Opinion
B225776
01-05-2012
THE PEOPLE, Plaintiff and Respondent, v. ROBERT MARSHEAN THOMAS, Defendant and Appellant.
Rita L. Swenor, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, James William Bilderback II and Alene M. Games, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Los Angeles County Super. Ct. No. GA076246
APPEAL from a judgment of the Superior Court of Los Angeles County. Dorothy L. Shubin, Judge. Affirmed.
Rita L. Swenor, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, James William Bilderback II and Alene M. Games, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Robert Marshean Thomas appeals from his convictions of second degree burglary (counts 1, 3 and 6), grand theft (counts 2 and 4) and second degree robbery (count 7), arising out of separate incidents. He contends: (1) there was insufficient evidence to support the convictions on counts 1 and 2; and (2) he was denied due process as the result of joinder of counts 1 and 2 with counts 3 and 4. We affirm.
FACTS
Viewed in accordance with the usual rules on appeal (People v. Virgil (2011) 51 Cal.4th 1212, 1263), the evidence established the following. A. The People's Case
1. Counts 1 and 2 (January 27, 2009)
At the Pasadena Rite Aid where Stanley Wolfard, Jr., worked on January 27, 2009, the double doors that lead into the stockroom were marked "Employees Only." Behind those doors were, among other things, the emergency exit doors leading to the alley and another set of double doors leading to a large stockroom; inside the bigger stockroom there was a locked door leading to a smaller stockroom where more expensive merchandise, like cigarette cartons, was stored. Some time before 9:00 o'clock that evening, the alarm for the emergency exit doors to the alley went off. After turning off the alarm, Wolfard noticed that the emergency exit doors were ajar and that one of the doors did not close properly. Wolfard walked through the store and did not see anything suspicious; but he did not check to see if anything was missing from the storage room. Before closing the store that night, the employees put pallets in front of the broken emergency exit door to secure it until it could be repaired the next day.
The next morning, Rite Aid employee Sara Gibb went into the smaller stockroom to get cigarettes to replenish the sales rack in her department. But there were no cigarettes on the shelves which usually contained between 100 and 200 cartons. Gibb noticed a box of trash bags on the counter near where the cigarettes should have been. In Gibb's experience, the stockroom never got low on cigarettes and she had never before seen a box of trash bags there. Gibb alerted manager Candy Groves and Gibb later gave a statement to a police officer.
South Pasadena Police Officer Myles Fowlis responded to the Rite Aid the next morning. He inspected the emergency exit doors and the lock to the cigarette stockroom but did not see any signs of forced entry. Fowlis also viewed video taken by the security cameras the night before and booked the tape into evidence. On the tape, Fowlis saw one of the suspects pick up a box of trash bags. In the stockroom from which the cigarettes were taken, Fowlis found a box of trash bags on a shelf. Fowlis lifted fingerprints from the box and booked it and the fingerprint cards into evidence. An expert compared the fingerprint cards to defendant's fingerprints, and concluded that the prints obtained from the box were defendant's fingerprints.
The security camera video was played for the jury and narrated by Wolfard. Portions of the video and still photographs taken from it were also shown to Gibb at the trial. In one of the photographs, one of the suspects is seen with a box of trash bags in his hand, the same trash bags Gibb found in the stockroom the next day; another photograph shows one of the men leaving the stockroom carrying a black trash bag over his shoulder filled with something.
