Opinion
A149253
12-21-2017
THE PEOPLE, Plaintiff and Respondent, v. CHARLES STEVENSON, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (City & County of San Francisco Super. Ct. No. 223620)
Defendant Charles Stevenson appeals a judgment convicting him of first degree burglary and receiving stolen property and sentencing him to 16 years 8 months in prison. He contends the court erred in denying his motion to suppress evidence seized in a warrantless search of his backpack and in admitting into evidence recordings of telephone calls he made from jail. He contends further that there is no substantial evidence to support the jury's verdict. We find no error and shall affirm the judgment.
Factual and Procedural Background
On April 20, 2015, defendant was charged by amended information with two counts of first degree burglary (Pen. Code, §§ 459, 460) and one count of receiving stolen property (§ 496, subd. (a).) One of the burglary counts was alleged to be a violent felony within the meaning of section 667.5, subdivision (c)(21) and all of the offenses were alleged to have been committed while on bail and on own recognizance pursuant to section 12022.1, subdivision (b). It was also alleged that defendant had five prior serious felony convictions within the meaning of sections 667, subdivisions (a)(1), (d) and (e), and 1170.12, subdivisions (b) and (c), and had served five separate prison terms within the meaning of 667.5, subdivision (b).
All statutory references are to the Penal Code unless otherwise noted.
The following evidence was presented at trial:
The first victim testified about the burglary of her home on 36th Avenue on August 27, 2014. She testified that she and a roommate shared a two-bedroom apartment on the lower level of the building. Their landlords lived on the upper level. On August 27, at about 10:50 a.m., the victim was home alone. She was listening to loud music through her headphones while dressing when she saw the door to her room open. She immediately slammed it shut. Believing it was her roommate, she called out to him, but there was no response. She then tried calling her roommate and her landlord on the telephone to see if they had tried to enter her room. Neither had. When the roommate came home, he discovered that his laptop, an iPad, a new Marc Jacobs watch, two gold necklaces, and $50 in quarters were missing from his room.
After being contacted by the victim, the landlord went downstairs and saw that the screen had been removed from the living room window. Footage from the landlord's security camera showed the pathway to the downstairs unit. The video shows the same man twice go down the pathway and return to the street. The second time, he returned carrying a bag that the roommate identified as his. Because her surveillance camera tapes over earlier footage, the landlord took a video of the surveillance camera video with her cell phone from a television monitor. The cell phone video was shown to the jury.
A second victim testified to the burglary of his home on Steiner Street on September 19, 2014. The victim lived on the top floor of an apartment in the rear of the building. On September 19, he came home from work and found his apartment door open. His laptop was missing, as were some Oakley eyeglasses with two sets of lenses and some foreign currency.
Defendant was arrested that same day on September 19, 2014. At the time of his arrest, he had a backpack with him that was searched, inventoried and booked as personal property at the jail.
While in jail, defendant made a number of phone calls that were recorded. Excerpts from four calls, made between October 2 and October 8, 2014, were played for the jury. Three of the calls were made to a woman who appeared to be defendant's girlfriend. In the first call, defendant indicated that he had given something to "Chris" who had taken the object to a jeweler. He asked his girlfriend to get the object from Chris and "take it to Zamora or his lawyer." In the second call, defendant asked if she had obtained the object from Chris. When she said no, defendant stated, "You need to really tell him that — listen, listen for real. You need to tell him as part of me getting the fuck up out of here. They got me on camera, they got me on camera, I need to return that fucking shit for real. . . . Seriously, and I'll get out or I'm gone that's exactly what you need to tell him straight up. If I don't return that shit I'm gone. They got me on camera." In the third call to his girlfriend, he again emphasized that he needed her to get the object from Chris. He stated, "Quit fucking playing with me and just do what the fuck I say . . . . You go tell that nigger that the only way I'm going to beat this motherfucking case is that I get that evidence that he has, straight up." The fourth call played for the jury was made to the law offices of Marla Zamora. In the call, defendant explained to Ms. Zamora's assistant that he had filled out a property release form and needed Ms. Zamora to come to the jail and pick up his backpack. He said, "please tell her it's like an emergency, something's in my property that she needs to get, that she needs to get, only her."
In November, a deputy district attorney requested recordings of defendant's calls from jail. After listening to them, he informed the police detective that there might be property from the 36th Avenue burglary in defendant's backpack. On December 12, 2014, the deputy district attorney and the police detective went to the jail and re-examined the contents of defendant's backpack. Inside the backpack they found a pair of Oakley glasses and an empty watch box. Inside the watch box they found a receipt with a name on it. Later, the detective identified the name on the receipt as that of the victim of the Steiner Street burglary, who in turn identified the glasses, watch box, and receipt as belonging to him. No property from the 36th Avenue burglary was found in the backpack.
