IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin)
August 23, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
CURTIS EUGENE SWIRES, DEFENDANT AND APPELLANT.
(Super. Ct. Nos. SF103752A & SF110812B)
The opinion of the court was delivered by: Blease , Acting P. J.
P. v. Swires
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
In April 2007, in case No. SF103752A, defendant Curtis Eugene Swires pleaded guilty to theft by embezzlement. (Pen. Code, § 487, subd. (a).)*fn1 Imposition of sentence was suspended and defendant was placed on probation for five years.
In September 2009, in case No. SF110812B, an amended information accused defendant and co-defendant Manuel Matthew Zavala of attempted willful, deliberate, premeditated murder (§§ 187, subd. (a)/664; count 1), first degree residential robbery (§§ 211, 212.5, subd. (a); count 2), carjacking (§ 215, subd. (a); count 3), elder or dependent adult abuse (§ 368, subd. (b)(1); count 4), first degree burglary (§ 459; count 5), assault with a deadly weapon or by force likely to produce great bodily injury (§ 245, subd. (a)(1); count 6), and conspiracy (§ 182, subd. (a)(1); count 8). Defendant alone was charged with solicitation to commit a felony. (§ 653f, subd. (a); count 7).*fn2
A jury acquitted defendant on counts 1 and 3 and convicted him on counts 2 and 4 through 8. Based on the convictions, the trial court found that defendant had violated his probation in case No. SF103752A.
In case No. SF110812B, defendant was sentenced to state prison for seven years, consisting of the upper term of six years on count 2 plus one year on count 6. The remaining counts were stayed pursuant to section 654. In case No. SF103752A, defendant was sentenced to state prison for a concurrent term of three years.*fn3
On appeal, defendant contends (1) his conviction for residential robbery and resultant probation revocation must be reversed because there was insufficient independent evidence corroborating the statements and testimony of accomplices, and (2) his trial counsel rendered ineffective assistance by failing to object to prosecutorial misconduct during summation. We disagree.
The defendant was convicted as a conspirator or aider and abettor of the perpetrators. Among other evidence of corroboration, the defendant knew the victim well and traveled regularly in the victim's truck. He knew that the vehicle likely contained jewelry. On the day before the robbery, the defendant sent Zavala a text message telling him that "[a]ll good for tomorrow so I could get my buyer set up" and the means of entry of the victim's vehicle without setting off the siren. This amply corroborated Zavala's testimony linking defendant to the crimes.
We shall affirm the judgment.
Franklin Freni and his wife, Christine Freni, lived in Stockton.*fn4 Franklin, age 75, was a semi-retired contractor who supplemented his income by trading gold jewelry at several local flea markets. In December 2008 and January 2009, Franklin routinely went to the Turlock flea market on Tuesdays and to a different flea market on Saturdays and Sundays. He transported the jewelry in his 2005 Chevrolet truck.
Franklin had known defendant, a fellow flea market vendor, for 12 to 13 years. By February 2008, they had become friends and would vend from adjacent spaces at flea markets. Franklin trusted defendant and gave him a set of keys to Franklin's jewelry case. Defendant regularly drove to Franklin's home at 4:30 a.m. on Tuesdays, and they would drive to Turlock together in Franklin's truck.
On several occasions after February 2008, Franklin noticed that items had disappeared from his truck. At the end of November 2008, Franklin noticed that his pistol, which he had kept under the truck seat, was missing. When Franklin asked defendant about the pistol, defendant answered that he had not seen it and that it must have fallen out of the truck. Unsatisfied with this response, Franklin told defendant that they would not be working together anymore. At around this time, defendant accused Franklin of having burglarized defendant's residence some time before the pistol disappeared.
On Wednesday, December 3, 2008, the Freni residence was burglarized. About 9:30 a.m., the doorbell rang and Christine opened the door. An unfamiliar man said he was looking for "Dwayne Smith." Christine answered that Smith did not live there. The man was driving a car that Christine recognized as belonging to defendant. About a half-hour later, Christine received a telephone call from defendant who asked for Franklin and then asked Christine why she was at home and not at work. Christine found the latter question "weird."
Christine left the house. While on the road, she telephoned Franklin and told him what had happened because "it didn't sit right with [her]." As the Frenis conversed, Christine received an incoming call from their security company advising that a burglary was in progress at their home. She told Franklin about the burglary and then returned home. When she arrived, Christine immediately noticed that the back door was open.
