Opinion
H025212. H026317.
11-20-2003
THE PEOPLE, Plaintiff and Respondent, v. DANIEL SANCHEZ RAZO, Defendant and Appellant. In re DANIEL SANCHEZ RAZO, on Habeas Corpus.
Defendant Daniel Sanchez Razo was found guilty at a jury trial of vehicle burglary and possession of stolen property and the jury found true that he had one prison prior and one Three Strikes prior. On appeal, he challenges the sufficiency of the evidence, admission of evidence of uncharged vehicle burglaries on the same afternoon, the sentence, and the effectiveness of counsel. In a petition for a writ of habeas corpus which we ordered considered with the appeal, defendant renews his claim of ineffective assistance of counsel.
FACTS
February 26, 2002, was a busy day for defendant. At 2:45 p.m. on February 26, 2002, Sherry Banuelos parked and locked her car in a parking lot near her job at Nova Care on Stevens Creek Boulevard at Randy. When she got back to the car at 5:00 p.m. the front passenger window had been smashed and there was broken glass both inside and on the ground outside the car. A canvas lunch bag containing an orange which had been on the passenger seat was missing. The car stereo was intact. Banuelos called police within five minutes of discovering the break-in. This vehicle burglary was charged as count 4. (Pen. Code, § 459.)
Further statutory references are to the Penal Code unless otherwise stated.
Around 3:20 or 3:30 p.m., Xiaosu Zhang parked her 1996 Honda Accord in the Compaq Computer parking lot at 19333 Vallco Parkway. Later that afternoon, co-worker Martin Donelan looked out the window into the parking lot and saw an Hispanic male walking around trying some of the door handles in an apparently random fashion. He called security and described what he saw. Around 4:00 p.m., Zhang received a call from security informing her that the window of her car had been smashed. When she went to check, she saw that the front passenger window had been smashed and that a bag which had been on the passenger side floor which contained her purse, schoolbook, an Italian black nylon bag, and her wallet, which had been on the passenger side floor, were gone. It did not appear that the radio had been tampered with. This incident was charged in count 1, vehicle burglary, and count 2, possession of stolen property.
Around 5:15 p.m., marriage/family therapist Lorraine Hutchinson left her office at 20111 Stevens Creek Boulevard in Cupertino and went to her Jaguar in the parking lot. The back window on the passenger side had been shattered. Nothing was disturbed and nothing had been taken, even though a bag and leather coat had been in the car. The stereo had not been taken or tampered with. Hutchinson did not see anything that could have been used to break the window. She immediately went back upstairs and called the police. This vehicle burglary was charged in count 3.
Xue Wang was shopping at the Target store on Stevens Creek Boulevard and parked her 1998 Honda Civic in the parking lot. At approximately 5:40 p.m. she returned to her car to find the front passenger side window smashed. Her backpack, which contained her paycheck stub, a credit card bill, her address book, about $40 in cash, and some other personal papers, was gone. There was no indication that the radio had been tampered with. She immediately returned to the store where a clerk called the police. By the time of trial, Wangs backpack was still missing. This vehicle burglary was charged as count 5.
Later that evening, Zhang received a call from J.C. Penneys at Vallco Mall informing her that her larger bag and her wallet were found in a garbage can in a mens room by a janitor. Cash and movie passes were missing from the wallet. Vallco Mall is located right next to Compaq Computer. Zhang met with a deputy sheriff at Cupertino City Hall where she identified her belongings.
As reports of the car burglaries came in, Sheriffs Deputy Kenneth Nelson noticed that they seemed to be occurring in a westerly direction along Stevens Creek Boulevard. He began patrolling Stevens Creek Boulevard at DeAnza, and he moved in an easterly direction. At about 6:10 p.m., he noticed defendant standing next to a white SUV, looking in the drivers side window. This SUV was in the Mervyns parking lot which was across the street from Target. Nelson noticed that defendant matched the description given by Officer Pidcock. Defendant walked away from the SUV into the parking lot, but Nelson noticed that the horn was sounding and the headlights were flashing as if an alarm had been activated. Nelson stopped defendant and told him to come over to the patrol car. Defendant was very cooperative. Nelson asked him what he was doing there, and defendant replied that he had come to Cupertino by bus from his home in San Jose to shop for clothes at Target. He added he had just come from Target.
Nelson pat-searched defendant but did not locate anything that could be used to break car windows. Nelson asked what was in his backpack and defendant showed him the contents. These included a green zippered bag inside of which were miscellaneous foreign coins, papers, and a couple of pairs of tweezers. There was also a white metal wrist watch which appeared made for a woman or a youth, a Palm Personal Digital Assistant, and two calculators inside black plastic cases. Nelson gave all the contents of the bag to Deputy Robert Bosworth who took defendant into custody.
