Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. 01F01727, 02F02645, 05F00216
ROBIE, J.
A jury found defendant James Allen Schanrock guilty of offenses arising out a crime spree that culminated in murder. Specifically, defendant was found guilty of special circumstances murder, residential burglary, robbery, unlawful taking or driving of a vehicle, two counts of second degree burglary, attempted arson, and possession of a firearm by a felon. The jury also found true numerous enhancements, including one for personal use of a firearm during the murder.
The trial court sentenced defendant to life without the possibility of parole for the murder, a consecutive 25 years to life for the gun use enhancement, and a determinate term of six years four months for the remaining crimes and enhancements. It also imposed a $10,000 restitution fine and parole revocation fine.
Based on these convictions, the court revoked defendant’s probation in two other cases and sentenced him to an additional 16 months in prison and “impose[d]” two $200 restitution fines.
On appeal, defendant raises the following four contentions: (1) the court erred in excluding his evidence; (2) the prosecution presented insufficient evidence of burglary; (3) the court erred in imposing the upper term for burglary; and (4) the court erred in imposing the $10,000 parole revocation fine. Disagreeing with defendant’s contentions but agreeing with the People’s contention that the two $200 restitution fines in the probation cases must be stricken, we modify the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In December 2004, defendant broke into the South Land Park home of Gabriel Kadosh and his girlfriend Paige Hasson while the two were on vacation. He took almost everything in the house.
In the early morning hours of January 7, 2005, defendant broke into the home of Karlton Castles, which was still under construction. Defendant took light fixtures, plumbing fixtures, faucets, “a vac system out in the garage,” and a garbage disposal.
After burglarizing the Castles home, defendant drove with his girlfriend, Teresa Holman, to a residential neighborhood in Sacramento where he crashed the car he was driving. Defendant and Holman then walked across the street to a vacant home for sale owned by Chris Poulos. Inside the Poulos home, Holman took a bath and went to sleep. The next morning, Holman left because defendant had been talking on his cell phone to a woman named “Jolynn.” Defendant remained in the house and damaged the chandelier and a curtain rod, removed the curtains and stuffed them inside an electric oven that he had turned on, dismantled a smoke alarm, scattered implements belonging to a central vacuum system on the floor, and removed a bathroom vanity and mirrors from the walls.
According to Holman, they went to the vacant house to seek shelter from the rain.
Defendant then broke into the home of Maren and Dennis Conrad. The Conrads had been married almost one year and had a six-month-old son. That morning, Dennis left for work and Maren and the baby were running errands. They had planned to reunite at their home at 1:00 p.m. to prepare for a date night in San Francisco that evening -- their first since their son had been born. Maren arrived at the house at 1:15 or 1:20 p.m. The garage was open, a box had been kicked over, and the Saturn SUV Dennis was driving was missing. Sensing something was “weird,” Maren left their son in the car and went in the house to investigate. She found Dennis face down in a puddle of blood. He was dead from 11 gunshots. Their home was ransacked and their possessions missing.
Defendant had fled from the home before Maren arrived and drove Dennis’s car to Tognotti’s Auto World in search of employee Jolynn Pike. When Pike could not be found, employee Reanna Waddell spoke to defendant in the parking lot.
Later that afternoon, a park ranger saw defendant driving Conrad’s SUV near the American River Parkway. When the ranger’s car approached, defendant fled on foot. Defendant broke into a house on Coda Lane, washed his hands, changed into women’s clothing he had found in the house, and left. He was apprehended by police following a swim in the American River.
DISCUSSION
I
The Court Did Not Err In Excluding Defendant’s Evidence
Defendant contends the court erred in excluding the following two pieces of evidence: (1) his out-of-court statement, “you won’t believe what I have just seen,” made to Tognotti’s employee Reanna Waddell shortly after Conrad had been murdered; and (2) Waddell’s opinion that defendant looked scared when he repeatedly made that statement. Defendant argues that his statement was admissible as an excited utterance and the basis for Waddell’s opinion and that Waddell’s statement was admissible as lay opinion testimony. Defendant is wrong on all counts.
Evidence Code section 1240 contains the excited utterance exception to the hearsay rule and provides as follows: “Evidence of a statement is not made inadmissible by the hearsay rule if the statement: [¶] (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and [¶] (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception.”
Defendant’s statement “you won’t believe what I have just seen” did not qualify as an excited utterance for the simple fact that this statement did not purport to narrate, describe, or explain anything. At most, it was a prelude to a narration, description, or explanation. Statements that do not describe anything are not excited utterances. The court therefore did not err, constitutionally or otherwise, in excluding defendant’s statement from evidence.
