P. v. White
Filed 6/4/13 P.
v. White CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
JOSHUA RAY WHITE,
Defendant and
Appellant.
F064350
(Super.
Ct. No. MCR041800)
THE COURT
name="_ftnref1" title="">*
APPEAL from
a judgment of the Superior Court of
Lynette
Gladd Moore, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Clara M.
Levers, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Defendant and appellant Joshua Ray White contends there
was insufficient evidence to support his conviction for
sentences on the two offenses violated Penal Code section 654. We conclude the evidence was ample and that
his sentencing contention is moot. We
affirm the judgment.
FACTS AND PROCEDURAL HISTORY
A jury
found defendant guilty as charged, in a third amended information, of
residential burglary (count 1, Pen. Code, § 459) and vandalism, a
misdemeanor (count 2, Pen. Code, § 594, subd. (a)). In bifurcated proceedings, the court found
true three enhancement allegations pursuant to Penal Code section 667.5,
subdivision (b). At a subsequent
hearing, the court sentenced defendant to an operative term of nine years in
prison on count 1 and the enhancement allegations, together with a concurrent
sentence of 264 days on the misdemeanor, with credit for 264 days of
presentence custody.
Viewed most
favorably to the jury’s verdict (People
v. Avila (2009) 46 Cal.4th 680, 701), the evidence at trial showed the
following:
Gabriel Andrade parked in front of
his friend’s house on Colusa Avenue in Chowchilla at about 4:30 a.m. on August
24, 2011. His headlights illuminated a
person dressed in black, wearing a black hat, emerge from beside the house next
door, cross in front of the neighboring house, and disappear into the darkness
“walking fast.†Andrade napped until he
saw a light come on in his friend’s house about 5:30 or 6:00 a.m. He told the friend what he had seen and they
looked at the neighboring house. They
saw the front window had been broken out; the friend called the police.
Detective
Charles Scott responded to the burglary call.
He discovered the house at 212 Colusa Avenue had been broken into. An officer called the occupant of the house,
Jerald Phelps, to inform him of the break-in.
Phelps worked the night shift at Merced County Juvenile Hall. He returned home in response to the telephone
call and, together with the investigating officers, determined that someone had
cut the padlock off a double gate that led from an alley into his backyard;
someone had cut the lock off a door to his garage and entered his home through
the garage; and that televisions, electronics (including an iPod “surround
sound†speaker) and other items were missing from the home.
Chowchilla
Police Officer Rogers headed toward 212 Colusa about 6:30 a.m. in response to
information from the police dispatcher.
On the way, he stopped to question a person known to him (Bankston) at
6:24 a.m. and, while doing so, he saw defendant, whom he knew, ride by on a
bicycle, dressed in black clothing and a black hat. After Rogers arrived at the crime scene a few
minutes later, he told Officer Riviere that he had recently seen defendant
nearby, dressed in black. Riviere knew
that defendant was often at his uncle’s house, about a block from the crime
scene, and Rogers and Riviere went to the uncle’s house. While Riviere was watching the uncle’s house,
defendant came out, wearing dark pants and a white undershirt. At about 6:47 a.m., Riviere approached defendant
and asked where the rest of his clothes were.
The occupants of the house would not let the officer enter but, at
defendant’s instruction, handed out defendant’s clothing, which consisted of a
black short-sleeved shirt, a grey long-sleeved sweater, and a dark
baseball-style hat. Defendant was
arrested and taken to a police holding cell by 7:01 a.m. At the time of arrest, he was wearing
sneakers; the size, tread pattern, and wear pattern were later determined by
Detective Scott to match a shoeprint in the front driveway of 212 Colusa and
another print in the garage of the home.
Between
August 24 and August 27, 2011, Chowchilla police stopped a vehicle driven by
defendant’s brother; Jamie Edwards was a passenger in the vehicle. Police found property stolen in the Phelps
burglary in the trunk of the vehicle. On
August 27, Jamie Edwards visited defendant at the Madera County jail. Their conversation was recorded, in accordance
with posted jail regulations, and played for the jury. Defendant told Edwards he could beat the
charge against him if Bankston “comes in and says the right things.†Edwards replied, “He ain’t gonna do
that.†Defendant told Edwards to tell
Bankston “I’m gonna beat his face in ….
