Opinion
H032020
7-30-2008
THE PEOPLE, Plaintiff and Respondent, v. FERNANDO SORIANO TOVAR, Defendant and Appellant.
Not to be Published
Following a trial to the court, the trial court found Fernando Soriano Tovar, the defendant herein, guilty of second degree burglary. (Pen. Code, §§ 459, 460, subd. (b).) The court found true a prior conviction that subjects defendant to increased punishment under the "Three Strikes" law. (§§ 667, subds. (b)-(i), 1170.12.) It also found true enhancement allegations that defendant had served three prior prison terms within the meaning of section 667.5, subdivision (b). The court sentenced defendant to 44 months in prison. Defendant appeals on the grounds that there was insufficient evidence for his conviction and the court committed several errors.
Finding sufficient evidence to sustain defendants conviction and no error by the trial court, we will affirm the judgment.
FACTS
On April 1, 2006, Gilroy police responded to a report that a commercial burglary was in progress at a storage facility. The first responder to reach the scene, Sergeant Robert Lockepaddon, caught a fleeting glimpse of someone running inside the storage facility through a rear door. Lockepaddon shone his flashlight inside and saw the lower portion of the dark denim pants of the suspected burglar as the burglar ran away from him in the direction of the front door, but did not see any other part of the suspects body or the suspects face. Not knowing how many people were involved in the suspected burglary, Lockepaddon retreated and ordered reinforcements to establish a perimeter.
The second officer on the scene, Martin Beltran, saw a Latino male dash across the street in front of his patrol car. The runner was coming from the storage facility. Because Officer Beltran had been directed to help establish the perimeter and lacked enough information to regard the runner as a confirmed suspect, he did not pursue the runner. Two witnesses who had been watching events from across the street from the storage facility then told Officer Beltran that they had seen the same man in flight, evidently, we may discern from the record, from the burglary scene. Officer Beltran conveyed a description of the man and other officers apprehended him. Officer Beltran identified defendant at the arrest scene and in court as the man he had seen running from the direction of the storage facility.
After his arrest defendant was read his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436) and initially chose to remain silent. But later, at the police station, voluntarily and without prompting, he blurted out, "I was there. Okay, I was there." On further questioning, and after Officer Beltran again read him his Miranda rights, he denied committing a burglary, but stated he had gone to the storage facility to collect some lamps the owner said he would leave for him outside. Not finding the lamps, he went in through the rear door, which was open, in search of assistance.
The physical evidence at the storage facility, however, showed that someone had committed a burglary. At the rear, a metal security door had been pried open and an inner door broken through. Valuable merchandise had been placed on an outdoor patio at the rear that opened onto an alley. The front of the store also showed signs of burglary. A hole large enough to crawl through had been broken through the glass of the front door. Most of the glass lay on the outside, suggesting that force had been applied from within. The presence of a broken vase, most of whose pieces also lay outside, suggested that the vase had been used to break the front doors window.
Defendants pants and shoes contained fragments of glass and his pants were wet around the ankles.
The storage facility owner testified that the valuable items discovered out on the patio were supposed to be inside the locked facility.
Defendants breath smelled of alcohol but he displayed no signs of intoxication to Officer Beltran, who was experienced at detecting such signs. The parties stipulated, however, that a test showed defendants blood-alcohol concentration to be 0.19 grams of alcohol per 100 milliliters of blood (see Veh. Code, § 23152, subd. (b)) shortly after his arrest. An expert witness for defendant on the effects of alcohol testified that at that level of alcohol in the blood the ability of a person to formulate and carry out plans would be impaired, and the person would misperceive and misjudge things.
The trial court found that defendant was the person who broke and entered the storage facility. With regard to burglary, the court found that the presence on the patio of valuable property that was ordinarily stored inside the facility showed that defendant intended to commit theft when breaking in. The court commented that "it apparently took two breakings to get inside; there is property moved around to a point to effect a theft; and he [e]ffects a further breakout to get away." Noting the testimony of defendants expert witness, the court stated that "his testimony was not that every person who is at a .19 is incapable of formulating a plan or formulating an intent." The court acknowledged the experts testimony that anyone with a blood-alcohol concentration of 0.19 would be, in the courts words, "pretty fouled up," but added that "I have no evidence at all about how alcohol affected the defendant that night . . . . I have all the circumstantial facts, and I have the experts testimony about alcohol in general."
DISCUSSION
I. Sufficiency of the Evidence of Burglary
Defendant argues that the evidence of his guilt of burglary is insufficient to support his conviction. We may assume that he relies on the due process clause of the Fifth and Fourteenth Amendments to the United States Constitution and its equivalent in article I, section 15, of the California Constitution.
