Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Superior Court County of Los Angeles No. BA293695 Sam Ohta, Judge.
Cynthia L. Barnes, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels, Supervising Deputy Attorney General, Jaime L. Fuster, Timothy M. Weiner, Deputy Attorneys General, for Plaintiff and Respondent.
PERREN, J.
Devon Jay Watson appeals his convictions for one count of residential burglary (Pen. Code, § 459), and 11 counts of receiving stolen property. (§ 496, subd. (a).) Watson admitted a prior conviction for a serious or violent felony, and was sentenced to 30 years four months as a second strike offender, including a six-year upper term for the burglary. He contends there is insufficient evidence to support one of the receiving stolen property offenses, the trial court abused its discretion in denying his Romero motion, and imposition of the upper term burglary sentence violated his right to a jury trial. We affirm.
All statutory references are to the Penal Code.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
Facts and Procedural History
A series of residential burglaries were committed between June 2, 2005, and July 18, 2005. Valuable property was taken from persons who resided in each of the residences. The homes, victims and dates of the burglaries are Greg Cason (June 3, 2005), Jason Taylor, Sebastian Meler, Heather Ashton and Dione Scott (June 6), Roxana Papacostea (June 9), Margaret Marca (June 21), Conrad Sumilang (June 27, 2005), Robert Pflug (July 1), Matthew Zarley (July 5), Natalie Fong (July 5), Melanie Kanschat (July 13), Jessica Carlson (July 13), and Sylvia Gul (July 18).
Watson sold property belonging to several of the burglary victims to pawnshops, generally on the same day the burglaries were committed. A camera belonging to victim Cason was recovered from Steve's Pawn Shop. Property belonging to Taylor was recovered from Westside Loan. A watch and camera belonging to Kanschat was recovered from Pico Union Pawn Shop. A computer belonging to Pflug was recovered from Queen Pawn Shop. Two Ipods and an IMac belonging to Zarley and jewelry belonging to Fong were recovered from Queen Pawn Shop. A computer belonging to Sumilang was repurchased when found at Queen Pawn Shop.
Watson was charged with 14 burglaries and 11 counts of receiving the stolen property taken in the burglaries. He was also charged with grand theft of a firearm. (§ 487, subd. (d).)
Watson was convicted of one count of burglary (Sylvia Gul), and 11 counts of receiving stolen property. The jury acquitted Watson of grand theft of a firearm, a judgment of acquittal was entered as to two burglary counts (Meler and Ashton) and one burglary count was dismissed (Scott). (§§ 1118.1, 1385.) When the jury was unable to reach a verdict on the other burglaries, those counts were dismissed.
Watson's sentence consisted of the six-year upper term for burglary doubled as a second strike, plus a consecutive five-year term (§ 667, subd. (a)(1)), and 13 years four months for 10 of the receiving stolen property offenses. The sentence for one receiving stolen property count was stayed pursuant to section 654.
Discussion
Watson was convicted of receiving stolen property belonging to Zarley and, in a separate count, convicted of receiving stolen property belonging to Fong. Both burglaries were committed on July 5, 2005, and Watson sold property taken from both Zarley and Fong to Queen Pawn Shop on the same day as the burglaries. Watson contends that there is insufficient evidence to support both receiving stolen property convictions. (§ 496, subd. (a).) Relying on People v. Smith (1945) 26 Cal.2d 854, 859, Watson argues that he should have been convicted only of a single offense because the evidence shows that he received property from both burglaries simultaneously. We disagree.
Section 496, subdivision (a), provides in relevant part: "Every person who . . . receives any property that has been stolen . . . knowing the property to be so stolen or obtained . . . or who conceals, sells, withholds, or aids in concealing . . . or withholding any property from the owner, knowing the property to be so stolen or obtained, shall be punished by imprisonment in a state prison, or in a county jail for not more than one year."
In reviewing an insufficient evidence claim, we consider the entire record in the light most favorable to the judgment to determine whether it discloses substantial evidence such that a reasonable jury could find the defendant guilty beyond a reasonable doubt. (People v. Elliott (2005) 37 Cal.4th 453, 466.) We presume the existence of every fact supporting the judgment that the jury reasonably could have deduced from the evidence, and a judgment will be reversed only if there is no substantial evidence to support the verdict under any hypothesis. (People v. Crittenden (1994) 9 Cal.4th 83, 139; People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.) The same standard of review applies when the conviction rests on circumstantial evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) We conclude that there is substantial evidence to support separate convictions for receiving stolen property belonging to Zarley and Fong.
"The crime of receiving stolen goods consists of either buying or receiving personal property with knowledge that it has been stolen. (Pen. Code, § 496.) . . . The purchase or receipt of the stolen goods [must be] with guilty knowledge, but the particular ownership of the goods is not an element of the crime. Neither the legal nor moral character of the act is affected in any way by the fact that the stolen property may have belonged to several persons rather than to a single person." (People v. Smith, supra, 26 Cal.2d at pp. 858-859.) Accordingly, a single act of receiving several items of stolen property constitutes a single offense even if different items of the property were stolen from different persons. (Ibid.; see also People v. Lyons (1958) 50 Cal.2d 245, 275, overruled on other grounds by People v. Green (1980) 27 Cal.3d 1, 32-35; People v. Marquez (2000) 78 Cal.App.4th 1302, 1308-1309.) Conversely, several acts of receiving items of stolen property on separate occasions constitute separate offenses. (See People v. Roberts (1960) 182 Cal.App.2d 431, 437; People v. Bullwinkle (1980) 105 Cal.App.3d 82, 92, overruled on other grounds in People v. Laiwa (1983) 34 Cal.3d 711.)