We turn then to Waddell’s statement. Lay opinion testimony is admissible if it is based on the perceptions of the witness and is helpful to a clear understanding of testimony. (Evid. Code, § 800.) This rule has been interpreted to require witnesses to express themselves at the lowest possible level of abstraction, because “‘concluding’ should be left to the jury.” (People v. Hurlic (1971) 14 Cal.App.3d 122, 127.) However, when the details observed are too complex or too subtle to describe, the witness may state general impression. (Ibid; see also Holland v. Zollner (1894) 102 Cal. 633, 638-639.)
Here, defendant’s own offer of proof belies any argument that the details Waddell observed were too complex or subtle for her to have described. In the motion to admit Waddell’s opinion that defendant seemed scared, the defense stated that Waddell “paid attention to commonly recognizable signs indicative of stress and fear, such as [defendant]’s tone, demeanor, and hand and arm gestures.” Under these circumstances, the court did not err, constitutionally or otherwise, in refusing to admit Waddell’s conclusory statement that defendant appeared scared when she saw him at Tognotti’s.
Defendant’s argument that his statement “you won’t believe what I have just seen” would have laid the foundation for Waddell’s lay opinion testimony fails as well. As the trial court correctly reasoned, it makes no sense to conclude, based on that statement, that the person who uttered it was scared.
II
The Prosecution Presented Substantial Evidence To Support Defendant’s Conviction For Burglarizing The Poulos Home
Defendant contends there is insufficient evidence to support his conviction for the Poulos burglary, because there was no evidence he entered the house with the intent to steal.
Burglary consists of entry into a house “with intent to commit grand or petit larceny or any felony.” (Pen. Code, § 459.) Here, the prosecutor proceeded on the theory that defendant entered the house to commit theft, the court so instructed the jury, and the jury so found. There was substantial circumstantial evidence to support the jury’s guilty verdict and the court’s denial of defendant’s motion for judgment of acquittal.
The prosecutor presented evidence that defendant had committed similar burglaries, and the jury reasonably could have inferred from this evidence that defendant intended to commit theft when he broke into the Poulos home. In December 2004, defendant broke into the Kadosh/Hasson home when they were on vacation and took almost everything. Next month, and shortly before the Conrad murder, defendant broke into Karlton Castles’ home, which was still under construction. Defendant took light fixtures, plumbing fixtures, faucets, “a vac system out in the garage,” and a garbage disposal.
At the Poulos house, similar items had been tampered with, including a chandelier whose crystal droplets were on the floor, a central vacuum system whose tools and attachments “were about the floor,” a bathroom vanity that had been pulled away from the wall, and a curtain rod that was damaged and missing its curtains.
From this evidence, a jury reasonably could have inferred that defendant’s intent in breaking into the Poulous home was the same as his intent in breaking into the Kadosh/Hasson home and Castles home, i.e., to commit theft. The purported evidence defendant points to from which a jury could have drawn a different conclusion simply is nothing more than an invitation to reweigh the evidence -- something we do not do in assessing the sufficiency of evidence. (People v. Cortes (1999) 71 Cal.App.4th 62, 71.) Accordingly, defendant’s contention fails.
III
The Court Did Not Err In Imposing The Upper Term
Defendant contends the court violated his constitutional rights in imposing the upper term on the Poulos burglary, which it based on “defendant’s prior criminal history.” We disagree.
People v. Black (2007) 41 Cal.4th 799, 816, held that “imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” Here, defendant’s record of prior convictions for crimes that date back to 1999 justified imposition of the upper term. There was no error.
IV
The Court Did Not Err In Imposing
The $10,000 Parole Revocation Fine
Defendant contends the court erred by imposing the $10,000 parole revocation fine because he was sentenced to life without the possibility of parole. Defendant’s contention fails.
Our Supreme Court has recently held that where a defendant is sentenced to death and is also sentenced to a determinate term, that term is required to “‘include a period of parole,’” and therefore, a parole revocation fine is appropriate. (People v. Brasure (2008) 42 Cal.4th 1037, 1075.) The Brasure court distinguished People v. Oganesyan (1999) 70 Cal.App.4th 1178, on which defendant relies, because it involved no determinate term of imprisonment. (Brasure, at p. 1075.) Brasure is dispositive here and dooms defendant’s argument.
V
The Two $200 Restitution Fines Must Be Stricken
As the People point out, the court erroneously imposed two $200 restitution fines in cases Nos. 01F01727 and 02F02645 where the trial court had already imposed these fines when probation was granted. “There is no statutory authority justifying the second restitution fine because . . . the first restitution fine remained in force despite the revocation of probation. Accordingly, since the trial court was without statutory authority to impose the second restitution fine, it must be stricken.” (People v. Chambers (1998) 65 Cal.App.4th 819, 823.)
DISPOSITION
The judgment is modified by striking the additional $200 restitution fines imposed by the trial court in cases Nos. 01F01727 and 02F02645. The $200 restitution fines imposed previously in those cases remain in force. As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment reflecting this change and deliver it to the Department of Corrections and Rehabilitation.
We concur: NICHOLSON, Acting P. J., MORRISON, J.