The standard of review of defendants first two claims is well-settled. Under the federal Constitutions due process clause, there is sufficient evidence to support defendants conviction if, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 319.) The same standard applies under article I, section 15, of the California Constitution. (People v. Berryman (1993) 6 Cal.4th 1048, 1083, overruled on another ground in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) This test "does not require a court to `ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. [Citation.] Instead, the relevant question is 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." (Jackson v. Virginia, supra, 443 U.S. at pp. 318-319.) "[T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578.) "The court does not, however, limit its review to the evidence favorable to the respondent" (id. at p. 577), and thus we must take into account the testimony of defendants expert witness. Our task, in sum, "`is twofold. First, we must resolve the issue in the light of the whole record—i.e., the entire picture of the defendant put before the jury—and may not limit our appraisal to isolated bits of evidence selected by the respondent. Second, we must judge whether the evidence of each of the essential elements . . . is substantial; it is not enough for the respondent simply to point to `some evidence supporting the finding, for "Not every surface conflict of evidence remains substantial in the light of other facts."" (Ibid.)
Defendant does not dispute the trial courts finding that he broke into the storage facility, but contends there was insufficient evidence of burglarious intent, i.e., that he intended to commit a theft when he broke in. He maintains that there was no evidence that he, rather than someone else, moved valuable items from the locked storage facility to the open patio, and that the expert witnesss testimony established that his state of intoxication would preclude him from engaging in such goal-directed conduct.
Burglary requires not only a breaking and entering but also the mental state, as relevant here, of the intent to commit a "grand or petit larceny." (§ 459.) The element of intent is an essential element, within the meaning of Jackson v. Virginia, supra, 443 U.S. at page 319, of the crime of burglary.
Because burglary involves an element of goal-directed and purposeful behavior, it is a specific intent crime, meaning by definition that voluntary intoxication is a defense if the evidence of such intoxication satisfies the trier of fact that the actor was incapable of formulating a relatively sophisticated plan leading to the accomplishment of the burglary. "General intent" and "specific intent" are shorthand devices for contrasting offenses that, as a matter of policy, may be punished despite the actors voluntary intoxication (general intent) with offenses that, also as a matter of policy, may not be punished in light of such intoxication if it negates the offenses mental element (specific intent). (People v. Hood (1969) 1 Cal.3d 444, 455-458.) Evidence of voluntary intoxication may be introduced to negate an element of offenses requiring relatively complex cogitation—a mental function integral to many crimes that contain a "definition [that] refers to [the] defendants intent to do some further act or achieve some additional consequence . . ." (see id. at p. 457)—because alcohol can interfere with such intent (id. at p. 458).
In this case, substantial evidence supports the trial courts finding that defendant engaged in goal-directed and purposeful behavior notwithstanding the high level of alcohol in his blood. There was substantial evidence that defendant methodically broke through two separate doors, evidence that he was successfully engaged in the reasoning process necessary to select valuable property and move it from its secure location to an insecure location for later removal, with, as is required to establish a theft, the intent to permanently deprive the propertys lawful owner of his property (In re Jesus O. (2007) 40 Cal.4th 859, 867). When the police arrived, there was substantial evidence that defendant had the presence of mind to engage in further goal-directed behavior, i.e., to retreat to the front of the storage facility, locate a vase, use the vase to break the front door, crawl through the aperture he had created to escape, and flee to a place of anticipated safety. Defendants claim is without merit.
II. Admitting Evidence of Defendants Statements to Police
Defendant argues that because he was highly intoxicated, he was incapable of properly waiving his Miranda rights after Officer Beltran read them to him, and thus his statements to police should have been excluded as not made voluntarily.
At the time of trial, defendant objected to the trial courts receipt of any such statements. The court overruled his objection.
"`"In reviewing the trial courts determinations of voluntariness, we apply an independent standard of review, doing so `in light of the record in its entirety, including "all the surrounding circumstances—both the characteristics of the accused and the details of the [encounter]."" [Citation.] But "`we accept the trial courts factual findings, based on its resolution of factual disputes, its choices among conflicting inferences, and its evaluations of witness credibility, provided that these findings are supported by substantial evidence. [Citation.]"" (People v. Richardson (2008) 43 Cal.4th 959, 992-993.)
"When a defendant challenges the admission of his or her statements on the ground they were involuntarily made, the prosecution must prove by a preponderance of the evidence the statements were, in fact, voluntary. [Citation.] A statement is involuntary if it is `not "`the product of a rational intellect and a free will."" (People v. Rundle (2008) 43 Cal.4th 76, 114.)
