People v. Harvey
| Decision Date | 25 May 2011 |
| Docket Number | H035406 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. CLARENCE ADIE HARVEY, Defendant and Appellant. |
| Court | California Court of Appeals |
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Clara County Super.Ct.No. CC803093)
Defendant Clarence Adie Harvey was convicted after a jury trial of two counts of second degree robbery arising out of two liquor store robberies occurring on April 21, 2008. The jury also found true allegations that defendant personally used a firearm in the commission of both offenses. Defendant admitted additional enhancements, and he was sentenced to an aggregate prison term of 18 years and four months.
Defendant asserts four claims of error. He argues that the court erred when it responded to a question by the jury concerning CALCRIM No. 224 by indicating that the jury could disregard unspecified circumstantial evidence that it determined to be "unclear" and consider all other evidence in determining whether the prosecution had proved defendant's guilt beyond a reasonable doubt. Defendant asserts further that the court erred when it permitted a victim to identify the shoes worn by the masked robber, because the testimony was preceded by asuggestive lineup in which she was shown photographs of six pairs of shoes, including those belonging to defendant. Third, he contends that the court erred in giving an instruction that the concealment or destruction of evidence showed a consciousness of guilt (CALCRIM No. 371), because (1) the instruction, as phrased, was an incorrect statement of the law, and (2) there was no substantial evidence that supported the instruction. Lastly, defendant argues that the restitution and parole revocation fines imposed were improperly calculated under the applicable statutory formula.
We conclude that the first three claims are without merit. Defendant's contention, however, that the fines were incorrectly calculated—a claim conceded by the Attorney General—is meritorious. We will therefore direct that the judgment and abstract of judgment be amended to reflect the correct amounts of restitution and parole revocation fines, namely, $7,200 for each fine. As modified, we will affirm the judgment.
Lacrecia Simms rented a silver gray Dodge Avenger from Enterprise Rent-A-Car on April 18, 2008.1 She loaned the car to her sister, Venecia Simms. Defendant is the father of one or more of Venecia's children.
On Sunday, April 20, Venecia dropped the Dodge off at a community car wash in East Palo Alto and arranged to have the car picked up later by Anthony Pratt, a friend of hers and defendant's and the godfather of one of defendant's children. She told Pratt that she would call him about getting the car back laterthat day. Before that time, neither Pratt nor defendant had ridden in the car. Venecia called Pratt later on. "He said that he was handling some business and he would call [her] back . . . ." Venecia tried unsuccessfully to reach Pratt the next day. She never saw the Dodge again.
Maria Sousa (Sousa) and her husband have owned Sousa's Wines & Liquors on Moffett Boulevard in Mountain View since 1998. (In or about 2004, Venecia lived on Tyrella Avenue in Mountain View—which is near Sousa's Wines and Liquors—and defendant visited her there.) At about 12:15 p.m. on April 21, Sousa was working in the back of the store when a man carrying a gun and wearing a hooded black jacket and a ski mask entered the store. He approached her and said, " 'Give me the money.' " Sousa said the money was in front, and he directed her to get it. She stepped in front of him and went to the cash register. The man was behind her and had the gun in her back. Sousa gave him the money in the register. There was a safe below the register that contained the cash from the previous weekend's transactions, and the man directed her to open it. Sousa bent down to open the safe and passed the money to the man, who continued to stand behind, pointing a gun at her. He told her to keep her head down. Sousa thought at the time that the man was going to shoot her. She estimated that there was about $2,000 in the register and $4,000 in the safe.
The man's face was entirely covered by a mask, but Sousa noticed that the skin around his eyes was darker than hers. (Sousa described herself as "dark Portuguese.") He spoke English without an accent, and Sousa estimated that he was between 18 and 30 years old. While Sousa was opening the safe for the masked robber, she saw that he was wearing Nike tennis shoes that were "grayish with a swoosh of blue." During trial, after standing next to defendant, Sousa testified that the man who robbed the liquor store was the same height and had thesame skin tone as defendant. She also testified that the robber was approximately five feet 10 inches tall, the same height as her husband.
