P. v. Grayson

 

 

 

 

 

 

 

 

 

 

 

Filed 6/21/13  P. v. Grayson CA4/2

 

 

 

 

 

 

 

NOT TO BE PUBLISHED IN OFFICIAL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opinion has not been certified for publication or ordered published for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>

 

FOURTH APPELLATE DISTRICT

 

DIVISION TWO

 

 

 
>

THE PEOPLE,               Plaintiff and Respondent,   v.   ROBERT LOUIS GRAYSON,               Defendant and Appellant.

E056648               (Super.Ct.No. FSB1200221)               OPINION

 

            APPEAL
from the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">San
Bernardino County. 
Annemarie G. Pace, Judge. 
Affirmed.

            Harry
Zimmerman, under appointment by the Court of Appeal, for Defendant and
Appellant. 

            No
appearance for Plaintiff and Respondent.

I

INTRODUCTION

            Following
a jury trial, defendant Robert Louis Grayson was convicted of first degree
burglary, with the jury finding true the special allegation that a person not
an accomplice was present in the residence (Pen. Code, §§ 459, 667.5, subd.
(c)).href="#_ftn1" name="_ftnref1"
title="">^[1]  The trial court found true defendant’s prior
serious felony conviction and prison prior allegations.  Defendant was sentenced to an aggregate term
of 18 years in prison.

Defendant’s appellate
counsel has filed a Wende brief under
People
v. Wende (1979) 25 Cal.3d 436 and Anders
v. California (1967) 386 U.S. 738, setting forth a statement of the case, a
summary of the facts, and requesting this court to undertake a review of the
entire record.  This court offered
defendant an opportunity to file a personal supplemental brief, which he has
not done.  We have concluded our href="http://www.fearnotlaw.com/">independent review of the record and find
no arguable issues or errors.  The
judgment is affirmed.

II

FACTUAL BACKGROUND

            On January 13, 2012, around 9:00 a.m., Gilbert Acosta was
awakened by a loud bang.  Defendant broke
into Acosta’s home by breaking the front door jamb, using blunt force.  Acosta saw a shadow pass by his slightly open
bedroom door.  Acosta called out,
“Hey.”  Defendant turned around, looked
at Acosta, and said, “My bad.  Wrong
house,” and then quickly left without taking anything.  Acosta identified defendant in court and
testified he had seen defendant from a distance of four to 10 feet.

            As
defendant was backing out of Acosta’s driveway, Acosta grabbed a bat and
stepped out on the porch.  Acosta wrote
down the license plate number of the small, white car defendant was
driving.  There was another person in the
car with defendant.  Acosta gave the
license plate number to the police when they arrived.  The white car was registered to Darrell
Fowler and Kadedra Fowler.  Kadedra owned
the car at the time of the burglary. 
Defendant lived with Betty Fowler, Betty’s ex-husband, Darrell Fowler,
and their daughter, Kadedra, with whom defendant had children.  A police helicopter flew over the Fowler
residence.  Police saw the white car
parked on the street in front and two men in the backyard.  The residence was two and a half miles from
Acosta’s house.

Defendant and codefendant
Jonathan Lee Goldman were detained at the residence.  The police took Acosta to the residence and
admonished him that defendant and Goldman might not be the offenders.  Acosta identified defendant as the intruder
but was unable to identify Goldman. 
Acosta recognized the white car at the residence as the car he saw
defendant drive away in.

The police did not find any
incriminating fingerprints at the crime scene. 
However, they did find latex gloves commonly used by burglars to avoid
leaving fingerprints.  Five latex gloves
were also found in defendant’s pocket after his arrest.  In addition, “Kadedra” was tattooed on his
left shoulder.  A police forensic
specialist found a shoe impression by the kicked-in front door.  The shoe impression was consistent with the
right shoe defendant was wearing when he was arrested.

            Betty
testified she had met Goldman through defendant and Kadedra.  The morning of the burglary, Kadedra had gone
to the store with Darrell in his truck. 
Defendant was home with Betty that morning, watching the children.  Around 9:00 a.m., Betty heard a helicopter
and then saw Goldman driving like crazy in Kadedra’s white car.  When he pulled up to the house, Betty yelled
at him for being late.  The police arrived
shortly after that.  By the time Kadedra
returned from the store, defendant had already been arrested and the police had
left.