[¶] … [¶] … if he don’t
appear to court and do the right thing.â€
While other portions of the transcript were somewhat ambiguous, the jury
reasonably could interpret defendant’s statements as asking whether the police
“got everything†during the earlier search of the brother’s car, stating that
defendant wanted “my TV†that was at his mother’s house, and stating that the
“[c]hances I took and the things I did†were because he was afraid Edwards
would leave him if he had no money.
Edwards told defendant that his brother had sold “your surround soundâ€
before the police were able to recover it and that his mother “ain’t giving …
up†defendant’s television.
After
listening to the recording of the conversation between defendant and Edwards,
Detective Scott went to the home of defendant’s mother, where he found a
42-inch television stolen in the burglary.
The mother told Scott she thought the television “probably†was stolen,
but that it had been brought to her by a minor we will refer to as G.K.
Defendant
testified that he was on parole at the time of the burglary and had a curfew
from 8:00 p.m. to 8:00 a.m. On the
morning of August 24, 2011, he left home sometime after 8:00 a.m., dressed in
black pants, shirt, and hat, wearing socks and flip-flops. He rode his bicycle to Edwards’s house, but
she was not yet awake, so he rode to his uncle’s house. There, Bankston gave him shoes that Bankston
had gotten from a dumpster at “the Hospice.â€
It was those black sneakers defendant was wearing when he was
arrested. Defendant also offered
explanations for various portions of his jail conversation with Edwards: He was going to beat Bankston not over
testimony in this case but because Bankston had stolen tools from defendant;
that the things defendant did to get money for Edwards involved performing in
sex tapes, not committing burglary; and that the “[c]hances†he took involved
his family disowning him because of his relationship with Edwards. Defendant denied committing the
burglary.
DISCUSSION
Defendant
attacks the sufficiency of the evidence on several fronts. Considered in light of the applicable
standard of review, none of these attacks has merit.
“‘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 determine
‘whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of
fact could have found the essential elements of the crime beyond a reasonable
doubt.’ (Jackson v. Virginia (1979) 443 U.S. 307, 319 ….) In so doing, a reviewing court ‘presumes in
support of the judgment the existence of every fact the trier could reasonably
deduce from the evidence.’
[Citation.] ‘This standard
applies whether direct or circumstantial evidence is involved.’ [Citation.]â€
(People v. Avila, supra, 46
Cal.4th at p. 701.) “‘Conflicts and even
testimony which is subject to justifiable suspicion do not justify the reversal
of a judgment, for it is the exclusive province of the trial judge or jury to
determine the credibility of a witness and the truth or falsity of the facts
upon which a determination depends.
[Citation.] We resolve neither
credibility issues nor evidentiary conflicts; we look for substantial
evidence.’ [Citation.]†(People
v. Lee (2011) 51 Cal.4th 620, 632.)
In three instances, defendant’s
attacks on the evidence merely address the weight or persuasive force of the
evidence, not its legal sufficiency. For
example, defendant concedes Andrade’s description of the clothing on the man
seen in front of the premises at 4:00 a.m. matched the clothing defendant was
wearing in the immediate area about 6:30 a.m.
While he also concedes this testimony supports an inference of
defendant’s guilt, he contends the fact that Andrade said the man was wearing
tan work boots “tended to exonerate†defendant.
A witness’s testimony does not have to be correct in every detail to be
deemed credible by the jury (see CALCRIM Nos. 105 and 226, with which jury was
instructed here) and we do not revisit that credibility determination on appeal. (People
v. Lee, supra, 51 Cal.4th at p. 632.)
Here, of course, the inculpatory value of Andrade’s testimony was
reinforced by Officer Rogers’s observation of defendant’s clothing a short time
later, defendant’s acknowledgment that he was wearing dark clothing and a dark
hat on the morning in question, and his inculpatory statements concerning the
disposition of “his†property in the recorded conversation with Edwards. Similarly, while the shoes defendant was wearing
when arrested were, as his brief contends, a “common, national[] shoe brand,â€
and while the investigating officers did not inspect the soles of the shoes of
other persons at the crime scene, the inculpatory fact remains that a footprint
matching defendant’s was found in the driveway and inside the garage at the
crime scene within a few hours of the crime.