Although Christine was becoming suspicious of defendant, Franklin telephoned him and asked him to come to the house. Defendant did so and stayed at the house while the police were there. A computer and a wristwatch were missing from the house.
At a flea market 10 days later, defendant demanded that Franklin admit that he had burglarized defendant's house. Franklin denied burglarizing the house. In response, defendant told Franklin, "you've got till 11:00 o'clock this morning to give me $7000 or I'm going to rock your world." He explained, "[y]ou'll lose your family. You'll lose your grandchildren." Franklin believed this was "just an empty threat."
Christine became very angry when she learned of Franklin's falling-out with defendant and his threat to her family. On December 16, 2008, she telephoned defendant and told him to stay away from her family and residence.
In early January 2009, defendant purchased gold from Zavala, an acquaintance with a reputation for stealing jewelry from residences. Defendant told Zavala that a man named Frank had stolen jewelry and money from defendant's home, and defendant wanted to get retribution by stealing Frank's stuff.*fn5 Zavala asked defendant how much he was willing to pay him to steal the items back. Defendant said $20,000 and provided Zavala additional details about Franklin, including where he lived, his morning routine, and where to find the jewelry.
Defendant also offered an additional $20,000 for Franklin's ring, which would be either on his finger or in his upstairs bedroom. Defendant explained that he would sell the stolen jewelry and pay Zavala out of the proceeds. Zavala agreed because he needed money and the "job" sounded easy. Zavala later recruited a friend, Gerardo Alvarez, to help with the robbery.*fn6 Zavala provided the details of the plot, and Alvarez accepted the job.
On January 12, 2009, Zavala sent Alvarez a text message asking if he was ready, and Alvarez answered, "Hell, yeah, I'm ready." Subsequent text messages established that James Bouldt, who had been recruited for the plot, was also ready to assist; and that Alvarez would meet Zavala at his residence around 10:00 p.m. to depart for Stockton.
This same day, defendant sent Zavala a text message asking, "[a]ll good for tomorrow so I could get my buyer set up[?]" Zavala answered, "[i]t's a go." After they exchanged several more messages, defendant texted, "Hey, info on truck alarm goes off when you open with a key. Just push unlock button on door." Zavala answered, "Right on. Thanks."
On the early morning of January 13, 2009, Zavala, Alvarez, and Bouldt drove to Stockton. Alvarez drove his mother's white Ford Taurus; Zavala, together with Bouldt, drove a red burgundy Ford Escape. They stopped at a motel and waited for about an hour before continuing to the Freni residence. They arrived at the residence at about 2:00 a.m., scanned the area from inside their cars, and then returned to the motel. They returned to the Freni residence around 3:00 a.m. Zavala got out of the car and walked around.
Franklin awoke around 3:45 a.m. and prepared to leave for Turlock. He backed his truck from the garage and walked toward the button that closed the garage door. As he was pushing the button, Zavala, who had been hiding behind some bushes, began screaming and used a club or stick to strike the side of Franklin's head. Franklin fell down; Zavala opened a knife and stated, "I'm going to kill you." Zavala noticed that Franklin was not wearing the ring. Zavala then stabbed Franklin four or five times.
Christine, from upstairs, asked what was happening in the garage. Franklin told her to call 911. She came downstairs, saw Franklin on the ground, and went back upstairs despite being ordered by Zavala to kneel next to Franklin. Zavala followed Christine, pulled her hair, and pushed her down the stairs. Franklin said, "[d]on't hurt my wife." He stood, saw Christine fall down the stairs, and then collapsed.
Zavala ran down the stairs, jumped in Franklin's truck, and drove back to Modesto. The truck contained approximately $70,000 of jewelry and Franklin's wallet. About two minutes after Zavala drove away, Alvarez and Bouldt followed. They met in Modesto and eventually brought the contents of Franklin's truck to Zavala's apartment. Eventually, the three men were paid for the job.
Emergency personnel and law enforcement arrived at the Freni residence and attended to the Frenis' medical needs. Franklin later offered defendant's name to law enforcement because he was the only person who "had something against" Franklin. Franklin's truck was found at a street corner in Modesto.
In addition to the jewelry, Zavala took the Frenis' computers, checkbook, credit card, and licenses. Zavala telephoned the Frenis' bank to obtain information about their account. Zavala also altered Franklin's driver's license by replacing his photograph with one of Zavala. Thereafter, Zavala tried to use Franklin's credit card and checks. These items, among others, were recovered from Zavala's apartment during a search in late January 2009.