            According
to police testimony, Betty made statements to them inconsistent with her trial
testimony.  Betty told the police that
during the morning of the burglary, Darryl called to tell her that he was
sending defendant to pick her up to look at a home she and Darrell were
considering purchasing.  Defendant
arrived in a white car at 9:17 a.m.  Goldman was driving and defendant was a
passenger.  Betty also told the police
that neither defendant nor Goldman had been there earlier that morning.

III

DISCUSSION

            Defendant
has proposed the following issues for our independent review.

(1)  Whether denial of defendant’s motion to
suppress the in-field show-up constituted prejudicial error under >People v. Waidla (2000) 22 Cal.4th 690,
730 and People v. Nguyen (1994) 23
Cal.App.4th 32, 39.

There is no basis for
challenging the trial court’s denial of defendant’s motion to suppress the
in-field showup, under People v. Waidla,
supra, 22 Cal.4th at page 730 or People
v. Nguyen, supra, 23 Cal.App.4th at page 39.  Acosta’s identification of defendant was
reliable under the totality of the circumstances.  During the in-field showup conducted shortly
after the charged crime, a police officer told Acosta that, although defendant
and Goldman had been detained, he should not infer from this that they had or
had not committed the crime.  The officer
also told Acosta he was not obligated to identify anyone.  The officer asked Acosta to identify
similarities between the persons detained and the persons who committed the
crime.  Acosta was told to tell the
officer if either of the detained persons committed the crime.  Acosta was first shown defendant.  Acosta spontaneously said, “Yeah, that’s
him.”  Acosta then was shown Goldman but
was unable to identify him.  Based on the
foregoing, we find there was substantial evidence to support the trial court
finding that the in-field showup was properly conducted and was not unduly
suggestive or coercive.

(2)  Whether admission of evidence of the police
dispatch call constituted prejudicial error under People v. Brenn (2007) 152 Cal.App.4th 166, 175 (>Brenn) and Davis v. Washington (2006)
547 U.S. 813, 822 (Davis). 

There is no basis for
challenging the trial court’s admission of evidence of the police dispatch call
because the call was nontestimonial. 
Acosta testified he made the call right after defendant committed the
crime and fled.  Acosta immediately wrote
down the license plate of the car and called the police.  The primary purpose of the call was to assist
the police with an ongoing emergency, primarily by assisting in apprehending
the fleeing perpetrators of the crime. 
Acosta “‘simply was not acting as a witness; [he] was not testifying.  What [he] said name="SDU_176">was
not “a weaker substitute for live testimony” at trial
. . . .”  (>Brenn, supra, 152 Cal.App.4th at pp.
175-176, quoting Davis, supra, 547 U.S. at p. 828.)

(3)  Whether admission of evidence of defendant’s
tattoos constituted prejudicial error under People
v. Partida (2005) 37 Cal.4th 428, 439 and Estelle v. McGuire (1991) 502 U.S. 62, 70. 

Police Officer Thomas,
testified that he noticed the name, “Kadedra” tattooed on defendant’s left
shoulder.  Thomas connected this name
with the name of one of the registered owners of the car driven by the
perpetrator.  At trial, Thomas was shown
a photograph of the tattoo and testified that it was the tattoo he had observed
on defendant the day defendant was apprehended. 
The tattoo evidence was admissible under Evidence Code section 352, as
sufficiently relevant and not unduly prejudicial.  Admission of the tattoo evidence therefore
did not violate defendant’s due process rights.

(4)  Whether the prosecutor prejudicially shifted
the burden of proof during closing argument under People v. Woods (2006) 146 Cal.App.4th 106, 112 (>Woods). 


During the prosecutor’s
closing argument, defense counsel objected to the following statements on the
ground the prosecutor was shifting the burden: 
“You know, as you’re probably aware of, I’m not the only person who has
subpoena power in the case.  Defense
counsel’s got subpoena power.  They can
bring in whoever they want, just like I brought in people I wanted, the people
that I felt I needed to make the case. 
Not everyone is going to testify that is remotely related to the
case.  So if other people are key, well,
then, Ms. Higuera should have brought those people in.”