The defense presented the testimony of a forensic photographer and a psychologist who was an expert in human perception. The forensic photographer examined the surveillance video from the 36th Avenue burglary and concluded it was not very useful for identification. He testified that although there were similarities between defendant and the person in the video, one could not make a conclusive match. The psychologist testified about visual hindsight bias, among other things. He explained that a person looking at the video would have an expectation of who they were looking for that would influence perception.
Defendant was found guilty of the 36th Avenue burglary and receiving stolen property but was acquitted of the Steiner Street burglary. Defendant's priors were found true by the jury but the allegation that defendant had committed the crimes while on bail for another offense was found not true.
Prior to sentencing, the court struck defendant's prior convictions in the interests of justice pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. Defendant was sentenced to a total of 16 years, and eight months in state prison. The court imposed the upper term of six years for the burglary, eight months for receiving stolen property, and an additional 10 years pursuant to section 667, subdivision (a)(1).
Defendant timely filed a notice of appeal.
Discussion
1. The court did not err in denying defendant's motion to suppress.
In the trial court, defendant moved pursuant to section 1538.5 to suppress evidence seized during the warrantless search of his backpack as unreasonable under the Fourth Amendment. Before ruling on the motion, the court summarized the circumstances of the seizure as follows:
Defendant was arrested on September 19 for the 36th Avenue burglary. At the time of his arrest, he was carrying a backpack that the arresting officers seized. Officers conducted a booking search of the backpack and prepared an inventory of its contents before storing it. The inventory lists, among other things, a pair of eye glasses, a "miscellaneous box" and a "property receipt." On November 13, officers and the assistant district attorney retrieved the backpack from storage and re-examined it without a search warrant. At that time the police were looking for additional evidence related to the 36th Avenue burglary. They were unaware of any involvement by defendant in the Steiner Street burglary. The eyeglasses, empty watch box and receipt found in the backpack were later associated with the victim of the Steiner Street burglary.
The trial court held that there was no unlawful search because defendant had no reasonable expectation of privacy in the inventoried items after defendant's backpack had been examined and its contents listed in the inventory. On appeal, we defer to the trial court's factual findings supported by substantial evidence, but exercise our independent judgment to determine whether, on the facts found, the search or seizure was reasonable under the Fourth Amendment. (People v. Redd (2010) 48 Cal.4th 691, 719.)
Defendant is correct that the permissible scope of an inventory search is limited and that the United State Supreme Court has prohibited the use of an inventory search as "a ruse for a general rummaging in order to discover incriminating evidence." (Florida v. Wells (1990) 495 U.S. 1, 4; see also United States v. Feldman (9th Cir. 1986) 788 F.2d 544, 553 ["An inventory search will not be sustained where the court believed that the officers were searching for incriminating evidence of other offenses"].) The relevant evidence in this case (the glasses, box and receipt), however, was properly discovered and inventoried at the time of defendant's arrest. Once discovered, the arresting officers could lawfully re-examine the inventoried items and were not restricted in their ability to use the information gleaned from one of those items, the receipt, to locate the individual whose name was on the receipt. (People v. Superior Court (Gunn) (1980) 112 Cal.App.3d 970, 976-977 ["California case law supports the view that information obtained from the examination of the prisoner's effects may be used for other purposes than proof of the offense for which the prisoner had been arrested."]; People v. Gilliam (1974) 41 Cal.App.3d 181 [finding "nothing unreasonable in police efforts[, following a booking search,] to determine by inspection and investigation the true ownership" of a credit card found in defendant's possession that connected the defendant to a robbery other than the one for which he had been arrested.].)
Defendant did not retain a reasonable expectation of privacy in the contents of his backpack once those items were logged as personal property. The warrantless examination of those items was lawful so long as the officers did not discover them in an additional search of the backpack after the booking process had been completed. (People v. Davis (2000) 84 Cal.App.4th 390, 396 (Davis).)