The jury was entitled to evaluate this evidence in light of defendant’s
wholly preposterous explanation that he had obtained these shoes less than two
minutes before his arrest from Bankston, at some time after 8:30 a.m., when
other credible evidence showed that defendant was detained wearing the shoes at
6:47 a.m. and was in a jail cell by 7:01 a.m.
In summary, defendant was entitled to—and did—attack the probative force
of the prosecution’s evidence in his argument to the jury but, the jury having
found the prosecution’s evidence credible, such attacks fail as a matter of law
on appeal. (See People v. Rodrigues (1994) 8 Cal.4th 1060, 1167-1168.)
Defendant
next contends there is insufficient evidence that defendant actually entered
the premises. This argument wholly
ignores the fact that defendant’s shoeprint was found inside the garage, which
was attached to the house and through which the burglars entered. Thus, defendant states: “The footprints in this case were made in
areas where it was common for people to walk.â€
While one of the footprints was, indeed, in the front driveway of the
house, the second print that matched defendant’s shoe was inside a garage from
which a padlock had been cut in order to obtain entry. Further, unlike cases upon which defendant
relies such as Mikes v. Borg (9th
Cir. 1991) 947 F.2d 353, 357, a case involving fingerprint evidence, there was
ample evidence placing defendant at the scene of the crime on the morning of
the burglary—primarily Andrade’s description of the person seen at the scene
and Rogers’s observation of the similarly clothed defendant in the neighborhood
two hours later, at a time defendant falsely claimed to have been home in bed
on the other side of town.
The final aspect of defendant’s
attack on the sufficiency of the evidence is a claim that the evidence does not
show defendant had a felonious intent upon entry into the premises, as is
required for the crime of burglary.
While defendant acknowledges that such intent can be—and commonly
is—established through circumstantial evidence, his argument ignores
well-established case law that permits a jury to infer consciousness of guilt
from a defendant’s patently false attempts to explain incriminatory
circumstances. (People v. Wayne (1953) 41 Cal.2d 814, 823; People v. Duran (2001) 94 Cal.App.4th 923, 932;
788, 791-792.) And while defendant
acknowledges the line of authority permitting an inference of criminal intent
from the possession of recently stolen
property (see People v. Abilez
(2007) 41 Cal.4th 472, 508), he contends that inference is permissible only as
to those persons from whom the police seize the property. In this case, defendant was not in physical
possession of the recently stolen property because he was already in jail, but
his assertion of control over the property in his conversation with Edwards
(and her description of a portion of the stolen property as defendant’s)
permits the same inference by the finder of fact.
Viewing the evidence as a whole, a
reasonable jury could readily conclude beyond a reasonable doubt that defendant
committed the burglary.
Defendant’s remaining contention is
that his concurrent misdemeanor sentence for vandalism violated Penal Code
section 654, which prohibits, as relevant here, multiple punishments for an
indivisible series of criminal acts taken for a single criminal purpose. (See People
v. Latimer (1993) 5 Cal.4th 1203, 1215.)
In the present case, defendant served no sentence for the misdemeanor
after sentencing, since the court gave him credit for time served. Accordingly, even if defendant is correct
that Penal Code section 654 would require a stay of sentence on that offense,
there is no effective relief that can be afforded on appeal. Accordingly, the issue is moot. (See People
v. Travis (2006) 139 Cal.App.4th 1271, 1280.) Defendant contends the unstayed—but fully
served—misdemeanor sentence might somehow affect a future decision to grant
defendant parole; as a result, he contends, the issue is not moot. Penal Code section 654 affects only
punishment, not the underlying conviction for all crimes arising from the course
of conduct. Accordingly, the vandalism
conviction, irrespective of any sentence imposed or stayed, could still be
considered for parole purposes, and defendant has not suggested any manner in
which the unstayed sentence could have parole consequences. This issue is moot.
DISPOSITION
The judgment
is affirmed.
name="_ftn1" title="">* Before
Wiseman, Acting P.J., Franson, J. and Peña, J.
name="_ftn2" title="">[1] Defendant’s
mother testified that G.K. had tapped on her window about 4:00 a.m. the morning
of the burglary and sold her the television at that time for $200.
