P. v. Jones
P. v. Jones
Filed 8/5/08 P. v. Jones CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
ELLIS T. JONES,
Defendant and Appellant. |
F053049
(Super. Ct. Nos. VCF167104C & VCF171105)
OPINION |
THE COURT*
APPEAL from a judgment of the Superior Court of Tulare County. Joseph A. Kalashian, Judge.
James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Brian Alvarez and Kathleen A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury convicted appellant Ellis T. Jones of conspiracy to commit robbery (Pen. Code, 182, subd. (a)(1), 211),[1]second degree burglary ( 459, 460, subd. (b)) and simple assault ( 240). The court imposed the three-year midterm on the conspiracy conviction and credited appellant with time served of 90 days on the assault. With respect to sentence on the burglary conviction, the court imposed a concurrent term and stayed it pursuant to section 654, but did not state the length of the term.[2]
On appeal, appellant contends (1) the evidence was insufficient to support his conviction of conspiracy to commit robbery, and (2) the court imposed the upper term on appellants burglary conviction based on facts neither found by a jury nor admitted by appellant, in violation of appellants right to trial by jury and due process of law. We will remand with directions that the court state the length of the sentence imposed on appellants conviction of burglary, and in all other respects affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Facts
On a Sunday night shortly before July 4, 2006,[3]between 10:00 p.m. and 10:30 p.m., David Malm was walking from his apartment to a nearby convenience store when he saw a white car, which appeared to be either a Corsica or a Cavalier, come to a stop in the middle of an intersection. Malm saw one person in the car: the driver, a Black male, wearing a black do-rag. After the car stopped, it drove into a parking lot near a Me-n-Eds pizza restaurant (the restaurant) and parked.
As Malm continued walking, he saw a tall, thin, Black male, dressed in black, standing between two pillars in the vicinity of the restaurant. He appeared to be wearing a hood over his head. Malm walked to the convenience store, which was approximately 500 feet from the restaurant, and entered. When he came out less than two minutes later, there were several police cars near the restaurant.
Alix Almares, Lisa Jacobo and Holly Wood were working at the restaurant one night a few days prior to July 4. On that night, after the restaurant had closed, Almares went outside, behind the restaurant, to take the trash out. He was walking back toward the restaurant when he saw a Black male, over six feet tall, with what appeared to be a stocking over his face. The man approached him and held out a gun, Almares started to run and the man gave chase.
Almares ran back inside the restaurant, screaming, as the man called to him to get down. Once back inside, Almares slipped and fell to the ground, and the man, pointing the gun at Almaress head, patted the outside of Almaress clothing, found his cell phone in a pocket, removed it and said something like, Stay down, be cool, and It will be cool.
Jacobo was in the process of closing the salad bar when she heard Almares screaming. She looked toward the back of the restaurant and saw Almares on the floor and a Black man, dressed in black and wearing a ski mask, pointing a handgun at him and telling him to get down on the floor. Jacobo ran to an office, slammed the door shut, causing it to lock, and called 911.
At approximately 10:30 p.m., Wood was sweeping the floor in the dining area of the restaurant when a Black man, approximately six feet tall and wearing sunglasses and what looked like a fishermans hat, asked if he could use the restroom. Another employee gave him permission to do so, and the man entered the restroom, came back out about 10 seconds later and left the restaurant.
Thereafter, as Wood continued to sweep the floor, she saw Almares enter the restaurant through the back door, on the run. He was screaming and being chased by a man who was carrying a gun and wearing what appeared to be a ski mask. Almares went down to the ground, and his pursuer held the gun to his back.
At that point, Wood got down on the floor and the man who had left the restaurant moments before (second man) came back in. He approached Wood, and she felt something go to [her] head; it felt like a gun. Wood was screaming. The second man told her to be quiet and asked her, Do you want to die? Thereafter, he walked away. Wood did not see where he went, but the man who was holding Almares at gunpoint was still there. He kept waving [the gun] over towards [Wood]. The two men then ran out of the restaurant.
While Jacobo was in the office, speaking to the 911 dispatcher, she heard the door handle jiggling. Then she heard a mans voice from the other side of the door twice say, Open the door before I shoot it open. After she completed the call and hung up, she opened the door to the office. One of the restaurants delivery drivers was just outside the door, and as Jacobo walked out into the dining area she saw other restaurant employees and two police officers.
Almares told one of the investigating officers that the man who assaulted him, whom Almares recognized by his voice, was Emmanuel Miller, a friend of Charles Pritchett, one of Almaress coworkers.[4] Almares also knew Miller by the names Manny and Manifest. The latter name was one by which Miller identified himself on an internet music-related web site.
On July 2, restaurant management had recently terminated Pritchetts employment. Pritchett, however, had been suspended, had not been in the restaurant to pick up his last check and management had not notified him his employment had been terminated.
