P. v. Telles
Filed 1/15/14 P. v. Telles CA3
NOT TO BE PUBLISHED
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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
THIRD
APPELLATE DISTRICT
(Shasta)
----
THE
PEOPLE,
Plaintiff and Respondent,
v.
NOLAN
RYAN TELLES,
Defendant and
Appellant.
C071441
(Super. Ct. Nos. 10F3040 & 12F1039)
A
jury found defendant Nolan Ryan Telles guilty of several crimes, and found he
had a prior strike (first-degree burglary) and committed certain offenses while
on bail. The
for eight years and eight months. Defendant
timely appealed.
On
appeal, defendant first contends the trial court erred in joining two of his
cases and denying his motion to sever certain counts. He further claims prejudicial evidence that
he had been in jail was introduced, no substantial evidence supports one count,
the trial court erred in denying his motion
to strike the strike, and error in the abstract of judgment, a point
conceded by the People. We reverse Count
2 for lack of evidence and modify the sentence to account for this reversal.
At
trial, 10 counts were alleged against defendant; we describe them grouped by
incident. He was convicted except as
explicitly noted.
1. December 27,
2011 (Caterpillar Road
Count
9 alleged knowing receipt of stolen property (mail) (Pen. Code,
Three
owners of businesses on Caterpillar
Road testified that on December 27, 2011, a peace officer returned mail to them, some opened, and one owner
testified his mailbox was locked. Redding
police officer Douglas Moore testified that that morning he stopped defendant’s
car and found the stolen mail, which he returned to the addressees that day,
and also found a “cat’s paw pry tool[,]†and saw scratch marks on one mailbox,
which “looked like it had been pried open[,]â€; the marks “appeared to match upâ€
with the cat’s paw. There was
legitimate uses, and the jury acquitted on Count 10.
2. Early morning of
Count
6 alleged vehicle burglary (§ 459) and Count 7 alleged knowing receipt of
stolen property (§ 496). The People
dismissed Count 6 before trial.
Redding
police officer Joseph Labbe testified that at about 3:00 a.m. on February 20, 2012, he saw defendant going through paperwork in a dumpster by a motel. Defendant said the paperwork was not
his. It included, “Social Security
cards, some checks, paperwork you would commonly find inside of an automobile,
insurance paperwork and things of that nature.â€
The Social Security
card had the name “Charles Fralik†on it.
Labbe also found pepper spray, a folding knife, and a professional grade
camera. Fralik’s car window had been
pried open. The People tried to prove
property had been stolen from Fralik, by testimony that Fralik “positively
identified†the property, but the trial court struck that testimony as hearsay,
and the jury acquitted on Count 7.
3. Afternoon of
Counts
1 through 5 and Count 8 alleged crimes committed at the YMCA on the afternoon
of February
20, 2012.
James
Johnson testified he went to the YMCA in the early afternoon on February 20, 2012, and put his wallet and keys in a bag in a locker, which he failed
to lock. Later, the bag was gone. At about 10:30 p.m., he
was called by the Redding police, and he retrieved his belongings the next day, except for his
keys.
Donovan
Lee testified he went swimming at the YMCA that afternoon, driving his friend
Jennifer Greene’s black Honda Accord.
When he returned to his locker, the car keys were gone, as was the car,
which contained his telephone and wallet. Late that night, he was called by the police
and he and Greene drove to where the car was, but only one of his credit cards
was found, and his telephone had been smashed.
Greene testified some of her cash was missing from the car.
Megan
McCauliffe, a YMCA employee who had known defendant for about ten years, saw
him at the facility that morning, around 11:00 a.m., wandering around, and saw
him enter and leave for the parking lot a couple of times. Defendant’s father was a member and volunteer,
and, “It wasn’t abnormal for [defendant] to come in looking for his dad.†Defendant told her “he had just gotten out of
jail that morning.†He left around 4:00 p.m., through a side door, and she watched him get into a black Honda Accord
that she did not think was his.
Daniel
Lewandowski, a YMCA employee who had known defendant since high school, saw him
around 1:00 p.m., and thought he was there to see his father. However, defendant “was kind of wandering
around the facility a little bit that day.â€
After a couple of hours, defendant left in a black Honda Accord.
