People v. Griffin

• Decision Date: 12 July 2001
• Docket Number: No. A090561.,A090561.
• Citation: 90 Cal.App.4th 741,109 Cal.Rptr.2d 273
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Mario Dwayne GRIFFIN et al., Defendants and Appellants.

109 Cal.Rptr.2d 273

90 Cal.App.4th 741

The PEOPLE, Plaintiff and Respondent, v.Mario Dwayne GRIFFIN et al., Defendants and Appellants.

No. A090561.

Court of Appeal, First District, Division 3.

July 12, 2001.

Certified for Partial Publication.^*

Review Denied Oct. 10, 2001.

Alan Siraco, under appointment by the Court of Appeal, for defendant and appellant Mario Dwayne Griffin.

Janet J. Gray, Pacific Grove, under appointment by the Court of Appeal, for defendant and appellant Tyrone Dushawn Griffin.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Laurence K. Sullivan, Supervising Deputy Attorney General,

Thomas A. Brady, Deputy Attorney General, for plaintiff and respondent.

HORNER, J.^**

After joint jury trial of brothersMario Dwayne and Tyrone Dushawn Griffin, Mario was convicted of first degree burglary, felonious assault, and two counts of vandalism, and Tyrone was convicted of first degree burglary and one count of vandalism.¹Mario appeals from his conviction and sentence on the grounds that: (1)the trial court failed to correctly instruct the jury regarding the elements of the offense; (2)the court failed to instruct the jury that it must agree upon which felony appellant intended when he entered the victim's apartment; and (3) there is insufficient evidence that he intended to steal or commit any felony when he entered the subject apartment.Tyrone appeals from his conviction and sentence on the grounds that: (1) there is insufficient evidence that he committed or aided and abetted a burglary; (2) the jury was inadequately instructed regarding relevant burglary principles; and (3) there is insufficient evidence that he committed vandalism.We disagree with appellants in all respects and affirm the judgments.²

INTRODUCTION

Procedural Background.

By information filed in the Superior Court of Humboldt County on October 27, 1999, appellants were charged with felony violations of Penal Code sections 459and460(first degree burglary of a residence; counts one and four), 207, subdivision (a)(kidnapping; counts two and three), 245, subdivision (a)(1)(assault by means of force likely to produce great bodily injury; count five), and misdemeanor violations of Penal Code section 594, former subdivision (b)(4)(misdemeanor vandalism; counts six and seven).³The information further alleged that Mario had a prior felony conviction qualifying as a "strike" under sections 667, subdivisions (d) and (e), and1170.12, subdivisions (b) and (c), and that he had served three prior prison terms within the meaning of section 667.5, subdivision (b).The information was amended on December 30, 1999, to allege that Mario had a prior felony conviction within the meaning of section 667, subdivision (a)(1).Appellants pled not guilty to all counts and Mario denied the enhancement allegations.

Trial began on January 3, 2000, and the jury returned its verdicts on February 2, 2000.Mario was found guilty of the first degree burglary charged in count one, the felonious assault count, and the two counts of misdemeanor vandalism.Tyrone was found guilty of the first degree burglary charged in count one and the misdemeanor vandalism charged in count seven.Mario waived jury trial on the enhancement allegations and, on February 8, 2000, the trial court found not true all special allegations against Mario, except for one prior prison term enhancement allegation under section 667.5, subdivision (b).

On March 6, 2000, Mario was sentenced to state prison for a total term of seven years on account of the felonies, plus a consecutive year for the prior prison term enhancement, and an additional 150 days in county jail on account of the misdemeanors.On March 15, 2000, the trial court sentenced Tyrone to a term of six years in state prison, suspended, with a grant of probation for a period of five years on the condition that he serve one year in the county jail, on account of the felony, and an additional 30 days on account of the misdemeanor.

Appellants filed timely notices of appeal.

The People's Case.⁴

Sometime in September of 1999, appellants and Willis (Trey) Allcut brought three large trash bags full of marijuana to the home of Trey's girlfriend, Libby Brown, where they hung it to dry.On the morning of September 24, 1999, Trey instructed Libby's roommate, Cassidy Hess, to call appellants and tell them that the Drug Task Force had seized the marijuana in a raid and that Libby had been arrested.Trey and Libby then took the marijuana to someone else's house, without informing appellants.

