P. v. Simpson




Filed 12/15/10 P. v. Simpson CA2/1





NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, Plaintiff and Respondent, v. MARCUS KASHAWN SIMPSON, Defendant and Appellant.

B216935 (Los Angeles County Super. Ct. Nos. GA074149, GA064873, GA064977, GA068345)

APPEALS from judgments of the Superior Court of Los Angeles County. Leslie E. Brown, Judge. Affirmed.
William I. Heyman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, and Elaine F. Tumonis, Deputy Attorney General, for Plaintiff and Respondent.
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Defendant Marcus Kashawn Simpson appeals from the judgment entered following a jury trial in which he was convicted of receiving stolen property (L.A. Superior Court case No. GA074149), and the judgments entered after he pleaded no contest to charges of burglary, robbery, battery, and violation of civil rights in earlier cases. Defendant contends that in case No. GA074149, the trial court erred by failing to mention receiving stolen property within its instruction on the union of act and intent (CALCRIM No. 251). He also argues his trial attorney rendered ineffective assistance by failing to request CALCRIM No. 373, regarding uncharged accomplices. Defendant further argues that if this court reverses his conviction in case No. GA074149, we should also reverse the judgments following revocation of his probation in his earlier cases, which were premised upon his receiving stolen property conviction. We affirm.
BACKGROUND
In April of 2006, defendant pleaded no contest to second degree burglary in Los Angeles Superior Court case No. GA064873 and was placed on probation. In June of 2006, he pleaded no contest to second degree robbery in Los Angeles Superior Court case No. GA064977 and was again placed on probation. In April of 2007, defendant pleaded no contest to battery and violation of civil rights, both misdemeanors, in Los Angeles Superior Court case No. GA068345 and was again placed on probation.
About 3:50 p.m. on August 1, 2008, 17-year-old Andrew Hantman and a friend returned to Hantman’s house in Pasadena after getting hamburgers. Hantman saw three unfamiliar men—one of whom was defendant—at his house. One of the men appeared to be trying to “jiggle the knob” on the entry door, and the other two seemed to be watching to make sure no one else was around. One of the men other than defendant was holding a laptop computer. Hantman watched the men and saw one “hop the gate” into the backyard, with help from the other two. Hantman and his friend approached and asked the two men who were still in front of the house, one of whom was defendant, what they were doing. One of the men—identified at trial as Joseph Williams—responded, then he and defendant walked down the street. Hantman heard a loud noise he recognized as the sound made by opening the sliding glass door on the back of his house. Hantman jumped over the gate and went into the backyard. He found the sliding glass door open but did not see anyone in the yard or house. The door had been closed and locked when he left the house approximately 30 minutes earlier. The police arrived at Hantman’s house almost immediately. He showed an officer which way the men had walked. Later, the police took Hantman to look at three men, one of whom was defendant. The other two men were depicted in prosecution photographs.
Pasadena Police Department Sergeant Michael Bugh spoke to Hantman and immediately drove off in search of suspects. He spotted defendant, Williams, and Antonio Smith walking about three blocks from the Hantman home. Defendant was carrying a laptop computer and Williams appeared to have a power cord sticking out of his pants pocket. Bugh recovered an iPod from Smith.
Pasadena police found Thomas Heaton’s name and phone number on the laptop. They phoned him and asked if his laptop had been stolen. Although his laptop had been in his house in Pasadena when he left for work that morning, he met the police at his home to check on it. He discovered that his laptop, iPod, and some coins were missing. He identified as his the laptop, power cord, and iPod recovered from defendant, Williams, and Smith, respectively.
Latent fingerprints lifted at the Hantman and Heaton homes could not be matched to defendant, Williams, or Smith.
The jury acquitted defendant of two counts of burglary but convicted him of receiving stolen property. Defendant admitted an allegation that he had one prior “strike” conviction within the scope of the “Three Strikes” law. The trial court sentenced defendant to a second strike term of six years in prison.
Soon after defendant’s arrest for the Hantman and Heaton burglaries, defendant’s probation in Los Angeles Superior Court case Nos. GA064873, GA064977, and GA068345 was summarily revoked. On the date of the probation and sentencing hearing for defendant’s receiving stolen property conviction (case No. GA074149), the trial court found defendant in violation of his probation in the three earlier cases. It imposed a three-year prison term in case No. GA064873 and a five-year prison term in case No. GA064977, both running concurrently with the six-year term in case No. GA074149. In case No. GA068345, defendant’s credits exceeded the 18-month term imposed by the court.
Defendant appealed the judgments in all four cases.
DISCUSSION
1. CALCRIM No. 251
The trial court instructed the jury with CALCRIM No. 251, as follows: “The crimes charged in this case require proof of the union, or joint operation, of act and wrongful intent. [¶] For you to find a person guilty of the crime of residential burglary, as charged in Count 1 and Count 2, that person must not only intentionally commit the prohibited act, but must do so with a specific intent and/or mental state. The act and the specific intent and/or mental state required are explained in the instruction for that crime.” Defendant contends that the trial court erred by failing to also mention count 3, receiving stolen property, in this instruction.
“[A] trial court in a criminal case is required—with or without a request—to give correct jury instructions on the general principles of law relevant to issues raised by the evidence.” (People v. Mutuma (2006) 144 Cal.App.4th 635, 640.) The trial court must instruct sua sponte on the concurrence of act and specific intent with respect to all specific intent crimes charged. (People v. Alvarez (1996) 14 Cal.4th 155, 220 (Alvarez).) Although receiving stolen property is a general intent crime, it requires a specific mental state of knowledge that the property in issue was stolen. (People v. Russell (2006) 144 Cal.App.4th 1415, 1425.) Because CALCRIM No. 251 addresses both specific intent and specific mental states, such as knowledge, the trial court erred by failing to include the receiving stolen property charge within the scope of CALCRIM No. 251.