2. Counts 3 and 4 (February 4, 2009)
At about 9:45 p.m. on February 4, 2009, Jonathan Moreno was doing paperwork in the back storage area of a Vons market on West 3rd Street in Los Angeles when the alarm attached to the emergency exit door leading to the loading dock sounded. Moreno went to the door that triggered the alarm and noticed it was partially open. Pushing it further open, Moreno saw a new dark blue Nissan with paper license plates from Felix Auto Sales backed into the loading dock and three Black males, none of whom were store employees. One of the men was about six feet two inches tall and wore a long white shirt, white and blue striped running shoes and a hat; the second man was about five feet nine inches tall and wore a striped polo shirt and a hat; the third man was "a really short guy," with short hair and wore a dark blue polo shirt. Moreno took a few steps out of the door and saw the tallest of the three men pushing a cart filled with baby formula, the second tallest was pushing a cart filled with cases of liquor. Moreno went back into the store and paged the supervisor on duty, Henry Espinoza, then went back out the door but the three men and the blue car were gone. Espinoza called the police but Moreno left before the police arrived. Moreno narrated a security camera video of the incident that was played for the jury. The video shows the two taller men Moreno saw that night enter the store and walk through it to the storage room where the liquor and baby formula was kept. One of the men uses a crowbar to break open the locked door to that storage room. The two men wheel carts of merchandise out of the storage room, towards the loading dock. The shortest man does not appear on the tape.
At defendant's preliminary hearing, Moreno was unable to identify defendant as one of the three men he saw that day, but the video was not shown to him at the preliminary hearing. After seeing the video during the trial, Moreno identified defendant as one of the two men he saw on the loading dock that night.
3. Count 7 (February 16, 2009)
At about 1:00 p.m. on February 16, 2009, store manager Dan Cronin was at his desk in the office of a Ralphs market in Pasadena looking at the live feed coming from surveillance cameras in the store when he noticed defendant take four champagne bottles off the shelf and conceal them in his jacket. Cronin alerted his assistant manager, Glenn Marlisa that a theft was occurring. Cronin stopped defendant at the store exit and asked if he forgot to pay for something. Defendant responded by opening his jacket to reveal the four bottles of champagne. After removing two bottles from his jacket, defendant left the store with the two other bottles still in his possession. Cronin grabbed defendant's jacket, but defendant slapped Cronin's hand away and ran to the parking lot; as defendant ran, a bottle of champagne fell onto the ground and rolled away, unbroken. Cronin, Marlisa and another store employee, Greg Hagen, chased defendant but defendant got into the driver's seat of a parked Chevrolet Impala and drove away. A videotape of the incident taken by security cameras at the market was played for the jury. Cronin explained that the live feed was a much clearer image than the digitized recording. Cronin noted that defendant's tennis shoes had black or blue and white stripes.
In February 2009, defendant's wife, Latonya Cleveland, rented a dark gray Chevrolet Impala from Hertz Rent-A-Car, which she and defendant had with them in Las Vegas on February 14. They returned from Las Vegas in the early morning hours of February 15. By February 16, the date of the Ralphs incident in Pasadena, the car had been returned to the rental company.
Hagen testified that when he saw a man being confronted by Cronin run out of the store, Hagen gave chase. Hagen memorized the license plate number of the car in which the man escaped, then wrote it down and gave the paper to Cronin.
Cronin described defendant to the responding police officers as a Black male, about six feet three inches tall and 220 pounds. Cronin could not recall weather defendant had any facial hair. In November 2009, Cronin identified defendant from a six-pack photo lineup shown to him by Detective Robert Jenkins and again at the preliminary hearing.
4. Count 6 (February 17, 2009)
When sales manager Kenny Linares arrived at the Ralphs market in Van Nuys at about 3:30 p.m. on February 17, 2009, she "walked the store," which included verifying that the alarm on the door to the loading dock was in perfect condition. Later that night, when Linares went into the small room where bottled liquor is kept, she discovered that all of the bottles were gone. When she was in the liquor stockroom about a week before, Linares had seen between 10 and 15 boxes of liquor. Linares later looked at the alarm on the door to the loading dock and saw that the wires had been cut. When the police arrived that night, Linares showed them the liquor stockroom. Along with another store manager, police officers watched a video taken by security cameras that night. The video was played for the jury and narrated by Linares. In it, a man can be seen cutting the alarm wires to the loading dock door. Two other men can be seen entering the liquor stockroom where the liquor is kept, removing boxes on a dolly and taking them out the door to the receiving area. One of the men can be seen pushing a trash can out of the way. Linares confirmed that none of the men was a store employee.
