Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CM028598
NICHOLSON, J.
A jury convicted defendant Dirk Ja Ong Bouie, Jr. of false imprisonment (Pen. Code, § 236; undesignated section references are to this code; count 1), a lesser offense to the charged offense of kidnapping, first degree burglary with a person other than an accomplice present (§ 459; count 2), home invasion robbery (§ 211; count 3), and false imprisonment (§ 236; count 4). The jury also found true a firearm enhancement in connection with each count (§§ 12022.53, subd. (b) [counts 1 through 3], 12022.5, subd. (a) [count 4]). The court later determined the section 12022.53 enhancement was not applicable to counts 1 and 2.
Sentenced to state prison defendant appeals, contending (1) there was insufficient evidence of his identity as one of the robbers and (2) the trial court’s inquiry at the Marsden hearing was insufficient. We affirm the judgment.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
FACTS
About midnight on April 26, 2006, K. C. arrived at the stairwell leading to the apartment he shared with C. H. and was confronted by two armed men, one of whom was later identified as defendant. K. C. was pushed up the stairs and forced into his apartment. He was handcuffed behind his back and his feet were tied. Something was put over his head and he was forced to lie face down on the floor. Both armed men kicked K. C. in the face and hit him in the head with the guns. Defendant took $200 from K. C.’s pocket. The other man shoved a gun in C. H.’s face. She was in bed and had been sleeping. He demanded her money. She said she had some money in the kitchen. As the intruders searched the apartment for money, they turned on the lights. Defendant’s accomplice dragged C. H. to the kitchen where she saw that both armed men were Black male adults. Defendant was the shorter of the two men and had a shotgun. The other man had a handgun. She described both men as about 21 years of age and both had dreadlocks. The shorter man was about five feet four inches tall and weighed from 160 to 175 pounds. The taller suspect was about six feet tall and weighed about 180 pounds. The intruders continued to demand money. C. H. said she had money in her dresser drawer and the intruders took $700. They also took some of her clothes. C. H. was tied up at some point. As the two suspects left, one yelled “Deep East Oakland” and shot K. C. in the leg.
C. H. told an officer that one of the suspects had handled a stack of CDs located in the living room and a plastic storage tub containing clothing in the master bedroom besides other items. C. H. stated that the intruders had taken clothing. Defendant’s fingerprints were found on the top and bottom CD in the stack. His fingerprint was also found on the plastic storage tub.
Neither victim knew the suspects and knew of no reason why defendant’s fingerprints would be in their apartment or on their personal items. The victims had grown up in Oakland and had moved to Chico to attend college. They had lived in their apartment since August 2005. They did not have parties in their apartment. K. C. kept the CDs in the apartment or his car. C. H. never took the storage bin with her when she went home to Oakland.
K. C. was interviewed at the hospital. He told an officer that there were two Black men, both with dreadlocks, the taller one, at six feet to six feet one inch, had a handgun and wore gloves, and the shorter one, at five feet seven inches, had a shotgun but wore no gloves. Later during the interview, he became fearful and gave no more details. He was later unable to identify anyone in a photo lineup or at trial. At trial, more than two years after the offenses, K. C. claimed he did not remember much of anything other than being cuffed and shot and waking up at the hospital and talking to an officer. It was a traumatic experience for him.
C. H. thought she had correctly identified someone in a photo lineup but the detective testified that she had not identified anyone. C. H. could not identify defendant at trial.
At the time of trial, defendant, a Black man, was 21 years of age, which would have made him 19 years of age at the time of the offenses. According to his driver’s license, he had shoulder-length dreadlocks, was five feet seven inches tall, and weighed 155 pounds. When interviewed in February 2008, defendant stated that in 2006, he lived with his sister in Vallejo, did not know anyone in Chico, and did not recall ever having been in Chico. When the officer explained that defendant was considered the shorter suspect in the current case, defendant “seemed fairly calm” and “a little concerned about being in jail at that time.” He wanted to know the charges or how much prison time he was facing. He did not deny the charges and could not explain why his fingerprints would be on the plastic tub or CDs. He commented that he had been using a lot of drugs in 2006 so he was unsure of where he had been.
Defendant’s mother testified for the defense. She claimed that defendant recorded rap music on blank CDs, similar to those found in the apartment with defendant’s fingerprints, and passed them on to other people.
