P. v. Walker
Filed 7/16/12
P. v. Walker CA2/5
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
JOSEPH WALKER,
Defendant and Appellant.
B233404
(Los Angeles County Super. Ct.
No. BA377783)
APPEAL from
a judgment of the Superior Court of
County, Monica Bachner, Judge.
Affirmed.
Charles R.
Khoury, 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, Eric E. Reynolds and Ana R.
Duarte, Deputy Attorneys General, for Plaintiff and Respondent.
________________________________
Defendant
and appellant Joseph Walker was found guilty by jury of
Penal Code section 459.
name="_ftnref1" title="">[1] Defendant was sentenced to the low term of
two years in state prison.
In his
timely appeal from the judgment, defendant argues (1) the accuracy of an out-of-court
identification of defendant was not sufficient to constitute substantial
evidence after a witness failed to make an in-court identification, (2) the trial court abused its discretion by
denying probation on the ground that defendant continued to assert his
innocence after conviction, and (3) the
$10 crime prevention fee imposed under section 1202.5 must be reversed because
of an absence of evidence of an ability to pay.
We affirm.
FACTS
Jorge
Gonzalez returned to his home on West 56th Street around 9:00 a.m. on October
29, 2010. As he opened the door,
Gonzalez saw three men inside his home without permission, wearing gloves on
their hands, and taking property from the residence. As Gonzalez put the key into the door, the
men began to scatter. Gonzalez called
for assistance to his brother and a friend who were in front of his house in a
truck. Defendant exited the house
through a kitchen window with Gonzalez’s son’s laptop computer in his
hands. Defendant dropped the computer
and a cell phone.
Defendant
fled from the scene in a black Lincoln Continental. Gonzalez notified the police, who arrived
three hours later. He gave officers the
cell phone defendant dropped at the house.
The officers showed Gonzalez a photo of defendant on the cell phone,
which Gonzalez identified as one of the burglars.
Officer
Miguel Gutierrez assisted in the investigation of the burglary. The cell phone dropped at the scene had a
contact for a person identified as “mama.â€
The number for “mama†led to a residence on 64th Street. Officer Gutierrez determined that defendant
lived at the 64th Street location, obtained his photograph, and placed it in a
photo lineup, which he showed to Gonzalez one day after the burglary. Gonzalez pointed to defendant’s photograph
and said, “This is the person.†He made
the identification within seconds and without hesitation. Defendant was arrested at home on 64th
Street. A search of his residence did
not lead to discovery of property taken in the Gonzalez burglary.
Eric
Wahlberg is a police surveillance specialist for the Los Angeles Police
Department. Pictures on the phone dated
back to 2009. The last call on the phone
was on the morning of October 29, 2010, and was made to a contact identified as
“mama.â€
Officer
Easley De Larkin assisted in the investigation.
He was present when Gonzalez identified defendant’s photograph from the
six-pack photo lineup on October 30.
Gonzalez made the identification “within a second or two†of seeing the
lineup card. Defendant’s photograph in
the lineup did not come from the cell phone dropped at the scene of the
burglary. During the investigation,
Gonzalez told Officer De Larkin that he recognized defendant as someone who had
grown up with his now-deceased son.
name="_ftnref2" title="">[2] The officer saw Gonzalez identify defendant,
without hesitation, at the preliminary hearing.
By the first trial setting, Gonzalez was reluctant to testify,
complaining about the amount of worked he missed while coming to court. He said he was no longer sure of his identification
of defendant. One photo on the cell
phone, taken on October 23, 2010, depicted three knives, a screwdriver,
and another object with an unusual handle, which Officer De Larkin identified
as burglar tools.
Defendant’s
mother, Trenice McIntyre, testified defendant lost his phone and never found
it. Someone called on October 29 at
10:00 a.m., stating they had found the phone and were calling the police. McIntyre told a defense investigator
defendant lost the phone on Halloween.
Defendant was with his mother, planning for a funeral, on October 29.
Defense
Dr. Michael
Eisen, holder of a Ph.D. in psychology, testified to factors relevant to the
accuracy of eyewitness identification.
It is possible that a photographic identification could be influenced by
a witness having previously seen another photograph of the same person. Witnesses may assume the police have a
suspect in a lineup, which increases the likelihood of someone being
identified. Witnesses can and do make
correct identifications, but they also do make mistakes.