Defendant presented no witnesses and relied on the state of the evidence. His counsel argued that Alvarez and Zavala had implicated defendant in order to obtain favorable plea bargains.
Defendant contends there was insufficient evidence to connect him to any of the crimes committed by Zavala, Alvarez and Bouldt. He argues his convictions are "based entirely on the testimony and statements of his alleged accomplices, Zavala and Alvarez," which were not "corroborated by other evidence that connects the defendant to the commission of the crime," as required by section 1111. In a separate argument, defendant claims this dearth of evidence in case No. SF110812B requires reversal of the finding that he violated his probation in case No. SF103752A. Neither point has merit.
"On appeal, the test of legal sufficiency is whether there is substantial evidence, i.e., evidence from which a reasonable trier of fact could conclude that the prosecution sustained its burden of proof beyond a reasonable doubt. [Citations.] Evidence meeting this standard satisfies constitutional due process and reliability concerns. [Citations.] [¶] While the appellate court must determine that the supporting evidence is reasonable, inherently credible, and of solid value, the court must review the evidence in the light most favorable to the prosecution, and must presume every fact the jury could reasonably have deduced from the evidence. [Citations.] Issues of witness credibility are for the jury. [Citations.]" (People v. Boyer (2006) 38 Cal.4th 412, 479-480.)
Section 1111 provides: "A conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. An accomplice is hereby defined as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given."
The jury was instructed that, before it considered the testimony of Alvarez or Zavala, it must decide whether they are accomplices. (CALCRIM No. 334.) There is no contention that the jury failed to do so. The jury was further instructed that the testimony of an accomplice must be corroborated.
"The corroborating evidence may be slight and entitled to little consideration when standing alone. However, it must tend to implicate the defendant by relating to an act that is an element of the crime. It need not by itself establish every element, but must, without aid from the accomplice's testimony, tend to connect the defendant with the offense. The trier of fact's determination on the issue of corroboration is binding on review unless the corroborating evidence should not have been admitted or does not reasonably tend to connect the defendant with the commission of the crime. [Citations.]" (People v. Nelson (2011) 51 Cal.4th 198, 218.)
When corroborating evidence is claimed to be inadequate, the court views that evidence "in [its] totality." (People v. Luker (1965) 63 Cal.2d 464, 471, cited with approval in People v. Hathcock (1973) 8 Cal.3d 599, 618.)
In this case, the prosecution presented the following items of independent corroborating evidence:
Defendant was familiar with Franklin's jewelry operation. Franklin trusted defendant and gave him a set of keys to Franklin's jewelry case.
Defendant regularly rode to and from Turlock in Franklin's truck.
Defendant accused Franklin of having burglarized defendant's residence.
The perpetrator of the prior (December 3, 2008) burglary was driving defendant's car, a turquoise sport utility vehicle (SUV) that Christine had seen many times.
Defendant acted surprised that Christine was home.
The December 3, 2008, burglary did not succeed in recovering any jewelry from the Freni residence.
Following the failure of the December 3, 2008 burglary, defendant demanded that Franklin admit that he had burglarized defendant's house; when that failed, defendant tried to extort $7000 from Franklin. Defendant threatened to "rock [Franklin's] world," in that he would "lose [his] family," including his "grandchildren."
Just before the January 13 offenses, defendant sent a text message to Zavala stating, "Hey, info on truck alarm goes off when you open [it] with a key. Just push unlock button on door."
Defendant dismisses the evidence of his prior burglary accusation against Franklin, as well as the prior disappearances of Freni property and prior burglary of the Freni residence, by claiming the prosecution failed to "provide any evidence, independent of Zavala and Alvarez, showing that [he] was connected to the attack on the Frenis." This illogical argument--that the independent evidence was inadequate because the prosecution presented no independent evidence--seems simply to "will" the inconvenient prior acts out of existence.
Defendant's prior interactions with the Frenis linked him to the present crimes by showing his compelling motive: to recover, recompense, or simply retaliate for, items Franklin allegedly had stolen from defendant. Franklin illustrated this point when he gave law enforcement defendant's name because he was the only person who "had something against" Franklin.
