P.
v. Bailey
Filed
2/26/13 P. v. Bailey
CA2/7
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115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
SECOND
APPELLATE DISTRICT
DIVISION
SEVEN
THE PEOPLE,
Plaintiff and Respondent,
v.
CHARLES BAILEY,
Defendant and Appellant.
B241079
(Los
Angeles County
Super. Ct.
No. BA390045)
APPEAL from
a judgment of the Superior Court of Los
Angeles County, Jose I. Sandoval, Judge.
Affirmed.
David H.
Goodwin, under appointment by the Court of
Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R.
Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant
Attorney General, Eric E. Reynolds and Ana R. Duarte, Deputy Attorneys General,
for Plaintiff and Respondent.
__________________________
A convicted sex offender is required to register in his
county of residence. A convicted sex
offender who has no place to
live is required to register in the county in which he is a transient. If the transient sex offender thereafter
acquires a residence, he must register anew within five working days. (Pen. Code,
(2012) 207 Cal.App.4th 504, 506.)
Defendant
Charles Bailey, who previously was convicted of a crime requiring him to
register as a sex offender pursuant to section 290, appeals from the judgment
entered after a jury found him guilty of three counts of being a transient
convicted sex offender who failed to register after moving to a residence
(§ 290.011, subd. (b)) and three counts of failing to register as a sex
offender after an address change (§ 290, subd. (b)), and he admitted that
he suffered a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12)
and served two prior prison terms (§ 667.5, subd. (b)). The trial court sentenced him to state prison
for a total of six years.
Defendant’s
sole contention on appeal is that the trial court erroneously allowed the
People to present testimony as to efforts made to locate two witnesses who did
not testify at trial. Defendant claims
this evidence was irrelevant and permitted the jury to draw
on innuendo. While we agree that the
challenged testimony was irrelevant and thus inadmissible, defendant has failed
to demonstrate that he was prejudiced as a result of the court’s evidentiary
error. Consequently, we affirm the
judgment.
Delmas Davis (Davis)
owned a triplex comprised of 10007, 10009 and 10009½
South Hobart Boulevard in Los
Angeles. He
maintained the property, rented the units and collected the rent. Davis
did not live on the property, but he did live nearby.
Jakeira
Green (Jakeira) rented the rear unit commonly known as 10009
Hobart Boulevard, and her sister, Jamila Green
(Jamila), rented the upstairs unit.
Carol Ross (Ross) rented the front unit.
Davis
was a school teacher. In July and August
2011, while on vacation from teaching, Davis
went to the property four or five times a month. In September, he returned to teaching and
visited his property less often.
While at
the property, Davis often saw his
tenants. Davis
had seen defendant at the triplex five to ten times before July 2011 and
continued to see him through September 1,
2011. On one occasion, after
seeing him numerous times, Davis
asked defendant if he lived there.
Defendant said he did not. Davis
believed this conversation took place in December 2010. Davis
knew that only Jakeira and her two children, not defendant, were listed as
tenants in the rental agreement.
On another
occasion in February or March 2011, Davis
observed defendant leave Jakeira’s unit, go to a dark green car in a robe and
then return to the unit. On more than
five other occasions, Davis had
seen defendant drive the green car. Davis
also regularly saw the green car parked near the triplex, perhaps 10 to 20
times. As of July 2011, Davis
believed defendant was living with Jakeira despite his prior assertion to the
contrary. On numerous occasions during
the summer months, Davis saw
defendant with Jakeira and her children, leaving the unit and then
returning. Davis
also observed defendant coming and going by himself or with Jakeira’s two
children and returning to the apartment.
On one occasion,
Jakeira introduced defendant to Davis
as her boyfriend. On another occasion,
maybe a month later, she introduced defendant to Davis
as her fiancé.
Ross could
not recall the precise year she moved into her unit, but she did recall that
Jakeira and her two children moved into the rear unit about two months
later. Ross first saw defendant at the
property in March 2011. As time went on,
Ross saw defendant more frequently. In
July 2011, Ross, who was retired and described herself as a “homebody,â€
and believed he lived with Jakeira. Ross
observed defendant leave in the morning with Jakeira and her two children, as
well as his baby, and return 20 minutes later with the baby and enter Jakeira’s
unit. In the afternoon, defendant left
with the baby and returned 20 minutes later with Jakeira and her children. According to Ross, defendant drove Jakeira’s
white car, in that he no longer had his green car. Ross also saw him every day in August and
September 2011, and she believed that defendant lived with Jakeira during the
months of July, August and September 2011.