Defendant
denied participation in the burglary. He
was home with his mother on October 29, which was the day she told him his
grandfather had died. He had lost his
cell phone on the way to school on October 27, but he never attempted to
recover it. The shoe left at the
burglary scene was not his, nor was it his size. The picture from his phone that Gonzalez
identified was of defendant’s cousin.
DISCUSSION
I
Defendant argues there is
insufficient evidence to support his conviction because of Gonzalez’s failure
to make an unequivocal identification at trial.
More specifically, defendant contends there is no substantial evidence
to demonstrate that the out-of-court identifications made by Gonzalez were
accurate, citing People v. Cuevas
(1995) 12 Cal.4th 252 (Cuevas).
A. Standard of Review
“In
reviewing the sufficiency of the evidence to support a conviction, we determine
‘“whether from the evidence, including all reasonable inferences to be drawn
therefrom, there is any substantial evidence of the existence of each element
of the offense charged.â€â€™ (People v.
Crittenden (1994) 9 Cal.4th 83, 139, fn. 13, quoting People v. Ainsworth
(1988) 45 Cal.3d 984, 1022.) Under such
standard, we review the facts adduced at trial in the light most favorable to
the judgment, drawing all inferences in support of the
judgment to determine whether there is substantial direct or circumstantial
evidence the defendant committed the charged crime. (People v. Hillhouse (2002) 27 Cal.4th
469, 496.) The test
is not whether the evidence proves guilt beyond a reasonable doubt, but whether
substantial evidence, of credible
and solid value, supports the jury’s conclusions. (People v. Mincey (1992) 2 Cal.4th
408, 432.)†(People v. Misa (2006) 140 Cal.App.4th 837, 842.)
Where the prosecution relies
only on an out-of-court identification to prove identity, we individually
assess “the circumstances of the out-of-court
identification to determine whether it is sufficient to
(Cuevas, supra, 12 Cal.4th
at pp. 271-272.) In determining the
sufficiency of the evidence, we “take into account the many varied
circumstances that may attend an out-of-court identification and affect its
probative value. These circumstances
include, for example: (1) the identifying witness’s prior familiarity
with the defendant; (2) the witness’s
opportunity to observe the perpetrator during the commission of the crime;
(3) whether the witness has a motive to
falsely implicate the defendant; and (4)
the level of detail given by the witness in the out-of-court
identification and any accompanying description of the crime. (See also CALJIC No. 2.92 (5th ed. 1988)
[listing factors relevant to reliability of eyewitness identification].) Evidence of these circumstances can bolster
the probative value of the out-of-court identification by corroborating both
that the witness actually made the out-of-court identification (e.g., testimony
by the police officer or other person to whom the statement was made) and that
the identification was reliable (e.g., evidence that the witness was present at
the scene of the crime and in a position to observe the perpetrator, evidence
that the witness had a prior familiarity with the defendant, or evidence that
the witness had no self-serving motive to implicate the defendant).†(Cuevas,
supra, at p. 267.)
B. Analysis
Defendant’s
challenge to the sufficiency of the evidence is without merit. This is not a case in which identification
was based only on an out-of-court identification. The record consists of both direct and
identification, which easily satisfies the substantial evidence standard of
review.
As the
trial court noted at the time of sentencing, the record contains abundant
evidence of identification. Defendant
was caught in the act of the burglary.
He left the residence through a window and dropped his cell phone at the
scene. Defendant lived in the
neighborhood of the burglary. Defendant
presented a dubious explanation for how he lost his phone and no cogent reason
for why he made no effort to recover it.
Gonzalez identified a photo of defendant from the cell phone on the day
of the burglary. He made an unequivocal
photo identification of defendant the day following the burglary. Gonzalez made another identification of
defendant at the preliminary hearing. He
confirmed that identification to an officer outside of court. At trial, he testified that defendant looked
like one of the burglars, although he was not positive. The record contains evidence that Gonzalez
recognized defendant as someone who grew up around his deceased son. Gonzalez had no apparent motive to
misidentify defendant as one of the burglars. To the extent Gonzalez was
equivocal about his identification of defendant at trial, the jury could easily
infer that equivocation was the result of being fed up with the repeated
interruptions to his work and personal life resulting from the case.
II
Defendant’s
second contention is that the trial court abused its discretion in denying
probation on the ground that defendant continued to assert his innocence after
conviction of first degree residential burglary. Defendant reasons that case law prohibits a
finding of lack of remorse based on a defendant’s failure to confess after
conviction.
