IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
December 27, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
JELANI OMOREDI L. BUFORD, SR., DEFENDANT AND APPELLANT.
APPEAL from the Superior Court of Riverside County. Graham Anderson Cribbs, Judge. (Super.Ct.No. SWF029053)
The opinion of the court was delivered by: McKinster J.
P. v. Buford
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
On January 19, 2010, an information charged defendant and appellant Jelani Omoredi L. Buford, Sr., with unlawfully driving or taking a vehicle in violation of Vehicle Code section 10851, subdivision (a). The information further alleged that defendant had previously been convicted of a serious and/or violent felony (attempted burglary in violation of Pen. Code, §§ 664/459) within the meaning of Penal Code sections 667, subdivisions (c) and (e)(1), and 1170.12, subdivision (c)(1).*fn1
On February 2, 2010, defendant filed a motion to suppress evidence under section 1538.5, subdivision (a)(1)(A). Defendant sought to suppress the following evidence: "1. All statements made by defendant after the unlawful detention; [¶] 2. All observations made by deputies; [¶] 3. All tangible items seized, including keys found in defendant's shorts pocket; [and] [¶] 4. All tangible items seized as the fruits of statements made by defendant and/or observations made by deputies." The People filed an opposition on February 24, 2010. On March 5, 2010, the trial court granted defendant's motion "as [to] the key only."
On March 25, 2010, defendant was tried by a jury. On March 29, the jury returned a verdict of guilty on the single count of violating Vehicle Code section 10851, subdivision (a). Moreover, over defense objection, the trial court granted the People's motion to amend the information to change the special allegation citation from Penal Code sections 664 and 459 to Penal Code sections 664 and 460, subdivision (a). Thereafter, the trial court found the prior conviction allegation to be true.
At the sentencing hearing on April 28, 2010, the trial court denied defendant's motion under section 17, subdivision (b), and denied defendant's motion under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). Defendant was ordered to serve a total of 48 months in state prison, with the term calculated as follows: the midterm of two years for count 1, doubled for a total of four years.
On April 28, 2010, defendant filed a timely notice of appeal.
FACTUAL AND PROCEDURAL BACKGROUND
A. The People's Case
On August 20, 2009, officers left a utility cart and trailer alongside Grand Avenue, north of McVicar Street, in the City of Wildomar. The cart and trailer were being used as decoy vehicles due to a high incident of construction equipment theft in the county. Both were equipped with satellite tracking devices.
At 12:30 a.m. on August 21, 2009, Officer Noah Nichols was notified that the cart had been moved. Based on the information received, the officer went with other officers to a home on Pecan Street in Wildomar. There, they encountered defendant just inside the gate in the driveway area. The cart was located in the rear of the property, between a small building and the perimeter fence. Officer Nichols asked defendant how the cart got there; defendant admitted taking it, stating he thought it was abandoned.
B. Defense Case
Early in the morning of August 21, defendant saw a utility cart and trailer off to the side of the road, close to a fence; it appeared abandoned. Defendant took the cart home and secured it in his backyard, with the intent to give it back to the rightful owner. Defendant first parked it in the front of his residence, but moved it because that area of the property was not secure. Defendant then parked the cart in the back of the garage because he did not want his children to deface it or get hurt on it before he was able to return the cart to the rightful owner. Defendant had been home just a few minutes when he went outside and encountered the officers. Defendant told the officers that he had the cart, and he took it to be a good Samaritan. He was not trying to hide anything.
After defendant appealed, and upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436, and Anders v. California (1967) 386 U.S. 738 setting forth a statement of the case, a summary of the facts, and potential arguable issues and requesting this court to undertake a review of the entire record.
We offered defendant an opportunity to file a personal supplemental brief, and he has done so. In his two-page, handwritten letter brief, defendant appears to make two arguments: (1) There is insubstantial evidence to support his conviction because he took the utility cart for safekeeping and intended to call the rightful owner of the cart; and (2) The trial court erred in denying his Romero motion. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error.