In Davis, the court found that there was no Fourth Amendment violation where three months after the defendant's arrest, officers retrieved two rings from his personal property that had been inventoried and stored at the time of his arrest. (Davis, supra, 84 Cal.App.4th at pp. 394-396.) The court explained, "there was no search of the property held in police storage. [A detective] merely opened the plastic bag to retrieve the rings which he already knew to be contained therein. In this sense, the present matter is analogous to the seizure of items observed in plain view. Whether he could see them or not, [the detective] knew the rings were in the plastic bag when he opened it and retrieved them." (Id. at p. 396; see also People v. Superior Court (Gunn), supra, 112 Cal.App.3d 970, 977 ["What the homicide investigators did in this case cannot be classified as either a search or a seizure within the meaning of the Fourth Amendment. The ring was lawfully in the custody of the police. Its storage in the plastic property bag was purely for convenience and safekeeping. No expectation of privacy was involved. The ring was no more in a place of privacy than if the booking officer had left it on the counter of the booking desk."].)
The Davis court distinguished People v. Smith (1980) 103 Cal.App.3d 840, 842-846 (Smith) in which the court held that a belated, warrantless search of a wallet inside a purse seized from an arrestee at the time of booking violated the Fourth Amendment. The Davis court explained, "In Smith, the defendant's mother had been arrested and the following day officers searched her belongings in police storage in an effort to ascertain defendant's whereabouts. The court concluded, '[S]ince the officer's purpose in inspecting Harris'[s] purse and wallet a second time was to look for at least one item not previously noted (the current address), and items whose evidentiary value had not been previously appreciated (the address and keys), the inspection involved an intrusion into whatever vestige of privacy remained to Harris and thus did constitute a search.' [Citation.] In People v. Laiwa (1983) 34 Cal.3d 711, 727, the state high court cited Smith for the proposition that 'the legitimate purposes of the booking search exception do not justify a belated search conducted after the booking process has ended. . . .' [¶] Defendant's reliance on Smith and the Supreme Court's passing reference to Smith in Laiwa is misplaced. Smith does not stand for the broad proposition that jail inmates retain a Fourth Amendment privacy interest in property seized upon arrest and stored in the jail property room. On the contrary, the Smith court explained the Fourth Amendment violation there was based on the fact the officers searched through a purse and wallet in the defendant's mother's property for items which had not previously been noted or whose evidentiary value had not previously been appreciated. [Citation.] The officers looked inside the mother's purse and wallet hoping to find two items, the defendant's address and keys to a stolen vehicle. They found both inside a wallet in the purse. [Citation.] [¶] The key distinction between Smith and the present matter is that when [a detective] opened the plastic bag he was already aware the rings were inside by virtue of the inventory prepared at the time of booking. In other words, [the detective] did not conduct a search but merely retrieved items, lawfully obtained, that law enforcement knew were in its possession." (Davis, supra, 84 Cal.App.4th at pp. 394-395.)
The Davis court noted that the distinction between an unlawful search and the examination of items previously properly inventoried is consistent with federal authorities. The court explained, "In U.S. v. Thompson (5th Cir.1988) 837 F.2d 673, the court upheld a warrantless search of the defendant's property to secure a key to a locker where explosives had been stored. (Id. at p. 674.) The court distinguished such search from that in Brett v. United States (5th Cir.1969) 412 F.2d 401, where the authorities conducted a search of the defendant's property three days after his arrest and discovered contraband. The Thompson court explained, 'In Brett the officer conducted an exploratory search of the prisoner's effects three days after he had been arrested and found cellophane papers with traces of heroin in the watch pocket of the prisoner's trousers. The second inspection was undertaken to look for something that had not been discovered at the time of the inventory. In Thompson's case, the keys were not concealed and no further exploration was required.' " (Davis, supra, 84 Cal.App.4th at pp. 395-396.)
The officers in this case did not conduct a second search of defendant's backpack. The officers merely examined items they had previously inventoried, which constituted no violation of defendant's Fourth Amendment rights.
2. The recorded telephone calls were properly admitted.
Prior to trial, defendant moved to exclude the recordings of the three telephone calls to his girlfriend on the ground that they were irrelevant and inadmissible under Evidence Code section 352, and the telephone call to Ms. Zamora on the ground that the call was protected by the attorney client privilege and, alternatively, that the statements were irrelevant and inadmissible under Evidence Code section 352.
Evidence Code section 352 requires the exclusion of evidence "if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." A trial court has broad discretion to admit or exclude evidence under Evidence Code section 352. (People v. Pollock (2004) 32 Cal.4th 1153, 1171.)