Bosworth transported defendant to jail, read him his Miranda rights, and interrogated him. Defendant said he had taken a bus from his home in San Jose to shop at Target. Although he entered the store, he did not buy anything.
Miranda v. Arizona (1966) 384 U.S. 436 .
Bosworth did not find anything in defendants possession which could be used to break a car window. He also inspected defendants shirt, hands, and arms, but did not see any pieces of broken glass or cuts. He did not inspect the bottom of defendants shoes, but he did not notice anything unusual about the shoes.
Bosworth measured the distance between the Mervyns parking lot and Compaq Computer and found it to be a little more than a mile and a half. The distance from Vallco Parkway to J.C. Penneys was .3 miles. The distance from Vallco Parkway to Randy near Nova Care was 1.2 miles. From there it was another 200 feet to Nova Care. The distance between Nova Care and Target was .5 mile. Bosworth believed that a person traveling on foot could have committed each of the burglaries.
Defendant was charged with the four counts of felony vehicle burglary and one count of receiving stolen property. It was also alleged that he suffered a prison prior (§ 667.5, subd. (b)), and a Three Strikes prior. (§§ 667, subds. (b)-(i), 1170.12.) Counts 3, 4, and 5 were later dismissed pursuant to section 995. Jury trial began on June 11, 2002. On June 13, the jury found defendant guilty of counts 1 and 2, and on June 14, it found both prior allegations true. Defendants Romero motion to strike the Strike prior was denied. Defendant was sentenced to double the midterm for both counts to be served concurrently, and was given an additional year for the prison prior. The total term was five years. This appeal ensued.
People v. Superior Court (Romero) (1996) 13 Cal.4th 487.
ISSUES ON APPEAL
Defendant asserts (1) the evidence was insufficient to support the convictions on counts 1 and 2; (2) it was an abuse of discretion to admit evidence of the remaining counts as uncharged offenses; (3) admission of evidence of the uncharged offenses denied defendant due process; (4) trial counsel rendered ineffective assistance of counsel by eliciting evidence of defendants hearsay statement to police and by stipulating to admission of evidence of defendants prior theft-related misdemeanor convictions. He raises this point in his petition for a writ of habeas corpus as well. Finally, (5) the court erred by sentencing defendant in violation of the section 654 prohibition against multiple punishments. The People agree with this latter contention. Accordingly, we will order the concurrent sentence for possession of stolen property stayed.
SUFFICIENCY OF THE EVIDENCE
Defendant complains that the evidence of the Zhang burglary was insufficient because there is nothing linking defendant to that burglary. He claims he was not in possession of anything taken from her car, and Martin Donelan, the person who gave the description of defendant, was unable to identify defendant as the man he saw in the parking lot. Zhangs property was found in a J.C. Penney garbage can, but there is no evidence that defendant had been there. Cash and movie passes were taken from her bag, but defendant did not have cash, the movie passes, or any purchases in his possession. Consequently, defendant contends the evidence is insufficient to support the convictions.
"In reviewing the sufficiency of the evidence, we must determine `whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citation.]" (People v. Davis (1995) 10 Cal.4th 463, 509.) " `The test is whether substantial evidence supports the [conclusion of the trier of fact], not whether the evidence proves guilt beyond a reasonable doubt. [Citations.]" (People v. Crittenden (1994) 9 Cal.4th 83, 139.) "[W]e do not reweigh the evidence; the credibility of witnesses and the weight to be accorded to the evidence are matters exclusively within the province of the trier of fact. [Citation.] We simply consider whether ` " `any rational trier of fact could have found the essential elements of [defendants] crime beyond a reasonable doubt. " [Citations.] [Citation.] Unless it is clearly shown that `on no hypothesis whatever is there sufficient substantial evidence to support the [jurys] verdict, we will not reverse." (People v. McCleod (1997) 55 Cal.App.4th 1205, 1221.) "
`If a trier of fact has believed the testimony . . . this court cannot substitute its evaluation of the credibility of the witness unless there is either a physical impossibility that the testimony is true or that the falsity is apparent without resorting to inferences or deductions. [Citations.] " (In re Andrew I. (1991) 230 Cal.App.3d 572, 578.)
