P. v. Mark





















Filed 1/15/13 P. v. Mark CA2/3

















NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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



SECOND
APPELLATE DISTRICT



DIVISION
THREE




>

THE PEOPLE, Plaintiff and Respondent, v. RAYMOND ANDREW MARK, Defendant and Appellant.

B228442 (Los Angeles County Super. Ct. No. BA357265)

APPEAL from a
judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, Charlaine F.
Olmedo, Judge. Affirmed.

Dennis P. O’Connell
for Defendant and Appellant.

Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E.
Winters, Assistant Attorney General, Susan Sullivan Pithey and Michael J. Wise,
Deputy Attorneys General, for Plaintiff and Respondent.



_________________________











Defendant and
appellant, Raymond Andrew Mark, appeals the judgment entered following his
conviction for grand theft and
displaying a false license plate (2 counts) (Pen. Code, § 487;
Vehicle. Code § 4463).href="#_ftn1"
name="_ftnref1" title="">[1] He was sentenced to probation for three
years.

The judgment is affirmed.

>BACKGROUND

Viewed in accordance with the usual
rule of appellate review (People v. Ochoa
(1993) 6 Cal.4th 1199, 1206), the evidence established the following.

1.
Prosecution evidence.

Michael Uyehara was a hazardous
materials specialist with the County of Los Angeles. On July 12, 2008, he went to a parking lot at 9545 Wentworth Street in the city of Sunland and observed a trailer with a broken hitch. The trailer contained 620 gallons of
fuel. There were scrape marks in the
street from the broken hitch leading to a fuel dispensing site in the Sunland
city yard.

Angela Sherick-Bright worked for the
City of Los Angeles as the acting assistant general manager for fleet
maintenance. City employees were given
access cards allowing them to obtain fuel from city yards. These cards were correlated to an assigned
vehicle and to the gas tank capacity of each type of vehicle. City records showed that on July 12, 2008, between 3:20 a.m. and 4:27 a.m., diesel and unleaded fuel had been taken from the Sunland city
yard. Three different city-issued access
cards had been used to operate the fuel pumps.

Adam Garcia worked for Independent
Studio Services at 9545 Wentworth
Street in Sunland. Arriving at work on July 12, 2008, he noticed scrape marks on the ground “that went from the street
into the driveway, and a fuel trailer [with a broken hitch] parked out
front.” Security camera video tapes
showed a truck pulling into the driveway and depositing the trailer. Two men could be seen in the video. During closing argument the prosecutor
asserted defendant Mark was one of the two men.
The prosecutor also argued, however, that Mark could still be
guilty as an aider and abettor even if he had not been present the night the
fuel was stolen.

Gevork Sukunyan, the owner of
Express Gears, a company that transports automobiles, had done work for Mark in
the past. At some point, Mark offered to
sell Sukunyan fuel at a 25 percent discount. Sukunyan testified he purchased discount fuel
from Mark over a period of two or three months, paying both in cash and by
check. As instructed, the checks
were sometimes made out to the Medusa Salon and sometimes to Mark
directly. Sukunyan’s father took
delivery of some of this fuel, but Sukunyan was the only one who wrote the
checks. Sukunyan pled guilty to
receiving stolen property.

Andy Aguayo was a detective with the
Commercial Crimes Division of the Los Angeles Police Department. On April 29, 2009, he conducted a surveillance operation against Mark. He saw Mark arrive in a white Mustang at 12th Street between Hill and Broadway in Los Angeles. Mark removed the Mustang’s rear license plate
and placed it on the dashboard so that it covered the Vehicle Identification
Number plate. Over the middle of the
dashboard he affixed a vehicle placard, which was a “city seal . . .
meaning what the police cars have on the side of the door.”

Laurel Jump worked as a management
analyst for the Los Angeles Bureau of Street Services. She testified Mark worked for the city as a
truck operator. He was not authorized to
have an official City of Los
Angeles vehicle placard. Placing this placard on the dashboard
exempted his vehicle from certain parking restrictions. As a truck operator, Mark would not normally
have been issued a key to the Sunland yard allowing access to the fuel pumps
when the yard was closed.

