IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
September 9, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
JEREMY THOMAS, DEFENDANT AND APPELLANT.
(Super. Ct. No. 07F04853)
The opinion of the court was delivered by: Raye , P. J.
P. v. Thomas CA3
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Two masked and hooded robbers stole money, credit cards, and cell phones from employees and customers at Taco Bell and NT Hair and Nails. Similarly disguised bandits had burgled and robbed another salon about two weeks earlier. Most of the witnesses to all three events forthrightly admitted they could not identify the perpetrators, and the identifications by those who tried were decimated during cross-examination. Needless to say, identity was the crux of the trial.
Defendant Jeremy Thomas asserts insufficiency of the evidence and instructional error. He also contends he was improperly convicted of receiving the same property he stole. (Pen. Code, § 496, subd. (a).) As to his challenge to the sufficiency of the evidence, he parses the evidence too finely. Because, as defendant recognizes, we must review the record in the light most favorable to the judgment and give deference to the factual and credibility findings made by the jury, we reject this challenge. We agree with defendant, however, that his convictions of receiving stolen property must be reversed.
On May 15, 2007, two young African-American males, one of them armed with a gun, committed a series of crimes at NT Hair and Nails around 5:30 or 6:00 p.m. and shortly thereafter moved on to Taco Bell, where they again threatened the employees and customers and stole money from the cash registers. No one disputes that the establishments were burgled and the occupants robbed, but the essential issue on appeal is whether there is substantial evidence to sustain the jury's finding that defendant Jeremy Thomas was one of the perpetrators.
The parties stipulated that on December 8, 2008, an African-American teenager, Elijah Bean, pled no contest to one count of robbery at Anna's Nails on May 3, 2007; one count of robbery at Taco Bell on May 15, 2007; and one count of receiving stolen property taken from NT Hair and Nails on May 15, 2007. They all stipulated that no prints taken from any of the establishments or the stolen property matched those of defendant.
None of the employees could identify the robbers. The owner of NT Hair and Nails explained that a shorter man with a hood tied tightly around his head, large sunglasses, and short pants came into the salon with a taller man, who was wearing a white mask. They ransacked the salon, demanded money, and put their take in a large Macy's bag.
The Taco Bell employees also testified that one robber was taller than the other and the shorter man had a gun. One employee stated that the shorter man wore a jacket zipped all the way up and the other wore a white mask with a ghost face. The man with the gun flipped the drawer out of the front cash register onto the floor. The employees put the cash into a Taco Bell bag. The other took money from the register located by the drive-through window. They could not identify either one.
The patrons and a man visiting a business located next to the salon, however, attempted to identify the perpetrators. At trial, they were subjected to searing cross-examination, and the weaknesses in their identifications were thoroughly exposed to the jury.
Satender Bains was in the vacant business adjacent to the salon on the evening of May 15, 2007, when he observed two African-American teenage males walking by. One of the males was about five feet six inches tall, but Bains could not remember how tall the other one was. One of them was putting on a white mask with black print on it. Several minutes later he saw them run out of the salon and he pursued them for several blocks until they disappeared into a neighborhood. When asked to view some suspects in the field later that day, he was unable to identify anyone. Two days later, he remained unable to positively identify anyone in a photo lineup. After eliminating two of the three photos, he did say, "At most No. 2." He told the police officer he was 80 percent sure of his identification. During a live lineup, he misidentified an innocent person.
Unlike the owner of the salon who believed the taller intruder carried the gun, patron Patricia Ferrera-Swett testified that the shorter male, wearing a black hoodie and sunglasses, had the gun. She reported that the owner gave him money from her apron. The taller male, who was at least six feet tall, wore a gray hoodie with a mask that covered his whole face and head, although there were cutouts for his eyes and mouth. She was insistent that the gun had a specific nick she could recognize. So although a photo she was shown looked something like the gun used in the robbery, when she was able to examine the gun itself she stated it was not the gun used in the robbery because it did not have the nick.