Ross
observed defendant enter Jakeira’s unit.
Most of the time, defendant stayed inside. Once or twice, Ross saw defendant wash the
car in front of the building.
On July 28, 2011, Los Angeles Police
Officer Fernando Cazarez was assigned to the Registration Enforcement and
Compliance Team (REACT) at Central Division.
REACT monitors and registers sex offenders, as well as conducts
compliance checks. Defendant came into
the station and informed Officer Cazarez that he was changing his registration
from one transient location to another transient location at 49th
Street and Broadway
Avenue. The
officer took note that defendant was very well groomed and his clothes seemed
neatly presented. In Officer Cazarez’s
view, defendant’s appearance was inconsistent with that of a person who was
homeless.
Officer
Cazarez advised defendant that if he was sleeping at a residence or if he was
staying with his girlfriend or anyone else, he had to provide that
information. If he failed to do so and
the police found out he was staying with someone, he would be arrested. Defendant appeared to understand the requirements
and asked no questions.
On August 23, 2011, Officer Mehra Newby,
who was assigned to REACT, processed defendant’s sex offender
registration. Defendant, who appeared to
understand the registration requirements, stated he was homeless and did not
provide information about another address.
On September 27, 2011, REACT Officer
Lauro Larrinua registered defendant as a sex offender. Defendant again registered as a transient in
the area of 49th Street and
Broadway Avenue and gave no
other address. Officer Larrinua
explained to defendant the requirements that go along with being a convicted
sex offender.
On October 17, 2011, Los Angeles Police
Detective Michael Falvo, along with other officers, went to 10009
South Hobart Boulevard, where they believed
defendant was living. Detective Falvo
drove to the alley behind the location and waited while two officers knocked on
the door.
While
standing in the alley behind a steel gate door, Detective Falvo saw defendant
walk up to the gate from the side of the yard.
He was wearing boxer shorts and a T-shirt and was smoking a cigarette. The detective identified himself as a police
officer, told defendant that he recognized him from photographs and wanted him
to stop so he could talk to him.
Defendant said, “I don’t live here†and walked into the yard. Fearing defendant would get away, Detective
Falvo jumped over the fence, pursued him through the backyard and stopped
defendant as he was attempting to climb over a wall.
At the time
of defendant’s arrest, Jakeira was present.
Detective Falvo attempted to interview Jakeira, but she was
uncooperative and very upset that defendant had been arrested. Inside Jakeira’s apartment, Detective Falvo
saw “some male clothing and things.†He
did not remember if he found any men’s shoes.
He did not look for any documents bearing defendant’s name or mail sent
to defendant at the Hobart Boulevard
address. Detective Falvo did not go into
the bedroom to see if there were any male items and did not know if defendant
had a key to the apartment. He did enter
the bathroom but could not recall if he saw any male toiletries. The detective did not know who paid the rent
or purchased the food or whose name was on the utility bills.
At the end
of March 2012, Detective Falvo received a subpoena for Jakeira. He went to her residence on numerous
occasions but Jakeira was never there.
On March 29, 2012, Lawrence Arnwine
(Arnwine), an investigator for the District Attorney’s Office, received a
subpoena with Jamila’s name and date of birth and obtained her address via
public records. After checking various
other search engines, Arnwine went to Jamila’s residence. Arnwine verified Jamila’s identity, talked to
her about this case, and personally served her with the subpoena directing her
to appear in court on April 3.
On April 3,
the prosecutor obtained a body attachment for Jamila, who failed to
appear. That same day, Arnwine returned
to Jamila’s residence in an effort to ensure her appearance in court. He was unable to find her at home or in the
area.
efforts without success.
DISCUSSION
A. Pertinent
Background
Defendant
unsuccessfully objected on relevancy grounds to the testimony of Detective
Falvo regarding his efforts to subpoena Jakeira and to the testimony of
Investigator Arnwine regarding his efforts to locate Jamila after she failed to
appear in court as directed by the subpoena with which she was served. Defense counsel argued, among other things,
that this testimony would insinuate that the testimony of the sisters would be
favorable to the People. The trial court
noted that, in Jakeira’s and Jamila’s absence, the defense was at liberty to
argue that the jury never heard from the two people in the best position to say
whether defendant was living there, and thus “it’s fair to permit the People to
say, we tried to subpoena them, they were unavailable.†In the court’s view, the absence of Jakeira
and Jamila foreclosed any argument that they might have said something
favorable to defendant. Defense counsel
was unable to cite any legal authority suggesting that it would be improper to
admit the detective’s and the investigator’s challenged testimony.
