P. v. Webster

Filed 3/19/09 P. v. Webster CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. William Jefferson Powell IV, Judge. Affirmed in part and reversed in part.

Richard Power, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Randall D. Einhorn and Kelley Johnson, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Todd Jefferson Webster was hired to work as a mechanic at a used car dealership in Arizona. After he had worked there for one whole day, he disappeared and so did a Lexus belonging to another dealership employee. One day after that, defendant crashed the Lexus into a dry wash in Twentynine Palms.

Defendant was found guilty of unlawful taking or driving of a vehicle. (Veh. Code,  10851, subd. (a).) Two strike priors (Pen. Code,  667, subds. (b)-(i), 1170.12) and a one‑year prior prison term enhancement (Pen. Code,  667.5, subd. (b)) were found true. Hence, defendant was sentenced to a total of 26 years to life in prison.

In this appeal, defendant contends that:

1. The trial court erred by denying defendants motion to suppress a key tag that was found in a warrantless search of his motor home.

2. There was insufficient evidence that defendants 1985 Ohio conviction for aggravated burglary constituted a strike.

3. The trial court erred by denying defendants motion to strike the 1985 Ohio conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

We will hold that, even assuming the trial court erred by allowing the key tag into evidence, the error was harmless beyond a reasonable doubt. Thus, we will affirm with respect to the conviction. However, we will also hold that there was insufficient evidence that defendants 1985 Ohio conviction constituted a strike. Thus, we will reverse the true finding on this strike prior allegation, reverse with respect to the sentence, and remand for further proceedings. Given our latter holding, we need not decide whether the trial court properly denied defendants motion to strike this prior.

I

FACTUAL BACKGROUND

Ehrenburg Auto Sales was a used car dealership in Ehrenburg, Arizona, just across the border from California. Ed (Skip) Garvin and his wife Katharine (Kate) Garvin worked there. They also lived at the dealership, in a motor home.

Skip first met defendant early in 2007. At the time, defendant was living across the road from the dealership, in a motor home that he was restoring. They would get together over beers a couple of times a week. The Garvins also had defendant over to dinner a couple of times.

Skip got defendant a job at the dealership as a mechanic. Defendants start date was April 4, 2007. On that day, defendant was allowed to move his motor home over to the premises of the dealership.

Tina Berkeley worked at the dealership as an office manager. She had purchased a 1992 Lexus from the dealership. Recently, however, she had left it with the dealership because it needed some repairs. Accordingly, as of April 4, 2007, it was parked outside the front office.

Keys to vehicles that were for sale were kept on yellow key tags and hung on a key tree behind the main desk. The keys to the Lexus were similarly attached to a yellow key tag, with Berkeleys name on it. However, they had been left on a shelf next to the key tree.

Lisa Bunch was another office manager at the dealership. When she was introduced to defendant, she was sitting by the main desk. Just then, she was called to the back office; as she walked away, she saw defendant get up and walk behind the desk, which she found odd.

Around 8:30 p.m., Kate saw the Lexus, still parked outside the front office. Shortly after that, defendant knocked on the Garvins door. Kate lent him $40 and a flashlight and gave him half a chicken for dinner.

The next day, April 5, 2007, around 7:30 a.m., when Kate arrived at work, she noticed that the Lexus was missing. The keys were missing, too. Defendants bicycle was outside the front office, less than six feet away from where the Lexus had been.

Kate knocked on the door of defendants motor home, but there was no answer. She opened the door to see if he was inside. Just inside the door, she saw the yellow key tag . . . that said Tina Berkeley on it. Kate notified Bunch, and Bunch reported the Lexus as stolen. Defendant never returned to work.

On April 6, 2007, one day after the Lexus was found to be missing, Sheriffs Deputy Gary Rossi was dispatched to a location in Twentynine Palms. When he got there, around 1:00 p.m., he found a Lexus (later proven to be Berkeleys) nose down in a sandy dry wash. The car had no license plates; a towel had been draped over the rear license plate area.

