IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yolo)
August 29, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
LEE RAY WILLIAMS, DEFENDANT AND APPELLANT.
(Super. Ct. No. CRF101494)
The opinion of the court was delivered by: Robie , Acting P. J.
P. v. Williams
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Shortly before Christmas 2009, Dana Helvick's home in Davis was burglarized. Lee Ray Williams -- the victim's on-again, off-again boyfriend and father of the victim's daughter -- was charged with first degree burglary and receiving stolen property as well as several enhancements.
At trial, the prosecutor, to show that defendant had a motive to burglarize the victim's home, introduced evidence that defendant was several months behind in his rent payments and facing eviction. The trial court admitted the evidence over the objection of defense counsel.
The jury found defendant guilty of first degree burglary and not guilty of receiving stolen property and in the second half of a bifurcated trial found all the enhancement allegations true. The trial court sentenced defendant to a determinate term of 17 years and an indeterminate term of 25 years to life pursuant to the three strikes law.
On appeal, defendant contends the admission of this evidence was prejudicial error. Defendant also argues the sentence the trial court imposed was unauthorized under California's three strikes law. The People assert any evidentiary error in this case was harmless, but concede the sentence the trial court imposed was improper. We will modify the sentence, and concluding there was no prejudicial error, we will otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On December 15, 2009, defendant visited Dana Helvick at her home in Davis. Defendant and Dana*fn1 met in 1992 and had dated off-and-on since then. Defendant and Dana's child, Whitney, lived with Dana in Davis.
When defendant arrived at Dana's home, Dana was preparing to pick up Whitney from her school to take her to another school where she took one class a day. Defendant and Dana spoke about some financial problems Dana was having. At some point during their conversation, Dana left to use the bathroom. While she was in the bathroom, Dana heard defendant walking around the house, and when she came out of the bathroom, Dana saw defendant leaving her bedroom. Before leaving to pick up her daughter, Dana told defendant that Whitney was performing in a choir concert that night at 7:00 p.m.
When Dana left, defendant went with her to pick up Whitney. As they were leaving, Dana noticed that defendant had arrived in a red, two-door Toyota Tercel, which was the car he normally drove. According to Dana, when they arrived back at her house from picking up and dropping off Whitney, she and defendant fought, and then he left. Defendant and Dana made no plans to see each other again, but defendant did ask Dana to call him after Whitney's choir performance.
Dana and her cousin (who was accompanying her to the choir performance) left her house around 6:30 p.m. for the concert. When Dana left, she locked the front door and turned on the porch light. The curtains in her front bay window were open, because Dana did not normally close them until going to bed. Dana left the rear sliding glass door slightly ajar because the lock was broken and because the screen door beneath had a doggie door that could be used by her pets. Both of the gates in Dana's backyard were secured with locks. After arriving for the concert, Dana received a call from defendant, informing her that he did not think he could make it to the concert, but to call him afterward. Dana did not invite defendant to the concert, and defendant had not mentioned earlier in the day that he would try to attend.
Around 6:55 p.m., Dana's neighbor across the street, Jean Adamian, left to pick up her husband from work about five minutes away. As she was leaving, she noticed a Toyota Tercel parked on the street in the spot where her husband normally parked his car, directly across from Dana Helvick's house. Also as she was leaving, Jean Adamian saw a "stocky black man" that she assumed was Dana's "ex-husband" (Jean Adamian had met defendant before) walking up to the front door of Dana's house. When Jean Adamian returned with her husband around 7:15 p.m., Leo Adamian also noticed the red Toyota parked in his normal parking spot.
Around 9:00 p.m., Dana, Dana's cousin, and Whitney returned home from the concert. As soon as she pulled up in her car, Dana noticed that her porch light was off, the blinds were closed, and one of her garbage cans was not in its normal location in front of the garage. Dana entered the house very cautiously and told Whitney and her cousin to wait before entering. Inside, Dana noticed that the power was off in her living room and the sliding glass door and screen were wide open. After noticing that the sliding door was open, Dana immediately turned around to her cousin and Whitney and said that someone had broken in. Dana also saw that her big screen television was gone. Dana walked through the house to check things out and noticed that her camcorder that had been on the loveseat was also missing.
After checking around the house, Dana went outside, sent Whitney to the neighbors to find out if anyone had seen or heard anything, and called the police. After calling the police, Dana tried to call defendant, but he did not answer his phone. When the police arrived, Dana went inside to talk to them and see if anything else was missing. Dana discovered that an iPod, a blanket, and Whitney's Wii game console, controllers, and games were also missing. While she was talking with the police, Leo Adamian came over and told Dana that he had seen a red car parked in front of his house. The description of the car was a match with the car defendant drove. Dana told the police that the car belonged to defendant.