Redding
police officer Steve Tumelson testified that at 10:23 p.m., on February 20, 2012, he saw Greene’s Honda, recognized it as having been reported
stolen, and pulled it over. Defendant
was the driver. He told Tumelson he had
been looking through lockers at the YMCA that day and took the Honda’s car keys
from a locker, located the car in the parking lot by pushing the key fob until
“lights flashed and the alarm chirped[,]†and took the car. Defendant said he had tossed items out of the
Honda as he drove. Defendant identified
a pair of pants in the back seat, and inside a pocket of this pair of pants,
Tumelson found “a yellow piece of paper that I recognized as a jail release
form with [defendant’s] information as far as his driver’s license, date of birth
and a court date.†Tumelson also found a
gym bag with James Johnson’s driver’s license.
Officer Todd Rowen testified he also found a wallet and jacket in the
gym bag. Officer Matt Stoker testified
he found “What was left†of a mobile telephone that “had been basically torn
apart.†Defendant had $38 on his person,
and told Stoker that was all that was left of money he found “in the victim’s
wallet.â€
The
jury found defendant guilty as charged of all YMCA incident counts, consisting
of burglary (of the YMCA) (Count 1, § 459), vehicle burglary (of Greene’s Honda)
(Count 2, § 459), knowing receipt of stolen property (Johnson’s and Lee’s
property) (Counts 3 and 5, § 496), vehicle theft (of Green’s Honda) (Count 4,
Veh. Code, § 10851), and vandalism (smashing Lee’s telephone) (Count 8, § 594,
subd. (a)(2)(A)).
In
a bifurcated proceeding, the jury
found defendant committed the YMCA incident while on bail from the Caterpillar Road incident (§ 12022.1), and that he had a prior serious felony
conviction (first degree burglary) (§ 1170.12).
No issues about the procedures or evidence regarding those jury findings
are raised on appeal.
I
Severance
Defendant
first contends the trial court erred in joining two of his cases and denying his
motion to sever certain counts. For
reasons we will explain, we disagree.
A. Procedural
History
Complaint
No. 12F0323 charged defendant with the Caterpillar Road incident, alleging that on December 27, 2011, he knowingly received stolen mail belonging to several victims,
and possessed burglary tools. This
complaint also alleged defendant had a serious prior felony and strike (the
first-degree burglary for which he was on probation) and committed the offenses
while he was on bail.
Complaint
No. 12F1039 alleged crimes committed on February 20, 2012,
specifically, the YMCA and Fralik incidents described ante, and alleged defendant had committed those crimes while
released on bail.
Defendant
waived his right to preliminary hearings, and the trial court deemed the two
complaints informations. The People
moved to join the two cases for trial, alleging they involved the same class of
crime (all theft related). Defendant
opposed the motion, conceding the
charges were “statutorily joinable†but contending it would be prejudicial to try
the cases together.
After
the People filed a 12-count consolidated information, defendant unsuccessfully
moved to sever the two counts alleged to have occurred in the early morning
from the counts alleged in the afternoon of
that same day (YMCA incident), and those committed on December 27, 2011 (Caterpillar
Road incident). The next day, the People
filed the 10-count “first amended consolidated information†on which defendant
was tried.
The
trial court found consolidation proper and denied the motion to sever, because
of “significant†cross-admissibility of evidence of intent (Evid. Code, § 1101,
subd. (b)), the fact none of the evidence was inflammatory, the fact all the
charges were “theft type of crimes†and the fact that this was not a case where
the evidence was comparatively weaker as to some charges than others.
B. Analysis
Section
954 allows the People to join in one pleading “different offenses connected
together in their commission,†or “of the same class of crimes or
offenses[.]†There is no question that all
of the charges were theft related, as the trial court found.
