People v. Powers, Cr. 43045

• Decision Date: 08 February 1984
• Docket Number: Cr. 43045
• Citation: 151 Cal.App.3d 905,199 Cal.Rptr. 142
• Parties: The PEOPLE, Plaintiff and Respondent, v. Brian Lee POWERS, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 142

199 Cal.Rptr. 142

151 Cal.App.3d 905

The PEOPLE, Plaintiff and Respondent, v. Brian Lee POWERS, Defendant and Appellant.

Cr. 43045.

Court of Appeal, Second District, Division 3, California.

Feb. 8, 1984.

Hearing Denied May 3, 1984.

[151 Cal.App.3d 907] Jolene Larimore, Sepulveda, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Edward T. Fogel, Jr., and Andrew D. Amerson, Deputy Attys. Gen., for plaintiff and respondent.

ARABIAN, Associate Justice.

INTRODUCTION

Appellant Brian Lee Powers appeals from a judgment rendered upon his plea of guilty to murder in the first degree (Pen.Code, § 187) and from jury convictions of first degree burglary (Pen.Code, § 459) and robbery (Pen.Code, § 211). He was 17 years of age at the time the crimes occurred. Pursuant to a plea bargain, the special circumstances allegations as to the murder count were stricken and on May 24, 1982, he was sentenced to 25 years to life imprisonment with possibility of parole. Subsequent to his sentencing, the California Supreme Court decided People v. Spears (1983) 33 Cal.3d 279, 188 Cal.Rptr. 454, 655 P.2d 1289, which held that the death penalty law, as amended by the Legislature and adopted at the 1978 General Election, did not authorize a sentence of life imprisonment without possibility of parole for a minor; and Carlos v. Superior Court (1983) 35 Cal.3d 131, 197 Cal.Rptr. 79, 672 P.2d 862, which held that neither the death penalty nor life imprisonment Appellant contends that in light of Carlos and Spears, his plea of guilty to murder in the first degree must be set aside. He also contends there is insufficient evidence to support his convictions for first degree burglary and robbery. We conclude that appellant's contentions cannot be sustained and we affirm the judgment.

without possibility of parole can be imposed upon a defendant who did not intend to kill or aid in a killing that occurs during the commission of a felony.

PROCEDURAL HISTORY

In a nine count information, appellant was charged along with codefendants Christopher Anthony Avieta and Edward Frank Murrieta of a series of felonies. As relevant here, Count II charged all three with the murder of Charlie E. Griffith. It was alleged in regard to Count II that burglary and robbery special circumstances applied. (Pen.Code, § 190.2, subd. (a)(17).) In Counts IV and V the three defendants were charged with burglary (Pen.Code, § 459) and robbery (Pen.Code, § 211). It was alleged as to Counts II, IV and V that each defendant had personally inflicted great bodily injury upon Griffith (Pen.Code, §§ 1203.075, 12022.7) and had committed crimes against a person 60 years of age or older. (Pen.Code, § 1203.09.)

Pursuant to stipulation, appellant's case was severed from the codefendants for trial. His trial was by jury. At the close of the presentation of evidence, appellant moved to strike the felony murder special circumstances allegations, the allegation that he had personally inflicted great bodily injury on Griffith and the allegation he had committed crimes against a person 60 years of age or older. His motion to strike the felony murder special circumstances allegations was denied. His motion to strike the allegations that he had personally inflicted great bodily injury on Griffith was granted, but the allegations that he had committed a crime against a person 60 years of age or older remained.

The jury found appellant guilty of first degree burglary and robbery (Counts IV and V), but deadlocked as to the murder charge (Count II), and the court declared a mistrial as to the murder charge against appellant in Count II.

In later proceedings on the murder charge, appellant was rejoined as a defendant with Avieta and Murrieta. In accord with a plea negotiation, appellant pled guilty to murder in the first degree and the special circumstances allegations were stricken. Appellant was sentenced to state prison for a term of 25 years to life. The trial court stayed sentencing on Counts IV and V on the ground that it was too late to sentence appellant as to those charges. ¹

STATEMENT OF FACTS

On October 22, 1980, Charlie Griffith, age 77, was attacked in his home, and robbed of personal property, including pennies which he collected. He died on November 17, 1980, as a result of the attack.

On the date of the crimes, at approximately 3:20 a.m., a next-door neighbor heard loud noises. From his window he was able to observe a man with a gun, wearing an olive green army field jacket, standing in the victim's living room. He called the police.