In circumstances similar to those of this case, People v. Bradford (1997) 14 Cal.4th 1005, is instructive. "If the defendant receives Miranda warnings, and thereafter requests counsel, `"the interrogation must cease until an attorney is present." [Citations.] Interrogation consists of words or actions on the part of the police that they should know are `reasonably likely to elicit an incriminating response. [Citation.] However, if the defendant thereafter initiates a statement to police, `nothing in the Fifth and Fourteenth Amendments . . . prohibit[s] the police from merely listening to his voluntary, volunteered statements and using them against him at the trial. [Citation.] Moreover, if the defendants statement is not only voluntary, but constitutes a knowing and intelligent waiver of his right to see counsel, the interrogation may resume. [Citation.] Such a knowing and intelligent waiver is `a matter which depends in each case "upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused." [Citation.] The state must demonstrate the validity of the defendants waiver by a preponderance of the evidence." (Id. at pp. 1033-1034.)
To prevail in his claim here, defendant must show that "his consumption of alcohol so impaired his reasoning that he was incapable of freely and rationally choosing to waive his rights and speak with the officers." (People v. Frye (1998) 18 Cal.4th 894, 988.) "The voluntary consumption of alcohol, standing alone, does not establish an impaired capacity." (Ibid. )
Evaluating the totality of the circumstances independently after accepting the trial courts explicit and implicit findings regarding the evidence before it, we find no error. As noted, Officer Beltran testified that defendant, though smelling of alcohol, did not appear intoxicated. Specifically, he did not appear disoriented or confused, his speech was not slurred, and he responded to the officers questions lucidly, including the question whether he understood the Miranda rights that had just been read to him. Defendant did not ask for a Spanish-language interpreter or indicate that he had any trouble understanding the officer, who was speaking English. The court was correct to deny defendants motion to exclude evidence of defendants statements.
III. Motion to Strike the Three Strikes Law Allegation
Defendant claims that the trial court abused its discretion in denying his motion to dismiss his strike prior under People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
The trial court explained to defendant that it was denying the motion because, among other things, "you have been convicted of five felonies [and] suffered multiple state level imprisonments with poor performance on probation and parole." The court also commented that defendant acted with the intent to commit burglary. Except for the issue whether he possessed the intent required for burglary, which he continues to dispute here as he does elsewhere in his appeal, defendant does not challenge the accuracy of the courts findings on appeal. He also argues that even if he did intend to commit the crime, his age warranted granting the motion (the court agreed with defendant that his age militated in his favor), as did his intoxication, his history of alcohol abuse, and the sufficiency of the punishment that would have been meted out had the court dismissed the strike prior.
The standard of review for a claim of this type is, congruent with defendants claim, abuse of discretion. (In re Large (2007) 41 Cal.4th 538, 552.) A "court in exercising its discretion under the Three Strikes law `must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the schemes spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (Ibid.)
A trial courts discretion, however, is limited in the context of a motion to dismiss one or more strike priors. "`[T]he Three Strikes law does not offer a discretionary sentencing choice, as do other sentencing laws, but establishes a sentencing requirement to be applied in every case where the defendant has at least one qualifying strike, unless the sentencing court "conclud[es] that an exception to the scheme should be made because, for articulable reasons which can withstand scrutiny for abuse, this defendant should be treated as though he actually fell outside the Three Strikes scheme."" (People v. Carmony (2004) 33 Cal.4th 367, 377.)
We cannot say that the trial court abused its discretion in finding that no exception to the Three Strikes scheme should be made in defendants case. The courts reasons speak for themselves, are reasonable, and are entitled to deference. We deny defendants claim.
IV. Admitting Evidence of Prior Burglary
Defendant claims that the trial court erred in admitting evidence of a prior burglary he committed. We disagree.
The prosecutor sought, under Evidence Code sections 452.5 and 1101, subdivision (b), to admit a certified copy of a conviction of a prior commercial burglary as relevant to defendants intent to commit a commercial burglary in this instance. The court admitted the evidence for that limited purpose.
Defendant concedes that the evidence could be admitted to show his intent to commit the charged burglary of the storage facility, but argues that a certified record may not be used for this purpose; rather, the underlying facts must be admitted into evidence and those facts must be established to the satisfaction of the trier of fact by a preponderance of the evidence.
Evidence Code section 452.5 provides that a certified official record of conviction is admissible "to prove the commission . . . of a criminal offense . . . ." Section 452.5 permits the admission of a certified record of conviction to prove "`not only the fact of a conviction, but the commission of the underlying offense." (People v. Wesson (2006) 138 Cal.App.4th 959, 968; see id. at pp. 964-965, 969.) Defendants claim is without merit.
DISPOSITION
The judgment is affirmed.
WE CONCUR:
Bamattre-Manoukian, Acting P. J.
McAdams, J. --------------- Notes: Further statutory references are to the Penal Code unless otherwise indicated.