5. Defendant's Arrest
At about 7:55 p.m. on March 2, 2009, two Los Angeles County Sheriff's deputies were in a marked patrol car in El Monte, when they noticed a pickup truck with its engine running parked in the alley behind a supermarket. The truck, in which two Black males were sitting, had no front license plate - a Vehicle Code violation. As the police vehicle made a U-turn, the truck pulled out of the alley and headed south. The deputies followed and eventually defendant jumped out of the passenger side door of the moving truck, took a metal object from his waistband, threw it into the bushes, and ran. The deputies ultimately detained defendant and found a long, Husky flathead screwdriver in the bushes. During the booking process at the sheriff's station, defendant was photographed and his booking photo was introduced into evidence. Defendant verified at the station that he was 32 years old, 6 feet 2 inches tall and weighed 220 pounds. In the photograph, defendant had a beard and moustache. B. Defense Case
1. Counts 1 and 2 (January 27, 2009)
Defendant's mother, Donna Dawn Hyde, testified that defendant lived with her on January 27, 2009. That day, she was having a birthday party at her home. Defendant was at the party from the time it started at 8:30 p.m. until it ended at about 1:30 a.m.
2. Counts 3 and 4 (February 4, 2009)
Hyde testified that defendant was home with her all day on February 4, 2009. Hyde awoke at 6:00 a.m. that day. She left the house for about half an hour in the middle of the day to pick up lunch for herself and defendant. When she returned home, defendant was still there and they watched television together. Defendant was at home when Hyde went to sleep at 9:00 p.m.
When Officer Alex Vidana arrived at the Vons market in the early morning hours of February 5, he obtained the physical descriptions of the suspects from viewing the security camera video, not from store supervisor Espinoza. In his report, Vidana described one of the men as a 20- to 30-year-old Black male, between 5 feet 7 inches and 5 feet 10 inches tall, between 190 and 200 pounds, and wearing a blue cap, white shirt, black pants, and black and white shoes. He described the second man as a 20- to 25-year-old Black male, between 5 feet 8 inches and 5 feet 9 inches tall, between 170 and 180 pounds, and wearing a black cap, black and white striped shirt and white shoes.
3. Count 7 (February 16, 2009)
In his written report of the incident at Ralphs market on February 16, 2009, Officer Ivas Moran indicated that whether the suspect had a beard or mustache was "unknown." Moran did not recall asking Cronin whether the man he chased had any facial hair. In his March 2 booking photo, defendant had a beard and mustache.
4. Search of Defendant's Home
Defendant's mother recalled that sometime in April 2009, after defendant had been arrested, police officers executed a search warrant at her home. They took a pink and white plaid long-sleeved shirt belonging to defendant. A few days later, they returned the shirt.
PROCEDURAL HISTORY
In case No. GA076246 (case No. 246), defendant was charged with second degree burglary and grand theft of the Rite Aid on January 27, 2009. In case No. BA356523 (case No. 523), defendant was charged with second degree burglary and grand theft of the Vons market on February 4, 2009. Over defendant's objection, the trial court joined the cases and in an amended information filed in case No. 246, the January 27 burglary and grand theft became counts 1 and 2, respectively and the February 4 burglary and grand theft became counts 3 and 4, respectively; as to all counts, nine prior prison term enhancements (Pen. Code, § 667.5, subd. (b)) and one "Three Strikes" law prior (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)) were alleged. After the trial court granted defendant's motion to consolidate case No. BA366597 with case No. 246, a second amended information was filed which added two additional counts of second degree burglary (counts 5 and 6) and a charge of second degree robbery (count 7), arising out of incidents occurring on three separate days in February 2009. Count 5 was later dismissed by the People.
All future undesignated statutory references are to the Penal Code.
