Opinion
G055644
06-07-2018
THE PEOPLE, Plaintiff and Respondent, v. PHILIP MARTIN CAMACHO, Defendant and Appellant.
Ron Boyer, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15HF1111) OPINION Appeal from a judgment of the Superior Court of Orange County, Gary S. Paer, Judge. Affirmed. Ron Boyer, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
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INTRODUCTION
We appointed counsel to represent defendant Philip Martin Camacho on appeal. Appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders), setting forth the facts of the case, raising no issues, and requesting that we independently review the entire record. We provided defendant 30 days to file written argument on his own behalf; no supplemental response has been received.
We have examined the entire record and appointed appellate counsel's Wende/Anders brief; we find no reasonably arguable issue. (Wende, supra, 25 Cal.3d 436.) We therefore affirm.
BACKGROUND
1. BURGLARIES AND ATTEMPTED BURGLARIES OF THE HOME OF JILL KANZLER.
Jill Kanzler lived with her teenage daughter Madeleine Kanzler in a house on Balboa Island in Newport Beach. Jill rarely locked the doors to their home. Dean Quintal lived in a back unit on that property, above the garage. On two different occasions in June 2014, Quintal saw a man with a bald spot walk out Jill's back door late at night. Later, Jill told Quintal this person was not a guest of hers.
To avoid confusion, we will refer to the Kanzlers by their first names; we intend no disrespect.
In August 2014, cash was stolen from Madeleine's purse, which she had left downstairs when she went upstairs to go to bed. Jill discovered that money was also missing from her own purse. Jill testified there had been repeated incidents when she and Madeleine had felt that money (except for small denominations) had gone missing from one of their purses.
About 10 days later, Quintal saw someone in the courtyard outside of Jill's back door. Quintal called Jill and also called 911. Quintal told the police the person he had seen was between 50 and 55 years old, between five feet, ten inches and six feet tall, of medium build, with balding short, brown hair, and was wearing a long-sleeved blue shirt, shorts, tennis shoes, and high white socks. Jill and Madeleine installed a security camera and light linked to a motion sensor.
On October 4, 2014, Madeleine and Jill turned off their downstairs lights and went upstairs to bed. When Madeleine went back downstairs, she noticed the motion sensor light was on. She saw a man wearing glasses trying to open the back door. Madeleine ran up to the back door and slapped her hand against the glass. The man turned and looked at her, and then ran away with a limp. At trial Madeleine identified defendant as the person whom she had seen that night.
Quintal heard a commotion, and was able to get a good look at the man as he ran away from Madeleine. He recognized the man as the person he had previously seen leaving Jill's home in the summer. Quintal identified defendant in a photo lineup and in court as the person he had seen on each occasion.
Both Madeleine and Quintal described the man they saw on October 4 as a white male, 40 to 60 years old, between five feet, seven inches and six feet tall, about 160 to 180 pounds, with short brown hair and a bald spot, with a limp or a slouch, and wearing a long-sleeve blue shirt, tan cargo shorts, and wire frame glasses.
The police retrieved the digital videos from the surveillance camera by the back door. The videos showed the back of the head of someone approaching the door and leaving on three other occasions, as well as on October 4, 2014.
2. BURGLARY OF THE HOME OF CAROLYN STEPHENS.
Carolyn Stephens regularly left her wallet in her car at night. The car was parked in a garage connected to her house in Newport Beach, with an exterior door that was not well hung and was easy to get through. On six or eight occasions before September 2014, Stephens had noticed $20 bills missing from her wallet; smaller bills were not taken.
On February 14, 2015, Stephens heard a noise in her garage. Stephens stood under a street light on the curb in front of her house. From there, she saw a light in the garage turn off, heard a door close, and then saw a man with a penlight exit through her gate. Stephens followed him as he walked down the sidewalk and drove away in a light-colored car. Stephens wrote down the license plate number (4MOW527). She later discovered that between $100 and $200 was missing from her wallet, which had been in her car in the garage.
Stephens described the man she had seen as of medium height with brown hair, and wearing glasses. When she was later shown a photo lineup, Stephens identified two of the images as possibly being the person she had seen, one of which was defendant. At trial, she identified the image of defendant from the photo lineup as the most consistent with her recollection of the person she saw on February 14.
3. TRAFFIC STOP AND SEARCH OF DEFENDANT'S CAR.
On April 25, 2015, at about 2:30 a.m., defendant was stopped by police officers while driving in Newport Beach; he had been weaving within his lane. He was driving a light-colored car with license plate number 4MOW527. He was wearing a light blue, long-sleeved windbreaker, sneakers, and wire frame eye glasses. The police officers noted he had short brown hair, a bald spot, a noticeable limp, and resembled the description given by Quintal and Madeleine.
Defendant's car was searched; the police found a pair of gloves, a black knit cap, a Leatherman multi-tool, a small knife, a penlight, a regular size flashlight, and tickets for the Balboa Island ferry.
4. PROCEDURAL HISTORY
An information charged defendant with four counts of first-degree burglary (Pen. Code, §§ 459, 460, subd. (a)), and two counts of attempted first-degree burglary (§§ 459, 460, subd. (a), 664, subd. (a)). (Count 6 was related to the burglary of Stephens's house; the other counts related to the incidents at Jill's home.) Two of the burglary counts (counts 3 and 6) were accompanied by the sentencing enhancement allegation that there was a person who was not an accomplice present at the time of the burglary. (§ 667.5, subd. (c)(21).) The information alleged as sentencing enhancements three prior serious felony convictions (§ 667, subd. (a)(1)), and six prior three strikes convictions (§§ 667, subds. (d) & (e)(2)(A), 1170.12, subds. (b) & (c)(2)(A)).