On
appeal from a judgment following the denial of a motion to sever, a defendant
must show that the denial of severance was an abuse of discretion, or that the
resulting trial resulted in a denial of due process. (See People
v. Ochoa (1998) 19 Cal.4th 353, 408-409; People v. Arias (1996) 13 Cal.4th 92, 127.) An abuse of discretion may occur when evidence
of the different crimes would not be cross-admissible in separate trials, some
charges are unusually inflammatory, a weak case has been joined with a strong
case or similar weak cases have been joined in an effort to cumulate their
effect, or capital charges are involved in one case. Although absence of cross-admissibility does
not mandate severance, its presence generally eliminates any prejudice from a
joined trial. (See People v. Jenkins (2000) 22 Cal.4th 900, 947-950 (
evidence of one count is leveraged to obtain conviction on an unrelated count. (See People
v. Grant (2003) 113 Cal.App.4th 579, 586-594 (Grant) [conviction reversed because “the prosecutor erroneously
urged the jury to infer that defendant was guilty on count 1 because he was
guilty on count 2, and vice versaâ€].) In
such a case, the defendant “must demonstrate a reasonable probability that the
joinder affected the jury’s verdicts.†(
Evidence
that defendant used a cat’s paw to pry open a mailbox and steal mail in
December 2011 tended to show his intent to steal when he entered the YMCA in
February 2012. Further, evidence he
knowingly possessed stolen property earlier on the day of the YMCA crimes also
tended to show his intent to steal when he entered the YMCA. Thus, when the trial court granted
consolidation, and denied severance, there was significant evidentiary
cross-admissibility which undermines defendant’s claim that the trial court abused
its discretion. (See
The law allows “the least degree of similarity†to be used to show
intent for the introduction of uncharged conduct under Evidence Code section
1101, subdivision (b). (
402.) As the People point out, defendant
stole mail, wallets and identity information in each of the three incidents (Caterpillar Road, Fralik vehicle, and YMCA incidents), showing a similar general intent.
Moreover,
apart from cross-admissibility, none of the charges were capital charges, none
of the evidence on any count was comparatively inflammatory, and there was no
showing before trial that strong charges were being used to shore up weak
charges. In short, no abuse of discretion
occurred.
As
for actual prejudice from consolidation, contrary to defendant’s view, the
evidence at trial, except as to the Fralik counts, was of comparatively equal
strength, and the fact the jury acquitted defendant of two counts at trial (including
the one remaining Fralik count) shows it was not influenced by evidence on the stronger
counts to convict on weaker counts, much less inflamed. As for the Caterpillar Road incident, the jury evidently had a reasonable doubt about whether
the cat’s paw was actually possessed with the intent to be used as a burglary
tool, though the jury convicted defendant of knowingly possessing the stolen
mail. All of the YMCA counts resulted in
convictions, but the evidence on all of those charges was independently strong. In addition to the testimony of several
witnesses, defendant made highly incriminating statements about the YMCA crimes
upon his arrest.
Defendant
makes much of the concluding sentence of the prosecutor’s closing argument, to
which no objection was interposed, in which the prosecutor argued that “when
you take all of these counts and you look at the evidence that was presented
yesterday . . . and the fact the defendant was found in possession of all this
property on the different occasions, I’m confident that you will find the
defendant guilty of all the charges.†In
context, we agree with the People that this was an argument for conviction on
all counts based on the strength of all the evidence. The prosecutor did not argue that a finding
of guilty on one or more counts compelled a finding of guilty on others. (Cf. Grant,
supra, 113 Cal.App.4th at p. 589.)
In
short, defendant has not shown that consolidation actually caused prejudice.
II
During
trial, there was testimony that defendant had been in jail prior to the YMCA
incident. One YMCA employee testified
defendant told her “he had just gotten out of jail that morning.†Redding police officer Tumelson testified
that in defendant’s pants he found “a yellow piece of paper that I recognized
as a jail release form†with defendant’s information. No objections were interposed.
On
appeal, defendant contends this evidence should have been excluded as too prejudicial
(Evid. Code, § 352) and that trial counsel’s failure to object reflected
ineffective assistance of counsel.
The
failure to object to evidence normally forfeits any claim it should have been
excluded. (Evid. Code, § 353, subd. (a)
[objections must be timely and specific]; see People v. Holford (2012) 203 Cal.App.4th 155, 168-170.) Here, the claim is forfeited, and we find no ineffective
assistance of counsel.