A. Standard of Review
“The grant
or denial of probation is within the trial court’s discretion and the defendant
bears a heavy burden when attempting to show an abuse of that discretion. (People
v. Marquez (1983) 143 Cal.App.3d 797, 803.)†(People
v. Aubrey (1998) 65 Cal.App.4th 279, 282 (Aubrey).) “All
in the discretion of the sentencing court (People v. Phillips (1977) 76
Cal.App.3d 207, 213), unless a statute provides otherwise. Some statutes provide ineligibility
is mandatory, while others provide a defendant is
justice would best be served. (E.g.,
compare § 1203, subd. (k) with § 1203, subd. (e).) Section 462, subdivision (a) contains a discretionary
prohibition against probation for defendants
who are convicted of residential
unusual cases where the interests of justice would best be served if the person
is granted probation, probation
shall not be granted to any person who is convicted of a
supra, at p. 282.)
California
Rules of Court, rule 4.413 sets forth the circumstances in which the
presumption against probation is overcome.
The trial court examines the record to determine if the case is
substantially less serious than the circumstances typically present in other
cases involving the same probation limitation, and “the defendant has no recent
record of committing similar crimes or crimes of violence[.]†(Cal. Rules of Court,
rule 4.413(c)(1)(A).) The court
also determines if there is a basis for reducing a defendant’s culpability if
the offense was committed under provocation, coercion or duress, the defendant
has a mental health issue, or the defendant is “
or aged, and has no significant record of prior criminal offenses.†(Id.,
rule 4.413(c)(2).)
“If a court
determines the presumption against probation is overcome, it evaluates whether
or not to grant probation pursuant to California Rules of Court, rule
4.414.†(People v. Stuart (2007) 156 Cal.App.4th 165, 178 (
statutory presumption against probation, the scope of “unusual cases†and
“interests of justice†are narrowly construed, and California Rules of Court,
rule 4.413 applies only where the crime is out of the ordinary or there is
reduced “moral blameworthiness.†(
Court (Dorsey) (1996) 50 Cal.App.4th 1216, 1229.)
Among the
factors a trial court shall consider affecting the decision to grant or deny
probation include the following:
. . . [¶] (5) The degree of monetary loss to the victim;
[¶]
passive participant; [¶]
unusual circumstance, such as great provocation, which is unlikely to
recur[.]†(Cal. Rules of Court, rule
4.414.) In addition, as to the defendant,
the court shall consider “[w]hether the defendant is remorseful[.]†(Id.,
rule 4.414(b)(7).)
B. Argument and the Ruling of the Trial Court
The trial
court indicated it read and considered the People’s sentencing memorandum and
the probation report. The People
requested the midterm of four years in state prison, while the probation report
recommended probation based on defendant’s age and lack of criminal
record. The court’s tentative decision
was to deny probation and impose the low term of two years, taking into account
defendant’s lack of record and youthful age.
The court noted that defendant did not accept responsibility for his
actions and testified in a manner contrary to the physical evidence. The court allowed the parties to argue before
making a final ruling.
Defense
counsel argued at length in favor of a grant of probation. The trial court pointed out the presumption
against probation for residential burglary. Defense counsel requested the court to find
this to be an unusual case and noted the prosecution had made a probationary
offer to settle the case before trial.
Defendant addressed the court, stating he had no criminal record, he
cooperated in the arrest, and had not been in trouble while in custody. He would not admit guilt but did accept
responsibility for the situation, stating that people can be mistaken as to
identification.
The trial
court directed the People to address the issue of whether to grant
probation. The prosecutor relied on
section 462’s presumption against probation.
While defendant was “a bright young man,†he was not accepting
responsibility for the burglary he committed.
The victim lost his property and did not get it back. The prosecutor stated that defendant was
involved in “a prior police altercation a month earlier†without further
explanation.
The trial
court allowed defense counsel to
respond. She stated it is very unusual
for a defendant with no criminal record to be convicted of a serious
felony. Defense counsel then expressed
the opinion the evidence was insufficient to support the conviction. The court replied, “There was more than
sufficient evidence for the jury.â€
Expressly
applying the factors set forth in California Rules of Court, rule 4.413, the
trial court found the case to be more serious than the typical burglary,
because multiple people were involved and a substantial amount of property was
taken. The court recognized that
defendant is young and has no significant record, but those facts were
insufficient to justify overcoming the statutory presumption against probation.