The prosecutor did not
prejudicially shift the burden of proof.  As explained in Woods, supra, 146 Cal.App.4th at page 112:  “A prosecutor may fairly comment on and argue
any reasonable inferences from the evidence. 
[Citation.]  Comments on the state
of the evidence or on the defense’s failure to call logical witnesses,
introduce material evidence, or rebut the People’s case are generally
permissible.  [Citation.]  However, a prosecutor may not suggest that ‘a
defendant has a duty or burden to produce evidence, or a duty or burden to
prove his or her innocence.’ 
[Citations.]”  In the instant
case, the prosecutor fairly commented on the state of the evidence and the
defense’s failure to call logical witnesses.

(5)  Whether there was insufficient proof of
defendant’s prior convictions, because there was no fingerprint or comparison
testimony implicating defendant (People
v. Matthews (1991) 229 Cal.App.3d 930 (Matthews);
§ 969b). 

The parties waived a jury
trial on defendant’s prior convictions. 
During the court trial on the priors, the prosecutor submitted the
following evidence:  (1) a certified rap
sheet for defendant, indicating a May 14, 2009, conviction for assault with a
firearm and violation of section 12021, with a 24-month prison sentence (§ 245,
subd. (a)(2)) (exh. 60); (2) a certified prior packet for FSB901539, in
defendant’s name, corroborating the May 14, 2009, conviction, with a 24-month
prison sentence (exh. 61); (3) a certified prior packet for FSB048568, in
defendant’s name, showing a conviction on June 1, 2005, for violating section
245, subdivision (a)(1), with a commitment to state prison for two years (exh.
62); (4) a certified prior packet for FSB051631, in defendant’s name, shows a
conviction for violating Health and Safety Code section 11350, subdivision (a),
on October 28, 2005, with a two-year sentence (exh. 63); and (5) a certified
969b packet, in defendant’s name, corroborating the May 14, 2009, June 1, 2005,
and October 28, 2005, convictions (exh. 61).

Without specifying any
grounds, defense counsel asserted that the packet was insufficient to prove
defendant’s prison priors.  The trial
court found beyond a reasonable doubt that the priors alleged in the
information were true, but that the June 1, 2005, and October 28, 2005,
convictions were concurrent and therefore constituted one prior prison
term.  Under Matthews, supra, 229 Cal.App.3d 930 and section 969b, sufficient
evidence was presented to establish defendant’s prior convictions.  Fingerprint and comparison testimony
implicating defendant was not required. 
“[T]he trier of fact may ‘look to the entire record of the conviction to
determine the substance of a prior foreign conviction.’  [Citations.] 
‘[T]he “entire record of conviction” includes all relevant documents in
the court file of the prior conviction.’ 
[Citation.]”  (>Matthews, supra, 229 Cal.App.3d at p.
936.)  Section 969b
“specifically authorizes proof of the fact that the defendant suffered a prior
conviction by evidence of certified prison records; . . .  Under section 969b, the People may satisfy
the burden of proving a prior conviction by introducing into evidence a
certified copy of a prison record.”  (>Id. at p. 937.)

(6)  Whether the trial court erred in finding that
defendant could be impeached with his prior convictions for violating section
245, subdivision (a)(1) and (a)(2) (People
v. Ledesma (2006) 39 Cal.4th 641, 731 (Ledesma);
People v. Hinton (2006) 37 Cal.4th
839, 888 (Hinton); >People v. Elwell (1988) 206 Cal.App.3d
171, 177). 

Over defendant’s objection,
the trial court granted the prosecution’s motion in limine to impeach defendant
with his prior felony convictions for violating section 245, subdivision (a)(1)
and (2).  Defense counsel argued that it
would be prejudicial if he was impeached with these prior convictions because
the jury would be judging him based on his past if he testified.  The trial court noted that doing so was
permissible to some degree and that evidence of his prior convictions was not
unduly prejudicial because they were recent and not similar to the charged
offense, in that the issues were different than in the instant case.  Defendant ultimately did not testify at
trial.