Mark told Detective Lorenzo Barbosa
of the Commercial Crimes Division that he owned the Madusa Salon. Barbosa located a black truck belonging to
Mark. This truck matched the one seen in
the surveillance videos in several key respects. The truck’s license plate registration
sticker did not belong to the truck, but to another vehicle which was owned by
someone else.

When
Barbosa executed a search warrant at Sukunyan’s business, he found numerous
55-gallon plastic barrels containing small amounts of gasoline or diesel
fuel. Sukunyan told Barbosa these were
Mark’s barrels. At Mark’s residence,
Barbosa found a plastic barrel and five hoses; the hoses smelled of fuel and
had been altered for use as siphoning tools.

2.
Defense evidence.

John Fagan supervised concrete and
asphalt crews for the City of Los
Angeles. Mark had formerly worked for him on a crew
that ground down the cracks in concrete sidewalks. Fagan had known him for 12 years. Fagan testified he had never witnessed any
acts of dishonesty by Mark during the time they worked together. One of Mark’s jobs was to make the city
vehicle placards for employees and supervisors.
Fagan was familiar with the Sunland city yard. There were about 20 or 25 people who had
access to that facility. Many people had
keys to the yard in 2008. Fuel access
cards were left in the trucks and the trucks were not locked.

Gregory Mark, the defendant’s
brother, was on parole for a felony conviction.
Gregory testified he and Kevin O’Connor were the ones who stole the
fuel. Although they used Mark’s truck,
Mark was not involved. Gregory would
borrow Mark’s truck to pick up fuel from the Sunland yard because O’Connor had
a key to the yard. O’Connor used a
credit card to access the fuel pumps.
Gregory and O’Connor delivered the fuel to “[s]ome Armenians” who owned
a car lot. Gregory received checks in
return for the fuel, and he would write Medusa Salon in as the payee and have
Mark cash them. The Armenians never paid
in cash. The last time Gregory saw
O’Connor was on July 12, 2008, when they
hitched a trailer to Mark’s truck and the trailer broke. Gregory told police he was the person seen on
the surveillance tape getting out of the truck and arguing with O’Connor, and that
Mark did not appear on the surveillance tape.
Gregory and O’Connor split the profits from the fuel thefts with Gregory
receiving maybe 15 to 20 percent plus some “dope on the side, too.”

3. Rebuttal
evidence.

Mark
told Detective Barbosa he had been in Texas on the day
the trailer broke down at the Sunland city yard. Barbosa identified numerous inconsistencies
between Gregory’s police interview and his trial testimony. For example:
Gregory insisted the broken trailer incident had occurred in April, not
July; he could not provide even a ballpark estimate of the amounts on the
checks he supposedly received from the Armenians; he said he did not receive
any compensation for selling the fuel and he certainly was never paid in drugs.

>CONTENTIONS

1. The trial court erred by not instructing the
jury that Sukunyan was an accomplice as a matter of law.

2.
Mark’s trial attorney rendered ineffective assistance.

>DISCUSSION

1.
Trial court did not err by
neglecting to instruct the jury that Sukunyan was an accomplice as a matter of
law.

Mark contends his convictions must
be reversed because the trial court failed to instruct the jury, sua sponte,
that Sukunyan was an accomplice as a matter of law. This claim is meritless.

a. Legal
principles.

Section 1111
defines an accomplice as “one who is liable to prosecution for the identical
offense charged against the defendant on trial in the cause in which the
testimony of the accomplice is given.”
An accomplice is one who acts with “ ‘knowledge of the criminal purpose
of the perpetrator and with an intent
or purpose either of committing, or of encouraging or facilitating commission
of, the offense.’ ” (>People v. Stankewitz (1990) 51 Cal.3d
72, 91.) Whether a person is an
accomplice is a question of fact for the jury unless there is no dispute as to
either the facts or inferences to be drawn from the facts. (People
v. Fauber (1992) 2 Cal.4th 792, 834; People
v. Williams (1997) 16 Cal.4th 635, 679 [trial court may only instruct that
witness is accomplice as matter of law if facts establishing culpability are
clear and undisputed].)

