People v. Govan, No. D049586.

• Court: California Court of Appeals
• Writing for the Court: Aaron
• Citation: 150 Cal.App.4th 1015,58 Cal.Rptr.3d 829
• Parties: The PEOPLE, Plaintiff and Respondent, v. Karl Anthony GOVAN, Defendant and Appellant.
• Docket Number: No. D049586.
• Decision Date: 15 May 2007

58 Cal.Rptr.3d 829 150 Cal.App.4th 1015 The PEOPLE, Plaintiff and Respondent,
v.
Karl Anthony GOVAN, Defendant and Appellant. No. D049586. Court of Appeal, Fourth District, Division 1. May 15, 2007.

[58 Cal.Rptr.3d 831]

Law Offices of Mark S. Devore and Mark S. Devore, Irvine, for Defendant and Appellant.

[58 Cal.Rptr.3d 832]

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Barry J.T. Carlton and Robin Derman, Deputy Attorneys General, for Plaintiff and Respondent.

AARON, J.

I. INTRODUCTION

A jury found Karl Anthony Govan guilty of four counts of residential burglary (Pen. Code, § 459)¹ (counts 1-4). The trial court sentenced Govan to a total term of six years in prison, including an upper term of six years on count 1.

On appeal, Govan claims the People failed to present sufficient evidence to corroborate his accomplice's statement to the police that Govan aided in the commission of the burglaries charged in counts 1 through 3. In addition, Govan claims the trial court erred in refusing to instruct the jury on all counts as to the lesser related offense of receiving stolen property. Finally, Govan claims the trial court violated his federal constitutional rights under Cunningham v. California (2007) 549 U.S. ___, 127 S.Ct. 856, 166 L.Ed.2d 856 (Cunningham) in imposing an upper term on count 1 on the basis of facts not found by the jury.²

We affirm the judgment as to Govan's convictions. We conclude the trial court erred under Cunningham in imposing an upper term on count 1. We vacate Govan's sentence and remand for resentencing.

II. FACTUAL AND PROCEDURAL BACKGROUND

A. Factual background

1. The People's evidence

On April 18, 2005, at approximately 11:15 a.m., Miriam McAllister returned to her home in Murrieta. She discovered that her front door had been damaged! When she went to her bedroom, she saw that the drawers to her jewelry box were open and that some of the drawers had been removed. A $2 bill that had been in one of the drawers was missing. There was a pillowcase on the floor that contained the drawers from her jewelry box and the missing jewelry.

Also on April 18, at approximately 1:15 p.m., Elton Gaston, Jr., arrived at his home in Murrieta. Gaston discovered that two video game players were missing, along with two pillowcases.

That same day, Eddie Barba arrived at his house in Moreno Valley at approximately 1:30 p.m. He had been out of his home for only approximately 15 to 20 minutes. He discovered that several items were missing, including a coat, a jewelry box, and a video game player. Two pillowcases were also missing.

Don Mays lived across the street from Louise Black-Robinson's home on Dickinson Road in Moreno Valley. At approximately 1:00 p.m. on April 18, Mays saw a Black male in the driver's seat of a red car talking to a man later identified as David Smith. Smith was standing outside the car. Mays saw Smith approach the front of the Black-Robinson residence and ring

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the doorbell. Shortly thereafter, Mays saw Smith jump over a fence to the residence. Mays called the police at 1:23 p.m.

Riverside Sheriffs Deputy Mario Chavez responded to Mays's call. As he approached the Black-Robinson residence, he noticed that a door to the garage was open and that it appeared to have been kicked in. Chavez called for backup and waited outside the house.

Meanwhile, knowing that the burglary of his home had taken place only minutes earlier, Barba drove around the neighborhood in an attempt to find the perpetrators. Barba saw Deputy Chavez outside the Black-Robinson residence with his gun drawn. After speaking with Deputy Chavez briefly, Barba drove around to the back of the Black-Robinson home. Barba could see Smith inside the residence talking on a cellular telephone. Barba saw two Black males in a small red Dodge pull up next to the house. Govan was the passenger. Govan got out of the car and talked to Smith, who had come out of the house.

While waiting for more officers to arrive, Deputy Chavez saw a red Dodge parked near the house. Chavez saw a Black male in the driver's seat of the car, and Govan standing outside of the car, facing the car. Deputy Chavez observed Smith climbing the fence from the house. Govan placed a pillowcase that appeared to be half full of items in the car. Barba heard Govan yelling to Smith that a police officer was on the scene. As Govan opened the front passenger door of the car, Deputy Chavez yelled, "Freeze!" Govan got into the red Dodge and the car sped off. Smith attempted to flee on foot. Deputy Chavez chased Smith, caught him and arrested him. Officers found a $2 bill in Smith's possession.