As instructed by Trey, Cassidy called Tyrone and told him the fabrication regarding the police raid on Libby's house.About 20 minutes later, Tyrone came to the house with his girlfriend, Jennifer, who informed Cassidy that they did not believe her story.Tyrone and Jennifer left after about 10 minutes and, approximately 15 minutes later, Mario arrived at the house, which he proceeded to ransack in search of the marijuana.While there, Mario had an angry telephone conversation with Trey regarding the whereabouts of the marijuana.After Mario left the house, Cassidy went to a neighbor's house, where she made arrangements for Libby to pick up her and her children.Libby and Cassidy then proceeded to the Discovery Inn where they rented a motel room.Two of Cassidy's friends came to the motel room—one borrowed her car and the other drove Cassidy and her children to another town.When Cassidy eventually recovered her car, two of its tires had been "popped."

Later, Libby's friend, Stephanie Roberts, came to the motel room and offered to let Libby stay at her apartment.The two drove each other's cars to Stephanie's apartment and parked them in the lot adjacent thereto.About an hour after arriving at Stephanie's apartment, Stephanie heard voices outside the apartment and heard someone say, "Open the door bitch."Appellants then entered the apartment through the front door, which was unlocked.

When appellants entered the apartment, one of them took some keys off a hook in the living room and Mario tore some pages out of Stephanie's day planner.Mario then proceeded to the bathroom and asked Libby where Trey was.When Libby denied knowledge of Trey's whereabouts, Mario shoved Libby against the wall and threatened to restrain her with duct tape, which he had in his possession.Tyrone, who was carrying a piece of metal resembling a tire iron, blocked Stephanie from proceeding toward the bathroom.When Mario came out of the bathroom with Libby, Stephanie attempted to calm him down, but he grabbed her, threw her against the wall and threatened to throw her out the window.Stephanie then offered to help appellants locate Trey.

When Trey did not return their attempts to page him, appellants ordered Stephanie and Libby to leave with them in Stephanie's car.As the group walked by Libby's car, Mario told Libby to look at her tires.Stephanie remembered one of the appellants saying to Libby, "[Y]our tires don't look so good."When Libby asked what had happened to the tires, appellants just laughed.The group then left in Stephanie's car, with Stephanie driving to various places directed by appellants.

One of the group's first stops was at a house where a woman named Tia lived.Once there, appellants hid behind Stephanie's car and directed Libby to determine whether Trey was in the house.While waiting for Libby to return, Stephanie saw Mario kneel down beside Cassidy's car, which was parked out front.Mario later said that he had slashed Cassidy's tires.Although Trey was present in Tia's house, Tia's husband and Libby both told appellants that he was not.

Appellants, Libby, and Stephanie subsequently proceeded to an apartment occupied by Amber Brannon and Tiffany Menniweathers.In response to his inquiries, Tiffany told Mario that she did not know where Trey was.When another individual subsequently informed Mario that Tiffany did know Trey's whereabouts, the foursome returned to her apartment, where Mario fought with Tiffany and struck her several times.Amber called 911 as a result of the incident, but appellants had departed with Libby and Stephanie prior to the arrival of the police.⁵

Based on Amber's identification, the investigating police officer, Peter Cress, was able to locate appellants, Libby, and Stephanie approximately a half an hour later at a gas station, where the group had stopped to buy some beer.At that time, Stephanie told Officer Cress that she was not driving appellants around "of her own free will."She also showed the officer the roll of duct tape and told him that appellants had threatened to restrain her and Libby with it if they did not help them.She further informed him that appellants had come to her apartment, pushed Libby against the wall and threatened to push Stephanie out of her second-story window.Stephanie and Libby refused, however, to go to the police station to give statements, and Officer Cress allowed the women to leave with the car and appellants to leave on foot.After departing from the gas station, Stephanie and Libby found appellants and let them back in the car out of fear that appellants would otherwise try to hurt them or their family.

The foursome then proceeded to the previously rented motel room, where appellants searched for the marijuana.From there, Stephanie paged Trey, who responded with a telephone call.Mario got on the telephone and began arguing with Trey about the marijuana.Mario told Trey they could meet and "go at it with fists."

Thereafter, the group returned to Stephanie's apartment.After stating that they were going to look for Trey until they found him, appellants left Stephanie at her apartment and drove to their house with Libby in Mario's truck.At 3:21 a.m. on September 25, 1999, Officer Cress went to Stephanie's apartment where he found her hysterically muttering, "They took...