I
Defendant contends insufficient evidence supports his convictions. He argues the fingerprint evidence was of an “unknown vintage” and the witness identification evidence did not even qualify as speculative or equivocal. Defendant also argues his statements to the officers did not constitute evidence of either a false statement to demonstrate consciousness of guilt or an adoptive admission. Defendant does not challenge the sufficiency of the elements of the offenses, only his identity as one of the perpetrators.
In reviewing the sufficiency of the evidence, we “must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence -- that is, evidence which is reasonable, credible, and of solid value -- such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.)
The same standard of review applies to a mainly circumstantial evidence case. “Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two [reasonable] interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, 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.] ‘Circumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt.’ [Citation.]” (People v. Bean (1988) 46 Cal.3d 919, 932-933.)
Defendant relies on several cases that have found a defendant’s fingerprint at the scene of the crime insufficient alone to support a conviction. Because it is not known when a fingerprint was left, one can argue the print was not left at the time of the crime but instead earlier.
Defendant cites People v. Trevino (1985) 39 Cal.3d 667 (Trevino), disapproved on other grounds in People v. Johnson (1989) 47 Cal.3d 1194, 1219-1222, where the defendant’s thumbprint was found on an opened dresser drawer in the victim’s bedroom. (Trevino, supra, at p. 696.) The defendant had been a guest in the victim’s home prior to the victim’s killing. (Id. at p. 697.) Because the age of the thumbprint could not be determined, the jury could only “‘speculate as to how and when the print was made.’” (Id. at pp. 696-697.)
Here, defendant was never a guest at the victims’ apartment and had never ridden in the victims’ car where the CDs were sometimes played. The victims did not know defendant. Defendant initially claimed he had never been to Chico where the victims’ apartment was located.
Defendant also cites Borum v. United States (D.C. Cir. 1967) 380 F.2d 595 where the defendant’s fingerprints were found on jars in a burglarized home. Because the prosecution failed to present any evidence to support an inference that the fingerprints were left at the time of the crime, the defendant’s conviction for housebreaking was reversed. (Id. at pp. 595-597.)
Here, unlike Borum, the prosecution presented evidence to support an inference that defendant left his fingerprints during the commission of the crime. There was trial testimony the two suspects handled the plastic tub containing clothing in the victims’ master bedroom and the stack of CDs in their living room, and the shorter of the two robbers, defendant, wore no gloves.
Defendant relies as well on Mikes v. Borg (9th Cir. 1991) 947 F.2d 353 (Mikes) where the only evidence against defendant was that his fingerprints were found on posts of a disassembled turnstile, one of which was used as the murder weapon and found near the victim. The victim had purchased the turnstile from a store’s going out-of-business sale about four months before his death. (Id. at pp. 355-356.) Because the prosecution failed to present evidence sufficient to permit the jury to conclude that the posts were not accessible to the defendant prior to the commission of the crime, the evidence was insufficient to support the defendant’s conviction for felony murder. (Id. at pp. 355-361.)
People v. Figueroa (1992) 2 Cal.App.4th 1584 (Figueroa)found Mikes was not controlling where more than fingerprint evidence was present. In Figueroa, the defendant’s palm prints were found on a kitchen window of a home in which defendant had previously been but never in the part of the kitchen where the prints were found. Because the kitchen window had been cleaned after the defendant had been present, the court found sufficient evidence supported his burglary conviction. (Id. at pp. 1586-1588.)
Similarly, in People v. Preciado (1991) 233 Cal.App.3d 1244, the defendant’s fingerprints were found on a wristwatch box in the victim’s condominium which had been burglarized. At trial, the condo owner testified that he had never met the defendant and that the box which held a watch given to him 18 months earlier had never left the condo. Sufficient evidence supported the defendant’s burglary conviction. (Id. at pp. 1246-1247.)
Here, there was more evidence than just defendant’s fingerprints to link him to the offenses plus Mikes is not binding authority on California courts. (Figueroa, supra, 2 Cal.App.4th at p. 1587.) Mikes is factually distinguishable from the instant case in that turnstiles are commonly found in public places and touched by the general public while the plastic tub used to store clothing and the CDs played in the apartment and the victims’ car are personal items and not meant for or subject to the public’s use.
