Opinion
G040306.
1-29-2009
THE PEOPLE, Plaintiff and Respondent, v. JASON ALLAN MARKLEY, Defendant and Appellant.
H. Reed Webb, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
Not to be Published in Official Reports
We appointed counsel to represent defendant Jason Allan Markley on appeal. Counsel filed a brief which set forth the facts of the case. Counsel did not argue against the client, but advised the court no issues were found to argue on defendants behalf. (People v. Wende (1979) 25 Cal.3d 436.) Pursuant to Anders v. California (1967) 386 U.S. 738, counsel discussed possible claims appearing in the record.
Defendant was given 30 days to file written argument on his own behalf. That period has passed, and we have received no communication from him.
A jury convicted defendant of felony violation of section 496, subdivision (a) of the Penal Code, receiving stolen property. (All statutory references are to the Penal Code.) The court sentenced him to two years in state prison for the conviction under section 496, subdivision (a) and two more years under section 667.5, subdivision (b) for two of his four prior convictions, for a total of four years. We affirm.
I
FACTS
Defendant was pulled over on a traffic stop in a car that was registered to him by Anaheim Police Officer Christopher Petropulos because a passenger was not wearing a seatbelt. Between the time Petropulos turned on the patrol light and the time defendant stopped his car, Petropulos observed activity inside the car: "First of all, the passenger, after I activated the overhead emergency lights, he grabbed the seatbelt, put it over him, whether he was — appearing to try to put on the seatbelt. Secondly, he grabbed what appeared to be two purses or handbags from his seat and placed it in the back seat directly over him."
Besides defendant in the car, there was a male passenger in the front seat and a female passenger in the back. Petropulos noticed two purses in the back seat next to the woman. According to Petropulos, "[t]he two purses appeared brand new. They still had the price tags on them." He added there was "tissue stuffed inside." One purse had a price tag of $99 and the other $95. Defendant said the purses were not his, and that he did not know how they got in his car.
Behind the drivers seat, Petropulos "found an older Macys bag — Macys shopping bag with numerous belts, wallets, accessories, inside all with the price tags on them." The price tags on the two wallets said $36 and $25. There were no receipts in the bag.
Two of the items in the Macys bag had Macys stickers on them. At the scene, Petropulos contacted the loss prevention agent at Macys in the Main Place Mall and "inquired if they had any recent thefts." After that, he arrested defendant for possessing stolen property.
At trial, Veronica Villasenor, Macys loss prevention employee, explained how Macys tracks its merchandise, and went through each item, demonstrating how they lacked a sticker which is placed on items which have been purchased. She said Macys scanner recognizes Macys merchandise. When Petropulos called her from the scene, she "went to our sales registers and typed in the — the SKU numbers he gave me, and see, like, they came up with like a price and a description of the item, which matched what he told me."
Petropulos said when he first talked with defendant about the contents of the Macys bag, "he said he had no idea how the items got into the vehicle." But with regard to the purses, defendant "said that they werent his, that he didnt know how they got there."
Petropulos described his conversation with defendant while he was in custody: "After I read him the Miranda rights, he stated that Ms. Kisner, who was the passenger in the back seat of the vehicle, had — was never in possession of any items in the vehicle, that she was not part of anything, that he had been in possession of all the items in the vehicle excluding the two purses, that he was trying to make money and that a friend gave him the items in the Macys bag, but he didnt want to tell me anything about the friend." Petropulos specifically asked defendant whether or not the purses had been stolen, and defendant said, "possibly." Defendant also said: "You know what happened and whats going on."
Kisner told Petropulos the bag of accessories was in the back seat when she got into the car. She explained how she was originally sitting in the front seat, but moved to the back seat when Vazquez got into the car so he could sit up front. She believed Vazquez brought the purses with him when he got into the car, the items in the Macys bag were stolen and that defendant and Vazquez were going to sell them. She planned to purchase a wallet for $20.
Petropulos specifically asked defendant whether or not the purses belonged to the male passenger, Vazquez. Petropulos said: "When I asked him about if the purses belonged to Vazquez, he said I dont know. And he said I know what youre trying to say, but I cant answer that, or I know what youre saying, but I cant answer that. Something similar."
Defendants counsel suggests three areas which might present appellate issues: the trial courts rulings on his objection to out-of-court admissions, his motion brought under section 1118.1 and his claim of prosecutorial misconduct.
II
DISCUSSION
Corpus delicti
The brief states: "During the trial, [defendant] moved to exclude Officer Petropoloss testimony relating to statements [defendant] made about the Macys merchandise on the ground that there was an insufficient showing of a corpus delicti of receiving stolen property independent of those statements, particularly that proof was lacking that the items found in the back of [defendant]s car were stolen and that [defendant] knew that they had been stolen."