There were two men at the scene defendant and one Ron Thomas. Defendant told Deputy Rossi that he had brought the car from Arizona to deliver it to somebody in Victorville. When asked why he was in Twentynine Palms, he said that he had been going to see somebody there when the car got stuck.

Thomas said that he had been camping in the area while on the way to Parker, Arizona to look for work. He was just helping defendant get the car unstuck. He had a bicycle and a sleeping bag.

Deputy Rossi ran a check on the vehicle identification number. When he learned that the car had been reported as stolen, he arrested defendant. He let Thomas go.

The Garvins knew defendant only as Dakota. However, in separate photographic lineups, they both identified him. They also identified him in court, while noting that he looked different from when they had seen him last.^[1] When the Lexus was returned to Arizona, the flashlight that Kate had lent to defendant was in it.

The Garvins testified that, about two and a half months later, they were in a laundromat in Ehrenburg when they ran into a man who had been present with defendant when the car was stuck in Twentynine Palms (i.e., Ron Thomas).

II

DEFENDANTS MOTION TO SUPPRESS THE KEY TAG

Defendant contends that the trial court erred by denying his motion to suppress the key tag that was found in a warrantless search of his motor home.

A. Additional Factual and Procedural Background.

On the first day of testimony, evidence was introduced that defendant was living in a motor home. He had been restoring it, converting two Winnebagos into one functional one. It was in [p]retty rough condition.

On April 4, 2007, his first day at work, defendant moved the motor home over to the dealership. According to Kate, he drove [it] over. According to Lisa Bunch, however, it was not operational, and thus it had to be towed over (although she conceded that she might be incorrect).

Sometime between 8:30 p.m. on April 4 and 7:30 a.m. on April 5, the Lexus went missing. Kate testified that, on April 5, she went into defendants motor home and saw the yellow key tag with Berkeleys name on it. On April 6, defendant was arrested. He never went back to work at the dealership. At the time of trial, the motor home was still there.

In July 2007, an investigator learned about the key tag for the first time (from Skip). The investigator did not try to find the key tag because he just assumed it wouldnt still be around[.]

On the second day of testimony, the prosecutor advised the trial court that he intended to call Doyle Thompson, the owner of the dealership. Thompson was going to testify that, at the prosecutors request, he had gone into the motor home and found the key tag still there.

Accordingly, defense counsel filed a written motion to suppress the key tag, as the product of a warrantless search. The prosecution filed a written opposition. It argued, among other things, that (1) defendant had been on parole and hence subject to a search condition, and (2) defendant had abandoned his expectation of privacy by stealing the car and fleeing.

After hearing argument, the trial court denied the motion to suppress. It ruled that defendants parole status did not authorize the search. However, it also ruled that defendant had no legitimate expectation of privacy in the motor home, because he had abandoned it: [B]efore he left, he made sure he could never go back. He took the boss car. . . . [H]e intended to leave his valueless motor home and take this car that had some value and flee the state outside the reach of Ms. Berkeley.

The prosecution therefore called Thompson. He testified that, while the trial was ongoing, he had entered defendants motor home and found a yellow key tag on the kitchen counter. It said Tina. The key tag was entered into evidence. It was stipulated that Thompson had acted at the prosecutors request.

B. Analysis.

In this appeal, the People no longer argue that the search was justified because defendant was on parole. (See generally Samson v. California (2006) 547 U.S. 843 [126 S.Ct. 2193, 165 L.Ed.2d 250].) The trial court correctly ruled that it was not. The standard California search condition provides that the parolee is subject to search or seizure by a parole officer or other peace officer at any time of the day or night, with or without a search warrant and with or without cause. (Pen. Code,  3067, subd. (a).) Here, the search was initiated by the prosecutor and carried out by a private citizen; no peace officer was involved. Accordingly, there was no basis for a finding that the search was authorized by a search condition.

The Peoples sole argument is that, as the trial court ruled, defendant had abandoned the motor home and hence any legitimate expectation of privacy in its contents. This argument has some appeal. After all, what did defendant think was going to happen to the motor home? The dealership was not going to let it sit on its property forever. It had been left unlocked;^[2]sooner or later, someone was going to go inside. Moreover, in this case, there was undoubtedly sufficient evidence to support a finding that defendant made a deliberate decision to give up the motor home in exchange for the Lexus.