Defendant was charged with vehicle burglary and receiving stolen property. "Every person who enters a . . . vehicle . . . , when the doors are locked, . . . with intent to commit grand or petit larceny or any felony . . ." is guilty of burglary. (§ 459.) "Every person who conceals or withholds or aids in concealing or withholding property from the owner, knowing the property to have been stolen is guilty of the crime of receiving stolen property in violation of Penal Code Section 496[, subdivision] (a). [¶] In order to prove this crime, each of the following elements must be proved: [¶] (1) A person concealed or withheld property from the owner which had been stolen and; [¶] (2) The person actually knew the property was stolen at the time he withheld or concealed from the owner the property." (CALJIC No. 14.65.)
Defendant is mistaken that he was not in possession of anything taken in the Zhang burglary. When Deputy Nelson stopped him, he was in possession of the green nylon bag that had been inside her larger bag that was recovered from J.C. Penneys. Zhang identified the bag at the Cupertino City Hall that night and again at trial. Defendant was detained near a car whose alarm was sounding very near to the location and time at which Zhangs car had been burglarized. He matched a description of the person who was wandering around in the Compaq parking lot trying door handles of cars at the time Zhangs car was burglarized. He carried an item of property recently stolen from Zhangs car.
The jury was instructed, "If you find that a defendant was in possession of recently stolen property, the fact of that possession is not by itself sufficient to permit an inference that the defendant is guilty of the crime in count 1 or 2. Before guilt may be inferred, there must be corroborating evidence tending to prove defendants guilt. However, this corroborating evidence need only be slight and need not be by itself sufficient to warrant an inference of guilt. [¶] As corroboration, you may consider the attributes of possession-that is time, place and manner. You may consider the defendant had an opportunity to commit the crime charged . . . and the defendants conduct and any other evidence which tends to connect the defendant with the crime charged."
In addition to possession of Zhangs nylon bag, the evidence stated above places defendant in the area of the burglary at the time of the burglary. It places him in the same suspicious circumstances as the like-appearing man at the Zhang burglary, namely, standing by a parked vehicle whose alarm for some reason activated. This is substantial evidence of defendants guilt of the crimes charged.
EVIDENCE OF UNCHARGED BURGLARIES AND BREAK-INS
Next, defendant contends the trial court abused its discretion by admitting evidence of the charges that had been dismissed for the purpose of providing circumstantial evidence that the burglaries were occurring in the direction where defendant was apprehended, as evidence of intent to commit burglary since all of the vehicles had broken windows and none of the vehicles themselves were taken, and as evidence of knowledge and absence of mistake. The court also ruled that the evidence of the other burglaries could be used to show that defendant had knowledge of the nature of the things found in his possession, that the crimes charged were part of a larger continuing plan or scheme, and as circumstantial evidence of the crimes charged.
On appeal, a trial courts ruling under Evidence Code sections 1101 and 352 is reviewed for abuse of discretion. (People v. Lewis (2001) 25 Cal.4th 610, 637.) Evidence Code section 1101, subdivision (b) (section 1101(b)), states in pertinent part that "[n]othing in this section prohibits the admission of evidence that a person committed a crime . . . or other act when relevant to prove some fact (such as . . . intent, . . . plan, knowledge, identity, absence of mistake or accident . . . ) other than his or her disposition to commit such an act." Admissibility of his evidence " `depends upon three principal factors: (1) the materiality of the fact sought to be proved or disproved; (2) the tendency of the uncharged crime to prove or disprove the material fact; and (3) the existence of any rule or policy requiring the exclusion of relevant evidence. " (People v. Robbins (1988) 45 Cal.3d 867, 879.) The rule or policy referred to "is primarily found in the provisions of Evidence Code section 352 and the weighing of the prejudicial effect of such evidence against its probative value. Where such objection is raised, it is the trial courts duty to make such an evaluation before admitting the evidence. The court need not specifically articulate its weighing process, but the record must reflect the trial court has made an evaluation of the evidence. [Citation.]" (Brown v. Smith (1997) 55 Cal.App.4th 767, 791.) Evidence that involves crimes other than those for which a defendant is being tried is admitted with caution. (People v. Balcom (1994) 7 Cal.4th 414, 426.)
In People v. Ewoldt (1994) 7 Cal.4th 380, the California Supreme Court described the degree of similarity needed between uncharged crimes and the offense for which the defendant is on trial before evidence of uncharged crimes would be admitted. The degree of similarity varies depending on the issue for which the evidence is admitted. The least degree of similarity between the crimes is required to prove intent. (Id. at p. 402.) In order to be admissible to prove intent, the uncharged crimes must be "sufficiently similar" to support the inference that the defendant probably harbored the same intent in each instance. (Ibid.)