A
coherent appellate claim of ineffective assistance of counsel must demonstrate
that trial counsel acted below professional norms, including that counsel had
no rational tactical purpose for so acting, and that the error caused
prejudice. (See People v. Ledesma (1987) 43 Cal.3d 171, 217-218.) “In this instance, defendant’s argument
merely presumes counsel’s failure to object fell below an objective standard of
reasonableness and she was prejudiced thereby.
Defendant also neglects to argue how there could be no satisfactory
explanation for counsel’s failure to object.
This will not suffice.†(
Here,
trial counsel could have easily concluded, as do we, that the references to jail
were trivial, particularly given the charges and evidence suggesting that
defendant had committed additional crimes and had extensive contact with the
police earlier that same day. Whether or
not the jury found beyond a reasonable doubt that defendant was involved in the
Fralik incident on the morning of February 20th, it still heard evidence that
he was contacted by police and connected to a vehicle burglary earlier on the
same day the references to his having recently been jailed were made. The fact that defendant had been in jail at
some point as a result of the multiple police contacts described by the
witnesses at trial would have come as no surprise to this jury. This conclusion--that the reference was
trivial and not likely to receive undue attention by the jury unless it was
emphasized by objection--would provide a rational tactical reason for trial
counsel’s decision not to object. It
also shows a lack of prejudice from the failure to object. Either
of these two things--a rational tactical reason or lack of prejudice--is fatal
to defendant’s claim. Here we have both.
Further,
we point out that the jury was not actually inflamed by this evidence, as shown
by the fact that it acquitted defendant of two charges. The jury diligently applied the presumption
of innocence and held the People to their burden of proof beyond a reasonable
doubt. Accordingly, defendant has not
shown ineffective assistance of trial counsel.
III
Burglary
As
the jury was instructed, section 459 requires entry into a locked vehicle with the prohibited intent to establish
burglary. (§ 459; see
863.) Defendant contends no substantial
evidence shows Lee locked Greene’s Honda Accord before going into the YMCA, and
therefore he cannot be guilty of vehicle burglary (Count 2). We agree.
“We
review the whole record in a light most favorable to the judgment to determine
whether it contains substantial evidence, i.e., evidence that is credible and
of solid value, from which a rational trier of fact could find beyond a
reasonable doubt that the accused committed the offense.†(In re
Ryan D. (2002) 100 Cal.App.4th 854, 859; see People v. Barnes (1986) 42 Cal.3d 284, 303-304.)
Defendant
relies heavily on People v. Burns (1952)
114 Cal.App.2d 566. In that case the
owner did not testify, and the court concluded, “The fact that the windwing was
broken and glass was on the front seat was not proof that the doors of the
Buick were locked, and an inference could not be drawn from that fact that the
doors were locked.†(
v. Rivera (2003) 109 Cal.App.4th 1241 (Rivera). Rivera
rejected the view that the fact a window was recently broken could not support an
inference that the car was locked: “It
is not rational to conclude someone would break a car window in the early
morning hours in order to enter a car that is unlocked.†(Rivera,
evidence and reasonable inferences therefrom may supply substantial evidence,
depending on all of the facts in the record bearing on an issue in
dispute. Here, defendant told the
arresting officer he pushed the stolen key fob until “lights flashed and the
alarm chirped[,]†allowing him to locate and take the Honda. However, the People presented no evidence
about how the alarm system and key fob functioned with this particular car, nor
did the defense. There was no evidence
that the fact the fob “chirped†when pushed meant the car doors were
There was no evidence as to which button on the fob (lock, unlock, or
other) was pushed. Nor did the
prosecutor ask Lee how the fob functioned, whether he had locked the car that
day before going into the YMCA, nor even whether he habitually locked the car,
which might have supported a rational inference that he did so on this
occasion.
“Evidence
is sufficient to support a conviction only if . . . it ‘“reasonably inspires
confidenceâ€â€™. . . and is ‘credible and of solid value.’†(People
v. Raley (1992) 2 Cal.4th 870, 891.)
Because the prosecutor did not elicit solid testimony, nor even enough
evidence to support a reasonable inference, that the car was locked when
defendant accessed it, we conclude no substantial evidence supports Count 2.
