P. v. Nye
Filed 3/1/13 P. v. Nye CA4/3
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opinion has not been certified for publication or ordered published for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
THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
CANNIBIS GARREN NYE,
Defendant and Appellant.
G046286
(Super. Ct. No. 10HF0289)
O P I N I O N
Appeal from a judgment
of the Superior Court of
County, Richard W. Stanford, Jr., Judge. Affirmed.
James M. Crawford, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, Melissa Mandel and Marissa A. Bejarano,
Deputy Attorneys General, for Plaintiff and Respondent.
* * *
INTRODUCTION
Defendant Cannibis
Garren Nye appeals from a judgment entered after a jury found him guilty of
receipt of stolen property. He contends
the admission of a portion of an investigator’s testimony, which recounted a
witness’s statements made during the investigation of the charged offenses,
denied Nye his right to confront and cross‑examine witnesses in violation
of the Sixth Amendment to the United States Constitution. He argues his trial counsel’s failure to
object to the investigator’s testimony on that ground constituted ineffective
assistance of counsel. Nye also contends
insufficient evidence supported the
burglary conviction because the prosecution failed to present any proof he
entered the victim’s apartment.
We affirm. Nye’s trial counsel did not render
ineffective assistance of counsel. Even
assuming Nye’s trial counsel’s representation was deficient in his failure to
object to the investigator’s testimony regarding a witness’s statements, the
challenged testimony was duplicative of other evidence admitted at trial that
was adduced from another witness. Thus,
its admission did not prejudice Nye. As
explained in detail post, we also
conclude substantial evidence supported Nye’s burglary conviction.
FACTS
Around 7:30 a.m. on
December 15, 2009, Mark Gallagher and his girlfriend, Kelley Uyeda, left
Gallagher’s apartment in Lake Forest to go to work. Gallagher returned to the apartment for lunch
and noticed that a window was broken and the window screen was resting on some
items inside the apartment. The
apartment was “messier†than Gallagher and Uyeda had left it. Gallagher noticed that his electric guitar,
which had been hanging on a wall in the apartment, was gone. Gallagher’s DVD player, an external hard
drive, DVD box sets, and a Beatles’ complete songbook were missing. Uyeda’s duffel bag and Kenneth Cole bag
containing her wallet and a camera were also missing. Gallaher immediately called the police.
Records from a Santa Ana
pawn shop (the pawn shop), authenticated by an employee of the pawn shop, Ellen
Duarte, showed that at 3:05 p.m. on December 15, 2009, an individual
who identified himself as Nye and who provided a Lake Forest home address,
brought an electric guitar into the pawn shop and sold it to the pawn shop for
$25. (Evidence was presented that the
pawn shop was approximately 20 to 23 miles away from Nye’s apartment.) Duarte testified that customers who bring
items into the pawn shop must show photo identification.
In February 2010,
Gallagher contacted investigator Brian Sims of the Orange County Sheriff’s
Department, who had been assigned to investigate the burglary. Gallagher told Sims that he recognized his
electric guitar (based on its strap and broken pick guard) in an advertisement
by the pawn shop.
On February 24, 2010,
Sims met Gallagher at the pawn shop.
After Gallagher confirmed the electric guitar that had been advertised
was his, Sims seized it. He spoke with
the pawn shop’s manager, Maria Cruz, who later told him that on
December 15, “a Cannibis Nye had brought in a guitar and had brought in
other items, according to their database, and was the person responsible for
bringing the guitar in for a buy.†Cruz
gave Sims the Lake Forest address that had been given by Nye; that address was
“[w]ithin a couple of miles†of Gallagher’s apartment. Sims “completed a records check†on “a
Cannibis Nye†in the City of Lake Forest and confirmed Nye’s address. Sims also obtained a photograph of Nye from
the Department of Motor Vehicles.
At 7:00 or
7:30 a.m. on February 25, Sims and two other investigators were
approaching the staircase leading to Nye’s second‑floor apartment when
they saw Nye exit his apartment and begin to walk down the staircase. Nye saw the investigators, turned around, and
ran back up the stairs. The
investigators ordered Nye to stop, identified themselves as from the Orange
County Sheriff’s Department, and told him to comply with their demands. Nye continued to run up the stairs, and the
investigators chased after him. Nye ran
inside his apartment, slammed the door, and locked it. After pounding on the apartment door, and
demanding that Nye open the door and surrender, the investigators kicked in the
door. Inside the apartment, Nye “exited
the hallway and proned himself out on the floorâ€; he was thereafter
arrested.
In Nye’s bedroom, the
investigators found other items that Gallagher had reported were stolen,
including the Beatles’ songbook, the Kenneth Cole bag, and a Lord of the Rings DVD
box set.