The trial
court further concluded that even if the presumption against probation were
overcome, probation was not appropriate under the criteria of California Rules
of Court, rule 4.414. The court reviewed
the factors in support of and against probation, ultimately concluding “the
strongest factor that weighs against probation is the lack of remorse. It is clear to the court he committed the
offense; that the cell phone did not just land by fortuity in that location;
that it wasn’t left there by somebody who had taken it from him or picked it up
off the street. That is not reasonable,
that is unbelievable. It is believable
to the court that the defendant committed the offense. He is entitled to present a defense. I am not holding it against him. What I am indicating is that he’s not showing
any remorse.â€
C. Analysis
The trial court did not abuse its discretion in denying
probation. It is undisputed that
probation was presumptively unavailable to defendant. The court created a thorough record
establishing familiarity with the controlling criteria. Applying California Rules of Court, rule
4.413, the court reasonably concluded the case was a serious burglary due to
the number of perpetrators and the loss to the victim in excess of $5,000. There is substantial evidence to support
these findings, which provide a reasonable basis for the court’s conclusion
that the presumption against probation was not overcome by defendant. Defendant’s lack of remorse was not stated as
a factor in this decision. His
contention that the court abused its discretion by relying on the absence of
remorse as a basis to deny probation is therefore incorrect.
The trial
court did rely on a lack of remorse in its alternative ruling that even if
defendant were considered for probation, he was not an appropriate
candidate. This was proper, as lack of
remorse is one of the criteria affecting probation under California Rules of
Court, rule 4.414(b)(7).
Defendant
relies on People v. Coleman (1969) 71
Cal.2d 1159, 1168 (Coleman),
overruled on other grounds in Garcia v.
Superior Court (1997) 14 Cal.4th 953, 966, footnote 6, to support his contention. Coleman
was a death penalty case in which the prosecutor argued on the issue of penalty
the defendant’s refusal to admit
his guilt demonstrated his lack of
improper: “
remorse or lack thereof in fixing
the penalty. Evidence on that issue is
therefore admissible, and counsel may comment thereon. It does not follow,
however, that every inference bearing on the question of remorse
may be urged upon the jury by counsel.
It is fundamentally unfair to
urge, as was done here, that a defendant’s failure to
confess his guilt after he has been found
as a ground for imposing the death penalty.
Even after he has been found guilty, a defendant
is under no obligation to confess, and he has a right to urge his possible
innocence to the jury as a factor in mitigation of penalty. [Citation.]
A defendant would be placed in an intolerable dilemma if his failure to
confess following conviction could be urged at the trial
on the issue of penalty as evidence of lack of
such argument, a defendant who had denied his guilt at the
trial on the issue of guilt would have to
penalty, and he could do neither without in effect forfeiting his right to urge
the trial court on motion for new trial to reweigh the evidence on the issue
We conclude that any argument that failure to confess should be deemed evidence
of lack of remorse is
As our
Supreme Court has subsequently observed, presence of absence of remorse is
universally recognized as relevant to a jury’s determination of
punishment. (People v. Frye (1998) 18 Cal.4th 894, 1019-1020; People v.
Marshall (1996) 13 Cal.4th 799, 855.)
California Rules of Court, rule 4.414 embodies that principle. In determining that defendant was not
suitable for probation, the trial court properly considered defendant’s
preposterous insistence that he was the victim of circumstances in the face of
compelling proof of guilt. Defendant did
lack remorse for his conduct in this case.
No abuse of discretion is shown in this alternative ruling of the trial
court.
III
Defendant’s
final argument is that the $10 crime prevention fee imposed under section
1202.5 must be reversed because the trial court made no finding of ability to
pay and the record contains no evidence of ability to pay. The premise of the argument is faulty. At sentencing, the court stated, “Based on
ability to pay, including future earnings capacity,†it was imposing several
fines and fees, including “a crime-prevention fine of $10 plus penalty
assessments.†The necessary finding was
made by the court.
The judgment is affirmed.
KRIEGLER,
J.
We concur:
TURNER,
P. J.
MOSK,
J.
name="_ftn1" title="">[1] All
statutory references are to the Penal Code, unless otherwise stated.
made a similar statement to the officer who first responded to the burglary
call. By the time of trial, Gonzalez denied he recognized defendant from the
connection to his son.