“A conviction
cannot be had upon the testimony of an accomplice unless it be corroborated by
such other evidence as shall tend to connect the defendant with the commission
of the offense . . . .”
(§ 1111.) “To corroborate
the testimony of an accomplice, the prosecution must present ‘independent
evidence,’ that is, evidence that ‘tends to connect the defendant with the
crime charged’ without aid or assistance from the accomplice’s testimony. [Citation.]
Corroborating evidence is sufficient if it tends to implicate the
defendant and thus relates to some act or fact that is an element of the crime. [Citations.]
‘ “[T]he corroborative evidence may be slight and entitled to little
consideration when standing alone.”
[Citation.]’ [Citation.]” (People
v. Avila (2006) 38 Cal.4th 491, 562-563.)

b. Discussion.

Mark argues Sukunyan was an
accomplice as a matter of law because he knowingly purchased stolen fuel and
pled guilty to receiving stolen property.
The Attorney General, however, argues there was no evidence connecting
Sukunyan to anything more than receiving stolen property. The Attorney General is right.

“It is settled that the thief and
the one knowingly receiving stolen property from him are guilty of distinct and
separate substantive offenses and are not accomplices of each other. [Citations.]
An exception to the rule is recognized when the thief and the receiver
conspire together in a prearranged plan whereby one is to steal and the other
is to buy.” (People v. Raven (1955) 44 Cal.2d 523, 526 [no prearranged plan
shown even though thief sold jeep tires and power tools to receiver who dealt
in used goods and knew beforehand some items had been stolen]; compare >People v. Lima (1944) 25 Cal.2d 573, 576
[prearranged plan shown where, early in olive season, defendant agreed to buy
all the olives thieves could steal] with People
v. McKunes (1975) 51 Cal.App.3d 487, 493 [prearranged plan not shown where
thief knew receiver would be interested in purchasing stolen items but there
was no “firm agreement”].)

Here,
Mark alleges only that Sukunyan knew the fuel had been stolen. Mark does not point to any evidence showing
there had been a pre-existing agreement for Sukunyan to purchase fuel that Mark
would steal for him. In these
circumstances, the “accomplice as a matter of law” instruction was unwarranted.

2. There
was no ineffective assistance of counsel.

Mark contends he was denied effective assistance of counsel because
his attorney failed to request certain jury instructions and failed to call a
particular witness to testify for the defense.
These claims are meritless.

a. Legal
principles.

A claim of ineffective assistance of
counsel has two components: “ ‘First,
the defendant must show that counsel’s performance was deficient. This requires showing that counsel made
errors so serious that counsel was not functioning as the “counsel” guaranteed
the defendant by the Sixth Amendment.
Second, the defendant must show that the deficient performance
prejudiced the defense. This requires
showing that counsel’s errors were so serious as to deprive the defendant of a
fair trial, a trial whose result is reliable.’
[Citation.] To establish
ineffectiveness, a ‘defendant must show that counsel’s representation fell
below an objective standard of reasonableness.’
[Citation.] To establish
prejudice he ‘must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.’ [Citation.]”
(Williams v. Taylor (2000) 529
U.S. 362, 390-391 [120 S.Ct. 1495].)
“[T]he burden of proof that the defendant must meet in order to
establish his entitlement to relief on an ineffective-assistance claim is
preponderance of the evidence.” (>People v. Ledesma (1987) 43 Cal.3d 171,
218.)

“[I]f the record sheds no light on
why counsel acted or failed to act in the challenged manner, we must reject the
claim on appeal unless counsel was asked for an explanation and failed to
provide one, or there could be no satisfactory explanation for counsel’s
performance. [Citation.]” (People
v. Castillo (1997) 16 Cal.4th 1009, 1015.)
An appellate court “need
not determine whether counsel’s performance was deficient before examining the
prejudice suffered by the defendant as a result of the alleged
deficiencies.” (Strickland v. Washington (1984) 466 U.S. 668, 697 [104 S.Ct.
2052].)