The trial court found that defendant's calls to his girlfriend, including the call in which he admitted being caught on camera, were relevant and admissible because they showed "a consciousness of guilt." The court rejected defendant's argument that the evidence was misleading and prejudicial because it was unclear to which video recording defendant was referring when he said "they got me on camera." Defendant argued, as he does on appeal, that there is no indication defendant saw the video of the 36th Avenue burglary before the preliminary hearing, which was after the call was made, and that when he referred to being caught on camera he was likely referring to video evidence in a different case also pending against him at the time. In the trial court, defendant explained, "Your honor is not privy to the robbery case, but the robbery case is a case where they're saying he's on camera . . . As far as we know, that's what he could be talking about." The trial court noted, however, that it was possible defendant was shown the video by his attorney prior to the preliminary hearing and, more significantly, that the video recording itself supports "a fair inference" that whoever walked past the camera saw it, "not only because the camera is obvious and is there, but because as we saw, the person in the video seems to be covering their face from it." The court concluded that there was sufficient evidence to support the inference that defendant's statement refers to being caught on camera during the 36th Avenue burglary and that if defendant wanted to challenge that inference he would "have to testify . . . or . . . find some alternative theory."
There was no abuse of discretion in the court's ruling. Defendant's alternative explanation for the statement is largely speculative. The inference posited by the prosecution was reasonable and supported by substantial evidence. The admission of the evidence did not result in undue prejudice to defendant.
Defendant also argues that the discussion about getting "evidence" back from Chris had no relevance to a charged crime because the monetary amounts and items discussed during the call bore no relationship to the property taken in either of the charged burglaries. However, the calls were admissible to establish the context of the admission that it was defendant who was shown on the video of the burglary. Moreover, any potential error in the admission of these additional statements would be harmless given the other substantial evidence of defendant's guilt. (People v. Watson (1956) 46 Cal.2d 818, 836.) --------
As to the call made to Ms. Zamora's office, "Under [Evidence Code] section 954, a client holds a privilege to prevent the disclosure of confidential communications between client and lawyer." (People v. Gionis (1995) 9 Cal.4th 1196, 1207.) " '[C]onfidential communication between client and lawyer' means information transmitted between a client and his or her lawyer in the course of that relationship and in confidence . . . and includes a legal opinion formed and the advice given by the lawyer in the course of that relationship." (Evid. Code, § 952.) "Communication by a client retains its confidential nature, though made to an agent of the attorney, if the disclosure to that agent is reasonably necessary for the transmission of the information to the attorney." (National Steel Products Co. v. Superior Court (1985) 164 Cal.App.3d 476, 483.) A "client" is "a person who . . . consults a lawyer for the purpose of retaining the lawyer or securing legal service or advice from him in his professional capacity." (Evid. Code, § 951.) "[T]he attorney-client privilege does not require that the attorney actually be retained. '[W]here a person seeks the assistance of an attorney with a view to employing him professionally, any information acquired by the attorney is privileged whether or not actual employment results.' " (People v. Gionis, supra, 9 Cal.4th at p. 1208.) " '[T]he party claiming the privilege carries the burden of showing that the evidence which it seeks to suppress is within the terms of the statute.' " (Ibid.)
Here, the trial court found that there was no evidence of an attorney-client relationship between defendant, who was represented by the public defender's office at the time, and Ms. Zamora. Although previously a public defender, Ms. Zamora was then in private practice. The court explained, "This court looks at the relationship from a perspective of contract law. It doesn't appear that there was any contract, whether written or oral, between the client and the attorney at [that] point. All we have is that Mr. Stevenson is calling an attorney who he certainly knew from other cases. . . . [T]here's nothing in the transcript that suggests a contractual relationship or a current attorney-client privilege." The court found further that defendant was not calling to ask for legal services or advice. The court explained, "Mr. Stevenson is calling Ms. Zamora, not in her capacity as an attorney so much as in her ability to just go and retrieve some property. He's not asking for her legal advice . . . . He's not asking her about anything relating to the case. He's simply asking her to go retrieve some property."
Initially we note that contrary to defendant's suggestion, it was his burden to establish the existence of an attorney-client relationship; a burden which he has made no attempt to meet. "The party claiming the privilege has the burden of establishing the preliminary facts necessary to support its exercise, i.e., a communication made in the course of an attorney-client relationship. [Citations.] Once that party establishes facts necessary to support a prima facie claim of privilege, the communication is presumed to have been made in confidence and the opponent of the claim of privilege has the burden of proof to establish the communication was not confidential or that the privilege does not for other reasons apply." (Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 733.)
The transcript of the telephone call supports the trial court's conclusion that defendant was not seeking legal services or advice, much less that he was doing so in the course of an attorney-client relationship. (People v. Gionis, supra, 9 Cal.4th at p. 1208 ["On appeal, the scope of judicial review is limited. 'When the facts, or reasonable inferences from the facts, shown in support of or in opposition to the claim of privilege are in conflict, the determination of whether the evidence supports one conclusion or the other is for the trial court, and a reviewing court may not disturb such finding if there is substantial evidence to support it.' "].) This conclusion is reinforced by defendant's statement in the earlier telephone call in which he directs his girlfriend to bring something "to Zamora or my lawyer."