At the time of the attempted robbery, Wood had been working at the restaurant for several months and Pritchett had worked there for approximately one month. She had worked with him on more than a couple of occasions, she was familiar with his voice and when the second man entered the restaurant and asked to use the bathroom she did not recognize his voice as being Pritchetts.
City of Visalia Police Agent Cory Sumpter was assigned to investigate the July 2 attempted robbery at the restaurant. On July 5 he arrested Miller at a UPS store in Visalia where Miller was working. There was a white Chevrolet Cavalier in the UPS store parking lot, and Miller had the keys to the car in his possession. When questioned later, Miller told Agent Sumpter he saw Almares outside the restaurant, followed him inside, held him and took his cell phone, which he subsequently disposed of.
Later on the day Agent Sumpter arrested appellant, he and other police officers executed a search warrant at Millers apartment. There were two persons present in the apartment: Charles Pritchett, who was taken into custody, and Karen Lawrence. In searching the apartment, police found a BB gun, a black do-rag and a DVD labeled, Strong Arm Robbery.
Lawrence testified to the following. In July, she and Miller were living together in an apartment in Visalia. At that time Miller had a white Chevrolet Cavalier, which he and Lawrence shared. Neither of them had another car. On July 2, Miller drove Lawrence to work in the morning, picked her up after work around 5:00 p.m. and the two went home. When they arrived back at the apartment, appellant was there along with another man, Rassie Harris, and two girls. Lawrence testified she did not think Pritchett was there, although she admitted telling Agent Sumpter on July 5 that he was there. She also admitted that she did not tell Agent Sumpter that Harris and the two girls were in her apartment when she and Miller got back home on Monday.
Lawrence further testified to the following. At some point, between 8:30 p.m. and 10:00 p.m., Miller and the other persons at her apartment left. Approximately one hour later, Miller returned, picked up a notebook and pen and left, approximately 10 minutes after arriving. Lawrence did not see Miller again until the next morning, Monday, when he came back and took her to work. She admitted, however, that in the statement she gave to Agent Sumpter on July 5 she could have said that Miller, Pritchett and appellant returned to the apartment sometime between 5:00 a.m. and 6:00 a.m. on Monday, July 3.
Appellant was arrested in San Jose on July 6. On that date, City of San Jose police officers went to a location on 11th Street in San Jose, looking for appellant. There, parked in a carport to the rear of an apartment building, they found a Ford Explorer that was registered to appellant. Shortly thereafter, an officer made contact with appellant, who was coming out of the apartment building. Police conducted a search of the Explorer, during which they found a hand-drawn sketch of what appeared to be a floor plan. Other officers conducted a consent search of an apartment in the building[5]and during that search found a backpack containing a wallet and a spiral notebook. Inside the wallet the officers found two drivers licenses, one bearing appellants name and the other bearing the name, Emmanuel Anthony Miller II. On the cover of the notebook was the name, Manifest.
The manager of the restaurant identified the hand-drawn floor plan as that of the restaurant. Each Me-n-Eds restaurant has a different floor plan.
Pritchett testified to the following. At approximately 6:30 p.m. on June 30, he and Miller left Visalia and, traveling in Millers car, went to San Jose, where they picked up appellant. Appellant had a computer program and Miller wanted to use it; it had something to do with music. The three went to a few night clubs and returned to Visalia together the next day, leaving San Jose at approximately 3:30 a.m. on July 1.
Alleged Overt Acts
It was alleged in the information that appellant, Pritchett and Miller conspired to commit robbery, and that the conspirators committed the following overt acts: 1. obtained a diagram of Me-n-Eds Pizza, [] 2. drove to location, parking in rear, [] 3. covered face[] with hat, sunglasses, and pantyhose[,] [] 4. obtained two firearms[,] [] 5. entered Me-n-Eds Pizza[,] [] 6. pulled firearm on Alix Almares[,] [] 7. pulled firearm on Holly Wood[,] [] 8. ordered Alix Almares to the ground[,] [] 9. attempted to break into office[,] [] 10. left in waiting older white car. (Unnecessary capitalization omitted.)
DISCUSSION
Sufficiency of the Evidence
Appellant contends the evidence was insufficient to support his conspiracy conviction because there was [n]o evidence [he] participated in the planning of the robbery or in any way assisted in the commission of the robbery. Specifically, he argues there was no direct evidence appellant agreed with Miller and Pritchett to commit a robbery at the restaurant, and no one identified appellant as being either the man who assaulted Almares or the man who assaulted Wood.
Standard of Review
The court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidencethat is, evidence which is reasonable, credible, and of solid valuesuch that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (Peoplev.Ceja (1993) 4 Cal.4th 1134, 1138.) Circumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt. (People v.Bean (1988) 46 Cal.3d 919, 933.) If the circumstances reasonably justify the trier of facts findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. (People v. Kraft (2000) 23 Cal.4th 978, 1054.)