“Defendant has failed to
preserve this claim of error.  It is well
established that the denial of a motion to exclude impeachment evidence is not
reviewable on appeal if the defendant subsequently declines to testify.  (See Luce v. United States (1984) 469
U.S. 38 (Luce ) [denial of in limine motion to preclude impeachment of
the defendant with a prior conviction is not reviewable on appeal if the
defendant did not testify]; People v. Collins (1986) 42 Cal.3d 378,
383-388 (Collins) [prospectively adopting the Luce rule].)”  (Ledesma,
supra, 39 Cal.4th at p. 731.) 

Furthermore, subject to the
trial court’s discretion under Evidence Code section 352, Proposition 8
“‘authorizes the use of any felony conviction which necessarily involves moral
turpitude, even if the immoral trait is one other than dishonesty.’”  (Hinton,
supra, 37 Cal.4th at p. 888.) 
Defendant’s convictions for assault with a firearm (§ 245, subd. (a)(2))
and assault with a dangerous weapon other than a firearm (§ 245, subd. (a)(1))
denote moral turpitude and were therefore admissible for impeachment.  (Hinton,
at p. 888.)  name="SDU_32">Any objection that the priors should have been excluded as
too similar to the charged crime is likewise without merit.  “‘While before passage of Proposition 8, past
offenses similar or identical to the offense on trial were excluded, now the
rule of exclusion on this ground is no longer inflexible.’  [Citations.]” 
(Ibid.)

(7)  Whether admission of Betty’s hearsay
statements as prior inconsistent statements constituted prejudicial error under
People v O’Quinn (1980) 109
Cal.App.3d 219 (O’Quinn). 

According to police
testimony, Betty made statements to the police inconsistent with her trial
testimony.  Betty told the police that
the morning of the burglary, Darrell called to tell her that he was sending
defendant to pick her up to look at a prospective new home.  Defendant arrived in a white car at 9:17 a.m.  Goldman was driving and defendant was a
passenger.  According to Betty, neither
defendant nor Goldman had been to Betty’s home earlier that morning.  Contrary to Betty’s statements to the police,
Betty testified that the morning of the burglary, defendant was home with Betty,
watching the children.  Around 9:00 a.m.,
Betty heard a helicopter and then saw Goldman driving like crazy in Kadedra’s
white car.  When he pulled up to the
house, Betty yelled at him for being late. 
The police arrived shortly after that. 


Under
Evidence Code section 1235, “Evidence of a statement made by a witness is not made
inadmissible by the hearsay rule if the statement is inconsistent with his
testimony at the hearing and is offered in compliance with Section 770.”  “Inconsistency
in effect, rather than contradiction in express terms, is the test for
admitting a witness’ prior statement [citation], . . .”  (O’Quinn,
supra, 109 Cal.App.3d at p. 225.)  In
the instant case, Betty’s statements made to the police were inconsistent with
her trial testimony and therefore were admissible under the Evidence Code
section 1235 hearsay exception.

(8)  Whether admission of evidence of only a
portion of the jail recordings, instead of the entire recordings, constituted
prejudicial error under Evidence Code section 356 and People v. Stallworth (2008) 164 Cal.App.4th 1079 (>Stallworth). 

Before the trial, outside
the presence of the jury, the parties and the court discussed the prosecution’s
request to introduce evidence of a portion of a recorded jail call.  Defense counsel objected to the evidence on
the grounds of lack of foundation and based on the rule of completeness.  Defense counsel complained that the call was
being introduced piecemeal.  Defense
counsel argued that the defense should be permitted to introduce additional
statements from the recording; specifically statements made at the beginning of
the recording in which someone answered the telephone and had a conversation
with defendant, during which defendant was asked if he was in trouble, and
defendant said he was not and was innocent. 
Defense counsel argued the requested additional statements should have
been included because they gave context to the subsequent conversation.  The trial court disagreed because the
additional statements were made by a female to defendant, before defendant’s
conversation with a male.  The portion of
the conversation provided to the jury was solely between defendant and the
male.  The trial court therefore found
that the additional statements were not admissible under Evidence Code section
356 because the conversation with the female did not give context or meaning to
defendant’s conversation with the male.

