People v. Berry, B160445.

• Decision Date: 29 October 2003
• Docket Number: B160445.
• Court: California Court of Appeals Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. KENNETH EARL BERRY et al., Defendant and Appellant.

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THE PEOPLE, Plaintiff and Respondent, v. KENNETH EARL BERRY et al., Defendant and Appellant.

B160445.

Court of Appeals of California, Second District, Division One.

Filed October 29, 2003.

Appeal from a judgment of the Los Angeles County Superior Court, No. YA051195, Francis J. Hourigan, Judge. Affirmed as modified in part; reversed in part.

Joseph L. Ungvari, under appointment by the Court of Appeal, for Defendant and Appellant Kenneth Earl Berry.

Law Offices of Leslie G. McMurray and Leslie G. McMurray, under appointment by the Court of Appeal, for Defendant and Appellant James Lewis Freeman.

Richard M. Doctoroff, under appointment by the Court of Appeal, for Defendant and Appellant Charles Edward Hall.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Margaret E. Maxwell, Supervising Deputy Attorney General and Marc A. Kohm, Deputy Attorney General for Plaintiff and Respondent.

MU&NtilOZ (AURELIO), J.^*

A jury found defendants Kenneth Earl Berry, James Lewis Freeman and Charles Edward Hall guilty of second degree burglary of an automobile (Pen. Code, § 459[¹]), grand theft (§ 487 subd. (a)) and receiving stolen property (§ 496). Appellant Berry admitted he had served four prior prison terms (§ 667.5, subd. (b)). Appellant Freeman admitted he had served four prior prison terms (§ 667.5 subd. (b)) and suffered one prior strike (§ 667, subds. (b)-(i); 1170.2, subds. (a)-(d)).

Probation was denied to all defendants and each defendant was sentenced on the receiving stolen property count (count III) with the other two counts being stayed pending completion of the sentences in count III. (§ 654) Appellant Berry was sentenced to the high term of three years plus three one-year prison enhancements for a total of six years. The court struck the additional prior prison term enhancement and stayed the sentences on the remaining two counts. (§ 654.) Appellant Freeman was sentenced to a total of four years; the midterm of two years doubled pursuant to the Three Strikes law. Appellant Hall was sentenced to the low term of 16 months in state prison.

All three defendants were also ordered to pay restitution fines (§ 1202.4, subds. (b) and (f)). $200 parole revocation fines (§ 1202.45) were imposed and suspended. Each defendant received credit for 176 days of custody credit.

The appeals are from the judgment of conviction.

We affirm the conviction of defendant Freeman and reverse those of defendants Berry and Hall.

FACTS

During the evening hours of February 28, 2002, or the early morning hours of March 1, 2002, the locked van of Pascual Medina (Medina) was forced open and work tools valued in excess of $2,000 were stolen.

On the morning of March 1st, at about 4:15 in the morning, all three defendants were found in two cars in a residential neighborhood with Mr. Medina's tools in the trunk of one of the cars. All three defendants were arrested.

Contentions

All three defendants contest the sufficiency of the evidence to support the convictions. Appellant Freeman also contends the prosecutor improperly struck minority jurors in violation of People .v Wheeler (1978) 22 Cal.3d 258 (Wheeler). Additionally, defendant Freeman alleges instructional error. Finally Freeman alleges he was improperly convicted and sentenced for receiving stolen property.

I. The Evidence was Sufficient to Support Freeman's Convictions

A. The Standard of Review

In reviewing a challenge of the sufficiency of the evidence, we apply the following standard of review: "[We] consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt." (People v. Mincey (1992) 2 Cal.4th 408, 432; People v. Hayes (1990) 52 Cal.3d 577, 630-631; People v. Johnson (1980) 26 Cal.3d 557, 576.) The United States Supreme Court has held: "[T]his inquiry does not require a court to `ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.' [Citation.] Instead, the relevant question is 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. 307 318-319; People v. Hatch (2000) 22 Cal.4th 260, 272; People v. Bolin (1998) 18 Cal.4th 297, 331; People v. Marshall (1997) 15 Cal.4th 1, 33-34; People v. Alvarez (1996) 14 Cal.4th 155, 224-225; People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Barnes (1986) 42 Cal.3d 284, 303; Taylor v. Stainer, (1994), 31 F.3d 907, 908-909.) The standard of review is the same in cases where the prosecution relies primarily on circumstantial evidence. (People v. Bradford (1997) 15 Cal.4th 1229, 1329; People v. Bloom (1989) 48 Cal.3d 1194, 1208; People v. Bean (1988) 46 Cal.3d 919, 932.) "The California Supreme Court has held, `Reversal on this ground is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]."' (People v. Bolin, supra, 18 Cal.4th at p. 331, quoting People v. Redmond (1969) 71 Cal.2d 745, 755.)" People v. Gaut (2002) 95 Cal.App.4th 1425, 1430