However, By definition, substantial evidence requires evidence and not mere speculation. In any given case, one may speculate about any number of scenarios that may have occurred . A reasonable inference, however, may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work. [] A finding of fact must be an inference drawn from evidence rather than a mere speculation as to probabilities without evidence. (People v. Cluff (2001) 87 Cal.App.4th 991, 1002, quoting People v. Morris (1988) 46 Cal.3d 1, 21.) Evidence which merely raises a strong suspicion of the defendants guilt is not sufficient to support a conviction. (People v. Redmond (1969) 71 Cal.2d 745, 755.)
Governing Principles Conspiracy
A conspiracy is an agreement by two or more persons to commit any crime. [Citations.] A conviction for conspiracy requires proof of four elements: (1) an agreement between two or more people, (2) who have the specific intent to commit a public offense, (3) the specific intent to commit that offense, and (4) an overt act committed by one or more of the parties to the agreement for the purpose of carrying out the object of the conspiracy. (People v. Cook (2001) 91 Cal.App.4th 910, 918; accord, People v. Morante (1999) 20 Cal.4th 403, 416-417.)
It is seldom possible for the prosecution to offer direct evidence of an agreement to commit a crime. The agreement to commit the crime is usually made in secrecy. The conspiracy must be inferred by the trier of fact from all the circumstances that are proven, and if the inference is a reasonable one it will not be disturbed on appeal. (People v. Chavez (1962) 208 Cal.App.2d 248, 253.) While mere association cannot establish a conspiracy, [w]here there is some evidence of participation or interest in the commission of the offense, it, when taken with evidence of association, may support an inference of a conspiracy to commit the offense. [Citation.] (People v. Prevost (1998) 60 Cal.App.4th 1382, 1400.)
Analysis
There is no serious dispute that the evidence was sufficient to establish that Miller drove to the restaurant prior to the robbery, entered the restaurant and assaulted and attempted to rob Almares. Miller admitted entering the restaurant and taking Almaress cell phone, Almares identified him as his attacker, Miller owned a white Cavalier and such a vehicle was seen outside the restaurant around the time of the attempted robbery.
Moreover, the jury reasonably could have found that Miller drove appellant from San Jose to Visalia and therefore appellant had no vehicle available to him on the night of July 2. This inference, taken together with the evidence that appellant, Miller and Pritchett left Lawrences apartment together on the night of July 2 and were together the following morning at the apartment, and the direct evidence of Millers participation in the attempted robbery, in turn supports the inference that appellant traveled with Miller and Pritchett in Millers car to the restaurant prior to the attempted robbery.
Further there was evidence of the following: two Black men entered the restaurant and attacked Almares and Wood, respectively; Miller was one of those men and he attacked Almares; Wood was familiar with the voice of her coworker Pritchett and was attacked by a man whose voice she did not recognize; and in appellants vehicle two days after the robbery police found a map of the floor plan of the restaurant. This evidence, considered in conjunction with the other evidence summarized above, supports the inference that appellant entered the restaurant and attacked Wood.
No single piece of evidence is sufficient by itself, but when the evidence summarized above is considered as a whole, it provides reasonable support for the inference that appellant conspired with Miller and Pritchett to rob the restaurant and that one or more of the conspirators performed overt acts in furtherance of the conspiracy. Thus, substantial evidence supports appellants conviction of conspiracy to commit robbery.
Sentencing
Appellant contends the court improperly imposed the upper term on his burglary conviction. However, as indicated above, although the abstract of judgment indicates the imposition of the upper term, the court, in pronouncing sentence, did not specify the length of the term. The abstract of judgment is not the judgment of conviction; it merely digests or summarizes the judgment. [Citation.] By its very nature, definition and terms [citation] [the abstract of judgment] cannot add to or modify the judgment which it purports to digest or summarize. (People v. Prater (1977) 71 Cal.App.3d 695, 703.)
Thus, the major premise of appellants argument - that the court imposed the upper term on appellants burglary conviction - is false. The People contend the matter should be remanded to allow the trial court to state the length of the term imposed on appellants burglary conviction. We agree. Accordingly, we will remand the matter for that limited purpose.
DISPOSITION
The matter is remanded to the trial court, and the trial court is directed to state the length of the term imposed on appellants conviction of burglary. In all other respects, the judgment is affirmed.
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* Before Wiseman, Acting P.J., Levy, J. and Cornell, J.
[1] All further statutory references are to the Penal Code unless otherwise indicated.
[2] The abstract of judgment and sentencing minute order indicate the court imposed the upper term.
[3] We take judicial notice of the fact that July 2, 2006, was the Sunday prior to July 4, 2006. (Evid. Code, 459, 451, subd. (f).) All references to dates of events are to dates in 2006.
[4] Miller and Pritchett were appellants codefendants.
[5] The parties agree the apartment was appellants.
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