell the stolen television pointed to a nearby vacant house, where Medina recovered the stolen air compressor.
Only three days later, Medina and a friend again observed defendant at a street intersection nearby, and followed defendant into a liquor store. Medina and defendant argued; defendant tried to get away. Defendant wanted them to let him go, saying that he knew where the tools were. Medina and his friend were able successfully to detain defendant until the police could arrive. After his arrest, defendant made several statements about the burglary. He denied committing the burglary himself, but said that he knew two teenagers who did commit the burglary. He provided the first name of one of the alleged teenage burglars, and said he knew where the burglars had sold some of the stolen property to some Black males. Defendant refused, however, to show the deputy where this exchange had taken place. Although defendant said he knew that the two teenagers had committed the burglary, he did not explain how he knew that.
Defendant also stated that, after the Medina burglary, he had been staying in a vacant house nearby. Defendant supposedly knew that some stolen property was kept in a shed in the backyard of the vacant house, but he also claimed he had never had access to the shed, never been inside the shed, and never touched anything inside the shed. Defendant did not explain how he knew that stolen property was inside the shed.
The burglary case was not weak. Defendant knew Medina and was not a stranger to the neighborhood. He was staying in a vacant house near Medina's residence. The shoe prints outside the point of entry into the house were consistent with the work boots defendant had worn when he approached Medina before the burglary. Medina saw defendant the day after the burglary carrying one of the stolen items (blanket), presumably covering another of the stolen items (television), which he was immediately seen trying to sell to another resident in the neighborhood. When Medina confronted defendant, defendant ran away. Defendant admitted staying in the vacant residence, where more of Medina's stolen property (air compressor) was located. Although defendant blamed others for the burglary, he refused to cooperate in the investigation or to help find the alleged culprits.
Although possession of recently stolen property, if uncorroborated, is insufficient to establish an accused's guilt of a theft-related offense, corroborating evidence, even if only slight, is sufficient to support the inference that the accused is guilty of an offense such as burglary or robbery. (See People v. McFarland (1962) 58 Cal.2d 748, 754 ["Possession of recently stolen property is so incriminating that to warrant conviction there need only be, in addition to possession, slight corroboration in the form of statements or conduct of the defendant tending to show his guilt."].) Here, there were a number of corroborating circumstances, such as defendant's familiarity with the victim's residence (opportunity), his homelessness and transient residence in the vacant home nearby, as well as his solicitation for money and food (motive), his attempts to flee, both when trying to sell the stolen property and when he was found at the liquor store (consciousness of guilt), his knowledge, purported and otherwise, of the details of the burglary (e.g., claiming to know who had perpetrated the burglary, and asking at the liquor store to be let go because he knew where the tools were), and the questionable truth of his attempts to implicate others (identifying the teenagers as the burglars, but refusing to help find them). The corroborating circumstances were sufficient to support the finding of defendant's guilt; together with his possession of the recently stolen property, the inference of his guilt was very strong.
As to the burglary tools charge, the evidence showed that defendant, when he was apprehended by Medina and Medina's companion, was in possession of a backpack containing bolt cutters, a ski mask, gloves, a knife, and a flashlight. The investigating deputy testified that these objects were consistent with burglary tools. Although defendant claimed, for example, that he used the ski mask to keep warm at night, as he was a homeless transient, the deputy also testified that he was familiar with transient or homeless people and had not seen them wearing ski masks while sleeping. The deputy had never personally investigated a case where a burglar wore a ski mask, but he knew it had occurred in other crimes. In his experience also, burglars wear gloves to prevent fingerprint identification. He had known bolt cutters to be used in burglaries, as well as knives for prying and flashlights for nighttime thefts. Although defendant had plausible explanations for his possession of some of the items, their presence together amounted to strong evidence in support of the burglary tools charge.
We find nothing to indicate the trial court abused its discretion in consolidating the felony and misdemeanor charges.
DISPOSITION
The trial court did not abuse its discretion in granting the prosecution's motion to try the misdemeanor burglary tools charge with the remaining felony charges. The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J.
We concur:
MILLER
J.
CODRINGTON_
J.