Under the totality of circumstances (People v. Luker, supra, 63 Cal.2d at p. 471), defendant's prior attempt to extort $7,000 by threatening to "rock [Franklin's] world" tends, at least slightly, to identify defendant as the perpetrator of the present crimes. Contrary to defendant's argument, no "speculation, conjecture, [or] guesswork" was required.
Defendant claims no evidence identified him as the person who had sent the truck alarm text message from his cell phone; and no evidence other than Zavala's testimony identified Zavala as the person who received it on the cell phone in his name. Neither point has merit. The jury was not required to speculate that either phone was being used by anyone other than the person to whom it was registered. Defendant's points establish, at most, that the weight of this evidence is slight. For present purposes, slight is enough. (People v. Nelson, supra, 51 Cal.4th at p. 218.)
The evidence showed that defendant knew the victim well and traveled regularly with him in his truck. He knew that the vehicle likely contained valuable jewelry. On the day before the robbery, defendant sent a text to Zavala telling him how to enter the truck without setting off the alarm.
Defendant claims the truck alarm text message is "entirely innocent" and does not "connect [him] to the crimes unless [it is] interpreted by Zavala." Again, we disagree. The evidence showed that defendant drove a turquoise SUV, and on Tuesdays he rode to and from Turlock in Franklin's 2005 Chevrolet truck. Because the evidence did not link defendant to any other truck, the jury could deduce that the "truck" in the text message was Franklin's Chevrolet and not defendant's SUV. The jury had no duty to speculate that the message referred to some truck not shown by the evidence. In this context the text message to Zavala telling him that "[a]ll good for tomorrow so I could get my buyer set up" and the means of entry of the victim's vehicle without setting off the siren clearly corroborated Zavala's testimony.
Defendant claims "[t]he prosecutor conceded the lack of adequate corroboration, while justifying Zavala's plea bargain agreement, which she characterized as 'a deal with the devil.'" He is not correct.
In closing summation, the prosecutor argued that without Zavala's plea bargain, "you wouldn't have had his testimony. And you wouldn't have had the evidence that you needed to convict [defendant]. Without Manuel Zavala, the People of the State of California could put forth text messages. We couldn't explain them to you. You [would] just have to rely on them."
The prosecutor correctly acknowledged that, by itself, the independent evidence did not constitute proof beyond a reasonable doubt of defendant's guilt. However, she did not concede that this evidence was inadequate even for corroboration. In other words, she did not concede that the evidence's value was less than "slight." (People v. Nelson, supra, 51 Cal.4th at p. 218.) Had the prosecutor so conceded, she could not in good faith have asked the jury to convict defendant on any count.
Because the independent corroborative evidence was sufficient, defendant's insufficiency of evidence and due process arguments necessarily fail. His challenge to the revocation of his probation, based on insufficiency of evidence of new criminal offenses, also fails.
Defendant contends his trial counsel rendered ineffective assistance when she failed to object to the prosecutor's "irrelevant inflammatory argument" regarding Charles Manson, Al Capone, and Osama Bin Laden, whom she described as "infamous people that have been convicted, indicted or accused of conspiracy." We are not persuaded.
The prosecutor argued during her opening summation as follows: "Liability for co-conspirators. A member of a conspiracy is criminally responsible for the crimes that he conspires to commit no matter which member of the conspiracy commits the crime, and is criminally responsible for any act of any member of the conspiracy if that act is done in further -- to further the conspiracy, and is a natural and probable consequence. [¶] Let me tell you right now, ladies and gentlemen, your job whether or not there was solicitation and conspiracy, is not going to be difficult. The evidence is strong. Where you are going to work and where you are going to talk is what crimes are natural and probable consequences, and that's what we'll talk about now. [¶] I don't know if you recognize any of these pictures. In my opening I told you that the law of conspiracy has been around since the 1900s, and there are infamous people that have been convicted, indicted or accused of conspiracy. Charles Manson, Al Capone and Osama Bin Laden. Let me preface it by saying, I'm not saying that the defendant is in any way related or his crimes are the same as these individuals, but what I'm saying is conspiracy has been around a long time. [¶] One of the things you may hear from the defense counsel is that [defendant] wasn't even there, you can't hold him responsible. Well, that's not what the law of conspiracy is. Because Charles Manson was also not there when Sharon Tate was murdered, and he was convicted of conspiracy. [¶] Al Capone, I can assure you, was not at most of the crime scenes that he instigated, but he was never convicted of conspiracy. He went to prison on racketeering [sic] because nobody would talk. None of the other members of the conspiracy would testify against him. [¶] And Osama Bin Laden was indicted by the United States government back in 1993 for conspiracy to commit terrorist crimes. Now, that hasn't gone to trial, so who knows who will talk, provided we ever find him. [¶] The point is, conspiracy law has been around a long time, and it holds people responsible if they are involved in the crime. They do not have to be there. They have to conspire, and then they are responsible for whatever acts happen that are natural and probable consequences."