A somewhat greater degree of similarity is required in order to prove the existence of a common scheme or plan. In establishing a common scheme or plan, evidence of uncharged crimes must demonstrate " `not merely a similarity in the results, but such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations. [Citation.] `[T]he difference between requiring similarity, for acts negativing innocent intent, and requiring common features indicating common design, for acts showing design, is a difference of degree rather than of kind; for to be similar involves having common features, and to have common features is merely to have a high degree of similarity. [Citations.]" (People v. Ewoldt, supra, 7 Cal.4th at pp. 402-403.) "To establish the existence of a common scheme or plan, the common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual." (Id. at p. 403.)
The greatest degree of similarity is required for evidence of uncharged offenses to be relevant to prove identity. "For identity to be established, the uncharged misconduct and the charged offense must share common features that are sufficiently distinctive so as to support the inference that the same person committed both acts. [Citation.] `The pattern and characteristics of the crimes must be so unusual and distinctive as to be like a signature. [Citation.]" (People v. Ewoldt, supra, 7 Cal.4th at p. 403.)
"The proponent of the proffered evidence has the burden of producing evidence as to the existence of the preliminary fact, and the proffered evidence is inadmissible unless the court finds that there is evidence sufficient to sustain a finding of the existence of the preliminary fact, when: [¶] . . . [¶] (4) the proffered evidence is of a statement or other conduct of a particular person and the preliminary fact is whether that person made the statement or so conducted himself." (Evid. Code, § 403, subd. (a).)
In the instant case, defendant was found in possession of property stolen from Zhangs car under circumstances that corroborated and strengthened the inference that he had committed that burglary also. The uncharged crimes tended to show that the burglar was following a common scheme or plan which led him in a crime spree along Stevens Creek Boulevard. The court stated, "It does show a pattern of moving as [the prosecutor] pointed out, from one direction to the other where [defendant] was located." All of the crimes were very similar in nature. The person who committed them smashed car windows, in some cases stealing property contained within. None of the cars appeared tampered with or as if defendant attempted to steal the vehicle itself. All the crimes occurred on the same day in a matter of a few hours. All the cars were located in parking lots on Stevens Creek Boulevard and the occupants could be expected to be either at work or in stores.
Contrary to defendants assertion, the other crimes evidence did not create a "vicious circle" (see People v. Albertson (1944) 23 Cal.2d 550, 581) where proof of the crime charged is "intermingled with circumstantial proof of suspicious prior occurrences in such manner that it reacts as a psychological factor with the result that the proof of the crime charged is used to bolster up the theory or foster suspicion in the mind that the defendant must have committed the prior act, and the conclusion that he must have committed the prior act is then used in turn to strengthen the theory and induce the conclusion that he must also have committed the crime charged." (Id. at pp. 580-581.) In this case, there was evidence that defendant committed the Zhang burglary and possessed property stolen from Zhang.
Defendant contends that the court erred in admitting evidence of the other burglaries to show knowledge or absence of mistake with respect to the charge of concealing or withholding stolen property. The trial court may have been mistaken in believing the evidence was admissible to prove intent. "Other crimes evidence is admissible ` "where the proof of defendants intent is ambiguous, as when he admits the acts and denies the necessary intent because of mistake or accident." [Citation.]" (People v. Miller (2000) 81 Cal.App.4th 1427, 1447-1448.) Here, defendant did not admit the acts; rather, he claimed he was not the person who smashed the cars windows.
Nevertheless, as long as the evidence is admissible for one of section 1101s purposes, its admission cannot be error. " ` "A decision right in result will not be reversed even though the reason stated is wrong." " (People v. Singh (1995) 37 Cal.App.4th 1343, 1381.) The court properly instructed the jury on the limited use of other crimes evidence: "Evidence has been introduced for the purpose of showing that the defendant committed crimes other than that for which he is on trial. This evidence, if believed, may not be considered by you to prove the defendant is a person of bad character or that he has a disposition to commit crimes. It may be considered by you only for the limited purpose of determining if it tends to show that the defendant had knowledge of the nature of the things found in his possession, that the crime charged is part of a larger continuing plan or scheme, and as circumstantial evidence of the crimes charged." There was no error.
Defendants point that admission of the other crimes evidence violated his right to due process fails because the trial court did not err in admitting the evidence. Admission of evidence of uncharged acts comports with due process so long as such evidence is relevant to any element of the charged offense, and the evidence is not introduced to show a defendants predisposition to commit a crime. (McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378, 1380.)
INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant claims trial counsel erred when she elicited from Deputy Nelson over the prosecutors objection defendants statement that he had been inside the Target store and had not found anything he wanted to buy. The court then allowed the district attorney to introduce evidence of defendants prior theft-related convictions, relying on People v. Jacobs (2000) 78 Cal.App.4th 1444 (Jacobs), which held that evidence of prior convictions is made admissible by Evidence Code section 1202 to attack the credibility of a defendant who does not testify. Defendant claims his trial counsel "clearly rendered ineffective assistance. . . [because] she was unaware of the existence of the Jacobs case, which was provided to her by the prosecutor after she had elicited [defendants] statement. Thus, she `failed to take the most elementary precaution-an investigation of easily discoverable case law. (In re Greenfield (1970) 11 Cal.App.3d 536, 544.)" (Emphasis defendants.)
Here, we note the record showed that the prosecutor cited Jacobs to the court before the trial when there was a discussion of impeachment of statements of a hearsay declarant. When the discussion of impeachment took place during Deputy Nelsons testimony, defense counsel stated: "Your Honor, it may explain my confusion as to why he was citing that, because Ive been supplied with a copy of People v. Barns instead of a copy of People v. Jacobs." After the court read Jacobs, defense counsel argued why she believed that Jacobs was inapplicable to the present case. Nothing in the discussion supports defendants assertion on appeal that his counsel was unaware of Jacobs until told about it by the prosecutor.
Defendant also maintains that trial counsel rendered ineffective assistance by stipulating that defendant had been convicted of two theft-related misdemeanors in 1988 and 2001. The fact of a misdemeanor conviction is inadmissible hearsay and cannot be used to impeach the credibility of a witness, though the conduct itself is admissible. (People v. Wheeler (1992) 4 Cal.4th 284.) Moreover, the failure to object to admission of a misdemeanor conviction on hearsay grounds waives the issue on appeal. (Id. at p. 300.) Defendant states it is evident from the record that the prosecutor did not have under subpoena witnesses necessary to prove the past misdemeanor conduct, since he argued that the records of conviction were sufficient and did not offer to present live testimony otherwise. However, since 1997, in any criminal or civil proceeding, an official record of conviction, properly certified in accordance with Evidence Code section 1530, is admissible to prove the commission, attempted commission, or solicitation of a criminal offense, a prior conviction, service or a prison term, or other act, condition, or event recorded by a public employee. (Evid. Code, §§ 1280, 1202.) Nevertheless, trial counsel agreed to stipulate that defendant had been convicted of two theft-related misdemeanors.
Appellant has the burden of proving inadequacy of trial counsel. (People v. Pope (1979) 23 Cal.3d 412, 425.) He must establish that no reasonably competent attorney would have done what defense counsel did and that he was prejudiced by defense counsels conduct, i.e., that it is reasonably probable a more favorable determination would have resulted in the absence of counsels failings. (People v. Lucas (1995) 12 Cal.4th 415, 436.) To justify relief on appeal, defendant must show that defense counsels actions could not be explained on the basis of any knowledgeable choice of tactics. (People v. Pope, supra, 23 Cal.3d at p. 426, fn. 16.) However, "a court need not determine whether counsels performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsels performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." (Strickland v. Washington (1984) 466 U.S. 668, 697.)
There was no prejudice to defendant. The jury received defendants similar but not identical statement, that he was in Target and did not buy anything, from the testimony by Deputy Bosworth about defendants Mirandized post-arrest statement. Evidence Code section 788 permits an attack on a witnesss credibility by introduction of his felony convictions, and Evidence Code section 1202 provides that any other evidence in addition to inconsistent statements offered to attack or support credibility of a hearsay declarant is admissible if it would have been admissible had the declarant been a witness. (Jacobs , supra, 78 Cal.App.4th at pp. 1449-1452.)
Defense counsels decision to elicit the statement likely arose from the tactical need to give the jury an explanation why defendant, who took a bus all the way to the Target on Stevens Creek Boulevard to shop despite the presence of Target stores in San Jose, had bought nothing; and why defendant, who matched a description of the vehicle burglar, was found next to an SUV whose alarm was sounding in a parking lot near where one of the burglaries had occurred. In addition, although defendant argues that if counsel had not elicited the statement, his prior misdemeanor convictions would have been inadmissible, in light of the strong evidence against him, it is not reasonably probable that there would have been a more favorable outcome. (People v. Watson (1956) 46 Cal.2d 818, 836.) He was in possession of property stolen from Zhang; a man similar to him was present in the parking lot where Zhangs automobile was burglarized and possessed property taken from the vehicle; and the circumstances and similarities of the other burglaries occurring around the same time and place were persuasive. There was no prejudice.
DISPOSITION
The concurrent sentence for possession of stolen property is ordered stayed. The clerk of the court is ordered to send a corrected abstract of judgment to the Department of Corrections. In all other respects the judgment is affirmed. The petition for a writ of habeas corpus is denied.
WE CONCUR: Rushing, P.J., Elia, J.