Two of the patrons at Taco Bell were more confident of their identifications. Lucy Davidson and her two sons were standing in line at Taco Bell when they observed two males enter through the back door. Davidson's son Lee testified that the shorter African-American male wore a green hoodie zipped all the way up with eye holes and a Spiderman design. He subsequently admitted that the hoodie might have been blue. He initially testified that the shorter male carried a gray handgun or pistol, but later changed his testimony to indicate the taller male had the gun. According to Lee, the taller male wore a jacket all around his face but he could see that he wore his hair in dreadlocks. After the robbery, he was driven to a location to view individuals who, he was told, were suspects who had committed other robberies. Sitting in the back seat of the police car, behind the barrier between the front and back seats, and 100 feet away, he was able to positively identify Elijah Bean and defendant as the two males who had robbed the Taco Bell.
Lee's mother was equally confident of her in-field identifications. She testified she was about 39 feet from the suspects when she viewed them from outside a police car. With the lights shining on them, she testified she was able to identify the shorter one by part of his face and the taller one by his face and tall build. She testified that the taller male had his hair in a braid. She could not identify defendant at trial.
Defendant did not have dreadlocks or a braid at the time of the robberies; he had short hair. He had distinctively crooked teeth, but none of the witnesses testified they noticed either of the robbers' teeth. He was 19 years old.
The money stolen from Taco Bell was tagged with a tracking device. Within minutes, the police were following it. The robbers stopped at an apartment complex before driving to Elijah Bean's house. Defendant and a third suspected accomplice, Justin Wall, lived at this apartment complex. Elijah drove a maroon Lincoln Navigator and defendant sat in the rear passenger seat. They were apprehended in the Lincoln parked in front of Elijah's house.
The police found a gun in the center console, $546, and the tracking device inside a plastic Taco Bell bag tucked under the driver's seat. They also found a blue camouflage jacket, a gas card, an organ donor card, and a glasses case inside a Macy's bag. The gas card and glasses case belonged to Patricia Ferrera-Swett.
Defendant was taken into custody and interviewed. A DVD of the interview was played for the jury and they were given copies of the transcript. Much of what defendant said during the interview was either inaudible or unintelligible. It is clear, however, that defendant initially denied any involvement in the robberies. He explained he jumped into the rear seat of the car after two other people ran out. He did not explain why.
After protracted prodding from the interrogator, defendant admitted that he accompanied Elijah Bean and Justin Wall to the Taco Bell. He claimed he merely stood to the side paying no attention to what the others were doing. He wore a beanie. He insisted he did not take any money and did not touch a gun. He assured his interrogator his prints would not be found on any of the stolen property or on any gun.
The jury deliberated for three days. During their deliberations, they made six different requests for clarification of legal principles or to have witnesses' testimony reread. Although one of the patrons at Anna's Nails positively identified defendant as the armed robber on May 3, 2007, the jury acquitted him of all counts involving the crimes perpetrated at Anna's Nails. He was also acquitted of possessing a controlled substance, Tylenol with codeine.
The jury convicted defendant, however, of two counts of burglary and four counts of robbery while armed, and two counts of receiving stolen property for the crimes committed at NT Hair and Nails and Taco Bell on May 15. He was sentenced to a total of 10 years in state prison.
DISCUSSION I Sufficiency of the Evidence
Defendant contends there is insufficient evidence that he committed any of the offenses at either NT Hair and Nails or Taco Bell on May 15. He describes in detail the weaknesses, indeed the improbability as he sees it, of the eyewitness identifications. In the absence of those identifications, he insists there is insufficient evidence of guilt beyond a reasonable doubt.
Defendant pays lip service to the deferential scope of appellate review, but he proceeds to ignore it. We must review the entire record in the light most favorable to the jury's verdicts to determine whether there is substantial evidence to support a finding of guilt beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 318-319 [61 L.Ed.2d 560, 573-574]; People v. Johnson (1980) 26 Cal.3d 557, 578.) We must defer to the jury's findings of fact and we cannot substitute our judgment for the jury's evaluation of a witness's credibility. (People v. Snow (2003) 30 Cal.4th 43, 66.)
We begin our analysis with the crucial fact defendant barely mentions. He was apprehended a few minutes after the Taco Bell robberies, in a car with all the loot from both Taco Bell and NT Hair and Nails, and he confessed to entering Taco Bell with Elijah Bean and Justin Walls. Thus, while the eyewitness identifications might have provided slight corroboration, they certainly were not the only evidence to connect defendant to the crimes.
