P. v. Jones
Filed 6/28/12 P. v. Jones CA2/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
MICHAEL DWAYNE JONES,
Defendant and Appellant.
B227567
(Los Angeles
County
Super. Ct.
No. YA077077)
APPEAL from
a judgment of the Superior Court
of
County, James R. Brandlin, Judge. Affirmed.
E. Thomas
Dunn, Jr., 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, Assistant Attorney General, Victoria B. Wilson, Supervising
Deputy Attorney General, Kim Aarons, Deputy Attorney General, for Plaintiff and
Respondent.
——————————
>
Defendant
appeals his conviction of one count of residential
burglary (Pen. Code, § 459), with true findings he suffered two prior
serious or violent felony convictions (Pen. Code, § 667, subds. (a)-(i);
§ 1170.12, subds. (a)-(d)). On
appeal, he contends that insufficient
evidence supports his conviction for burglary and that the trial court
erred in admitting evidence of an unlawful search. We affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On January 15, 2010, around noon, Torrance Police officer Robert Waldrop
responded to a burglary alarm from a residence that belonged to Abad Cabrera at
5404 Konya Avenue in Torrance. The house at 5404 Konya
shares an approximately eight foot high property dividing wall with a house to
the south at 5403 Michelle. It is a
twelve foot drop from the Konya Avenue
house to the backyard of the adjacent house.
Officer Waldrop, who was in uniform, parked on Henrietta, south of
Michelle.
When he
arrived at the scene, Officer Waldrop looked for Officer Levell, an officer
from another unit who had previously responded to the scene, but Officer
Waldrop could not find him. At that
point, Officer Waldrop saw defendant, who appeared disheveled and was talking
on his cell phone, exit the backyard of the house on Michelle through the west
gate. Defendant walked away from Officer
Waldrop, and headed northbound on Henrietta Street. Defendant appeared to be having a “regular
phone conversation,” and Officer Waldrop followed him; when Officer Waldrop was
five feet to 10 yards behind defendant he heard “bits and pieces” of
defendant’s conversation. Officer
Waldrop got closer to defendant and heard him say in a more distressed tone,
“They’re here. Five-0 is here. I need a ride.” In Officer’s Waldrop’s experience, “Five-0”
is a reference to police. Defendant
looked back, saw Officer Waldrop, and started running. Officer Waldrop was able to grab defendant
and detain him.
Officer
Waldrop had defendant spread his feet, and placed defendant’s hands on the back
of defendant’s head to facilitate a patdown search. Defendant was perspiring, his breathing was
irregular, and his heart
was pounding rapidly. Defendant told
Officer Waldrop that he had just left a friend’s house on Del Amo, and he was
on the phone with a friend trying to get a ride. Officer Waldrop requested a second unit, and
tried to locate Officer Levell. Officer
Waldrop saw Officer Levell on Michelle, and heard Officer Levell’s radio call
that there was a neighbor who reported a possible second suspect in the area
described as a six-foot tall male black.
After
placing defendant in handcuffs, Officer Waldrop conducted a patdown search of
defendant. As Officer Waldrop ran his
hand down defendant’s left shin, defendant moaned in pain. In response to Officer Waldrop’s questioning,
defendant responded that his shin hurt.
Officer Waldrop pulled up defendant’s left pant leg and saw scrapes and
contusions on defendant’s leg.
Defendant’s skin was peeling and there was fresh blood. In Officer Waldrop’s experience, such
injuries can result from going over a large cinderblock wall. Defendant told Officer Waldrop he did not
know how he injured his leg, and said he was in the area because he was trying
to catch a bus to go to Del Amo Mall.
Del Amo Mall is about two miles from the crime scene.
Officer
Waldrop checked the residence at 5404 Konya, and found the rear window on the
south side of the house had been smashed, and observed inside the house a
dresser that had been ransacked. Officer
Waldrop placed defendant under arrest; a search of defendant’s pockets yielded
cotton knit gloves, pepper spray, defendant’s cell phone, $37, and a wallet. In Officer’s Waldrop’s experience, burglars
often carry gloves so as not to leave fingerprints at the scene; use cell
phones as way to communicate with accomplices via a direct-connect feature;
carry pepper spray to silence dogs or distract persons found in the home being
burglarized; and carry entry tools.
After he took the phone from defendant, Officer Waldrop observed
defendant’s phone lighting up with an alert that said “R-I-D-E.”