In her closing argument to the
jury, defense counsel referenced the prosecution’s efforts to secure the
presence of Jakeira and Jamila, stating:
“Now, you did not hear from Jamila Green or Jakeira Green, and the
People put on evidence that they somehow attempted to bring these people in and
were unable to. The fact that they tried
to get these witnesses in and didn’t does not lower their burden of proof in
this case. It’s irrelevant that they
aren’t here. And frankly,
. . . you don’t know what they would say. For all you know, they would have said that
Mr. Bailey did in fact not live there.
So you cannot consider that. You
must go back in the jury deliberation room and look at what you have in front
of you and decide, did they prove this case.
And the fact that they didn’t — tried to get witnesses and weren’t able
to does not give you credence to then gloss over that and then — and assume
that what they said would have helped them prove this case.â€
In her
final summation, the prosecutor responded to defense counsel’s argument as
follows: “We can speculate all we want
about Jakeira Green and Jamila Green.
You didn’t hear from them, obviously.
We know that Jakeira Green, from the evidence, was upset when the
defendant was arrested. And she wasn’t
here despite the efforts of my office and the law enforcement agency to find
her. And the same goes for Jamila
Green. You might wonder and — you’re not
to speculate, because that’s not evidence, but what I will tell you is that the
defense doesn’t have to call a single witness.
They don’t have the burden of proof.
But if they want to, they have the power to subpoena anybody they want,
if they want to. They don’t have
to. They don’t have to do anything.â€
After the
trial court overruled an objection made by defendant, the prosecutor
continued: “Yes. The defense, as I was saying, has no burden
of proof, but they are entitled and they do have the power to subpoena
witnesses on their own behalf, logically, witnesses that they would want to
call. They don’t have to, but they
can. That’s neither here nor there, in a
way, because neither side — you heard from the People’s witnesses that attempts
were made to find these two witnesses, and those attempts were
unsuccessful. But you actually got to
hear from witnesses who were completely unrelated to the defendant and that’s
better, in a way, than hearing from people who are — like Jakeira Green dating
the defendant, right, or people who are related to the defendant’s girlfriend,
people with a potential bias or motive.
You heard from completely independent neutral witnesses with no motive
to lie, with no reason to come in here and tell you anything but the reality of
their observations.â€
B. Relevancy
To be
admissible, evidence must be relevant.
(Evid. Code, § 350; People v.
Tully (2012) 54 Cal.4th 952, 1010; People
v. Lewis (2001) 25 Cal.4th 610, 639-640.)
“‘Relevant evidence’ means
evidence . . . having any tendency in reason to prove or disprove any
disputed fact that is of consequence to the determination of the action.†(Evid. Code, § 210.)
Evidence
that is proffered to prove or disprove a disputed fact in an action is relevant
if “[t]he disputed fact is either an intermediate or ultimate fact that is of
consequence to determination of the action†and “[t]he evidence, in the light
of logic, reason, experience, or common sense, has, by reasonable inference, a
tendency to prove or disprove the disputed fact.†(1 Jefferson, Cal. Evidence Benchbook
(Cont.Ed.Bar 4th ed. 2009) Relevancy and General Principles of Evidence,
§ 21.16, p. 354; accord, People v.
Hill (1992) 3 Cal.4th 959, 987-988, overruled on other grounds in
Cal.4th 1046, 1069, fn. 13.)
“The court
must exclude irrelevant proffered evidence which has a tendency to prove or
disprove a disputed fact only if the trier of fact must draw speculative or
conjectural inferences from it.
[Citation.]†(
529, 539; 1 Jefferson, Cal. Evidence Benchbook, supra, Relevancy and General Principles of Evidence, § 21.17, p.
354 [“Proffered evidence is not relevant if it has a tendency to prove or
disprove a disputed intermediate or ultimate fact of consequence to
determination of the action only by resort to inferences or deductions from
that evidence that are speculative or conjectural in nature.â€].)
The trial
court has wide discretion in determining whether evidence is relevant. (People
v. Booker (2011) 51 Cal.4th 141, 187; People
v. Lomax (2010) 49 Cal.4th 530, 581.)
The trial court has no discretion to admit irrelevant evidence. (People
v. Blacksher (2011) 52 Cal.4th 769, 819.)