On May 5, 2010, a third amended information was filed adding a 10th Three Strikes prior. Jury trial commenced that day. On May 10, defendant informed the trial court that he would not be cooperative during the trial. As a result, the trial court ordered him removed from the courtroom and he was not present for the evidentiary portion of the trial. Jury deliberations began at 9:15 a.m. on May 14. At 3:40 p.m., the jury delivered its verdict, finding defendant guilty on all charges. In a bifurcated proceeding, the trial court found true the alleged priors and denied defendant's motion to strike the Three Strikes prior. Defendant was sentenced to a total of 19 years in prison. He filed a timely notice of appeal.
DISCUSSION
In his briefs, defendant addressed only some, not all of the counts. Accordingly, we discuss in this section only those counts to which there is argument.
A. Substantial Evidence Supports the Convictions on Counts 1 and 2
Defendant contends the convictions on counts 1 and 2 (January 27, 2009 burglary and grand theft of Rite Aid) are not supported by substantial evidence. He argues that he was not identified as one of the two men seen on the security camera video and the fingerprint evidence on the box of trash bags was not enough to prove that he was one of those two men. We disagree.
The standard of review on a claim on insufficiency of the evidence is well known. " 'A reviewing court faced with such a claim determines "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." [Citations.] We examine the record to determine "whether it shows evidence that is reasonable, credible and of solid value from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt." [Citation.] Further, "the appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." [Citation.] This standard applies whether direct or circumstantial evidence is involved. "Although it is the jury's duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendant's guilt beyond a reasonable doubt. [Citation.]" ' " (People v. Virgil, supra, 51 Cal.4th at p. 1263.)
Our Supreme Court has repeatedly held that fingerprint evidence alone is sufficient to identify the perpetrator of a crime. (See People v. Andrews (1989) 49 Cal.3d 200, 211; People v. Johnson (1988) 47 Cal.3d 576, 601, overruled on another point in People v. Reyes (1998) 19 Cal.4th 743, 752-754; People v. Gardner (1969) 71 Cal.2d 843, 849; People v. Riser (1956) 47 Cal.2d 566, 589, overruled on another point in People v. Morse (1964) 60 Cal.2d 631, 652, fn. 17.) In People v. Preciado (1991) 233 Cal.App.3d 1244, 1246 (Preciado), the court characterized fingerprint evidence as "the strongest evidence of identity." It is for the jury to draw an inference as to how the defendant's prints came to be on an item and to weigh the evidence. (People v. Massey (1961) 196 Cal.App.2d 230, 234; Preciado, at p. 1247.)
Here, the security camera video of the Rite Aid burglary and grand theft charged in counts 1 and 2 shows one of the perpetrators picking up a box of trash bags in the store and placing a box of trash bags on the shelf in the stockroom from which the cigarettes were stolen. It also shows one of the burglars exiting the stockroom with a black trash bag slung over his shoulder. Defendant's fingerprints were on the box of trash bags police found on a shelf in the stockroom from which the cigarettes were taken. This was sufficient circumstantial evidence to establish that defendant was one of the two burglars. The jury was entitled to disbelieve the testimony of defendant's mother that defendant was home with her during the relevant time period.
Defendant's reliance on Birt v. Superior Court (1973) 34 Cal.App.3d 934 is misplaced. In that case, the only evidence that tied the defendant to the burglary were his fingerprints on a cigarette lighter police recovered from a rental van that the perpetrators were using to transport the stolen goods. The appellate court found this evidence insufficient to withstand the defendant's section 995 motion to set aside the information. It reasoned that the lighter was not taken from the burgled house and the defendant's fingerprints on it showed only that she had been in the rental van at some unknown time and place; only by speculation could it be inferred that she was in the van at the time of the burglary. (Birt, at p. 937.) Birt is inapposite to this case because, unlike the lighter in Birt, here the box of trash bags was related to the crimes. It was reasonable to infer from defendant's fingerprint on the box that defendant was one of the two burglars. B. Joinder of Case No. 246 (Counts 1 and 2) With Case No. 523 (Counts 3 and 4)
Defendant contends he was denied due process by the joinder of case No. 246 with case No. 523. As we understand his argument it is that case No. 246 (counts 1 and 2) was weaker than case No. 523 (counts 3 and 4) and therefore a "weak" case was improperly joined with a "strong" case, and evidence in the two cases was not cross-admissible. We find no error.