The liquor store had a new, nine-camera video surveillance system that operated 24 hours a day. The system had the capability of capturing still photographs as well. The video surveillance system captured the robbery as it progressed, beginning with an image of the man outside the store. As he entered the store, the system showed him reaching into the right side of his waistband and pulling out a gun.
Stanley Ungson is the co-owner of the U-Save Liquor Store on Hamilton Avenue in Campbell. He was working there on April 21. At about 1:23 p.m., a man with a gun entered the liquor store. He was African American, approximately five feet 11 inches to six feet tall, weighed about 210 to 215 pounds, and wore a ski mask and a black hooded sweatshirt. He approached the check-out stand and demanded of Ungson: " " Ungson gave the man all the money in the register. The man then asked if there was money in the drawer next to the cash register, and Ungson gave the man the small amount of cash in the drawer.
As the man was leaving the store, he bumped into one of the doors; Ungson heard a gunshot, and then heard the man say, " 'Oh, shit.' " After the man left, Ungson locked the front door and called the police. Ungson testified that defendant's skin tone and height were the same as the person who had committed the robbery. Ungson thought defendant's build at the time of trial looked "[a] little slimmer" than the robber, but the robber's sweatshirt "was a little baggy."
A neighbor, Michael Broback, heard a loud bang while he was in his backyard. He went to the front and saw an African American male, who was wearing dark clothing, "running peg-legged [with both legs straight] across thestreet." He dropped something metallic that clattered on the street and picked it up.
At approximately 1:30 p.m. on April 21, George Skucius was at the emergency room of Kaiser Hospital in Santa Clara where he worked when a red Camaro with two African American males drove up quickly into the ambulance bay. The driver said that his friend had been shot. Skucius asked the passenger to describe where he had been shot, and he responded that he did not know. When he loaded the man onto a gurney, he saw that "there was blood all over the back side of his pants." After bringing him inside, the hospital emergency room staff removed the patient's clothing, which was then given to the police. The bag containing the clothes did not contain any shoes, although there were socks in the bag. Dr. Michelle Holmes, the emergency room treating physician, determined that the patient, defendant, had a wound on his right thigh (a hole with an entrance and exit), an abrasion on his right testicle, and a puncture wound in his left thigh. A bullet was found lodged in his left thigh. She concluded that it was likely he had been wounded by one shot.
Between 2:00 p.m. and 3:00 p.m., Skucius went outside to his truck parked in the employee lot. Parked next to him was the same red Camaro he had seen earlier drive into the emergency bay; there was a pair of tennis shoes that did not belong to him in the bed of his truck. Skucius went back inside and told police officers about the shoes, and they went outside and took custody of them.
The police also obtained permission from Pratt to search his red Camaro. Located inside the car was a black hooded sweatshirt, and the key to the rented silver Dodge Avenger.
Detective Cary Shueh of the Mountain View Police Department was assigned to investigate the Mountain View robbery. Sousa told him that she might be able to recognize the robber's shoes. Detective Shueh obtained from the Campbell police department the tennis shoes that had been retrieved from Skucius's truck and photographed them. He also took photographs of five pairs of Nike tennis shoes from a Mountain View shoe store. About a week after the robbery, he showed Sousa the photographs of the six pairs of tennis shoes. She indicated that the photograph depicting the shoes retrieved from Skucius's truck looked similar to the ones worn by the robber.
Those tennis shoes were tested by a criminalist, who determined that defendant was the major source of the DNA found on the tag on the interior tongue of the left shoe. In addition, the sleeves of the hooded sweatshirt retrieved from Pratt's car were swabbed and tested. The sample from the left sleeve yielded "one consistent particle of gunshot residue," and the sample from the right sleeve had "a few characteristic particles of gunshot residue."
The check-cashing business next door to the Campbell U-Save Liquor Store had a video surveillance system. An expert on Dodge...
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