B. The Factual Background

The evidence discloses Medina, locked and parked his van in front of his home at about 7:00 p.m. on July 28, 2002. He went inside his home and was in bed by about 8:00 p.m. That night his van was broken into and his tools, which had a value of more than $2,000, were stolen.

At about 4:20 a.m. the next morning, a little more than eight hours after Medina retired for the evening, and less than one-half mile away from the scene of the theft, all three defendants and another man were in two different cars in front of a private residence where Mike Newell (Newell) and his wife were sleeping. Two of the men were observed to be moving items from a white car to a gray car and then making a racket as they repeatedly attempted to close the trunk of the gray car by slamming it shut.

Both cars, with their lights out, were then observed to drive about 80 to 100 yards up the street where they once again stopped. Once the cars stopped, three or maybe four men got out of the cars and started walking up and down the sidewalk, crossing the street to the other side and gazing. One of the men walked back to Newell's house and looked up Newell's driveway.

In the interim Newell's wife had called the sheriff's department about suspicious activity with two black males loading and unloading items from one car to another. The deputy sheriff responding to the call, after an initial drive-by, stopped and started talking to the two people in the white car. One of the two was defendant Berry² who was seated in the passenger seat. As the deputy was talking to the two males in the white car he looked to the rear of the white car where he observed two black males in a gray car lying down in the front seat. Defendant Freeman was the driver and defendant Hall was the passenger.

When the deputy inspected the trunk of the white car he found a black nylon bag containing miscellaneous items such as wrenches, screwdrivers, hammers and a pair of bolt cutters. A search of the gray car revealed power tools belonging to Medina. The tools had been neatly organized in order to fit the large amount of equipment in the trunk. Even then, it was difficult to close the trunk lid.

C. The Evidence Reveals Only Freeman Exercised Sufficient Control Over the Stolen Goods Sufficient To Support the Convictions

Appellants argue the evidence is insufficient to have convicted them of either auto burglary, grand theft or receiving stolen property. In making this contention they argue their mere presence at the scene where stolen goods were located is insufficient to support their convictions. The People respond that the totality of the circumstances shows defendants are guilty of all three crimes.

Initially, based upon the evidence presented, no one can seriously contend that whoever broke into Medina's locked van and stole more than $2,000 worth of tools committed both an auto burglary (& sect; 459) and a grand theft (§ 487, subd. (a).) The real issue is whether possession of the stolen tools within eight hours after they were stolen is sufficient to justify the inference the possessor must also have been the thief.

The answer to that question is clear: Possession of recently stolen items is so highly incriminating that only slight additional evidence is needed to support a conviction for theft of the evidence. (See People v. McFarland (1962) 58 Cal.2d 748, 754; People v. Mendoza (2000) 24 Cal.4th 130, 176.) The corroborating evidence may be slight and by itself may not warrant in inference of guilt. (Ibid.)

Here, defendants Berry and Hall were passengers in the cars driven by Moore, the missing driver, and defendant Freeman. Two people were seen moving articles from the white car to the trunk of the gray car. When opened, the trunk of the gray car was crammed with the tools which had been stolen from Medina's van. The only possible inference is the stolen tools were moved from the white car to the gray car. Because Freeman was the driver of the gray car to which the tools were transferred, he was clearly in possession of the tools. The manner and time of the transfer of the tools was such a jury could reasonably infer Freeman knew the tools had been stolen and he was withholding the tools from the owner of the goods. (People v. Martin (1973) 9 Cal.3d 686, 695-696; People v. Wielograf (1980) 101 Cal.App.3d 488, 494.) Additionally, Freeman's receipt of the tools in such close proximity to the place from which the tools were stolen and so close in time from the actual theft...