Accusatory pleadings charging different offenses of the same class of crimes "connected together in their commission" may be consolidated. (§ 954; People v. McKinnon (2011) 52 Cal.4th 610, 630 (McKinnon); People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 281 (Gonzales); People v. Stanley (2006) 39 Cal.4th 913, 933-934; People v. Koontz (2002) 27 Cal.4th 1041, 1074.) Offenses that share common characteristics or attributes, such as the wrongful taking of another's property, fall within the same class. (Koontz, supra, at p. 1075.) To satisfy the "connected together in their commission" element of section 954, there must be "a common element of substantial importance" in the commission of the joined crimes, even though the crimes do not relate to the same transaction and are committed at different times and different places and against different victims. (Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1218.) In Alcala, for example, the following commonalities in five homicides supported joinder: the 19-month time span in which the homicides occurred; the similarity of the victims (young, single Caucasian women), their injuries (blunt force facial trauma), the motive (sexual assaults), and the condition in which their bodies were found (nude or partially nude). (Id. at p. 1219; see also People v. Mendoza (2000) 24 Cal.4th 130, 160 (Mendoza)[series of burglaries].)
"The party seeking severance has the burden to establish a substantial danger of prejudice requiring the charges to be separately tried. [Citation.] Refusal to sever may be an abuse of discretion where (1) evidence of 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. [Citation.] If evidence on each of the joined crimes would have been admissible in a separate trial of the other crimes, then such cross-admissibility ordinarily dispels any inference of prejudice." (Gonzales, supra, 52 Cal.4th at pp. 281-282.) But the absence of cross-admissibility is not alone sufficient to demonstrate prejudice. (McKinnon, supra, 52 Cal.4th at p. 630.)
The trial court's decision to join counts is reviewed by the appellate courts under the abuse of discretion standard. (Mendoza, supra, 24 Cal.4th at p. 161.)
Here, defendant's challenge to joinder focuses on the first (lack of cross-admissibility) and third (case No. 246 was weaker than case No. 523) factors. The flaw in defendant's argument is that case No. 246 was not weaker than case No. 523. Defendant was connected to the offenses charged in case No. 246 by the security video showing one of the burglars placing a box of trash bags on the shelf in the room from which the cigarette cartons were stolen and defendant's fingerprints on the box of trash bags found on a shelf in that room. Defendant was connected to the offense charged in case No. 523 by Moreno's eyewitness identification of defendant as one of the men he saw wheeling carts of merchandise out of the store. As we have already observed, fingerprint evidence is the strongest evidence of identity and is alone sufficient to establish identity. (Preciado, supra, 233 Cal.App.3d at p. 1246.) By contrast, " '[t]he vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification. [Fn. omitted.] Mr. Justice Frankfurter once said: "What is the worth of identification testimony even when uncontradicted? The identification of strangers is proverbially untrustworthy. . . ." [Citation.]' [Citation.]" (People v. Cardenas (1982) 31 Cal.3d 897, 908.) Since fingerprint evidence is as strong if not stronger evidence of identification than eyewitness evidence, defendant has not shown that case No. 246 was weaker than case No. 523. There remains only the lack of evidence cross-admissibility. But this factor is not by itself sufficient to demonstrate prejudice. (McKinnon, supra, 52 Cal.4th at p. 630.) We find no abuse of discretion in joining the two cases.
Defendant also complains that the manner in which the crimes were committed was not similar. To the extent the point is relevant to joinder, we find sufficient similarity.
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DISPOSITION
The judgment is affirmed.
RUBIN, ACTING P. J.
WE CONCUR:
FLIER, J. GRIMES, J.