The error was harmless here. Failing to instruct upon the concurrence of act and intent or mental state “is subject to the general rule for error under California law that reversal requires prejudice and prejudice in turn requires a reasonable probability of an effect on the outcome.” (Alvarez, supra, 14 Cal.4th at p. 220.) Other properly given instructions specifying that the defendant was required to act with a specific intent or mental state may render such an error harmless. (Ibid.) Here, the requirement that defendant acted with knowledge that the property was stolen was set forth in CALCRIM No. 1750, which told the jury that the prosecutor was required to prove that “defendant bought/received/sold . . . property that had been stolen” and “[w]hen the defendant bought/received/sold . . . the property, he knew that the property had been stolen.” In addition, the first paragraph of CALCRIM No. 225—“The People must prove not only that the defendant did the acts charged, but also that he acted with a particular intent and/or mental state. The instruction for each crime explains the intent and/or mental state required”—effectively stated the same principle set forth in CALCRIM No. 251, without limiting its application to particular counts. There is thus no reasonable probability that omitting count 3 from CALCRIM No. 251 affected the verdict.
2. Ineffective assistance of counsel
Williams and Smith were not tried with defendant. Defendant contends that his attorney rendered ineffective assistance of counsel by failing to request that the trial court instruct the jury with CALCRIM No. 373, which directs jurors not to speculate about whether other persons involved in the commission of the crimes have been or will be prosecuted. Defendant argues that the jury may have convicted him so that someone would be held responsible for the crimes committed in the case.
A claim that counsel was ineffective requires a showing, by a preponderance of the evidence, of objectively unreasonable performance by counsel and a reasonable probability that, but for counsel’s errors, the defendant would have obtained a more favorable result. (In re Jones (1996) 13 Cal.4th 552, 561.) The defendant must overcome presumptions that counsel was effective and that the challenged action might be considered sound trial strategy. (Ibid.) In order to prevail on an ineffective assistance of counsel claim on appeal, the record must affirmatively disclose the lack of a rational tactical purpose for the challenged act or omission. (People v. Majors (1998) 18 Cal.4th 385, 403.)
The record before us does not affirmatively disclose the lack of a rational tactical purpose for counsel to refrain from requesting CALCRIM No. 373. Counsel may have hoped the jury would deem it unfair that of the three men “caught” by police, defendant alone was being prosecuted, and react by treating defendant leniently. Counsel also wanted to shift criminal liability away from defendant and onto the other two men. She suggested in argument that defendant “met up with these other two guys” late in the day, long after the theft of the laptop, and did not know that it was stolen property. Counsel may have concluded that CALCRIM No. 373 would have hampered her efforts in this regard.
In addition, it is not reasonably probable defendant would have obtained a more favorable verdict if the trial court had instructed with CALCRIM No. 373 because other instructions informed jurors that defendant’s guilt must be based upon a determination of whether the prosecution proved beyond a reasonable doubt that defendant’s acts and mental state established each element of the charged offenses. For example, CALCRIM No. 220 informed the jury that defendant was presumed innocent, that the prosecutor had the burden of proving him guilty beyond a reasonable doubt, and that “[u]nless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty.” The final paragraph of CALCRIM No. 315 told the jury, “The People have the burden of proving beyond a reasonable doubt that it was the defendant who committed the crime. If the People have not met this burden, you must find the defendant not guilty.” The final paragraph of CALCRIM No. 376 reminded jurors, “[Y]ou 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.” And, as previously noted, in CALCRIM Nos. 1750 and 225, the trial court instructed the jury that in order to convict defendant of receiving stolen property, the jury had to find that the prosecutor proved that defendant received stolen property with knowledge that it had been stolen. We presume that the jury followed these instructions (People v. Williams (2010) 49 Cal.4th 405, 469), and the jury’s verdict of acquittal on both burglary charges clearly shows that the jury was, indeed, following and applying the court’s instructions. Defendant’s claim that the jury would disregard the court’s instructions and convict him simply to hold someone accountable “amounts to the untenable assertion that whenever a person implicated in a crime is brought to trial, the jury—desirous of punishing someone for the crime—will be inclined to convict the accused regardless of the actual extent of his involvement. In the absence of a clear showing to the contrary, we must believe the jury presumed this defendant innocent as it was instructed to do and convicted him of specific crimes on the basis of the evidence, not simply from an indiscriminate desire to punish.” (People v. Farmer (1989) 47 Cal.3d 888, 919, disapproved on another ground in People v. Waidla (2000) 22 Cal.4th 690, 724, fn. 6.)
3. Cumulative error
Defendant contends that the cumulative prejudicial effect of the two individual errors he has raised on appeal requires reversal of the judgment. His cumulative error claim has no greater merit than his individual assertions of error, which we have either rejected or found harmless.
4. Appeals in Case Nos. GA064873, GA064977, and GA068345
Defendant argues that the judgments in case Nos. GA064873, GA064977, and GA068345 should be reversed if the judgment in case No. GA074149 is reversed. Given our affirmance in case No. GA074149, his claim regarding the earlier cases fails.
DISPOSITION
The judgments are affirmed.
NOT TO BE PUBLISHED.

MALLANO, P. J.
We concur:

CHANEY, J.

JOHNSON, J.

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