The Davis Police Department obtained a search warrant for defendant's apartment in Sacramento. After officers and detectives from the Davis Police Department made contact with defendant at the apartment complex, defendant told them he did not live in the complex. At that point, the police placed defendant in custody and detained him in the back of Sergeant Scott Smith's vehicle. When defendant was detained, a search of his person uncovered a power cord that defendant said belonged to a computer. After the police detained defendant in Sergeant Smith's vehicle, defendant again insisted he did not live in the apartment complex. After Sergeant Smith pointed out that his name was on the lease, defendant said he had leased the apartment for his girlfriend.
Inside the apartment, Davis police officers found indicia of defendant's residence in that apartment, as well as a flat screen television and a Wii game console with controllers and games. Dana later identified the items as the items that were missing from her home. During the search, it was also discovered that the cord found on defendant's person belonged to the flat screen television. Shortly after hearing on the radio that the property the police were searching for was in the apartment, defendant got Sergeant Smith's attention, saying he had receipts for everything that was in the apartment.
Defendant was charged with first degree burglary and receiving stolen property. It was also alleged defendant had three prior serious felony convictions (Pen. Code, § 667, subd. (a)(1)), had three prior strikes (id., § 667, subd. (e)(2)), and had served three prior prison terms (id., § 667.5, subd. (b)).
At trial, defendant maintained that he and Dana had concocted a scheme whereby he would remove the property from Dana's house while she and Whitney were away at the concert and then sell the property so Dana could have some cash to help with her financial problems. Defendant said Dana was to have left the gate open so he could come in through the back door, take the items out through the back and place them in a van, and then leave her some money for the items, with more money forthcoming after he sold the items. Defendant also said he was supposed to close the curtains and turn off the porch light so that Dana would know he had been there. The plan was for Dana to tell Whitney someone had broken into their house.
Defendant said he went to Dana's house that evening in a van. He maintained he took a van to the house and not his Toyota because a flat screen television would not have fit in the Toyota. On rebuttal, the investigating detective testified the television was not too big to fit into defendant's Toyota Tercel.
Defendant testified that when he got to Dana's home, he called Dana to make sure she still wanted him to go through with the plan. He then took the items out of the house and left $600 for Dana on the couch.
Defendant admitted that when he spoke with the investigating detective about the van he drove he characterized the van variously as blue, black/brown, and charcoal. He claimed he was afraid the detective was trying to trip him up so he got confused and tripped himself up.
At trial, both the prosecutor and defendant presented evidence of defendant's criminal history. The prosecutor and defendant also elicited evidence about Dana's criminal record.
The events giving rise to this appeal occurred during the prosecutor's case. The prosecutor offered the testimony of Kenneth McMurray, the manager of defendant's apartment complex, for the purpose of showing that defendant had not paid any rent, was in the process of being evicted, and was a "very smooth talker." The prosecutor argued that McMurray's testimony would also go to motive, as it tended to show defendant wanted to make money. Defense counsel objected, asking that the trial court exclude the testimony as more prejudicial than probative under Evidence Code section 352. The trial court ruled the testimony admissible, saying "[t]he Court does feel that it goes to the issue of motive and the timing of the theft in connection with his obligation to pay that money is -- underscores motive here, and I think it outweighs the potential [prejudicial] value that you've alleged [¶] . . . [¶] [s]o the Court will allow that." The trial court did not allow presentation of any evidence of defendant's nature as a "smooth talker."
McMurray testified defendant moved into the College Glen Apartments on a $1 move-in promotion in October of 2009. McMurray also testified the first full month of rent would have been due in November, and defendant did not pay that month's rent or December's rent. McMurray further testified that several days before a police officer spoke with him about defendant on December 16, 2009, defendant had informed McMurray he would have a check for rent money in a day or two. McMurray also testified he had talked to defendant about paying the rent 8 to 10 times in a two-month period, and every time he spoke with defendant, defendant promised him the rent money soon. McMurray further testified that an eviction notice telling defendant to pay or quit was either mailed or hand delivered to defendant after the November rent was not paid.
The jury found defendant guilty of first degree burglary and not guilty of receiving stolen property and in the second half of the bifurcated trial found all the enhancement allegations true. The trial court sentenced defendant to a determinate term of 17 years, composed of the upper term of six years for first degree burglary, an additional 10 years for the prior serious felony convictions, and an additional one year for a prior prison term. The trial court also sentenced defendant to an indeterminate term of 25 years to life pursuant to the three strikes law.