The radio
transcripts show that Officer Waldrop arrived in the area about
12:06 p.m. Defendant received a
call from a person named “Geezy” at approximately 12:08 p.m. that lasted 0:00
minutes.
Abad
Cabrera, the owner of the home at 5404 Konya, informed police that $1000 in
cash and some jewelry was missing from the house. Elsa Goodman, the owner of the house at 5403
Michelle, did not give anyone permission to be in her backyard that day. On January 23, 2010, Maria Rangel was
cleaning the Cabrera house and found a towel in the patio by the side of the
house wrapped around a screwdriver, a crowbar, and some black gloves.
Defendant’s
prints were not found in the Cabrera home.
There were no usable prints on the screwdriver, crowbar, or gloves found
by the side of the house.
The
prosecution introduced defendant’s preliminary hearing testimony, which was
read to the jury. Defendant testified
that he worked for Project Angel Food, which delivered food to elderly
people. He works from 8:00 a.m. to 4:00
p.m. on most weekdays. He did not work
on January 15, 2010 because he needed to go to the doctor for treatment of the
abrasion on his left leg. Defendant was
injured while moving a table at his home.
Defendant had been to Del Amo mall once before by car, and wanted to go
there on January 15, 2010 because he was looking for toys and games on
sale. He took the bus, and when he got
off, he believed he was near the mall.
Defendant mistakenly took his girlfriend’s pepper spray that morning
instead of his own spray that he uses for erectile dysfunction, and asserted
the cotton gloves in his possession at the time of his arrest were for his work
because he had to enter a cooler to retrieve food. Defendant denied climbing the wall of the
house on Michelle, being in the backyard of the house, or jumping off the wall
between the houses. Defendant admitted
he was convicted of two counts of robbery in 1996, and suffered a bank robbery
conviction in 2004.
Paula De
Jean, defendant’s supervisor at Project Angel Food, testified that defendant
worked as a driver delivering food.
Defendant took sick days on Thursday, January 14, 2010 and Friday,
January 15, 2010. According to Project
Angel Food payroll records, the last day defendant worked before the burglary
of the Cabrera home was December 27, 2009.
Project Angel Food terminated defendant effective January 15, 2010.
Defendant
lived a considerable distance from the Del Amo Mall.
The
prosecution’s theory of the case was that defendant aided and abetted an
unknown person in the burglary of the Cabrera home. The prosecution relied on the circumstantial
evidence of defendant’s possession of gloves and pepper spray; his proximity to
the burglarized home; his egress from the property adjacent to the burglarized
home; defendant’s cellphone call to advise his accomplice that the police were
on the scene; defendant’s attempted flight from Officer Waldrop; and
defendant’s injuries consistent with an attempt to scale a wall. The prosecution argued the presence of an
accomplice was demonstrated by the gloves, crowbar, and screwdriver found at
the Cabrera home. “So when you add [this
evidence] together . . . the defendant is right next to the
burglary. Exiting the property that he
doesn’t have permission [to be on]. With
gloves. With pepper spray. A long way from
home. . . . The inference is that [defendant] is
guilty.”
The jury
convicted defendant of one count of burglary, and found true the prior
conviction allegations. The trial court
sentenced defendant to a term of 35 years to life consisting of 25 years to
life on the burglary count, plus two five-year enhancements for the two prior
conviction allegations.
I. SUFFICIENT EVIDENCE
SUPPORTS DEFENDANT’S BURGLARY CONVICTION
Defendant argues insufficient
evidence supports his burglary conviction, either as a principal or as an aider
and abetter because there was no evidence defendant entered the house at 5404
Konya, and as an accomplice, there was no evidence he was present at the crime
scene, was in the company of the principal, or fled from the scene. Respondent argues that there was evidence defendant
was directly involved in the burglary based upon his possession of gloves (used
to conceal fingerprints) and pepper spray (defense against dogs or
unanticipated residents); furthermore, there was evidence he was involved as an
accomplice based upon the neighbor’s sighting of a second suspect, additional
burglary tools recovered from the residence, and defendant’s conversation on
the cellphone.
Section 459
provides that, “[e]very person who enters any house, room, apartment, tenement,
shop, warehouse, store, mill, barn, stable, outhouse or other building, tent,
vessel, . . . with intent to commit grand or petit larceny
or any felony is guilty of burglary.”