Defendant cites Birt v. Superior Court (1973) 34 Cal.App.3d 934 (Birt) in which this court concluded the defendant’s fingerprint on a cigarette lighter found on the passenger side of the front seat of a rental van that had the victim’s property stolen from his burglarized home was insufficient to hold the defendant to answer for a charge of burglary. (Id. at pp. 936-937.) We explained: “The cigarette lighter, bearing petitioner’s fingerprint, was a readily movable object. The lighter itself was not shown to have been taken from the McNutt home. There was no evidence that petitioner’s fingerprints were found either on the burglarized premises or on any of the stolen property. Other fingerprints -- unidentified as to source -- were discovered on various objects inside the van. The van itself was a rental vehicle available to the public. At most, the presence of petitioner’s fingerprint on the lighter found on the front seat showed that, at some unknown time and place, she had been inside the van; but there was no direct or circumstantial evidence to indicate when and where that had been. Only by guesswork, speculation, or conjecture can it be inferred that petitioner was inside the van, or in the area, at the time of the McNutt burglary.” (Id. at p. 938.)
A lighter is an object generally carried on a person in public places and subject to being touched by others or even lost; here, the plastic storage tub and the CDs were isolated from the public, thus distinguishing Birt.
“If a person is accused of having committed a crime, under circumstances which fairly afford him an opportunity to hear, understand, and to reply, and which do not lend themselves to an inference that he was relying on the right of silence guaranteed by the Fifth Amendment to the United States Constitution, and he fails to speak, or he makes an evasive or equivocal reply, both the accusatory statement and the fact of silence or equivocation may be offered as an implied or adoptive admission of guilt. [Citations.]” (People v. Preston (1973) 9 Cal.3d 308, 313-314.)
Evidence Code section 1221 provides: “Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if the statement is one of which the party, with knowledge of the content thereof, has by words or other
conduct manifested his adoption or his belief in its truth.”
“To warrant admissibility, it is sufficient that the evidence supports a reasonable inference that an accusatory statement was made under circumstances affording a fair opportunity to deny the accusation; whether defendant's conduct actually constituted an adoptive admission becomes a question for the jury to decide.” (People v. Edelbacher (1989) 47 Cal.3d 983, 1011.)
In People v. Medina (1990) 51 Cal.3d 870 (Medina), the defendant's sister visited him in jail and asked why did he have to shoot the victims. The defendant did not initially respond. Later, he gave an equivocal answer. (Id. at p. 889.) Medina concluded an adverse inference could be drawn from the defendant’s initial silence. (Id. at p. 890.)
Here, as in Medina, the record does not disclose any circumstances giving rise to an inference that defendant was relying on his Fifth Amendment privilege in not denying the accusations. When interviewed, defendant initially claimed that he did not recall ever having been to Chico and knew no one there. When told he was a suspect in the present offenses, instead of denying the charges, he wanted to know how much time he faced. He also said he did not know whether he had been in Chico because he used a lot of drugs at that time. Defendant had a fair opportunity to deny the allegations but did not do so. Defendant’s response could have been deemed an adoptive admission of the incriminating statements made. We believe the jury could have reasonably drawn an adverse inference from his statements. Further, we believe the jury could have considered defendant’s misleading statements as to whether he had or had not been in Chico as demonstrating a consciousness of guilt.
Although the victims were unable to identify defendant from a photo lineup or at trial, the victims described the intruders by race, gender, age, height, weight, and hair style. Their descriptions were consistent with defendant. Neither victim’s description excluded defendant as the intruder. Defendant stated he knew no one in Chico and neither victim knew defendant or his accomplice, yet defendant’s fingerprints were on personal items in their apartment. C. H. stated that the suspects had rummaged through her clothing and one of the suspects had handled a stack of CDs. The victims also noted that one of the suspects had not been wearing gloves. Whether the jury could have reached a different conclusion is not for us to decide. (People v. Daya (1994) 29 Cal.App.4th 697, 702.) “An appellate court must accept logical inferences that the jury might have drawn from the circumstantial evidence.” (People v. Maury (2003) 30 Cal.4th 342, 396.) We conclude the circumstantial evidence in this case, when taken together, provides more than substantial evidence supporting defendant’s identification and all convictions and findings.
II
At sentencing, defendant requested substitution of counsel. The court conducted a Marsden hearing at which defendant had a litany of complaints. Defense counsel, Leo Battle, responded to all. On appeal, renewing only one complaint, defendant argues that substitute counsel should have been appointed because he demonstrated at the Marsden hearing that he was denied counsel at the plea bargaining stage of the proceedings. We disagree.
