People v. Turner

• Court: California Court of Appeals
• Writing for the Court: REARDON
• Decision Date: 30 December 2013
• Docket Number: A134275
• Citation: People v. Turner, A134275 (Cal. App. Dec 30, 2013)
• Parties: THE PEOPLE, Plaintiff and Respondent, v. JOSEPH DUANE TURNER, Defendant and Appellant.

THE PEOPLE, Plaintiff and Respondent, v. JOSEPH DUANE TURNER, Defendant and Appellant.

A134275

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR

Filed: December 30, 2013

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Contra Costa County

Super. Ct. No. 1109529)

A jury convicted appellant Joseph Duane Turner of two counts of first degree residential robbery (Pen. Code,¹ §§ 211, 212.5, subd. (a)), one count of first degree residential burglary (§§ 459, 460, subd. (a)), three counts of false imprisonment (§§ 236, 237, subd. (a)), and one count of criminal threats (§ 422). The jury also found true the allegations that he committed the offenses with a firearm (§ 12022, subd. (a)(1)). The trial court sentenced appellant to seven years in state prison. Appellant complains of Faretta² error, discovery abuse, evidentiary error, and an untimely amendment to the information. We affirm.

I. EVIDENCE AT TRIAL

A. The Charged Offenses

In the early morning hours of April 21, 2011, a home invasion robbery occurred at a residence on Pearce Street in Hercules, California. Romeo Sapinoso lived at the housewith his girlfriend, Fernanda Cunha, a Brazilian national, and his nephew, Joseph Sapinoso.³ Also at the house was Cunha's cousin, Fernanda Rodrigues, who was visiting from Brazil.⁴

At 3:50 a.m., Cunha was awakened by her dogs barking. Two men with guns walked into her bedroom. One gunman was an Asian male, who was fat, short, and bearded. The other gunman was tall, dark-skinned, and had a low voice. The gunmen wore black clothes, gloves, and beanies. The gunmen ordered Romeo to the floor. Cunha heard her cousin scream, and then saw the gunmen lead her cousin into Cunha's bedroom. The gunmen bound both women with tape. Cunha heard the men open drawers and take items. She heard other people downstairs. The gunmen took jewelry, Cunha's purse, her computer, watches, Cunha's cell phone, an iPad, and marijuana. Cunha kept marijuana in a transparent Tupperware container.

Romeo testified that he was awakened by screams and saw two men—one black and the other Filipino or Polynesian—enter his bedroom carrying guns. The black gunman gave Romeo a sock and told him to put it into his girlfriend's mouth. Both men ordered Romeo to the ground, then bound his hands behind his back with handcuffs. The black man left the bedroom, reentered it with Rodrigues, then ordered her to get into the bed with Cuhna. The men bound the women with tape. Romeo's nephew, Joseph, called out and Romeo told him to go back into his bedroom. Romeo testified that the gunmen took $4,200, a laptop computer, jewelry, a purse, and a Tupperware container of marijuana. At some point, Romeo heard the Polynesian gunman make a cell phone call and say, " 'Boss, [ ] we're inside.' " After the noises stopped, Romeo got up, went to the hallway, and saw someone wearing a jacket with stripes walk out and close the front door.

After declaring Rodrigues unavailable for trial, Rodrigues's preliminary hearing testimony was read to the jury. Rodrigues testified that she was awakened by dogs barking. A man with a gun walked into her bedroom, covered her head with a blanket, and led her into her cousin's room. The gunman bound Rodrigues's hands and feet with tape.

Joseph, who was asleep in his own bedroom, was awakened to the sounds of a woman screaming and a dog barking. Joseph got up, opened his bedroom door, and heard his uncle say, " 'It's okay. Don't trip. Just go back inside your room.' " From the space under his bedroom door, Joseph saw flashlights going by and a figure. Joseph saw a tall, white man, wearing black clothes. Joseph heard the sounds of tape being ripped and people rummaging all around the house. Joseph pretended to be asleep, and heard someone open his bedroom door and then close it.

Believing a robbery was occurring, Joseph got up out of bed and jumped out his bedroom window onto a neighbor's roof. From the roof, Joseph saw appellant, who was about five or six feet away, peek out a window at him. Appellant said, " 'Get back down here or I'll shoot you. And I have your sisters inside.' " Joseph jumped down from the roof, hid in some bushes, and then called 911 for help. Joseph identified the 911 recording, which was played for the jury. Joseph identified appellant after appellant said a few words in the presence of the police at the scene. At a subsequent in-field show-up, Joseph again identified appellant as the man who threatened to shoot him. Joseph lost his iPad in the robbery.