Thus, “the substantive crime of burglary is defined by its elements as: (1) entry into a structure, (2) with the
intent to commit theft or any felony.” (
101.) The crime is complete when the
defendant enters one of the statutorily specified premises with the intent to
steal something or commit any felony; a burglary can be committed without an
actual taking of property. (
Cal.App.4th 529, 535–536.)
“‘An
accomplice is . . . one who is liable to prosecution for
the identical offense charged against the defendant.’” (People
v. Boyer (2006) 38 Cal.4th 412, 467.)
Section 31 provides that “[a]ll persons concerned in the commission of a
crime, . . . whether they directly commit the act
constituting the offense, or aid and abet in its commission, or, not being
present, have advised and encouraged its commission . . . are
principals in any crime so committed.”
Accomplice liability requires a showing the defendant aided the
perpetrator with knowledge of the perpetrator’s purpose and with the intent or
purpose to aid or assist in committing the principal’s crime. (People
v. Beeman (1984) 35 Cal.3d 547, 560.)
“[T]he dividing line between the actual perpetrator and the aider and
abettor is often blurred. It is often an
oversimplification to describe one person as the actual perpetrator and the
other as the aider and abettor. When two
or more persons commit a crime together, both may act in part as the actual
perpetrator and in part as the aider
and abettor of the other, who also acts in part as an actual perpetrator.” (People
v. McCoy (2001) 25 Cal.4th 1111, 1120.)
Moreover, “the aider and abettor’s guilt for the intended crime is not
entirely vicarious. Rather, that guilt
is based on a combination of the direct perpetrator’s acts and the aider and
abettor’s own acts and
at p. 1117.)
If a defendant’s
liability for an offense is predicated upon the theory that he or she aided and
abetted the perpetrator, the defendant’s intent to encourage or facilitate the
actions of the perpetrator “must be formed prior
to or during ‘commission’ of that offense.”
(People v. Cooper (1991) 53
Cal.3d 1158, 1164.) Aiding and abetting
a specific intent crime such as burglary requires the aider and abetter to
share the specific intent of the principal.
(People v. Beeman,
A
conviction of burglary may be based upon circumstantial
evidence. (People v. D.M.G. (1981) 120 Cal.App.3d 218, 227.) “‘Burglary being one of those crimes which
are usually committed in secret, the proof of the corpus deliciti generally
must rest on circumstantial evidence alone.’”
(People v. Jordan (1962) 204
Cal.App.2d 782, 786.) Although mere
presence at a crime scene and failure to prevent the crime, even with knowledge
of the perpetrator’s criminal purpose, do not constitute aiding and abetting,
the trier of fact may consider such circumstances in determining aiding and
abetting liability. (
518, 529–530.) An unexplained presence
at the scene of a crime implies complicity.
(People v. Wilson (1928) 93
Cal.App. 632, 636.) Other circumstances
to be considered are companionship, and conduct before and after the offense,
including flight, which can indicate guilt.
(In re Lynette G. (1976) 54
Cal.App.3d 1087, 1094; People v. London (1988)
206 Cal.App.3d 896, 903.) “It has been
consistently held that one who was present for the purpose of diverting
suspicion, or to serve as a lookout, or to give warning of approach of anyone
seeking to interfere,” is liable as an aider and abettor, and thus a principal
in the crime committed. (
162, 169.) Whether a person is an
accomplice is a question of fact for the jury, unless there is no dispute as to
the facts or the inferences to be drawn from them. (People
v. Avila (2006) 38 Cal.4th 491, 565.)
Here,
sufficient evidence supports defendant’s conviction for burglary. First, defendant was in the backyard of the
adjacent house after having scaled a cinderblock fence, he was perspiring,
arguably indication of exertion or nervousness, had burglary implements on him,
and was seeking a means of escape because the police (“Five-0”
werepresent. Second, accomplice liability
requires a showing that defendant aided the unknown burglar of the Cabrera
residence with knowledge of the perpetrator’s purpose and with the intent or
purpose to aid or assist in committing the underlying burglary. (People
v. Beeman, supra,
defendant’s intent to assist in committing the underlying burglary consisted of
the burglary tools discovered at the Cabrera residence, defendant’s possession
of additional burglary tools, defendant’s presence in the backyard of the
adjacent house, and Officer Levell’s report of the neighbor’s sighting of a
second person, indicating that two persons had broken into the home.