PROCEDURAL
BACKGROUND
Nye was charged in an
information with one count of first degree residential burglary in violation of
Penal Code sections 459 and 460, subdivision (a), and one count of
receiving stolen property in violation of Penal Code section 496,
subdivision (a). (All further
statutory references are to the Penal Code unless otherwise specified.) The information alleged the burglary offense
came within the meaning of section 462, subdivision (a). The information further alleged that,
pursuant to sections 667, subdivisions (d) and (e)(2)(A) and 1170.12,
subdivisions (b) and (c)(2)(A), Nye was previously convicted of two
serious and violent felonies. It further
alleged that, pursuant to section 667.5, subdivision (b), Nye served
three prior prison terms, and, pursuant to section 667,
subdivision (a)(1), he suffered two prior serious felonies.
The jury found him
guilty of both offenses. Nye admitted
all the prior conviction and prison term allegations. The trial court sentenced Nye to a total
prison term of 18 years by imposing double the middle term for the burglary
offense, pursuant to sections 667, subdivisions (d) and (e)(1) and
1170.12, subdivisions (b) and (c)(1), plus two consecutive five‑year
terms for the prior serious felony conviction allegations. The court stayed execution of sentence on the
receiving stolen property offense, pursuant to section 654, and struck,
for purposes of sentencing, the prior prison term allegations.
Nye appealed.
DISCUSSION
I.
The
Admission of Sims’s Testimony Regarding Cruz’s Statements
Nye contends his
constitutional right to confront and cross‑examine witnesses was violated
by the admission of Sims’s testimony regarding Cruz’s statements to him. Nye did not object to Sims’s testimony on
this basis at trial, and thus has forfeited this argument on appeal. (People
v. Tafoya (2007) 42 Cal.4th 147, 166 [the defendant did not challenge trial
court’s evidentiary ruling on the ground it violated the confrontation clause,
and, thus, he had forfeited the confrontation clause claim by failing to raise
it in the trial court].)
Nye argues his trial
counsel’s failure to object to the admission of Sims’s testimony on that ground
constituted ineffective assistance of counsel.
To prevail on a claim of ineffective assistance of counsel, Nye must
prove both (1) his attorney’s representation was deficient in that it fell
below an objective standard of reasonableness under prevailing professional
standards, and (2) his attorney’s deficient representation subjected him
to prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687;
Even assuming Nye’s
trial counsel’s representation was deficient because he failed to object to
Sims’s testimony regarding Cruz’s statements on the ground it violated the
confrontation clause, Nye did not suffer any prejudice because that evidence
was duplicative of Duarte’s testimony.
We find no error.
II.
Nye’s Burglary Conviction Was Supported by
Substantial Evidence.
Nye argues insufficient
evidence supported his burglary conviction.
He argues, “the prosecution failed to present sufficient corroborating
evidence in addition to [Nye]’s mere possession of the stolen property over two
months after the break-in so as to have supported the underlying burglary
conviction.â€
“When considering a
challenge to the sufficiency of the evidence
to support a conviction, we review the entire record in the light most
favorable to the judgment to determine whether it contains substantial evidence—that
is, evidence that is reasonable, credible, and of solid value—from which a
reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt. [Citation.] . . . We
presume in support of the judgment the existence of every fact the trier of
fact reasonably could infer from the evidence.
[Citation.] If the circumstances
reasonably justify the trier of fact’s findings, reversal of the judgment is
not warranted simply because the circumstances might also reasonably be
reconciled with a contrary finding.
[Citation.] A reviewing court
neither reweighs evidence nor reevaluates a witness’s credibility. [Citation.]â€
(People v. Lindberg (2008) 45 Cal.4th 1, 27.) The testimony of a single witness, unless
physically impossible or inherently improbable, is sufficient to support a
conviction. (Evid. Code, § 411; People
v. Young (2005) 34 Cal.4th 1149, 1181.)
In People v. McFarland (1962) 58 Cal.2d 748, 754, the California
Supreme Court stated: “Possession of
recently stolen property is so incriminating that to warrant conviction there
need only be, in addition to possession, slight corroboration in the form of
statements or conduct of the defendant tending to show his guilt.†In People
v. Moore (2011) 51 Cal.4th 1104, 1130‑1131, the California Supreme
Court more recently explained: “We have
long held that possession of recently stolen property by itself is not
sufficient to support a finding of guilt of any
offense—including theft‑related offenses—and, accordingly, there must be
other corroborating evidence of the defendant’s guilt. [Citation.]