The jury appears to have been discriminating and careful. Indeed, the jurors acquitted defendant of the crimes committed on May 3 at Anna's Nails when the only evidence was the vague descriptions defendant complains of and another incredibly improbable identification by a patron. There was nothing in defendant's statement to the police on May 15 to link him to Anna's Nails. Although some of the property taken from Anna's was found in the Lincoln Navigator along with defendant, the jury did not find beyond a reasonable doubt that he participated in the May 3 offense.
In deciding whether defendant committed the crimes at Taco Bell and NT Hair and Nails, however, the jury was able to observe a DVD recording of defendant's interview at the police station. During that interview, defendant provided different accounts of what he was doing at the time of the offenses. Initially, he denied any involvement. But over time, he admitted that he accompanied Bean and Walls to Taco Bell and stated that he had gone inside the establishment but had not carried a gun, taken any money, or assisted his friends in committing the crimes. He claimed he just wanted a taco. Thus, the jury had the opportunity to observe his demeanor during the interview and to assess his credibility. His admissions provided damning evidence he conveniently tries to minimize or ignore on appeal.
Nor does defendant accept the substantiality of the evidence that he was apprehended with the stolen goods only 10 minutes after the Taco Bell heist. The robbers had the misfortune of taking cash with sensors attached, thereby allowing the police to track their vehicle and locate the cash, along with Elijah Bean and defendant, parked in front of Bean's house.
Defendant reiterates many of the arguments made by his able lawyer at trial. He suggests that he could have jumped into the car after the NT Hair and Nails robbery and before they headed to Taco Bell. He points out that the gun was in the center console that opened to the front seat, much of the stolen property was located on the floor in the front of the car, and Bean was in possession of one of the stolen cell phones. But the money and many of the other items were found partially tucked under the driver's seat and lying on the rear floor as well. It was the jury's prerogative, not ours, to assess whether defendant had constructive possession of the stolen goods and whether they believed he got into the car after the NT Hair and Nails robbery or whether he accompanied Bean to both establishments.
We cannot say, however, the evidence was insubstantial or inherently improbable. Rather, there is incontrovertible evidence defendant himself was caught with the goods stolen from multiple businesses, and when coupled with his admissions, the evidence is sufficient to support the jury's finding that he was one of the robbers of both establishments.
Nevertheless, defendant highlights the many problems with the eyewitness identifications. We do not dispute those deficiencies, but we observe that through effective cross-examination, each and every flaw in the identifications was exposed to the jury. For example, Bains forthrightly admitted that he was not sure of his identification. When pressed during a photo lineup, he stated he was only 80 percent sure he recognized defendant, whose picture was located in the No. 2 position.
The Davidsons' identifications inspire even less confidence. They both insisted that the taller robber wore dreadlocks and that defendant was the taller robber. During their in-field identifications, they identified defendant as the taller robber, despite the fact he had short hair and no dreadlocks. Given their distance from the suspects, the lighting, and the fact the robbers had been disguised, it is not surprising their identifications are riddled with problems. Thus, we have no quarrel with defendant's criticism of the identifications.
But we reject defendant's argument that a review of the whole record in the light most favorable to the judgment requires reversal. The identifications, though weak, provided some corroboration. Indeed, the jurors may have chosen to disregard them altogether. For us, the relevant question is not whether the identifications provide substantial evidence to support the judgment, but whether there is substantial evidence in the entire record from which any reasonable trier of fact could have found defendant guilty beyond a reasonable doubt.
We conclude the evidence is sufficient to support the judgment. Although the identifications are admittedly troubling, they are not the only evidence that connects defendant to the commission of the crimes on May 15. Rather, defendant himself provided the jury the most compelling evidence when he was caught with the stolen goods minutes after the Taco Bell robbery and he admitted his participation. Given the deferential standard of review, we must affirm the judgment and reject defendant's challenge to the sufficiency of the evidence.