"'The applicable federal and state standards regarding prosecutorial misconduct are well established. "'A prosecutor's . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct "so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process."'" [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves "'"the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury."'" [Citation.]' [Citation.]" (People v. Hill (1998) 17 Cal.4th 800, 819.)
"Regarding the scope of permissible prosecutorial argument, [our supreme court] recently noted '"'a prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. [Citations.] It is also clear that counsel during summation may state matters not in evidence, but which are common knowledge or are illustrations drawn from common experience, history or literature.' [Citation.] 'A prosecutor may "vigorously argue his case and is not limited to 'Chesterfieldian politeness'" [citation], and he may "use appropriate epithets . . . ."'" [Citation.]' [Citation.]" (People v. Hill, supra, 17 Cal.4th at p. 819.)
"'As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion--and on the same ground--the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.]' [Citation.]" (People v. Hill, supra, 17 Cal.4th at p. 820.) "A defendant will be excused from the necessity of either a timely objection and/or a request for admonition if either would be futile. [Citations.] In addition, failure to request the jury be admonished does not forfeit the issue for appeal if '"an admonition would not have cured the harm caused by the misconduct."' [Citations.] Finally, the absence of a request for a curative admonition does not forfeit the issue for appeal if 'the court immediately overrules an objection to alleged prosecutorial misconduct [and as a consequence] the defendant has no opportunity to make such a request.' [Citations.]" (Id. at pp. 820-821.)
In this case, defendant forfeited his claim of misconduct because his trial counsel did not object to the prosecutor's remarks, move to strike her argument or the accompanying photographs, or request a curative admonition; and none of the foregoing exceptions to forfeiture applies. (People v. Hill, supra, 17 Cal.4th at pp. 820-821.) We thus turn to his argument that the forfeiture constitutes ineffective assistance.
"'"[I]n order to demonstrate ineffective assistance of counsel, a defendant must first show counsel's performance was 'deficient' because his 'representation fell below an objective standard of reasonableness . . . under prevailing professional norms.' [Citation.] Second, he must also show prejudice flowing from counsel's performance or lack thereof. [Citation.] Prejudice is shown when there is a 'reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.' [Citations.]" [Citation.]'" (People v. Avena (1996) 13 Cal.4th 394, 418; fn. omitted.)
"'"[If] the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[,] . . . unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation," the claim on appeal must be rejected.' [Citations.] A claim of ineffective assistance in such a case is more appropriately decided in a habeas corpus proceeding. [Citations.]" (People v. Tello (1997) 15 Cal.4th 264, 266-267.)
In this case, defendant's trial counsel was not asked to explain her reasons for failing to object to the prosecutor's remarks. Moreover, on this record, there could be a satisfactory explanation for her omission.
Defense counsel could have believed an objection would lack merit in light of the prosecutor's explanation that she was not comparing defendant's crimes to those of Bin Laden, Capone or Manson; and that she was using those well-known criminals to illustrate that conspiracy law has been in existence for a long time. Case law has approved a prosecutor's use of the Manson case to illustrate aider and abettor theory, which is analogous to the conspiracy theory here at issue. (People v. Luparello (1986) 187 Cal.App.3d 410, 428-429.) In this case, the prosecutor used the Bin Laden and Capone matters to make the same point, and she did not make "an impassioned plea aimed at the jury's fears and anxieties." (Id. at p. 429.) Finally, nothing in the present record suggests that the photographs were objectionable separate and apart from the accompanying argument. Any ineffective assistance claim must be brought in a petition for habeas corpus.
We note that, in future cases, the prosecution would be well advised to minimize any possible prejudice by illustrating the principle of vicarious liability with, at most, one rather than three of the most notorious and infamous criminals of modern times. No harm would accrue to the prosecutor's case, and a potential appellate issue could be avoided.
The judgment is affirmed.
We concur: BUTZ , J. DUARTE , J.