As to defendant's first contention, we note that when determining whether the evidence was sufficient to sustain a conviction, "our role on appeal is a limited one." (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) We must examine the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence from which the jury could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.) Substantial evidence--meaning, evidence that is reasonable, credible, and of solid value--must support each essential element of an offense. (Id. at pp. 577-578.) If the verdict is supported by substantial evidence, we are bound to give due deference to the trier of fact and not retry the case ourselves. (Jackson v. Virginia (1979) 443 U.S. 307, 319, 326.)
In determining whether substantial evidence exists, "we do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses." (People v. Cortes (1999) 71 Cal.App.4th 62, 71.) "Although it is the duty of the [trier of fact] to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the [trier of fact], not the appellate court which must be convinced of the defendant's guilt beyond a reasonable doubt. '"If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment."' [Citations.]" (People v. Bean (1988) 46 Cal.3d 919, 932-933.) The standard of review applies even "when the conviction rests primarily on circumstantial evidence." (People v. Kraft (2000) 23 Cal.4th 978, 1053.)
The following elements must be shown to prove a violation of Vehicle Code section 10851, subdivision (a): "'1. A person took or drove a vehicle belonging to another person; [¶] 2. The other person had not consented to the taking or driving of [his/her] vehicle; and [¶] 3. When the person took or drove the vehicle, [he/she] had the specific intent to deprive the owner either permanently or temporarily of [his/her] title to or possession of the vehicle.'" (People v. Moon (2005) 37 Cal.4th 1, 25, fn. 2, quoting CALJIC No. 14.36.) Here, the evidence showed that defendant took the utility cart from the street; the owner did not consent to the taking of the cart; and defendant intended to deprive the owner of the cart to title or possession of the cart. Although defendant argues that he intended to return the cart to the rightful owner, "we do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses." (People v. Cortes, supra, 71 Cal.App.4th at p. 71.) The jury in this case did not believe defendant's explanation for possessing the utility cart. Instead, based on the evidence, the jury found that defendant intended to take the cart. Substantial evidence supports the jury's finding.
We now address defendant's second contention that his sentence should be reduced because the trial court erred in denying his Romero motion. We review a trial court's decision on whether to grant or deny a Romero motion under the deferential abuse of discretion standard. (In re Large (2007) 41 Cal.4th 538, 550; People v. Carmony (2004) 33 Cal.4th 367, 373-374.) Unless the decision is irrational or arbitrary, it will not be disturbed. (Carmony, at pp. 376-377.)
In Romero, supra, 13 Cal.4th 497, the Supreme Court held that sentencing courts retain discretion, pursuant to section 1385, to dismiss allegations of prior felony convictions qualifying for treatment pursuant to the three strikes law. (Romero, at pp. 529-531.) However, the court cautioned, while a trial court's power to dismiss an action under section 1385 is broad, it is not unlimited: "Its exercise must proceed in strict compliance with section 1385(a), and is subject to review for abuse." (Romero, at p. 530.)
In People v. Williams (1998) 17 Cal.4th 148, the court identified a number of specific factors a trial court should consider when exercising its discretion. "[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, on its own motion, 'in furtherance of justice' pursuant to Penal Code section 1385(a), or in reviewing such a ruling, the court in question must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (Id. at p. 161.)
Here, an examination of the trial court's statement explaining its reasons for denying defendant's motion show that it carefully considered and applied the factors found in People v. Williams to this case. The trial court reviewed defendant's background and criminal history in detail and concluded as follows: "Based upon his extensive criminal history, both as a juvenile and also as an adult, no matter how remote in time, it raises issues for the Court and for the citizens of the State of California that fall inherently under the Three Strikes Law in the context of that's why the Three Strikes Law even exists and that is to deal with people who have an extensive criminal history and continue to engage in criminal conduct." We do not find the trial court's decision arbitrary or irrational.
Moreover, the remoteness of his prior strike conviction does not support the conclusion that he falls outside the spirit of the three strikes law. Even the trial court noted that "even with the passage of time, . . . you can only look at the strike window of having not engaged in further criminal contacts up until this time of a period of about four years. So I'm not swayed at all by the fact that there's an argument to be made that, you know, this [strike] conviction occurred ten years ago . . . ." Based on the above, we conclude that the trial court did not abuse its discretion in denying defendant's Romero motion.
We have now concluded our independent review of the record and found no arguable issues.
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
We concur: /s/ Hollenhorst Acting P.J. /s/ King J.