Meanwhile, Michael Hoover, who had been driving by the scene, saw Govan get into the red Dodge. Hoover followed the red Dodge and telephoned 911. Barba also followed the red Dodge in his car. Both Barba and Hoover followed the car to a nearby church, where Govan got out of the red Dodge.

Riverside Sheriffs Deputy Oscar Garcia arrived at the church and arrested Govan. Police officers searched the red Dodge. Inside, police found items that had been stolen from the Gastons, the Barbas, and the Black-Robinsons. Approximately half of the stolen property was in the back seat on the passenger's side, and the rest was in the trunk.

In a statement he made to police on the day after his arrest, Smith said that Govan and another male had helped him burglarize three homes on April 18. Smith acknowledged that two of the homes were located in Murrieta and that police had interrupted a third burglary at a house in Moreno Valley. Smith told police that Govan was aware at the time that Smith was committing burglaries. Smith explained that the driver and Govan would drop Smith off at the house Smith intended to burglarize, and that when Smith had finished burglarizing the house, he would telephone Govan on a cellular telephone. The driver and Govan would then pick up Smith. Smith stated that he was planning to pay Govan $20 for assisting in the burglaries.

At Govan's trial, Smith testified that he committed the four burglaries. Smith testified that he had pled guilty to all four burglaries and that he had been sentenced to prison for the offenses. Smith claimed that he had planned to commit the burglaries solely with the assistance of a getaway driver, whom he knew only by the nickname "Tec-9." Smith testified that Tec-9 had picked him up in a red Dodge at 7:00 a.m. on the morning of April 18. Smith stated that he and Tec-9 burglarized three homes that day, without Govan. Smith

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said that the first time he saw Govan was at the burglary in Moreno Valley, which the police interrupted.

Smith testified that his original statement to police was inaccurate concerning Govan's presence and his assistance with the other burglaries. Smith claimed he was scared, nervous, and confused by the officers' questioning at the time he made the statements implicating Govan.

2. Defense evidence

Govan testified that on the day in question, he had taken the wrong bus while attempting to travel to a business to apply for a job. Govan got off the bus and was standing in front of a church when an acquaintance Govan knew only as "Ted,"³ drove up in a red car and offered to give Govan a ride. Ted told Govan that he would have to pick up someone else along the way. Govan accepted the offer and got into the car. Govan did not know that any burglaries had been committed and he did not notice any pillowcases in the car.

Ted drove to a house where Govan saw Smith standing near a fence. Ted instructed Govan to help Smith. Govan got out of the car and approached Smith. Smith handed Govan a laptop case and one or two pillowcases, over the fence. Govan believed Smith was handing him Smith's property. As Govan was placing the items in the car, he heard someone yell, "Freeze." Ted sped off while Govan was only partially in the car.

As Ted drove away, Govan asked Ted what he and Smith had done. Ted did not tell Govan what they had done. Govan continually asked Ted to pull the car over. Ted eventually stopped the car in the parking lot of the church where Ted had initially picked up Govan. Ted walked away. Govan stayed on the church grounds and asked a student who was spraying off some tables if he needed help.

3. The People's rebuttal evidence

Deputy Mario Chavez testified that he interviewed Govan after his arrest on the day of the burglaries. Govan denied ever having been in the red Dodge that was used in the burglaries.

B. Procedural history

The People charged Govan with four counts of burglary (§ 459) for the burglaries of the McAllister residence (count 1), the Gaston residence (count 2), the Barba residence (count 3), and the Black-Robinson residence (count 4). A jury found Govan guilty on all counts. The trial court sentenced Govan to a total term of six years in prison.

III. DISCUSSION

A. The People presented sufficient evidence to corroborate Smith's statement to the police implicating Govan in the burglaries charged in counts 1 through 3

Govan claims the People failed to present sufficient evidence to corroborate accomplice Smith's statement to the police implicating Govan in the commission of the burglaries charged in counts 1 through 3.

1. Standard of review

"The trier of fact's determination on the issue of corroboration is binding on the reviewing court unless the corroborating evidence should not have been admitted or does not reasonably tend to connect the defendant with the commission of the

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crime. [Citation.]" (People v. McDermott (2002) 28 Cal.4th 946, 986, 123 Cal.Rptr.2d 654, 51 P.3d 874.)

2. Governing law

Section 1111 provides:

"A conviction can not be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of...