II Dual Convictions
In 1992 the Legislature codified the common law rule that a defendant may not be convicted of stealing and receiving the same property. (Pen. Code, § 496, subd. (a); People v. Garza (2005) 35 Cal.4th 866, 871; People v. Allen (1999) 21 Cal.4th 846, 857 (Allen).) In this case, the trial court failed to instruct the jury of this prohibition and defendant was convicted of both robbery and receiving the property he had taken from his victims at NT Hair and Nails and Taco Bell. Defendant urges us to reverse his convictions for receiving stolen property as directed by our Supreme Court in People v. Ceja (2010) 49 Cal.4th 1, 9-10 (Ceja).
In similar circumstances, the People often stipulate to reversal. (See, e.g., Ceja, supra, 49 Cal.4th at p. 9 & fn. 9; People v. Stephens (1990) 218 Cal.App.3d 575, 586.) Here, however, the Attorney General resists reversal based on an inapt analogy. Penal Code section 496, subdivision (a) states, in relevant part, that "no person may be convicted both pursuant to this section and of the theft of the same property." In Allen, supra, 21 Cal.4th at pages 857-858, the defendant argued that the common law and statutory prohibitions against dual convictions of receiving stolen property and theft barred his conviction of receiving stolen property and burglary. The Supreme Court rejected this argument based on the language of the statute, its legislative history, and the evolution of case law.
Rejecting Allen's contention that "theft" within the meaning of the statute should be read to embody "the unlawful acquisition of property," the Court concluded: "We have no reason to believe, therefore, that when the Legislature used the term 'theft' in the 1992 amendment, it intended any meaning broader than the meaning the term has in the general theft statute (Pen. Code, § 484), i.e., theft committed by means of larceny, embezzlement, or false pretenses. [Citation.] Conspicuous by its absence from that list is burglary." (Allen, supra, 21 Cal.4th at p. 863.)
The Attorney General would create an entirely new and bold exception to the dual conviction bar because robbery, like burglary, is "conspicuous in its absence from [the] list [of theft offenses]." Without analysis, the Attorney General points out that robbery, unlike theft, requires a taking by force or fear.
The Supreme Court has not applied the burglary analogy to robbery. Quite to the contrary, the common law and statutory bar to dual convictions applies to robbery and receiving the same property taken. (People v. Smith (2007) 40 Cal.4th 483, 522.) More to the point, in Ceja, supra, 49 Cal.4th at page 9, footnote 9, the Supreme Court observed that the cases that were disapproved in Allen, supra, 21 Cal.4th 846 were disapproved "to the extent they held that a burglary conviction bars conviction of receiving stolen property. Burglary does not require a theft."
And therein lies the pivotal distinction ignored by the Attorney General. Robbery does require a theft. Here, defendant was convicted of taking cash, a credit card, a cell phone, and a glasses case from the victims at Taco Bell and NT Hair and Nails. He was also convicted of receiving the same stolen property. Thus, he was convicted of stealing, albeit by means of force or fear, and receiving the same property in violation of Penal Code section 496. Nothing in Allen or Ceja suggests that robbery, in this context, is analogous to burglary. We see no rationale for extending the logic of Allen to embody robbery, and the Attorney General provides us with none.
In Ceja, the Supreme Court directs us to reverse the counts for receiving stolen property whether or not those counts require a greater sentence. (Ceja, supra, 49 Cal.4th at pp. 9-10.) In this case, the court stayed defendant's sentence on each of the receiving stolen property counts pursuant to Penal Code section 654. The rule against twin convictions, however, "'is wholly distinct from the double punishment prohibition' of section 654." (Ceja, supra, 49 Cal.4th at pp. 8-9.) While section 654 applies only to sentencing, "section 496[, subdivision] (a) does not contemplate a choice of sentences." (Ceja, supra, 49 Cal.4th at p. 8.) The convictions for receiving stolen property must be reversed. We need not, therefore, address defendant's alternative instructional arguments related to the receiving stolen property counts.
The receiving stolen property counts are reversed. The trial court is directed to prepare an amended abstract of judgment and to forward a certified copy thereof to the Department of Corrections and Rehabilitation. The judgment is affirmed in all other respects.
BUTZ , J.
MURRAY , J.
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