“Where the record shows that the
omission or error resulted from an informed tactical choice within the range of
reasonable competence, we have held that the conviction should be
affirmed.” (People v. Bunyard (1988) 45 Cal.3d 1189, 1215; see People
v. Mitcham (1992) 1 Cal.4th 1027, 1059 [decision whether to put on
witnesses is “matter[] of trial tactics and strategy which a reviewing court
generally may not second-guess”].) “[T]he
choice of which, and how many, of potential witnesses [to call] is precisely
the type of choice which should not be subject to review by an appellate
court.” (People v. Floyd (1970) 1 Cal.3d 694, 709, disapproved on other
grounds by People v. Wheeler (1978)
22 Cal.3d 258, 287, fn. 36.) “It is
not sufficient to allege merely that the attorney’s tactics were poor, or that
the case might have been handled more effectively. [Citations.]
[¶] Rather, the defendant must
affirmatively show that the omissions of defense counsel involved a critical
issue, and that the omissions cannot be explained on the basis of any
knowledgeable choice of tactics.” (>People v. Floyd, supra, at p. 709.)

b. Discussion.

> As
to each claim raised by Mark, the record demonstrates defense counsel had a
valid tactical reason for what he did.

(1) CALCRIM
No. 315.

Mark
asserts, “One of the issues that was hotly contested was Mr. Sukunyan’s
identification of Appellant. In that
regard CALCRIM 315 regarding the factors to consider on eyewitness
testimony should have been requested.”

CALCRIM No. 315 is a
specialized instruction suggesting particular factors for a jury to consider
when evaluating the quality of an eyewitness identification. However, other than the first factor,
“Did the witness know or have contact with the defendant before the event?”, all
the others primarily relate to problems with stranger identifications, e.g.,
“How well could the witness see the perpetrator?”, “How closely was the witness
paying attention?”, “Was the witness under stress when he or she made the
observation?”, etc. Here, Sukunyan
testified he was acquainted with Mark and had done business with him on
multiple occasions. The defense did not
argue he had misidentified Mark. Rather, the defense argued Sukunyan had lied by
claiming he purchased the stolen fuel from Mark because he was trying to
protect his father. There was no
reason to request CALCRIM No. 315 in this situation. “[C]ounsel is not required to
make futile motions or to indulge in idle acts to appear competent.” (>People v. Torrez (1995) 31 Cal.App.4th
1084, 1091.)

(2) CALCRIM
No. 350.

Mark
contends defense counsel should have requested the character evidence
instruction, CALCRIM No. 350,href="#_ftn2"
name="_ftnref2" title="">^>[2] because it “states
in essence that evidence of the defendant’s good character by itself may create a reasonable doubt as to the defendant’s
guilt,” and evidence was presented showing Mark’s “character for honesty.” This instruction would have been based on the
following testimony by John Fagan, Mark’s former supervisor:

“[Defense
counsel: What’s your sense of the type
of employee that he is or was when he worked for you?

“[Fagan]: Real good.
Good employee. I’m not sure if
I’m –

“Q. Did you ever have any problems with him? Any issues?


“A. No.

“Q. Any acts of dishonesty?

“A. No.

“Q. Okay.
Did you ever write him up for any –


“A. No.”

Evidence
Code section 1101, subdivision (a), states: “Except as provided in this section and in
Sections 1102, 1103, 1108, and 1109, evidence of a person’s character or a
trait of his or her character (whether in the form of an opinion, evidence of
reputation, or evidence of specific instances of his or her conduct) is
inadmissible when offered to prove his or her conduct on a specified
occasion.”

However,
Evidence Code section 1102 provides:
“In a criminal action, evidence of the defendant’s character or a trait
of his character in the form of an opinion or evidence of his reputation is not
made inadmissible by Section 1101 if such evidence is: [¶]
(a) Offered by the defendant to prove his conduct in conformity
with such character or trait of character.
[¶] (b) Offered by the
prosecution to rebut evidence adduced by the defendant under
subdivision (a).”