II. OFFICER WALDROP’S OBSERVATION OF
DEFENDANT’S LEG WOUND WAS NOT THE FRUIT OF AN UNLAWFUL SEARCH
Defendant
argues that Officer Waldrop’s search of his pant leg revealing the scrape marks
should have been suppressed as the fruits of an unlawful search because he was
not under arrest at the time and the patdown was not supported by probable
cause or reasonable basis for believing defendant was armed and dangerous. Respondent argues defendant waived the issue
because defendant’s motion to suppress argued that defendant’s statements at
the time of his detention should be suppressed as obtained in violation of his
v. Williams (1999) 20 Cal.4th 119, 130–131 [party may not offer on appeal
theory of suppression not offered in the trial court].) Defendant contends the issue was subsumed
within his motion to suppress, and the issue of Officer Waldrop’s observation
of his leg was specifically raised at the suppression hearing; further, if the
issue was not properly before the court, counsel was ineffective for failing to
raise it.
We find the
issue forfeited because a suppression of statements under Miranda does not subsume an argument that the pant leg search was
an unlawful search. A judgment may not
be reversed based on the erroneous admission of evidence unless a timely and
specific objection was raised in the lower court. (Evid. Code, § 353, subd. (a); see also
130 [party may not offer on appeal theory of suppression not offered in the
trial court].)
Nevertheless,
in order to avert a meritless claim of ineffective assistance of counsel, we
note that even if the issue were not forfeited, no error occurred. Any warrantless search is unreasonable unless
it falls within one of the recognized exceptions to the warrant
requirement. (Katz v. United States (1967) 389 U.S. 347, 357 [88 S.Ct. 507, 19
L.Ed.2d 576].) The burden of proving that
a search falls within one of these exceptions rests with the People. (People
v. Williams, supra,
“It is
settled that circumstances short of probable cause to make an arrest may
justify a police officer stopping and briefly detaining a person for
questioning or other limited investigation.
[Citations.] Although each case must be decided on its own facts,
certain standards for judging the lawfulness of the officer’s conduct have
emerged from our decisions.
[Citations.]
[¶] . . . [¶]
[I]n order to justify an investigative stop or detention the
circumstances known or apparent to the officer must include specific and
articulable facts causing him to suspect that (1) some activity relating
to crime has taken place or is occurring or about to occur, and (2) the
person he intends to stop or detain is involved in that activity. Not only must he subjectively entertain such
a suspicion, but it must be objectively reasonable for him to do so: the facts
must be such as would cause any reasonable police officer in a like position,
drawing when appropriate on his training and experience [citation], to suspect
the same criminal activity and the same involvement by the person in
question. The corollary to this rule, of
course, is that an investigative stop or detention predicated on mere
curiosity, rumor, or hunch is unlawful, even though the officer may be acting
in complete good faith.” (
892–893, fn. omitted.) During such stop,
the officer may perform a patsearch for weapons if he or she believes the
suspect is armed and dangerous to the officers or others. (Terry
v. Ohio (1968) 392 U.S. 1, 24 [88 S.Ct. 1868, 20 L.Ed.2d 889];
1390, 1395–1396.)
“A police
officer’s expertise can attach criminal import to otherwise innocent
facts.” (People v. Limon (1993) 17 Cal.App.4th 524, 532.) Further, where burglary is the suspected
crime, it is reasonable for police to believe the suspected burglar may be
armed. (People v. Osborne (2009) 175 Cal.App.4th 1052, 1059–1060.) Here, Officer Waldrop was immediately
suspicious of defendant based upon his emergence from the house on Michelle in
a disheveled appearance. Defendant was
sweating, talking on his cell phone seeking a means escape by calling someone,
stating he needed a ride because “Five-0” was nearby, and ran away when Officer
Waldrop approached him. Officer Waldrop
was aware a burglary had occurred nearby, the house on Michelle had a high
stone wall, and defendant moaned in pain when his leg was touched. These observations constituted objective
evidence that activity relating to a crime had taken place and defendant was
involved in it, justifying Officer Waldrop’s detention of defendant and patdown
search of his pant leg.
DISPOSITION
The
judgment is affirmed.
JOHNSON,
J.
We concur:
ROTHSCHILD,
Acting P. J.
CHANEY,
J.
name="_ftn1" title="">[1] Miranda
v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694].
name="_ftn2" title="">[2] Defendant’s suppression motion is not part of
the record.