All further statutory references are to the Penal Code, unless otherwise noted. --------
A jury acquitted defendant of count 3, convicted him of all other charges, and found true the nonaccomplice allegation. At a bifurcated court trial, the court found each of the prior conviction allegations to be true.
For sentencing purposes, the court struck five of the six prior three-strikes convictions. (§ 1385, subd. (c).) The court sentenced defendant to a determinate term of 31 years, calculated as 8 years on one of the burglary counts, 2 years 8 months, consecutive, on each of the other two burglary counts, 1 year 4 months, consecutive, on each of the two attempted burglary counts, and 5 years, consecutive, on each of the three prior convictions pursuant to subdivision (a)(1) of section 667. The court calculated defendant's presentence credits as 891 actual days, and 133 days of conduct credit, for a total of 1,024 days. (§ 2933.1.) Pursuant to section 1465.8, the court imposed a $40 court operations fee on each count. Pursuant to Government Code section 70373, subdivision (a)(1), the court imposed a $30 criminal conviction assessment fee on each count. The court imposed a $300 restitution fine pursuant to section 1202.4, and suspended a $300 parole revocation fine, pursuant to section 1202.45. Defendant filed a timely notice of appeal.
ANALYSIS OF POTENTIAL ISSUES
The appellate record reflects substantial evidence of each element of the charges of burglary and attempted burglary and the nonaccomplice allegation. Admissible evidence was also offered regarding the prior conviction allegations that the trial court found to be true.
Before trial, defendant filed a motion to suppress evidence obtained during the search of his vehicle, pursuant to section 1538.5. At the hearing on the motion, the police officers testified that defendant was pulled over after they observed his car weaving within its lane in the early morning hours of April 25, 2015. The police officers also testified they requested defendant's consent to search his car, and defendant gave his consent. Defendant testified that he was not weaving within his lane while driving, and that he did not consent to a search of his car. The court concluded, based on the testimony before it, that a valid Vehicle Code stop was performed, and that defendant had voluntarily given the officers permission to search his car. The testimony of the police officers was sufficient to support the trial court's findings.
Defendant moved to suppress evidence of his statements to the police officers regarding his ownership of the car with license plate number 4MOW527. Defendant contended admission of his statements violated Miranda v. Arizona (1966) 384 U.S. 436. Defendant made the statements in response to the police officers' questions regarding who owned the car, and who else drove the car. Defendant was not stopped in connection with the burglaries, but for suspicion of driving under the influence. Defendant was not in custody, and was not in handcuffs. The police officers identified the car defendant was driving as possibly being involved in one or more burglaries, but he was not a suspect at that time.
The trial court found that defendant was not in custody at the time the statements were made, and that the officers were only conducting a preliminary investigation regarding the burglaries at the time. "[A] routine traffic stop, although a detention, is not tantamount to a formal arrest, and, therefore, questions asked during such detentions do not constitute a custodial interrogation requiring Miranda warnings." (People v. Tully (2012) 54 Cal.4th 952, 982.) Therefore, the trial court did not err in denying the motion to suppress.
The trial court also denied defendant's motion to suppress identification testimony as having been based upon an unduly-suggestive lineup. In People v. DeSantis (1992) 2 Cal.4th 1198, 1222, on which the trial court relied, the California Supreme Court held: "Defendant bears the burden of showing unfairness as a demonstrable reality, not just speculation. [Citation.] 'The issue of constitutional reliability depends on (1) whether the identification procedure was unduly suggestive and unnecessary [citation]; and if so, (2) whether the identification itself was nevertheless reliable under the totality of the circumstances, taking into account such factors as the opportunity of the witness to view the criminal at the time of the crime, the witness's degree of attention, the accuracy of [her] prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation [citation]. If, and only if, the answer to the first question is yes and the answer to the second is no, is the identification constitutionally unreliable. [Citation.] [¶] . . . It is unsettled whether suggestiveness is a question of fact (or a predominantly factual mixed question) and, as such, subject to deferential review on appeal, or a question of law (or a predominantly legal mixed question) and, as such, subject to review de novo. [Citations.]' [Citation.] Even under independent review [citation] we hold that the court's determination was sound; its reasoning . . . is persuasive." (See People v. Stearns (1971) 14 Cal.App.3d 178, 182-183.) The trial court also relied on Simmons v. United States (1968) 390 U.S. 377, 383, in which the Supreme Court held the danger of eyewitness misidentification "will be increased if the police display to the witness only the picture of a single individual who generally resembles the person he saw, or if they show him the pictures of several persons among which the photograph of a single such individual recurs or is in some way emphasized."
In this case, the trial court, having reviewed the photographic lineup, found that the defense had not shown it was unreliable or unduly suggestive, or that defendant stood out in any way. The witnesses were shown defendant's photo as part of a "six pack" photographic lineup. All six photos were of males who were Hispanic or white, some of whom had facial hair. We conclude the trial court's ruling regarding the photographic lineup was proper in light of its findings.
Our review of the record pursuant to Wende, supra, 25 Cal.3d 436, and Anders, supra, 386 U.S. 738, has disclosed no reasonably arguable appellate issue. Competent counsel has represented defendant in this appeal.
DISPOSITION
The judgment is affirmed.
FYBEL, ACTING P. J. WE CONCUR: THOMPSON, J. GOETHALS, J.