Finally, the phone call to Ms. Zamora's office was clearly relevant to the charge of receiving stolen property because it supports an inference that defendant knew the items in his possession were stolen. Accordingly, the court did not abuse its discretion in refusing to exclude the evidence of the phone call under Evidence Code section 352.
3. The conviction for receiving stolen property must be reduced to a misdemeanor.
Defendant was charged with a felony violation of section 496, subdivision (a), based on his possession of the "sunglasses and watch box" belonging to the victim of the Steiner Street burglary. At the time of his trial, section 496, subdivision (a) provided that the offense of receiving stolen property is a misdemeanor "if the value of the property does not exceed nine hundred fifty dollars ($950)." At trial, the victim testified that the glasses frame was worth $500 and the two sets of lenses were worth $200 each. Although the jury found defendant guilty as charged, the jury was not instructed regarding the $950 threshold and was not asked to determine the value of the property taken. On appeal, defendant contends that his conviction must be reduced to a misdemeanor because there is no substantial evidence the value of the stolen property was more than $950.
The Attorney General does not dispute that the glasses and box found in defendant's possession were valued at under $950, but suggests that the value of the other items missing from the Steiner Street residence, including Thai currency worth a couple hundred dollars, a laptop, a new watch, and a bag with gym clothes and shoes, should be included in the total value. The Attorney General argues that "[a] rational juror could infer that because [defendant] was in possession of some of the missing property, he at one time had possessed all or most of the missing property from [the] apartment." Because the jury was not properly instructed, the Attorney General contends the conviction on this count should be reversed and the matter remanded for retrial under proper instructions.
As defendant notes, he was not charged with the unlawful receipt of the additional items identified by the Attorney General and those items were not found in his possession. Moreover, the jury found him not guilty of the Steiner Street burglary, thereby eliminating the necessary inference that he must have possessed the items at some point in time. To the extent the Attorney General suggests that allegations could be added to the information and additional evidence presented establishing that defendant did knowingly possess stolen items worth more than $950, retrial would constitute impermissible double jeopardy. (§ 1023; People v. Seel (2004) 34 Cal.4th 535.) Accordingly defendant's conviction for receiving stolen property must be reduced to a misdemeanor.
4. Substantial evidence supports defendant's conviction for the 36th Avenue burglary.
Defendant's conviction was based primarily on the surveillance video taken at the 36th Avenue residence. As noted above, the video shows the burglar leaving the residence with a bag stolen from the residence. In addition to viewing defendant at trial, the jury was given defendant's booking photos to compare to the man in the surveillance video. The Attorney General argues that defendant "had a distinctive hairline that was shown in the surveillance video" so that the jury could reasonably conclude from the evidence that defendant was in fact the burglar.
Defendant contends the surveillance video "was not clear enough to permit an accurate identification as a matter of law." He argues, "The prosecution argued that the jury could conclude that it was [defendant] based on the similarity of [defendant's] hairline to that of the person in the video. However, the prosecution presented no evidence that receding hairline is an uncommon characteristic of such distinctiveness so as to constitute the basis for a valid identification. Certainly, common sense and observation of the human population strongly suggests that such a hairline is not uncommon. There was no evidence tying [defendant] to the crime such that the video might have been useful corroboration. The video might be useful to eliminate a suspect or to narrow down a suspect based on people known to be present in the location, but it could not stand alone to provide sufficient evidence to support [defendant's] conviction. The video was akin to providing the jury with a single person showup. The jury was not given a series of similar people to review and exclude, but were given only [defendant] to compare."
Although the Attorney General acknowledges that "the copy of the surveillance video was not of high quality," having viewed the video, we find it sufficient for purposes of making an identification. It was for the jury to weigh the persuasiveness of what the video showed, and a rational juror, observing both defendant and the video, could reasonably conclude that defendant was the man shown in the video. Moreover, the evidence of defendant's admission that he had been caught on camera further supports the jury's finding. Accordingly, substantial evidence supports the verdict.
Disposition
The judgment on count 3 for receiving stolen property is reduced to a misdemeanor and the matter remanded for resentencing accordingly. In all other respects the judgment is affirmed.
/s/_________
Pollak, J. We concur: /s/_________
McGuiness, P. J. /s/_________
Siggins, J.