At the same time, however, we are concerned about the broader implications of the trial courts ruling. Does every defendant who flees after committing a crime forfeit the expectation of privacy in his or her home? What is the significance of the fact that defendant was arrested just one day after the theft and hence unable to go back to the motor home, even if he wanted to (unless he made bail)?^[3] And does it matter that this argument necessarily presumes that defendant did in fact steal the Lexus the very issue that the jury had yet to determine? (But see Evid. Code,  405, subd. (b).)

The People have cited a number of cases dealing with searches of abandoned property. (California v. Greenwood (1988) 486 U.S. 35, 39-43 [108 S.Ct. 1625, 100 L.Ed.2d 30] [search of garbage bags that defendant had left at curb for collection]; Abel v. United States (1960) 362 U.S. 217, 240-241 [80 S.Ct. 683, 4 L.Ed.2d 668] [search of defendants hotel room after he had checked out]; People v. Ayala (2000) 24 Cal.4th 243, 278-279 [search of body shop that defendant had visited, resulting in seizure of containers that defendant had discarded there]; In re Baraka H. (1992) 6 Cal.App.4th 1039, 1045-1049 [search of paper bag that defendant had left unattended on the ground].) While these cases are arguably analogous, none of them is dispositive.

We therefore choose not to decide the Peoples abandonment argument on the merits. Instead, we will resolve this issue on a relatively clearer and easier ground harmless error.

Assuming, but not deciding, that the trial court erred by denying the motion to suppress, the federal beyond a reasonable doubt harmless error standard applies. (People v. Prince (2007) 40 Cal.4th 1179, 1250.) Here, the evidence of guilt was virtually overwhelming. Defendant was seen going into the area where the keys to the Lexus (and other cars) were kept, although he had no apparent reason to do so. Even though he had just started a new job, he failed to show up for work the next morning. The Lexus and the keys to it were also missing. His bicycle was found just six feet away from where the Lexus had been. That same morning, Kate saw the yellow key tag without the keys inside defendants motor home. The following day, defendant was found with the car in California. He admitted bringing it from Arizona. The license plates had been removed, and the rear license area had been concealed with a towel. He claimed that he was delivering it to Victorville, but everyone else testified that he was driving it without permission. Moreover, this account was somewhat inconsistent with his claim that he was in Twentynine Palms to see an unnamed person.

When viewed in a vacuum, the presence of the key tag in defendants motor home was strong evidence against him. Kate, however, had already testified that, immediately after the crime, she entered the motor home and saw the key tag there. The evidence that it was still there at the time of trial, including the introduction of the key tag itself, was essentially cumulative; at most, it merely served to corroborate Kates testimony on this point.

The defense consisted of three main points: (1) Nobody had actually seen defendant taking or driving the car, (2) Ron Thomas could have been the perpetrator, and (3) defendant ha[d] been set up by these Arizona witnesses. With respect to the first and second points, the production of the key tag at trial added nothing to Kates testimony about finding it earlier. Even with respect to the third point, it did not add anything; if the Arizona witnesses were all lying, they could easily have taken one of their many yellow key tags, written Berkeleys name on it, and then lied about finding it in the motor home.

In their respondents brief, the People argued that the error was not prejudicial. In his reply brief, defendants entire response was as follows: That key tag was used to prove the vehicle was taken by [defendant] without permission. And that is a key element of the offense. This was prejudicial. This, however, is not enough. While the key tag was admittedly used as evidence of an element of the offense, it was cumulative.

For these reasons, we are convinced beyond a reasonable doubt that, even if the trial court had excluded the key tag, along with Thompsons testimony about finding it in defendants motor home, defendant would still have been found guilty of unlawful taking or driving of a vehicle.