Jury trial was scheduled for June 2, 2008. On May 27, 2008, at the trial readiness conference before Judge Steven Howell, the prosecutor set forth its plea bargain offer of a sentencing lid of three years in state prison for defendant’s plea to a non-strike offense of false imprisonment, count 4, and to misdemeanor theft. Judge Howell explained to the 21-year-old defendant the following: defendant faced 23 years if convicted on all charges and enhancements and would have to serve 85 percent of the time; each charged offense was a strike offense and the meaning of a strike prior; one of the victims had not yet been subpoenaed by the prosecutor although the victim who had been shot had been; and the circumstantial evidence as well as the fingerprint evidence against him as related by the prosecutor. The judge further advised that defendant had to decide whether to accept or reject the offer based on all the information. The judge told defendant that if the jury believed the expert that the fingerprints belonged to defendant and that there was no reason his fingerprints would be on the items other than that he participated in the offenses, then defendant would most likely be convicted. But if he could convince the jury that the fingerprints were not his or that there was an innocent reason why his fingerprints would be found on items in the apartment, then he would be acquitted. The judge wanted defendant to understand his options, repeating that it was his decision and not his attorney’s. Defendant confirmed that he understood his options. The judge noted that the prosecutor was leaving the offer open until the trial assignment calendar, on May 29, 2008, “two days from now.” The judge recessed to allow defendant time to ask Battle any questions about the offer and the judge’s comments. After the recess, defendant confirmed that he had an opportunity to talk to Battle and that defendant had no questions. The prosecutor confirmed that the offer was open to May 29, 2008. The judge concluded: “I won’t have time probably to go into this extended discussion again so that’s why I wanted to make sure we spent enough time for you to understand. I know you’re 21 and this is a very serious decision for you to make. I guess one of the reasons I do this is to make -- go on the record like this is just to make sure that we don’t have a situation come up where a person goes to trial, expects one thing to happen, then something bad happens so they get convicted and then come back and say gee, I didn’t understand that there was an offer that was being extended. I just want to make sure everybody, everybody, especially you, understand what’s being offered.” Defendant had a question but spoke to Battle. Battle then indicated there there was nothing further.
At trial assignment on May 29, 2008, before Judge Steven Howell, the last date defendant had to respond to the plea bargain offered by the prosecution, another attorney from Battle’s office, Jesus Rodriguez, specially appeared for Battle. When the court asked, defendant confirmed that he recalled the offer. The prosecutor confirmed that the offer expired if the court confirmed the trial date set for June 2, 2008, the following Monday. When the court asked what he wanted to do, defendant stated: “Go to trial, sir.” The court assigned the case to Judge McLean to begin on June 2, 2008.
Jury trial occurred on June 2, 3, and 6, 2008. Battle represented defendant. The jury reached its verdicts on June 6, 2008. At the sentencing hearing on July 29, 2008, defendant sought substitute counsel. At the Marsden hearing, defendant claimed, inter alia, that on May 29, 2008, when he asked Rodriguez whether he should accept the offer, Rodriguez stated he knew nothing about the case and advised defendant to ask Battle. Rodriguez was not at the Marsden hearing. Battle represented that defendant always maintained his innocence, did not want a felony on his record, and would not accept any plea bargain offers. The judge determined that Battle had provided adequate representation and that defendant knew the consequences and chose to proceed to trial.
Defendant complains on appeal that the judge erroneously so concluded since Rodriguez never spoke on his behalf at the trial assignment calendar hearing on May 29, 2008. We conclude that the judge properly denied defendant’s motion for substitute counsel.
Defendant simply failed to show any inadequacy in counsel’s representation or breakdown of the attorney-client relationship. As the People note, “[t]here was nothing stand-in counsel needed to do or could have done to advise [defendant] at that time. [Defendant] had made up his mind and was going forward.” Judge Howell had explained the charges, the prosecutor’s evidence, and the offer, and advised that defendant had to make the decision whether to accept or reject the offer. Defendant stated that he understood his options. Defendant’s belated claim at sentencing was properly rejected; it was not credible. The transcript of the May 29th hearing at which Rodriguez specially appeared for Battle belies defendant’s claim that he did not know whether to accept the offer. Defendant confirmed that he knew the offer and when asked, stated that he wanted to go to trial. Further, Battle stated at the Marsden hearing that defendant always maintained his innocence, did not want a felony record, and would not accept a plea deal. Simply put, defendant chose to proceed to trial and does not like the outcome. The trial court did not abuse its discretion in denying defendant’s Marsden motion.
DISPOSITION
The judgment is affirmed.
We concur: BLEASE, Acting P. J., CANTIL-SAKAUYE, J.