B. Police Investigation

1. At the Scene

Corporal Joseph Vasquez of the Hercules Police Department arrived at the scene shortly after 4:00 a.m. Corporal Vasquez heard a woman scream, then saw appellant walking from Pearce Street toward Skelly Street. Appellant was wearing a black jacket with white stripes and was holding a clear Tupperware container that was partially concealed in a black garbage bag. Corporal Vasquez ordered appellant to stop, but he turned and walked in the opposite direction. After Corporal Vasquez repeated the orderto stop, appellant complied, and walked toward the officer. The Tupperware container had five ounces of marijuana in it. Appellant reported that while he was out walking with friends, he heard a woman scream and then he found the Tupperware container abandoned on a driveway. Appellant, who happened to be wearing latex gloves and had a roll of black garbage bags inside a pocket, picked up the Tupperware container. Appellant also had a cell phone in his possession. Appellant was detained as a suspect.

Corporal Vasquez saw Sergeant Ezra Tafesse contact Joseph, who appeared frantic and reported that he had been robbed. Joseph asked to hear appellant speak before making an identification. From a window at the residence, Corporal Vasquez saw Romeo who reported that his hands were handcuffed. Two women came outside of the residence, who seemed visibly frantic and frightened. The residence appeared ransacked. Corporal Vasquez saw marijuana inside two bags on the pool table, inside a blue tub, and inside a black plastic bag. Altogether, three-fourths of a pound of marijuana was seized from inside the residence. Corporal Vasquez determined that a garage door had been forced open and found a pry bar on the ground near the door. Corporal Vasquez saw plastic packaging tape on the floor in one bedroom. Corporal Vasquez identified photos of appellant at the time of his arrest, including a photo depicting him wearing latex gloves.

Sergeant Tafesse testified that he saw a silver-colored Toyota Highlander leaving the area near 190 Pearce Street. Sergeant Tafesse saw appellant walking east on Pearce Street, approaching Skelly. Appellant carried a large black plastic garbage bag. Sergeant Tafesse detained appellant. Joseph was hiding in the bushes using a cell phone. Joseph approached and was visibly upset. Joseph reported that appellant was involved in the robbery and had threatened to shoot him. Later, at an in-field show-up, Joseph again identified appellant. Romeo identified appellant as the individual, wearing the black jacket with white stripe, who was the last person to leave the house.

2. Appellant's Statements to Police and Subsequent Criminal Investigation

Detective Alexander Abetkov testified that appellant waived his rights and made a statement. Appellant said he had been home asleep on the couch, when an unidentifiedfriend called at 3:00 a.m., saying he was downstairs in his car and asking appellant to come outside. Appellant went outside and got into his friend's car. The friend drove appellant to Pinole and stopped at a residence the friend claimed "was being robbed." Appellant saw flashlights being used inside the residence at 190 Pearce Street. Appellant's friend drove past the residence a couple of times and discussed with appellant "whether or not they were going to call the police or [whether] they were going to steal property from the people that were there robbing the house." Appellant's friend said stolen property had been placed outside on the driveway. Appellant believed there were two robbers inside the house because he saw two flashlights being used. The driver told appellant to put on latex gloves that were inside the car and to go out and pick up the loot in the driveway. Appellant went out and picked up the marijuana in the Tupperware container, as well as a roll of garbage bags. Appellant discovered that his friend had driven off. Appellant said his friend drove a small, dark-silver-colored SUV. Appellant later gave a different story to Corporal Vasquez. Appellant feared disclosing the identity of the male friend who drove him to the residence. Appellant's cell phone showed a series of calls to "D-Boy."

Detective Abetkov executed a search warrant for a Hercules residence associated with D-Boy's cell phone. D-Boy was identified as Tawn Saeteurn. Saeteurn's Celica was searched, as was a Toyota Highlander associated with Saeteurn's residence. A search of the Celica revealed a box of face masks and a bundle of latex gloves.

Initially, appellant denied planning the robbery or going inside the residence. Appellant admitted knowing about the robbery only minutes before arriving at the residence. Later, while searching appellant's residence, appellant told Detective Abetkov that he had more information. Expressing concern over his fate, appellant asked if he could provide more details about the robbery. Detective Abetkov explained that appellant was going to jail and that no promises would be made for any such information. Thereafter, appellant gave the following "hypothetical version" of events: "D-Boy owed some money to another individual,...