III

THE 1985 OHIO AGGRAVATED BURGLARY CONVICTION AS A STRIKE

Defendant contends that there was insufficient evidence that one of the two alleged strike priors a 1985 conviction in Ohio for aggravated burglary (Ohio Rev. Code,  2911.11, subd. (A)(3)) actually constituted a strike.

A. Additional Factual and Procedural Background.

1. Motion in limine.

The information alleged that defendant had a 1985 conviction for violation of Ohio Revised Code section 2911.11, subdivision (A)(3), which constituted a strike.

In a trial brief, defense counsel argued that the prosecution would not be able to show that the Ohio prior constituted a strike. The prosecutor asked the trial court to take judicial notice of Ohio Revised Code Annotated section 2911.11, subdivision (A)(3), defining the crime of aggravated burglary; he submitted a printout of the statute from Westlaw. While the printout itself is not in the record, it is clear from the parties discussion of the matter as well as from what is actually available on Westlaw that it included the version of the statute that was in effect from 1983 through 1996. That version provided:

(A) No person, by force, stealth, or deception, shall trespass in an occupied structure, as defined in section 2909.01 of the Revised Code, or in a separately secured or separately occupied portion thereof, with purpose to commit therein any theft offense, as defined in section 2913.01 of the Revised Code, or any felony, when any of the following apply: [] . . . []

(3) The occupied structure involved is the permanent or temporary habitation of any person, in which at the time any person is present or likely to be present. (Historical and Statutory Notes, 29 Baldwins Ohio Rev. Code Ann. (1997 ed.) foll.  2911.11, p. 478, italics added.)

The prosecutor also asked the trial court to take judicial notice of the record of the conviction. It showed that in March 1985, in Ohio, defendant was indicted for aggravated burglary, in violation of Ohio Revised Code section 2911.11, subdivision (A)(3). The indictment alleged that, on or about March 16, 1985, defendant by force, stealth, or deception trespassed in an occupied structure as defined in Section 2909.01 of the Ohio Revised Code, or in a separately secured or separately occupied portion thereof[,] with purpose to commit therein a theft offense, as defined in Section 2913.01, Ohio Revised Code, when the occupied structure involved was the permanent or temporary habitation of any person in which at the time any person was present or likely to be present . . . . (Italics added.) In May 1985, defendant pleaded guilty and was sentenced to 5 to 25 years in prison.

The trial court tentatively ruled that the prior conviction constituted a strike: In this case it appears that all of the minimally adjudicated elements from Ohio will meet and in fact exceed that of California.

2. Trial on the merits.

At the bifurcated trial on the priors, defense counsel argued again that the prosecutor had not shown that the Ohio prior constituted a strike. The trial court nevertheless found that it did constitute a strike.

B. Analysis.

In order for a prior conviction from another jurisdiction to qualify as a strike under the Three Strikes law, it must involve the same conduct as would qualify as a strike in California. (People v. Woodell (1998) 17 Cal.4th 448, 453.)

The prosecution has the burden of proving a strike beyond a reasonable doubt. (People v. Towers (2007) 150 Cal.App.4th 1273, 1277; see In re Yurko (1974) 10 Cal.3d 857, 862.)

In determining the substance of a prior conviction, the trier of fact may look to the entire record of conviction. [Citation.] (People v. Gonzales (2005) 131 Cal.App.4th 767, 773.) Facts alleged in an accusatory pleading, together with the defendants guilty plea, are part of the record of conviction and can be used to establish the nature of the prior conviction. (People v. Hayes (1992) 6 Cal.App.4th 616, 620-624; People v. Harrell (1989) 207 Cal.App.3d 1439, 1444; see also People v. Guerrero (1988) 44 Cal.3d 343, 345, 355-356.)

However, if the prior conviction was for an offense that can be committed in multiple ways, and the record of the conviction does not disclose how the offense was committed, a court must presume the conviction was for the least serious form of the offense. [Citations.] In such a case, if the statute under which the prior conviction occurred could be violated in a way that does not qualify for the alleged enhancement, the evidence is thus insufficient, and the People have failed in their burden. [Citations.] (People v. Delgado (2008) 43 Cal.4th 1059, 1066.)