I The Trial Court Did Not Prejudicially Err In Admitting Evidence Of Defendant's Poverty
Defendant contends the admission of evidence showing he was behind in his rent and facing eviction at the time of the burglary was error. Defendant asserts the admission of the evidence was prejudicial because the case boiled down to a credibility contest between defendant and the victim. Defendant contends that had this evidence not been admitted, it is reasonably probable that a different trial outcome would have resulted. Defendant also claims admission of evidence of his poverty rose to the level of federal constitutional error.
The People do not attempt to justify the admission of evidence of defendant's poverty but instead argue any error in the admission of this evidence was harmless under the circumstances of this case. We agree that it was error for the trial court to admit evidence of defendant's poverty. Finding no prejudice, we affirm.
"An appellate court applies the abuse of discretion standard to review any ruling by a trial court on the admissibility of the evidence, including a ruling on an Evidence Code section 352 objection." (People v. Cox (2003) 30 Cal.4th 916, 955.)
"Under the well-established rule, a defendant's poverty generally may not be admitted to prove a motive to commit a robbery or theft; reliance on such evidence is deemed unfair to the defendant, and its probative value is outweighed by the risk of prejudice." (People v. Koontz (2002) 27 Cal.4th 1041, 1076.) "While 'lack of money is logically connected with a crime involving financial gain . . . [t]he trouble is that it would prove too much against too many.' [Citation.] As the court explained in United States v. Mitchell (9th Cir. 1999) 172 F.3d 1104, 'Lack of money gives a person an interest in having more. But so does desire for money, without poverty. A rich man's greed is as much a motive to steal as a poor man's poverty. Proof of either, without more, is likely to amount to a great deal of unfair prejudice with little probative value.'" (People v. Carrillo (2004) 119 Cal.App.4th 94, 102.)
Some exceptions apply to the general rule that evidence of a defendant's poverty is inadmissible. "[E]vidence of the defendant's indebtedness or relative poverty may be admitted without undue prejudice to persons of limited means in order 'to eliminate other possible explanations for a defendant's sudden wealth after a theft offense.'" (People v. Cornwell (2005) 37 Cal.4th 50, 96.) Evidence concerning the poverty of defendant is also admissible if offered to refute a claim by defendant that he did not commit the offense because he was not in need of any money. (People v. Koontz, supra, 27 Cal.4th at p. 1076.)
Neither of these exceptions apply here. When the trial court ruled on defense counsel's objection to McMurray's testimony, four prosecution witnesses had been heard. None of these witnesses testified defendant was suddenly in possession of money or that he was claiming that he did need money at the time of the robbery. Because of this, the general rule barring evidence of poverty applied, and it was an abuse of discretion to admit the testimony of Kenneth McMurray.
Despite this error, defendant did not suffer any prejudice. "[G]enerally, violations of state evidentiary rules do not rise to the level of federal constitutional error." (People v. Benavides (2005) 35 Cal.4th 69, 91.) "Accordingly, the proper standard of review is that announced in People v. Watson (1956) 46 Cal.2d 818, 836 . . . , and not the stricter beyond-a-reasonable-doubt standard reserved for errors of constitutional dimension (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711 . . . ])." (People v. Fudge (1994) 7 Cal.4th 1075, 1103.) Under Watson, we must consider whether, after an examination of the entire cause, it appears reasonably probable the defendant would have obtained a more favorable outcome had the error not occurred. (Watson, at p. 836.)
Had the trial court excluded evidence of defendant's poverty, it is not reasonably probable that a more favorable outcome would have occurred. Initially, we note that the jury could have judged defendant's credibility suspect even if the trial court excluded evidence of his poverty. "Deliberately false statements to the police about matters that are within an arrestee's knowledge and materially relate to his or her guilt or innocence have long been considered cogent evidence of a consciousness of guilt, for they suggest there is no honest explanation for incriminating circumstances." (People v. Williams (2000) 79 Cal.App.4th 1157, 1167-1168.)
The jury heard testimony that defendant lied to police on multiple occasions. When the police detained defendant at his apartment complex he twice insisted he did not live in the complex. When Sergeant Smith pointed out that defendant's name was on the lease for an apartment in the complex, defendant claimed he had leased the apartment for a girlfriend. When detained, defendant also lied to officers by telling them the power cord found on his person was for a computer. In fact, the cord belonged to Dana Helvick's missing television. When defendant heard that the missing property had been found in his apartment, he insisted that he had receipts for all the property located in the apartment. During his testimony, defendant admitted he did not have receipts for the property.