“Under
[Evidence Code section 1102], a defendant in a criminal action may
introduce evidence of his character or a trait of his character in the form of
an opinion or evidence of reputation, but
not in the form of specific conduct, in order to prove conduct in
conformity with such character or trait of character.” (People
v. Honig (1996) 48 Cal.App.4th 289, 348, italics added; accord >People v. Felix (1999) 70 Cal.App.4th
426, 431-432.) “As the Law Revision
Commission’s comments to section 1102 make clear, evidence of specific
acts of the accused are, as a general rule, inadmissible to prove his disposition
to commit such acts . . . .”
(People v. Wagner (1975) 13
Cal.3d 612, 619.)

Fagan’s
testimony did not qualify as character trait evidence by way of reputation
because it was testimony about specific conduct. Fagan testified Mark had been a “good”
employee, he had never seen any “acts of dishonesty” by Mark, and he had never
“written [Mark] up.” Hence, had defense
counsel requested CALCRIM No. 350, the trial court would have properly
refused to give it. (See >People v. Torrez, supra, 31 Cal.App.4th
at p. 1091 [counsel not required to indulge
in idle acts to appear competent].)

(3) CALCRIM
No. 3400.

Mark
contends defense counsel should have requested CALCRIM No. 3400href="#_ftn3" name="_ftnref3" title="">[3]
because it “tells the jury that [it] must believe the defendant was present when
the crime was committed beyond a reasonable doubt.” He argues this instruction was important
because there was evidence he had been in Texas when the fuel was taken from
the Sunland yard.

But
this alibi evidence was weak and undeveloped.
It consisted solely of
Detective Barbosa’s testimony that, when he spoke to Mark, the defendant
claimed to have been in Texas on the day “the trailer broke down
. . . in the area of the Sunland district yard.” Mark neither testified himself nor put on any
evidence tending to show he was out of the state on the day the trailer broke
down. In any event, Mark is ignoring the
second half of CALCRIM No. 3400, which informs the jury that an aider and
abettor need not be present at the crime scene.
(See fn. 3, ante.)

(4)
Failure to call defense witness.

Mark
contends defense counsel was ineffective for failing to call Dale Reichharthref="#_ftn4" name="_ftnref4" title="">>^[4]
as a witness. But the records shows
Reichhart would not have been a helpful witness.

In
support of Mark’s new trial motion, Reichhart submitted a declaration stating
he had participated in the fuel theft along with Gregory, and that Mark had not
been involved. But the new trial motion
itself shows Reichhart would not have been a helpful defense witness. The new trial motion stated: “After taking a recorded statement from the
defendant, Det. Barbosa then went to meet with Reichhart to find out whether
the defendant’s story ‘checked out.’ At
that time, Reichhart implicated the defendant in the Sunland yard
thefts. . . . However, post-trial,
in his attached declaration, Reichhart admits that he lied about the defendant
and it was Greg Mark with whom he stole gasoline, which was then sold to the
elder Sukunyan.”

As the
Attorney General points out: “Obviously,
given that [Reichhart] initially implicated defendant in the thefts, but then
later changed his story, . . . defense counsel could have reasonably
believed that calling him as a witness would have been sorely damaging, if not
fatal, to appellant’s case.”

Even
apart from the fact Reichhart at one time told police Mark was guilty,
Reichhart’s new trial declaration essentially contradicts Gregory’s alibi
testimony that it was he and Kevin O’Connor who stole the fuel. Reichhart’s declaration says he and Gregory
stole the fuel, and it makes no mention of O’Connor.

In
sum, there was no ineffective assistance of counsel in failing to request these
three instructions or failing to call Reichhart as a trial witness.href="#_ftn5" name="_ftnref5" title="">[5]

DISPOSITION

The judgment
is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS









KLEIN,
P. J.





We concur:







CROSKEY,
J.









ALDRICH,
J.