Here, Watson sold property stolen from Zarley and Fong to the same pawnbroker at the same time, but the evidence reasonably supports the inference that Watson received items stolen from Zarley and Fong at different times and in different transactions. The theft of Fong's jewelry and Zarley's electronic equipment undisputedly occurred in separate burglaries on the same day as Watson sold the property to the pawnbroker. Although the jury failed to reach a unanimous verdict concerning Watson's commission of the burglaries, the evidence supports the inference that Watson received the stolen property either as the burglar or as a person with a strong connection to the burglar. The evidence shows repeated occasions when Watson sold stolen property to pawnbrokers within hours after the homes of the owners of the property were burglarized.
In addition, Watson does not contest his knowledge that the property was stolen and failed to explain how he came to possess it. This concession and omission further supports the inference that Watson stole the property himself or received it from a cohort immediately after each burglary. (See People v. Alvarado (1982) 133 Cal.App.3d 1003, 1019-1020.)
No Abuse of Discretion in Declining to Dismiss a Strike
Watson contends that the trial court abused its discretion in denying his Romero motion to strike his prior burglary conviction for sentencing purposes. (People v. Superior Court (Romero), supra, 13 Cal.4th at p. 504.) He argues that the court denied the motion solely on the basis of his criminal record and failed to consider other factors presented to the court. We disagree.
The Three Strikes law establishes a sentencing requirement that must be applied in every qualifying case unless, "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 scheme's 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." (People v. Williams (1998) 17 Cal.4th 148, 161; see also In re Large (2007) 41 Cal.4th 538, 552.) A trial court's decision not to dismiss a prior conviction is reviewed for abuse of discretion and will be upheld unless it is arbitrary, capricious or patently absurd. (People v. Carmony (2004) 33 Cal.4th 367, 376, 378.)
Here, the trial court acted well within its discretion in concluding that Watson did not fall outside the spirit of the Three Strikes law. Watson, 19 years old at the time of the current offenses, had a relatively minor juvenile record but had a prior burglary conviction in February 2005, just a few months before the current offenses. He was placed on probation for the February 2005 conviction and had barely begun his probationary period when he committed the current offenses. Also, although convicted of only one burglary, his multiple receiving stolen property offenses show a pattern of crime as well as a close connection to a series of other burglaries.
Watson argues that the trial court failed to give "proper" consideration to the nonviolent nature of crimes as well as Watson's statement to the court taking responsibility, and his father's statement that Watson suffered hardship during his childhood. It is clear, however, that the trial court gave consideration to this information as well as all the relevant factors, and reasonably concluded that Watson's remorse and difficult childhood was insufficient to show that he fell outside the spirit of the Three Strikes law.
No Constitutional Error in Imposition of Upper Term Sentence
Watson contends that the upper term sentence for the burglary offense violated his constitutional right to a jury trial because it was based on aggravating factors not determined beyond a reasonable doubt by the jury as required by Apprendi v. New Jersey (2000) 530 U.S. 466, and Blakely v. Washington (2004) 542 U.S. 296. We disagree.
In Cunningham v. California (2007) 459 U.S. ___ [127 S.Ct. 856, 871], the United States Supreme Court held that California's determinate sentencing law violated the Sixth Amendment right to a jury trial because it assigned to the trial judge, rather than to the jury, authority to make the factual findings that subject a defendant to the upper term sentence. The court stated that "the Federal Constitution's jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant." (Id. at p. 860.)
In People v. Black, supra, 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval), our Supreme Court interpreted Cunningham and its predecessors as permitting an upper term sentence without jury findings when "at least one aggravating circumstance was established by means that satisfy Sixth Amendment requirements and thus [makes the defendant] eligible for the upper term." (Black II, at p. 806.) As relevant to this case, an upper term sentence is permitted based on the court's finding of the existence of a prior conviction or "other related issues that may be determined by examining the records of the prior convictions." (Id., at p. 819.)
Here, the trial court based its decision to impose the upper term on the "professionalism" of Watson's offenses, a prior conviction for residential burglary, the fact that the current offense was committed while Watson was on probation, and unsatisfactory performance while on probation. All but the first of these factors relate to Watson's criminal history and may be found by the trial judge without the participation of the jury. (Black II, supra, 41 Cal.4th at p. 813; see also People v. McGee (2006) 38 Cal.4th 682, 704, 709; People v. Yim (2007) 152 Cal.App.4th 366, 370-371.) The exception to the jury trial right for prior convictions "is not limited simply to the bare fact of a defendant's prior conviction, but extends as well to the nature of that conviction, thereby permitting sentencing courts to determine whether the prior conviction is the type of conviction (for example, a conviction of a 'violent' felony) that renders the defendant subject to an enhanced sentence." (McGee, at p. 704; Yim, at pp. 370-371.)
We reject respondent's argument that Watson forfeited his claim because he failed to object to the sentencing proceeding in the trial court. (People v. Sandoval, supra, 41 Cal.4th at p. 837, fn. 4.)
The judgment is affirmed.
We concur: GILBERT, P.J., COFFEE, J.