P. v. Dennis











Filed 11/17/10 P. v. Dennis CA2/1





NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS



California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, v. DELANCEY DEWAYNE DENNIS, Defendant and Appellant.

B220113 (Los Angeles County Super. Ct. No. LA057921)

APPEAL from a judgment of the Superior Court of Los Angeles County. Joseph A. Brandolino, Judge. Affirmed in part and vacated in part.
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Michele A. Douglass, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Timothy M. Weiner, Deputy Attorneys General, for Plaintiff and Respondent.
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Delancey Dewayne Dennis was convicted on multiple counts of robbery and related charges. On appeal, he challenges only his conviction on an identity theft charge and two victim restitution awards. We agree that one of the victim restitution awards was unauthorized, but we otherwise affirm the judgment.
BACKGROUND
The amended information charged Dennis with seven counts of second-degree robbery in violation of Penal Code section 211^[1] (counts 1, 2, 3, 8, 9, and 11), two counts of second-degree commercial burglary in violation of section 459 (counts 4 and 5), one count of theft in violation of subdivision (d) of section 484e (count 6), one count of first-degree automated teller machine robber in violation of section 211 (count 10), one count of theft from an elder or dependent adult in violation of subdivision (d) of section 368 (count 12), and one count of identity theft in violation of subdivision (a) of section 530.5 (count 13).^[2] The information alleged as to counts 1, 2, 3, 4, and 11 that a principal was armed with a firearm within the meaning of section 12022, subdivision (a)(1), and it further alleged as to counts 8, 9, and 10 that Dennis personally used a firearm within the meaning of section 12022.53, subdivision (b).
Dennis pleaded not guilty and denied the special allegations. A jury found him guilty as charged on counts 1, 2, 3, 4, 6, 11, 12, and 13 and found true the special allegations as to those counts. The jury found him not guilty on counts 5, 8, 9, and 10. Dennis moved for new trial as to counts 1, 2, 3, and 11 and for judgment of acquittal notwithstanding the verdict as to counts 1, 2, and 3, but the court denied the motions.
The court sentenced Dennis to 11 years and 4 months in state prison, calculated as follows: the upper term of 5 years for count 1, plus 1 year pursuant to subdivision (a) of section 12022.1, plus 12 months (one-third of the midterm) for each of counts 2, 3, and 11, plus 4 months pursuant to subdivision (a) of section 1170.1 for each of those three counts, plus 8 months (one-third of the midterm) for each of counts 6 and 13, all sentences to run consecutively. The court also credited Dennis with 716 days of presentence custody (623 days actual custody and 93 days good time/work time), required Dennis to provide DNA samples, and imposed various statutory fines and fees. The court further ordered Dennis to pay restitution to five “victims,” including $3,600 to Safeco Insurance Company (the insurer of a victim from whom several television sets were taken in one of the charged crimes) and $454.52 to Bank of America (the issuer of a debit card taken in one of the robberies and then used in the identity theft). Dennis filed a timely notice of appeal.
On appeal, Dennis challenges only his conviction on count 13 (the identity theft charge) and the restitution order as to Safeco and Bank of America. We will limit our description of the facts accordingly.
Count 13 was based on Dennis’ alleged use of a stolen Bank of America debit card to make a $454.52 purchase at a shoe store called Shiekh Shoes. The debit card was stolen from Joe Arroyo in the robbery and theft that were charged in counts 11 and 12. Arroyo testified at trial concerning the robbery and theft, but he did not identify Dennis as one of the perpetrators and stated on direct examination that he thought he would not recognize either of the two young men who robbed him if he saw them again. Other evidence, however, identified Dennis as one of the men who robbed Arroyo: A forensic print specialist from the Los Angeles Police Department testified that Dennis’ palm print matched a palm print recovered from the crime scene.
On the same day as the robbery, someone made a $454.52 unauthorized purchase at Shiekh Shoes using Arroyo’s Bank of America debit card. The primary evidence tying Dennis to the Shiekh Shoes transaction (apart from the use of the debit card that was taken in a robbery in which Dennis had participated) consisted of two video surveillance recordings. One recording depicted the sidewalk in front of a store neighboring Arroyo’s place of business (at which the robbery of Arroyo took place), and it showed two young males walking toward Arroyo’s business until they went off camera and then later running back in the opposite direction until they went off camera. The other recording depicted the interior of Shiekh Shoes and showed, among other customers and store personnel, two young males who were wearing clothing similar to the two young males in the first video and who made a purchase and then left the store.
DISCUSSION
I. Evidentiary Error
Dennis argues that the trial court prejudicially abused its discretion by admitting lay opinion testimony from two police officers concerning what was depicted in the surveillance videos. We conclude that any error in admitting the testimony was not prejudicial.
During the prosecution’s case in chief, Officer Cheri Roberts of the Los Angeles Police Department testified that she spoke to Arroyo about his case two days after he was robbed, that she met with the manager of the neighboring business whose surveillance camera covers the sidewalk next to Arroyo’s store, and that she viewed the surveillance footage taken by that camera around the time of the robbery. She further testified that Arroyo gave her the following description of the clothing that the robbers were wearing: “The shorter suspect was wearing a dark sweatshirt and black baseball cap with a white emblem on it and baggy shorts around knee level, with dark blue socks, long socks, and white tennis shoes. [¶] . . . [T]he taller suspect was wearing a hooded gray and white sweatshirt with a pattern on it and long dark baggy pants just above the ankle length with white trim around the opening.”