The corpus delicti "rule generally requires the prosecution to prove `the body of the crime itself independent of a defendants extrajudicial statements. [Citation.]" (People v. Sapp (2003) 31 Cal.4th 240, 303.) Furthermore, "the modicum of necessary independent evidence of the corpus delicti, and thus the jurys duty to find such independent proof, is not great. The independent evidence may be circumstantial, and need only be `a slight or prima facie showing permitting an inference of injury, loss, or harm from a criminal agency, after which the defendants statements may be considered to strengthen the case on all issues. [Citations.]" (People v. Alvarez (2002) 27 Cal.4th 1161, 1181.)
Here the merchandise appeared to be new and still had price tags. The purses were stuffed with tissue. Some of the items had Macys name on them. Macys loss prevention agent described the items as Macy merchandise, but said they did not appear to have been purchased. There were no receipts with the merchandise. Under these circumstances, there is sufficient prima facie showing the corpus delicti of a crime independent of defendants statements.
1118.1 motion
The brief states: "At the conclusion of the prosecutions case, [defendant] moved for an acquittal under Penal Code section 1118.1, renewing the arguments that proof was lacking on the elements of the property being stolen and [defendant]s knowledge about its stolen nature."
"Under Penal Code section 1118.1 the court `shall order the entry of a judgment of acquittal of one or more of the offenses charged in the accusatory pleading if the evidence then before the court is insufficient to sustain a conviction of such offense or offenses on appeal. `[T]he "test to be applied by the trial court under the section is . . . the same test applied by an appellate court in reviewing a conviction: whether from the evidence, including reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged [citations]." [Citations.] [Citations.] Substantial evidence is `evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] [Citation.]" (People v. Allen (2001) 86 Cal.App.4th 909, 913-914.)
In denying the motion, the court stated: "I do think theres some evidence that the defendant knew these items were stolen. The fact that Ms. [Kisner] was going to buy one for $20, well below the price on the price tag on any of these items — was going to buy a wallet for $20 well below the price on the price tag of any of the wallets is some evidence that the defendant knew that they were stolen. . . . [¶] . . . [¶] . . . The defendant also indicated that he wanted to make some money, which I think combined with that statement suggests that the defendant was selling these items, and the — I think thats what people do when theyre possessing stolen property that they dont want to keep for themselves. Theres no reason to think that this is the kind of property that the defendant would want for himself. Its much more likely hed want to sell it. And theres some evidence that thats what he did. [¶] . . . I think theres evidence from which a jury could find the defendant guilty beyond a reasonable doubt."
We agree with the trial judge there is substantial evidence in the record so the case should have gone to the jury. The motion for acquittal under section 1118.1 was properly denied.
Prosecutors argument
During rebuttal argument, the prosecutor said: "Now, lets talk about — we talked about reasonable doubt. Its not benefit of the doubt. Its bringing your common sense. We asked you to do that when you first got selected to sit on this jury. We already talked to you about the circumstantial evidence. I invite you to tell me where it is that the other reasonable conclusion is to find the defendant not guilty. [¶] I noted here again, the other conclusion, you have a Martian take the items from Macys, put them in the truck when hes not looking, forget to take the tags off. Now, he didnt have any instruction. When the court asked us to take a break when defense counsel was arguing, then defense counsel came back talking about unanimity at this instruction. That has to do with the fact that some of the items, as testified by Ms. Villasenor, she indicated when she had the conversation with — when she had the conversation with Officer Petropulos, that she had checked some SKU numbers."
At the conclusion of the argument, the defense lawyer said: "I wanted to interpose an objection. I dont like to do this on the record because my purpose in doing is not to grandstand in front of the jury. But Ms. Alvarezs statement, reasonable doubt means bringing in your common sense or — reasonable doubt means using your common sense, I think is a misstatement of the law. I think its an attempt at lowering the Peoples burden, and that has been found to be prosecutorial misconduct. I would object to that statement. [¶] Id ask that the jury be — Id ask that the jury be admonished. This is an incorrect statement of the law and that — that attempt at lowering the burden is, in fact, prosecutorial misconduct."
In ruling the court stated: "Well, I think what she meant is that you bring in your common sense in determining whether a doubt is based on reason, and I think that thats legitimate. I wonder — it doesnt seem to me that this is an issue that needs to persist in this case.
When the jury returned the next morning to be instructed by the court, the first thing the court said was: "Let me just remind the jury first that if the attorneys comments on the law conflict with the courts instructions, the jury is obliged to follow the courts instruction on the law."
"`The applicable federal and state standards regarding prosecutorial misconduct are well established. "`A prosecutors . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct "so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process."" [Citation.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves "`"the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury."" [Citation.] . . . Additionally, when the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion." (People v. Ochoa (1998) 19 Cal.4th 353, 427, quoting People v. Samayoa (1997) 15 Cal.4th 795, 841.) We find no fundamental lack of fairness, no lack of due process and no reasonable likelihood the jury construed the prosecutors comments here in an objectionable fashion.
III
DISPOSITION
We have examined the record and found no other arguable issue. (People v. Wende, supra, 25 Cal.3d.) The judgment is affirmed.
WE CONCUR:
RYLAARSDAM, ACTING P. J.
IKOLA, J. --------------- Notes: Miranda v. Arizona (1966) 384 U.S. 436.