In California, burglary constitutes a strike if it is of the first degree. (Pen. Code,  667, subds. (d)(1), 1170.12, subd. (b)(1), 1192.7, subd. (c)(18).)^[4] [B]urglary consists of entry into a home or certain other structures with intent to commit grand or petit larceny or any felony. [Citation.] (People v. Prince, supra, 40 Cal.4th at p. 1255.)

Defendant argues that his aggravated burglary under Ohio law was not necessarily a burglary under California law at all. He focuses on one element the purpose of the entry.

As already noted, under Ohio law, aggravated burglary required the purpose to commit . . . any theft offense, as defined in section 2913.01 of the Revised Code, or any felony . . . . (Former Ohio Rev. Code,  2911.11, subd. (A).) The 1985 indictment alleged and defendant therefore admitted that he had the purpose to commit . . . a theft offense, as defined in Section 2913.01, Ohio Revised Code . . . . The record of conviction did not include any evidence of the crime that defendant actually had the purpose of committing. Accordingly, the prosecution had to prove that any theft offense under Ohio law would necessarily also constitute grand or petit larceny or any felony under California law.

The problem is that, while the prosecutor did request judicial notice of the 1985 version of Ohio Revised Code section 2911.11, he did not request judicial notice of the 1985 version or any other version of Ohio Revised Code section 2913.01, defining theft offense. Accordingly, the trial court had no way of knowing what might be a theft offense under Ohio law.

The trial court was entitled to the prosecutions assistance in this respect. It was required to take judicial notice of the statutes of this state and of the United States . . . . (Evid. Code,  451, subd. (a).) By contrast, it was not required to take judicial notice of the statutes of another state unless a party requests it and [f]urnishes the court with sufficient information to enable it to take judicial notice of the matter. (Evid. Code,  452, subd. (a), 453, subd. (b).) Here, the prosecutor failed to make the necessary request and failed to furnish the necessary information.

If the prosecutor had provided the 1985 version of Ohio Revised Statutes section 2913.01, the problem would only have become more complicated. That statute defined [t]heft offense as including [a] violation of section 2911.01, 2911.02, 2911.11, 2911.12, 2911.13, 2911.31, 2911.32, 2913.02, 2913.03, 2913.04, 2913.11, 2913.21, 2913.31, 2913.32, 2913.33, 2913.34, 2913.40, 2913.41, 2913.42, 2913.43, 2913.44, 2913.45, 2913.47, former section 2913.47 or 2913.48, or section 2913.51, 2913.81, 2915.05, 2915.06, or 2921.41 of the Revised Code . . . . (Historical and Statutory Notes, 29 Baldwins Ohio Rev. Code Ann., supra, foll.  2913.01, p. 514.) Accordingly, the prosecutor would also have had to provide the 1985 versions of all of these Ohio statutes. The trial court then would have had to determine whether each of those offenses would necessarily be either larceny or a felony in California.

Those crimes at least as presently defined are extremely diverse; they include:

1. The possess[ion] with [the] purpose to utter of any photograph [or] movie film that has been ma[de], retouch[ed], edit[ed], or reproduce[ed] deceptively and with the purpose to defraud (Ohio Rev. Code,  2913.32, subd. (A)(2), (A)(4));

2. The possession of a slug with [the] purpose of enabling another to defraud by inserting or depositing it in a coin machine (Ohio Rev. Code,  2913.33, subd. (A)(2)); and

3. [D]estroy[ing], remov[ing,] conceal[ing], [or] alter[ing] . . . computer data with the purpose to defraud (Ohio Rev. Code,  2913.42, subd. (A)(1)).

Moreover, Ohio law defines to defraud quite broadly, as to knowingly obtain, by deception, some benefit for oneself or another, or to knowingly cause, by deception, some detriment to another. (Ohio Rev. Code,  2913.01, subd. (B).)