The prosecutor then played the surveillance footage of the sidewalk, and Roberts testified, over defense objection, that two individuals depicted in that footage were wearing clothing that matched the description given by Arroyo. One of the individuals depicted in the footage is a young male wearing a dark-colored baseball cap, dark-colored long-sleeve shirt, dark-colored baggy shorts, dark-colored long socks, and white tennis shoes. That individual is accompanied by another young male wearing a hooded sweatshirt that appears to be grey, black, and white with a large image of a skull on the front, and dark-colored baggy shorts with white trim at the bottom and what appears to be a diamond-shaped pattern in white at the bottom on the sides. The footage shows those two individuals walking together along the sidewalk, from the top of the screen to the bottom and ultimately off camera. Later in the footage, the two individuals reappear at the bottom of the screen, this time running along the sidewalk in the direction from which they had originally come, until they go off camera at the top of the screen.
The prosecutor went on to play the surveillance footage from Shiekh Shoes, and Roberts testified, again over defense objection, that two individuals depicted in that footage were wearing clothing that matched the clothing worn by the individuals depicted in the footage of the sidewalk outside Arroyo’s business. The footage shows two young males together, one wearing a dark-colored baseball cap, dark-colored long-sleeve shirt, dark-colored baggy shorts, dark-colored long socks, and white tennis shoes, and the other wearing a hooded sweatshirt that appears to be grey, black, and white with a large image of a skull on the front, and dark-colored baggy shorts with white trim at the bottom and what appears to be a diamond-shaped pattern in white at the bottom on the sides.
Another police officer, Glenn O’Shea, gave related testimony later in the trial. The prosecutor played the Shiekh Shoes footage for O’Shea, and O’Shea testified that the individual wearing the hooded sweatshirt with the skull on the front “appears to be” Dennis.
Dennis argues that the court abused its discretion by admitting the foregoing testimony, which he contends constituted inadmissible lay opinion. We conclude that any error in admitting the testimony was harmless because there is no reasonable probability that Dennis would have obtained a more favorable result if the testimony had been excluded. (People v. Watson (1956) 46 Cal.2d 818, 836.)
The palm print constituted powerful evidence identifying Dennis as one of the two individuals who robbed Arroyo. The clothing of the individuals depicted in the footage of the sidewalk next to Arroyo’s business matched the description Arroyo gave to Roberts, and their behavior (first walking along the sidewalk in one direction and later running back along it in the opposite direction) was consistent with their being the robbers. Even without Roberts’ testimony that their clothing matched Arroyo’s description, there is no reasonable probability that the jury would have failed to conclude that those two individuals were the robbers.
The debit card taken from Arroyo in a robbery in which Dennis participated (as established by the palm print) was used later the same day to make a purchase at Shiekh Shoes. The footage from Shiekh Shoes shows two individuals together wearing the same distinctive clothing (including the hooded sweatshirt with the skull on the front and the dark, baggy shorts with the white trim and the white diamond pattern at the bottom) as the two individuals seen together walking to and running from the scene of the Arroyo robbery, who matched Arroyo’s description of the robbers. Even without Roberts’ testimony that the individuals in the two videos were wearing similar clothing, and without O’Shea’s testimony that the individual in the Shiekh Shoes video wearing the skull sweatshirt appeared to be Dennis, there is no reasonable probability that Dennis would have obtained a more favorable result. The jury would still have concluded that the individuals in the two videos were the same and that Dennis was therefore involved in the Shiekh Shoes purchase and hence guilty of identity theft. Any error in admitting the testimony was therefore harmless.
II. Restitution
Dennis challenges the restitution awards to Safeco and Bank of America on the ground that neither entity was a “direct victim” of his crimes within the meaning of section 1202.4, subdivision (k). Because Dennis claims those restitution awards are not authorized by law, he did not forfeit the claim by failing to raise it in the trial court. (People v. Bartell (2009) 170 Cal.App.4th 1258, 1261.)
Respondent correctly concedes that because Safeco was merely the insurer of a victim from whom certain property was taken, Safeco was not a direct victim. (People v. Birkett (1999) 21 Cal.4th 226, 229 [an insurer who merely reimburses an insured’s crime-related losses is not a direct victim for purposes of a restitution award].) We accordingly vacate the restitution award to Safeco.
For the reasons stated in People v. Bartell, supra, however, Bank of America is a direct victim. (See People v. Bartell, supra, 170 Cal.App.4th at p. 1262 [bank that covered forged checks was a direct victim of the forgery and hence entitled to restitution].) We therefore affirm the restitution award to Bank of America.
DISPOSITION
The restitution award to Safeco is vacated. The judgment is otherwise affirmed. The superior court is directed to prepare an amended abstract of judgment consistent with this opinion and to forward it to the Department of Corrections and Rehabilitation.

NOT TO BE PUBLISHED.

ROTHSCHILD, Acting P. J.

We concur:

CHANEY, J.

JOHNSON, J.

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