Defendant's statements to the police and at trial about the allegedly innocent removal of Helvick's property were also inconsistent. Defendant claimed he drove a van to pick up the property, despite the testimony of two eyewitnesses who put his red Toyota at the scene around the time that the burglary occurred. When speaking to the investigating officers, defendant described the van he drove variously as blue, black/brown, and charcoal.
In addition to his misrepresentations to the police, defendant's criminal history was on full display for the jury. Defendant testified that he had been convicted of two robberies and corporate identity theft. Defendant also testified to his involvement in "the hustle," which, judging from his testimony, appeared to involve arranging transactions for goods and services at below market prices and taking a cut of the proceeds.
It is also important to note that defendant was found in possession of Dana Helvick's stolen property. "When, as here, a defendant is found in possession of property stolen in a burglary shortly after the burglary occurred, the corroborating evidence of the defendant's acts, conduct, or declarations tending to show his guilt need only be slight to sustain the burglary convictions." (People v. Mendoza (2000) 24 Cal.4th 130, 176.) Surely the facts discussed above offer at least a "slight" amount of corroborating evidence.
Both parties mistakenly assert that the jury deliberated only 36 minutes.*fn2 The People argue this indicates all the evidence in the case was so overwhelming that evidence of defendant's poverty could not have been prejudicial; defendant argues this shows the evidence was so prejudicial the jury felt it was not necessary to assess witness credibility.
People v. Carrillo, supra, 119 Cal.App.4th at page 94, cited by both defendant and the People, provides a useful guide when interpreting the facts of this case. In that case, Carrillo was convicted of aiding and abetting a robbery committed by her boyfriend. (Id. at p. 97.) The prosecutor raised the topic of Carrillo's financial situation with four defense witnesses and discussed it in closing argument. (Id. at p. 103.) The sum total of the evidence presented as to Carrillo's financial situation was considerable. (Ibid.) The case against Carrillo was circumstantial and she offered an explanation of her role in the events surrounding the robbery that was "marginally plausible" and "consistent with her claim of innocence." (Id. at p. 104.) The Fourth District Court of Appeal reversed Carrillo's aiding and abetting conviction, holding that evidence of her poverty was not harmless: "knowing Carrillo was an unemployed, unwed mother on government assistance, the jurors may well have been inclined to view her as a feckless pauper whose station in life and lack of support for her two children provided her with a motive to steal." (Ibid.)
The facts in this case are markedly different from those in Carrillo. Here, the jury heard evidence that defendant had not paid rent on an apartment for two months and had been given an eviction notice. Defendant also testified that at the time of the burglary he was broke. The prosecutor referred to defendant's need for money as a motive to commit the burglary once in closing argument and referred to the money as the motive for the crime on rebuttal. This does not amount to a considerable amount of evidence or a considerable reliance on the evidence in closing argument. Also distinct from Carrillo is the fact that the prosecution's case against defendant here was well developed. Defendant was found in possession of the missing property, his car was seen at the scene of the burglary around the time the crime was committed, and he made numerous misrepresentations to the police about the missing property and his role in the alleged scheme that he and Dana concocted. Unlike Carrillo, the prosecution's case here was not such that a reasonable probability of another outcome existed absent evidence of his poverty.
II Defendant's Three Strikes Sentencing
Defendant argues that the determinate term of his sentence was improperly structured. The trial court sentenced defendant to a 17-year determinate term (made up of the upper term of six years for burglary, five years each for two serious prior felonies, and one year for a prior prison term) and an indeterminate term of 25 years to life pursuant to the three strikes law. Defendant argues the indeterminate term incorporates the punishment for the underlying burglary offense, so the trial court imposed double punishment when it sentenced him to the six-year upper term for burglary as part of the determinate term. The People concede it was improper to use the commitment offense as the basis for both the determinate and indeterminate terms of defendant's sentence. We agree and will accordingly modify the judgment.
Once a trial court determines the correct indeterminate prison term under the three strikes law (here, 25 years to life), it completes sentencing by adding the applicable status enhancements as a determinate term to be served consecutively, even if those enhancements were used to calculate the indeterminate term. (People v. Dotson (1997) 16 Cal.4th 547, 554-557.) Therefore, defendant's determinate term should be 11 years (five years each for two serious prior felonies and one year for a prior prison term). The six-year upper term for burglary is removed from the determinate sentence.
The six-year upper term is stricken and the 17-year determinate term of defendant's sentence is modified to an 11-year determinate term. The trial court is directed to amend the abstract of judgment accordingly and to forward a copy to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
We concur: BUTZ , J. DUARTE , J.