Sheriff's deputies arrived at the scene and observed Avieta and Murrieta leaving. Avieta was carrying a suitcase and wearing a long tan overcoat with a fur collar. Murrieta was carrying a sports bag and wearing a white T-shirt and baggy Levis. They dropped the bags and jumped over a fence. Both were apprehended. The bags were recovered and identified as belonging to the victim; both contained pounds of pennies. Pennies were also found on Avieta's person. The victim's home had been thoroughly ransacked.

Later that morning, a Sheriff's deputy found another suitcase near a gate. Inside Appellant presented an alibi defense, contending that on the date of the crimes, he and his sister were at a friend's home until 3:30 a.m. Approximately one half hour after returning home, he received a phone call from another friend who told him that Avieta had been arrested. Appellant testified that he borrowed his sister's bicycle and went to the friend's house, but was unable to get a response. He then went to the crime scene and found an open suitcase; he looked through it, moving papers and touching a cake tin. After hearing a sound, appellant put the tin back in the suitcase and left the scene. On cross-examination appellant admitted that when he observed the suitcase he was sure it was related to Avieta's arrest; he admitted handling the cake tin.

the suitcase was a fruitcake tin which contained a roll of pennies. Appellant's palm print, which was less than 24 hours old, was found on the lid of the cake tin. The weapon and army jacket were never located. Testimony established that appellant was a friend and associate of Avieta and Murrieta.

ISSUES

Appellant contends that: (1) the evidence was insufficient to support the jury's verdicts of guilty as to the robbery and burglary charges; (2) his motion to strike the felony murder special circumstance allegation was erroneously denied because the evidence at trial did not show that he intended to kill nor that he intentionally aided and abetted the murder; (3) his plea of guilty to first degree murder must be set aside because (a) it was induced by the unlawful felony murder special circumstances allegation and (b) he received only an illusory benefit from his bargain.

DISCUSSION

I.

Substantial evidence supports the jury's verdict that appellant is guilty of first degree burglary and robbery.

Appellant does not contest that Griffith was robbed and that his home was burglarized. He argues only that the evidence was not sufficient to support the jury's finding that he was a culpable party. However, inasmuch as appellant's clear, fresh palm print was found on the metal cake tin at the crime scene, the evidence was sufficient, under the circumstances of this case, to support the jury's verdict.

" 'Fingerprint evidence is the strongest evidence of identity, and is ordinarily sufficient alone to identify the defendant.' [Citations.]" (People v. Atwood (1963) 223 Cal.App.2d 316, 326, 35 Cal.Rptr. 831; People v. Wise (1962) 199 Cal.App.2d 57, 60, 18 Cal.Rptr. 343.) Generally speaking, whether fingerprints or palm prints of the accused are alone sufficient to identify the defendant as the perpetrator must depend upon the particular circumstances of the case. (People v. Atwood, supra, 223 Cal.App.2d at p. 326, 35 Cal.Rptr. 831.)

In Atwood, the defendant's palm prints were found on a safe in a burglarized garage at a point inaccessible to the general public. The palm print was no more than three to five days old. The defendant testified he had been in the garage for a lawful purpose eight days before the burglary and again four or five days before the burglary but did not recall touching anything. The Court of Appeal noted that the jury was not required to believe the defendant. (Id., at p. 327, 35 Cal.Rptr. 831.) Moreover, the defendant's initial denial that he had ever been at the garage when compared against his contradictory testimony at trial constituted corroborative evidence showing a consciousness of guilt. (Ibid.) The court concluded that even had the jury believed defendant's story that he had visited the garage at a prior time, they could still reasonably infer his palm print was made at the time he committed the offense. (Id., at p. 328, 35 Cal.Rptr. 831.)

In People v. Amador (1970) 8 Cal.App.3d 788, 87 Cal.Rptr. 662, the defendant's fingerprints were found on a glass case in a burglary victim's home. The defendant The Amador Court noted that while disbelief of testimony is not equivalent to affirmative evidence to the contrary, nevertheless, if a material fact is established by the evidence and it is shown that defendant's testimony as to that fact is willfully untrue, this circumstance not only furnishes grounds for disbelieving other testimony presented by the defendant, but also tends to show consciousness of guilt. (Id., at p. 791, 87 Cal.Rptr. 662.)

testified that on the day of the burglary, he had been [151 Cal.App.3d 911] drinking, and at the approximate time of the burglary, he was walking down the street by the victim's home looking for the address of a girlfriend. The door to the victim's home was open, and defendant claimed he walked in and called out his girlfriend's name. Then, while inside the victim's home, he picked up a box-like case that had been on the floor and put it down again; after two or three minutes he left, not taking anything with him. The house...