Accordingly,
the conviction on count 2 is reversed for lack of substantial evidence.
This
requires us to lift the stay (§ 654) on the vehicle theft charge (Count 4, Veh.
Code, § 10851) imposed by the trial court.
For the reasons we now explain in detail, as it is clear what sentence
the trial court would give in light of the reversal on Count 2, a remand would
be futile and instead we shall modify the sentence.
As
would be expected in a case with so many counts, the sentencing was somewhat
complex. The trial court concluded
Counts 1 (burglary of YMCA) and 2 (burglary of Greene’s car) were separate
offenses, as was Count 9 (knowing receipt of stolen mail). However, Count 3 (knowing receipt of Johnson’s
property at the YMCA) should be stayed (§ 654) as to Count 1 (burglary of
YMCA), and Counts 4 (vehicle theft), 5 (knowing receipt of Lee’s stolen car
keys from the YMCA locker) and 8 (vandalism of Lee’s phone in the car) should
be stayed as to Count 2 (vehicle burglary).
The court was ultimately persuaded to impose midterms, finding eight
years and eight months would be sufficient to deter defendant’s criminality,
and if it were not, a greater sentence would not do so.
The
trial court set the base term as to each count as the midterm of two years,
doubled due to defendant’s strike, or four years per count. The court designated Count 1 as the base
term, for which a four-year unstayed sentence was imposed, but stayed various
counts (§ 654), including Counts 4, 5, and 8, as they related to Count 2, and
Count 3 as it related to Count 1, as we described ante. The trial court
ordered a four-year term for Count 2 to be served concurrently
any additional prison time, (although later in the record this was mistakenly
referred to as a one-third consecutive midterm sentence of 16 months). The court then ordered a midterm doubled
sentence as to Count 3 stayed (§ 654) as it related to Count 1. For Count 9 (knowing receipt of stolen mail)
the trial court imposed a consecutive one-third midterm of eight months, doubled
for the strike to 16 months, giving a subtotal of five years and four
months. The court added two years for
the on-bail enhancement, resulting in seven years and four months in case No.
12F1039 (the case tried before this jury).
The court then imposed a 16-month consecutive term in case No. 10F3040
(the burglary case for which defendant had been on probation, which was
revoked), for a total state prison sentence of eight years and eight
months. We modify that sentence by
vacating the sentence on Count 2, and lifting the stay as to Count 4, but
leaving the stay in place as to Counts 5 and 8, and ordering the sentence for
Count 4 to be served concurrently with Count 1.
Therefore, defendant’s total sentence remains eight years and eight
months.
IV
Defendant
invited the trial court to strike his strike, making a Romero motion. (See
13 Cal.4th 497.)
A
trial court may strike a felony conviction for purposes of sentencing only when
the defendant falls outside the spirit of the Three Strikes law. (People
v. Williams (1998) 17 Cal.4th 148, 161 (Williams).) The trial court “must consider whether, in
light of the nature and circumstances of his present felonies and prior serious
and/or violent felony convictions, and the particulars of his background,
character, and prospects, the defendant may be deemed outside the scheme’s
spirit, in whole or in part, and hence should be treated as though he had not
previously been convicted of one or more serious and/or violent felonies.†(Williams,
supra, 17 Cal.4th at p. 161.) Striking a strike is a departure from
sentencing norms, and we may not reverse the denial of a Romero motion unless the defendant shows the decision was “so
irrational or arbitrary that no reasonable person could agree with it.†(People
v. Carmony (2004) 33 Cal.4th 367, 377 (Carmony).) Reversal is justified if the trial court did
not know of its discretion or applied improper factors. (Carmony,
supra, 33 Cal.4th at p. 378.) But where the trial court knew of its
discretion, “‘balanced the relevant facts and reached an impartial decision in
conformity with the spirit of the law, we shall affirm the trial court's
ruling[.]’†(Ibid.)
Defendant
argued a lengthy sentence would not serve the purpose of protecting society,
and that his behavior was ‘governed by his addiction.†The People replied that the strike was
recent, the present offenses were committed while defendant was still on
probation, he had showed no remorse, and he had shown contempt for the law
during trial by being late to court and not appearing for the verdicts.