C. Analysis
On appeal,
we review the trial court’s decision to admit evidence under the abuse of
discretion standard. (
983, 1007-1008.) An abuse of discretion
occurs when the trial court’s ruling falls outside the bounds of reason. (People
v. Benavides (2005) 35 Cal.4th 69, 88.)
In this
case, the disputed material fact was whether defendant was residing with
Jakeira in July, August and September 2011, the months during which he
registered solely as a transient sex offender.
Defendant contends that “[a] witness provides relevant evidence through
his or her testimony†and that “[t]he fact that a witness testified or how the
witness got to court is not relevant.â€
Defendant further observes that “[a] witness not testifying does not
provide relevant information.†We agree
in this case.
Evidence of
the efforts made to secure Jakeira’s and Jamila’s appearance at trial had no
tendency in reason to prove or disprove whether defendant resided with Jakeira,
and had the potential of allowing the jurors to speculate as to why the two
sisters did not appear in court. Because
this evidence was irrelevant, the trial court abused its discretion in
admitting it. (People v. Blacksher, supra,
52 Cal.4th at p. 819; People v. Parrison,
supra, 137 Cal.App.3d at p. 539.)
Prejudice
is not presumed, however. It must be
affirmatively demonstrated (People v.
Bell (1998) 61 Cal.App.4th 282, 291), and defendant has failed to make the
required showing. Reversal of the
judgment is only required if the erroneous admission of evidence is
prejudicial, resulting in a miscarriage of justice. (Evid. Code, § 353; Cal.
Const., art. 6, § 13; People v.
Watson (1956) 46 Cal.2d 818, 836.)
It is a miscarriage of justice if a result more favorable to defendant
would have been attained in the absence of error. (Watson,
supra, at p. 836.)
In this
case, the evidentiary error unquestionably “was harmless in light of the strong
evidence of defendant’s guilt.†(People
v. Homick (2012) 55 Cal.4th 816, 872; accord, People v. Weaver (2001) 26 Cal.4th 876, 946.) The testimony of Davis and Ross, both
impartial witnesses, amply established that defendant was residing with Jakeira
during July, August and September 2011.
That testimony, along with the testimony of the REACT officers that defendant
registered as a transient during those months, established that defendant was
guilty of the crimes with which he was charged.
In
addition, the trial court instructed the jury to determine the facts “based
only on the evidence that has been presented to you in this trial,†and to “not
let bias, sympathy, prejudice, or public opinion influence†its decision. (CALCRIM No. 200) The trial court also instructed the jury that
defendant was presumed innocent and that the People had the burden of proving
his guilt beyond a reasonable doubt. (CALCRIM
No. 220) The jury received instructions
regarding the sufficiency of circumstantial evidence and the requirement that
the People prove each element of the crime beyond a reasonable doubt, as well
as how to evaluate a witness’s testimony.
In addition, the trial court instructed the jury that “[n]either side is
required to call all witnesses who may have information about the case or to
produce all physical evidence that might be relevant†(CALCRIM No. 300)
and that “[t]he testimony of only one witness can prove any fact†(CALCRIM
No. 301). We presume that the jury
understood and followed these instructions.
(People v. Homick,
And
finally, in her final summation to the jury, the prosecutor stressed that it
was not to speculate about what Jakeira and Jamila would have said since
speculation was not evidence.
name="_ftnref5" title="">
actual evidence before it, particularly the testimony of Davis and Ross. In her summation to the jury, defense counsel
emphasized that the absence of Jakeira and Jamila did not lessen the
prosecution’s burden of proof and that the jury could not assume that they
would have given testimony favorable to the prosecution.
We conclude
that based upon the strength of the evidence presented at trial, the
instructions provided to the jury and counsels’ summations to the jury, it is
not reasonably probable that a result more favorable to defendant would have
occurred if the challenged testimony of Detective Falvo and Investigator
Arnwine had been excluded. The error in
admitting this testimony was “manifestly harmless.†(People
v. Weaver, supra, 26 Cal.4th at
p. 946.)
DISPOSITION
The
judgment is affirmed.
JACKSON,
J.
We concur:
WOODS,
Acting P. J.
ZELON,
J.
name="_ftn1" title="">[1] All further statutory references are to the Penal Code unless otherwise noted.
name="_ftn2" title="">[2] When Ross was questioned as to whether she saw everything,
she responded, “I see enough to know the pattern of the neighborhood and to
make me aware of my surroundings.†When
asked about Jakeira’s visitors, Ross testified “they made a lot of noise†and
that was one of the reasons she “paid attention to what was going on, because
sometimes it was boisterous.â€