Considering just the present versions of these statutes, it seems unlikely that each and every one of them would constitute either larceny or a felony under California law. (See, e.g., Pen. Code,  640a, cl. 2, 648a, subd. (a)) [misdemeanor to possess, sell, or give away a slug].) However, because the 1985 versions of these statutes are not before us just as they were not before the trial court we do not definitively determine this question. We cite these examples simply to illustrate the fact that the trial court would have needed considerably more information before it could make any such determination.

The trial court could not just assume that theft under Ohio law was the same as theft (or larceny) under California law. This was part of the prosecutions burden of proof.

Evidence Code section 311 does allow a court to assume that a sister states law is the same as Californias, but only under specified conditions. It provides: If the law of . . . a state other than this state . . . is applicable and such law cannot be determined, the court may, as the ends of justice require, either:

(a) Apply the law of this state if the court can do so consistently with the Constitution of the United States and the Constitution of this state; or

(b) Dismiss the action without prejudice . . . .

The Assembly Judiciary Committees official comments to this section state: The reason why the court cannot determine the applicable . . . sister-state law may be that the parties have not provided the court with sufficient information to make such determination. . . . If they fail to obtain such information and the court is not satisfied that they made a reasonable effort to do so, the court may dismiss the action without prejudice. On the other hand, where counsel have made a reasonable effort and when all sources of information as to the applicable . . . sister-state law are exhausted and the court cannot determine it, the court may either apply California law, within constitutional limits, or dismiss the action without prejudice. (Assem. Judiciary Com. com., 29B pt. 1 Wests Ann. Evid. Code (1995 ed.) foll. 311, p. 65.)

In this case, the prosecutor had by no means exhausted all sources of information to obtain the text of Ohio Revised Code section 2913.01. Moreover, to apply California law under these circumstances i.e., to presume, in the absence of evidence to the contrary, that theft under Ohio law is the same as theft under California law would unconstitutionally lessen the prosecutions burden of proof. (See Carella v. California (1989) 491 U.S. 263, 265-266 [109 S.Ct. 2419, 105 L.Ed.2d 218].) Accordingly, the allegation should have been dismissed. Certainly it was not appropriate to find it true.

We will therefore reverse the true finding on this strike prior allegation, reverse the sentence, and remand for further proceedings. We express no opinion on whether the People may retry the strike prior allegation. (See People v. Zermeno (1999) 21 Cal.4th 927, 933-934, fn. 3; People v. Swain (1996) 12 Cal.4th 593, 610.)

IV

ROMERO MOTION

Defendant contends that the trial court erred by denying his motion to strike the 1985 strike prior pursuant to People v. Superior Court (Romero), supra, 13 Cal.4th 497.

We need not address this contention because we are reversing the true finding on this strike prior allegation on other grounds (see part III, ante). (See People v. Jensen (2003) 114 Cal.App.4th 224, 241 [reversing conviction and remanding; it would be premature for us to address defendants claim that the sentence imposed by the trial court was cruel and unusual].) Admittedly, we have also declined to decide whether the strike prior allegation can be retried. In the event that it is and in the event that it is found true again defendant will not be barred from bringing a new Romero motion. (See People v. Sons (2008) 164 Cal.App.4th 90, 99-100.)

V

DISPOSITION

The true finding on the 1985 Ohio prior conviction allegation is reversed, the judgment with respect to the sentence is reversed, and the matter is remanded for further proceedings. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

Acting P.J.

We concur:

GAUT

J.

KING

J.

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^[1] As defendants booking photograph showed, as of April 2007, he had a mustache, a scruffy goatee, and a frayed haircut. At the time of trial, he had no facial hair and a more clean cut haircut.

^[2] This was fairly inferable from Kates testimony that she first knocked on the door of the motor home, then opened it. Later, after the trial court had already denied the motion to suppress, Thompson specifically testified that the motor home was unlocked, although there was a shovel up against the door.

^[3] The record reflects that defendants bail was set at $120,000, and he remained in custody until trial. Admittedly, however, no evidence of this was introduced in connection with the motion to suppress.

^[4] Although there are other circumstances in which a burglary also may constitute a strike such as when the defendant personally used a firearm (Pen. Code,  1192.7, subd. (c)(8)) they do not apply here.