Defendant
pleaded guilty (No. 10-03040) to first-degree burglary, imposition of judgment
was suspended, and he was placed on three years’ probation on June 9, 2010. The earlier probation
report states defendant was born in 1988, graduated high school and had nearly
obtained an AA degree. He and an accomplice
knocked on doors to find an
unoccupied house, went into a backyard, defendant opened a door, grabbed
a purse, and fled after triggering an alarm. Defendant had been released from jail on his
own recognizance the day before, from a separate charge. He was withdrawing from Oxycontin during this
time.
The
current probation report states defendant was addicted to Dilaudid and
methamphetamine. The probation officer’s
current evaluation of defendant was as
follows: “The defendant was spared a state prison commitment
and given a grant of formal probation for the 2010 conviction although he was
presumptively ineligible pursuant to 462 PC.
Since that time, the defendant has continued to steal and pillage from
innocent citizens to support his considerable drug habit. He failed to address his substance abuse
issue and made no attempt to get a substance abuse evaluation as twice directed
by his probation officer.â€
A
petition alleging violation of probation (VOP) had been filed, alleging
defendant possessed drugs and drug syringes on May 20, 2011. On August 11, 2011, he admitted the VOP and was reinstated on probation. Other VOPs were filed, but effectively mooted
by new charges.
Defendant
showed contempt for the judicial system by being late to court after being warned
by the court in detail about the need to be on time, and he willfully absented
himself in violation of a court order during jury deliberations. And, as noted, defendant was on probation
from the strike when he committed new crimes.
The
trial court found defendant’s age (23) was not a mitigating factor, because it
had been used as a mitigating factor to keep him out of prison for the strike,
yet instead of taking advantage of that lenity to reform himself, defendant
persisted in his criminality, becoming in the trial court’s words “a virtual
crime wave in this county†and reflecting “an absolute disregard for authority,
for the rights of others, for the power and role of the court and the justice
system.†Given that defendant was still
on probation for the strike, he had “abysmal†prospects, nothing but “the most
substantial prison sentence†would be appropriate, and “this case really isn’t
even close to one that would be outside the spirit†of the Three Strikes law.
All
of the trial court’s findings are based on facts supported by the record. Defendant’s claims on appeal at best amount
to an invitation to reweigh the evidence.
For example, he emphasizes his
youth, nonviolence, drug addiction, and the short time span in which all of his
crimes occurred.
These
observations miss the point. By statute,
defendant was presumptively bound for
prison for his strike (see § 462), but he was given a chance to show that he
was capable of reform. Defendant
violated probation by failing to arrange for drug treatment, possessing drugs,
and committing many new felonies. The
record supports the view that defendant does not fall outside the spirit of the
Three Strikes law. (See
893, 906-907 [general non-violence and drug addiction do not compel granting
In
short, it was not an abuse of discretion to deny the Romero motion.
V
Defendant
contends, and the People concede, that there is an error on the abstract of
judgment requiring correction. We agree
with the parties.
The
abstract refers to defendant’s strike as a “violent†burglary. But the strike was not charged as a “violentâ€
or so-called “hot†burglary, which requires that someone--other than any
perpetrators--be in the residence. (Pen.
Code, § 667.5, subd. (c)(21); see People
v. Singleton (2007) 155 Cal.App.4th 1332, 1334.) Accordingly, the abstract must be corrected to
reflect that the strike was simply a first degree burglary.
The
judgment on Count 2 is reversed for lack of evidence. The sentence is modified as described in Part
III. In all other respects, the judgment
is affirmed. The
trial court shall prepare and
forward to the Department of Corrections and Rehabilitation an amended abstract
of judgment consistent with this opinion.
DUARTE , J.
We
concur:
MURRAY ,
Acting P. J.
HOCH , J.
name="_ftn1" title="">[1] Further undesignated
statutory references are to the Penal Code.
name="_ftn2" title="">[2] The prosecutor knew Fralik might
be unavailable to support those charges because of a military deployment, but
represented to the court that he could prove the charges through Fralik’s
sister. It appears neither witness could
be produced for trial, leading to the dismissal of Count 6, and the ultimate
acquittal on Count 7.