It is also accurate to inform the jury that the corroborating evidence
need not be sufficient to prove guilt by itself (since it is combined with any
additional inference of guilt the jury draws from the defendant’s possession of
the fruits of the crime). Also, the
factors listed in the instruction [(CALJIC No. 2.15)] may serve as
corroboration of guilt if the jury so finds.â€
In People v. Mendoza (2000) 24 Cal.4th 130, 175‑176, the
California Supreme Court analyzed whether the trial court erroneously denied
the defendant’s motion for acquittal brought on the ground there was
insufficient evidence to support his burglary conviction. The California Supreme Court stated: “In support of his claim of trial court
error, defendant relies on the rule that evidence of possession of property
taken in a burglary, unless augmented by other evidence corroborating the
defendant’s involvement, is insufficient to support a burglary conviction
[citations], contending the only evidence pointing to his commission of the two
burglaries was testimony that he was found in possession of property stolen in
the burglaries. [¶] When, as here, a
defendant is found in possession of property stolen in a burglary shortly after
the burglary occurred, the corroborating evidence of the defendant’s acts,
conduct, or declarations tending to show his guilt need only be slight to
sustain the burglary convictions. (
414, 421 . . . .) Here,
there is adequate corroborating evidence.
The burglaries were committed after 2:00 a.m. on February 7, 1986. Later that same morning, [two witnesses] saw
defendant with property taken in the burglaries. In addition, defendant told [one of the
witnesses] he had ‘been to Chinatown’ when asked where he had obtained some of
the stolen property. Based on this
evidence, the trial court correctly denied defendant’s motion for
acquittal.†(Ibid.)
In this case, the jury
was instructed on these principles with CALCRIM No. 376, as follows: “If you conclude that the defendant knew he
possessed property and you conclude that the property had in fact been recently
stolen, you may not convict the defendant of burglary based on those facts
alone. However, if you also find that
supporting evidence tends to prove his guilt, then you may conclude that the
evidence is sufficient to prove he committed burglary. [¶] The supporting evidence need only be
slight and need not be enough by itself to prove guilt. You may
consider how, where, and when the defendant possessed the property, along with
any other relevant circumstances tending to prove his guilt of burglary. [¶] Remember that you may not convict the
defendant of any crime unless you are convinced that each fact essential to the
conclusion that the defendant is guilty of that crime has been proved beyond a
reasonable doubt.†(Italics added.) Nye does not challenge the jury’s receipt of
this instruction, on any basis.
name="_ftnref1" title="">[1]
Here, substantial
evidence showed Gallagher’s apartment was burglarized after 7:30 a.m. on
December 15, 2009, but before lunchtime when Gallagher returned to the
apartment and discovered his electric guitar along with other items had been
stolen from his apartment. At
3:05 p.m. that same day, Nye sold Gallagher’s stolen guitar to the pawn
shop. On February 25, 2010, other
items taken during the December 15, 2009 burglary of Gallagher’s
apartment, namely, the Kenneth Cole bag, the Beatles’ songbook, and the Lord of
the Rings DVD box set, were found in Nye’s bedroom. Thus, it was well established that Nye had
possessed property that had been “recently†stolen from Gallagher’s apartment. (See People
v. McFarland, supra, 58 Cal.2d at
p. 758 [“recently†stolen property included property stolen within two
months].)
Applying the legal
principles set forth in California Supreme Court authority and summarized in
the version of CALCRIM No. 376 that was given to the jury in this case, we
conclude the record contained sufficient evidence Nye knowingly possessed the
stolen property as well as additional “supporting evidence†showing Nye
burglarized Gallagher’s apartment. The
trial evidence established the geographic proximity of Nye’s Lake Forest
apartment to Gallagher’s Lake Forest apartment—they were within about two miles
of each other. Notwithstanding evidence
of the existence of pawn shops and at least one guitar store in the Lake Forest
area, on the same day Gallagher’s electric guitar was stolen from his apartment,
Nye sold Gallagher’s electric guitar to the pawn shop which was located
approximately 20 to 23 miles away from Gallagher’s apartment and roughly the
same distance away from Nye’s apartment.
In sum, evidence that
Nye possessed Gallagher’s “recently†stolen property (on the same day as the
burglary), coupled with additional supporting evidence as to where Nye
possessed that recently stolen property (Santa Ana), Nye’s conviction for first
degree residential burglary was supported by
DISPOSITION
The judgment is
affirmed.
FYBEL,
J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
ARONSON, J.
title="">[1] “Similar to its predecessor, CALJIC
No. 2.15, CALCRIM No. 376 is based on a ‘long‑standing rule of
law [that] allows a jury to infer guilt of a theft‑related crime from the
fact a defendant is in possession of recently stolen property when coupled with
slight corroboration by other inculpatory circumstances [that] tend to show
guilt.’†(People v. Lopez (2011) 198 Cal.App.4th 698, 709, fn. omitted.)