There was no error in
excluding the initial conversation between the female and defendant.  Under Evidence Code section 356, when part of
a conversation is given in evidence by one party, “the whole on the same
subject may be inquired into by an adverse party; . . . and when a . . .
conversation . . . is given in evidence, any other . . . conversation . . . is
necessary to make it understood may also be given in evidence.”  (Evid. Code, § 356.)  Here, the trial court reasonably redacted the
initial conversation between defendant and a female.  Doing so did not prejudicially distort the
subsequent conversation between defendant and a male or present a misleading or
distorted version of the relevant events. 
The redaction also did not negatively impact defendant’s
credibility.  (See Stallworth, supra, 164 Cal.App.4th at p. 1098.)

(9)  Whether the trial court prejudicially erred
in not giving CALCRIM No. 225, when the jury was instructed with CALCRIM Nos.
224 and 252. 

CALCRIM No. 224 instructed
the jury on finding guilt based on circumstantial evidence.  CALCRIM No. 252 instructed on the need for
the jury to find proof of the union, or joint operation, of act and wrongful
intent.  The instruction also specified
whether the charged crimes required a finding of specific or general
intent.  CALCRIM No. 225, which was not
given to the jury, instructs on reliance on circumstantial evidence to prove
intent.  The bench notes for CALCRIM No.
225 state:  “The court has a sua
sponte duty to instruct on how to evaluate circumstantial evidence if the
prosecution substantially relies on circumstantial evidence to establish the
element of a specific intent or a mental state. 
[Citation.]  [¶]  Give this instruction when the defendant’s
intent or mental state is the only element of the offense that rests
substantially or entirely on circumstantial evidence.  If other elements of the offense also rest
substantially or entirely on circumstantial evidence, do not give this
instruction.  Give CALCRIM
No. 224, Circumstantial Evidence:  Sufficiency of Evidence.  [Citations.]” 


            Defendant
was charged with first degree burglary of residence while a person not an
accomplice was present.  (§§ 459, 667.5,
subd. (c).)  The elements of the crime of
burglary are (1) unlawfully entering (2) a residence (3) with intent to commit a crime, such as
larceny or theft.  (§ 459.)  Here, CALCRIM No. 225 was inappropriate
because defendant’s intent or mental state was not the only element of the
offense that rested substantially or entirely on circumstantial evidence.  Other elements of the offense, such as
identification of defendant and Goldman as the perpetrators, also rested
substantially or entirely on circumstantial
evidence.  Defendant argued there was
insufficient evidence that he was the perpetrator, because when Acosta observed
the perpetrator, it was dark, Acosta only saw a glimpse of him through a crack
in the door, Acosta only saw the perpetrator for a couple seconds, Acosta was
under stress, and his description of the perpetrator was not detailed.  Defense counsel asserted that Acosta had no
idea of who broke into his home and the circumstantial evidence was
insufficient to establish that defendant was the perpetrator.

            (10)  Whether the trial court erroneously denied
defendant’s motion to strike his Three Strikes prior conviction under >People v. Wallace (2004) 33 Cal.4th 738,
753-754 (Wallace). 

Defendant moved to have his
prior strike conviction
dismissed pursuant to section 1385.  (name="SR;843">People v. Superior Court (Romero
) (1996) 13 Cal.4th 497.)  The trial
court denied defendant’s motion.  The
court concluded defendant was “the perfect example of why we have the Three
Strikes law,” because he had a juvenile felony finding for possession for sale;
five violations of parole; two felony priors, including the felony conviction
strike for violating sections 245, subdivision (a)(2), and 12021; and two
misdemeanor priors.  The court concluded
defendant’s criminal history reflected an unwillingness to follow the law.  There was no abuse of discretion in denying
defendant’s Romero motion.  The court provided a proper basis for not
dismissing defendant’s prior-strike-conviction allegation.  (Wallace,
supra, 33 Cal.4th at p. 754.)

We have concluded our
independent review of the record and find no arguable issues.

NOT TO BE PUBLISHED IN
OFFICIAL REPORTS

CODRINGTON                     

                                                J.

 

We concur:

 

 

RAMIREZ                              

                                         P. J.

 

 

McKINSTER                         

                                              J.