Opinion
B167045.
11-25-2003
THE PEOPLE, Plaintiff and Respondent, v. NADONTE BURRELL LARRIMORE, Defendant and Appellant.
Murray A. Rosenberg, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Jeffrey B. Kahan, Deputy Attorneys General, for Plaintiff and Respondent.
Nadonte Burrell Larrimore appeals from the judgment entered upon his conviction by jury of two counts of first degree burglary (Pen. Code, § 459) and one count of misdemeanor false imprisonment (Pen. Code, § 236) in this second strike case. He was sentenced to 19 years, six months in prison. Appellant contends (1) there is insufficient evidence to support his second burglary conviction, and (2) the trial court erred in admitting the prior testimony of a witness. We affirm.
BACKGROUND
A. Prosecution Case
At around 9:00 a.m. on December 3, 2001, appellant and Travan Neal picked up Nicole Bainton at her home. While appellant was driving, they discussed committing a residential burglary. Appellant pulled the car over and Ms. Bainton took over the driving. They stopped in a residential neighborhood in Downey, California, and appellant gave Ms. Bainton a walkie-talkie so that she could warn him and Mr. Neal if she saw the police. Appellant and Mr. Neal then exited the car, while Ms. Bainton remained in the drivers seat with the cars engine running.
Appellant and Mr. Neal approached the home of Roberta Blair. After receiving no answer to their knock on the front door, they went to the back of the house, out of Ms. Baintons sight. Ten to fifteen minutes later, a police car pulled up and Ms. Bainton warned appellant and Mr. Neal over the walkie-talkie. Five minutes later another police car arrived. Downey Police Officer Michael Pope, who was in the second car, noticed that Ms. Bainton was "nervous, jumpy" and that she had a walkie-talkie in her lap. Ms. Bainton told him she "was waiting on somebody." After he informed her that a neighbor had reported seeing her in a car with two men, she admitted the two men had gone to the back of the house and described their black clothes.
Officer Pope then sent out a radio broadcast. Throughout the day, 30 to 40 officers from the Downey Police Department and the Los Angeles Sheriffs Department responded. Downey Police Officer Chris Kurtz was among those who responded. He and another officer searched the interior of Ms. Blairs house, which had been ransacked. They found no suspects inside. Officer Kurtz and several other officers then created a three-or-four-block perimeter. A search team went door to door, and a sheriffs helicopter joined the search. The sheriffs SWAT team also responded with full lights and sirens.
Meanwhile, Nancy Cornista was lying in bed watching television on the second floor of her home when appellant and Mr. Neal entered her room wearing black sweatshirts. They told her, "`Be calm. We are not going to hurt you," and looked out the window above her bed. Appellant asked for her car key and she responded that she did not have it. At some point, there was knocking on the front door and both men laid down beside her while the knocking continued for about five minutes. She did not answer. The two men then took her downstairs and told her to look out the window. She saw an officer who told her to get out of the house, but the two men were standing behind her.
Ms. Cornistas downstairs telephone rang. Mr. Neal answered, then handed the telephone to her. At his direction, she told the officer on the line that she was okay. The telephone rang again and Ms. Cornista told the officer that a female friend was with her. Mr. Neal then got on the line and pretended to be a woman. After hanging up, he ordered Ms. Cornista back to her bedroom. The men followed her upstairs and whispered outside her bedroom. They asked again for her car key, which she said she did not have. Eventually, one of the men let her go.
With the assistance of a canine unit, Deputy Sheriff Jeff Riggin, a member of the SWAT team, found Mr. Neal hiding in the rafters of Ms. Cornistas garage. Mr. Neal came out when ordered to do so and was taken into custody. An hour later, Deputy Riggin discovered that appellant was hiding in the attic of the house. For 10 to 15 minutes, appellant ignored orders to exit the attic. The police then used tear gas, but got no response. After using a different type of tear gas, the police forced appellant out of the attic.
Lorena Sinohui, who lived in the house with Ms. Cornista, saw her housemates Ford Explorer parked in the driveway when she left for work that morning at 6:30 a.m. The vehicle was still there when she returned home that evening.
Ms. Blair, who did not know appellant or Mr. Neal, returned to her home to find it ransacked. One of the screens had been removed from her back window, and she found a coin jar from inside the house in her backyard. She had left for work that morning around 3:00 a.m., leaving the doors and windows to the house closed and locked.
Downey Police Identification Technician Ted Hiller found a beer bottle inside Ms. Blairs house from which he lifted Mr. Neals fingerprints. He also lifted Mr. Neals fingerprints from the coin jar in her backyard. Mr. Hiller lifted one of appellants fingerprints and one of Mr. Neals fingerprints from inside a downstairs bathroom door at Ms. Cornistas house.
Ms. Bainton served time at a juvenile camp for her participation in the crime, and was not given any promises by the district attorneys office in exchange for testifying at appellants trial. She testified that the night before the trial, appellant contacted her and offered to pay her money if she "looked out for him in court."
B. Defense Case
Appellant, who was convicted of robbery in 1997, testified that he received a call from his close friend, Mr. Neal, who said that he was in debt and needed to pick up some money from a relative. Appellant agreed to take Mr. Neal on his errand. On the morning of December 3, 2001, appellant picked up Ms. Bainton because she had a drivers license and he did not. After reaching their destination in Downey, Mr. Neal got out of the car. Ten to fifteen minutes later, appellant received an urgent page on his pager. He then got out of the car to look for a telephone to return the call. When he saw the police he became scared because he was on parole, and he ran into Ms. Cornistas house. He offered Ms. Bainton $1,000 to testify truthfully in this case.
DISCUSSION
A. Sufficiency of the Evidence
Appellant contends that his conviction for the burglary of Ms. Cornistas house must be reversed because the evidence was insufficient to establish that he intended to steal the Ford Explorer parked in the driveway when he entered the house. As appellant points out, burglary is the unlawful entry into a residence "with intent to commit grand or petit larceny or any felony." (Pen. Code, § 459; People v. Muszynski (2002) 100 Cal.App.4th 672, 680.)
"In resolving claims involving the sufficiency of evidence, a reviewing court must determine `whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (People v. Marshall (1997) 15 Cal.4th 1, 34, quoting Jackson v. Virginia (1979) 443 U.S. 307, 319.) In doing so, we must draw all reasonable inferences in support of the judgment. (People v. Frazer (2003) 106 Cal.App.4th 1105, 1119.) And we must bear in mind that "it is the jury, not the appellate court, which must be convinced of the defendants guilt beyond a reasonable doubt. [Citation.] Therefore, an appellate court may not substitute its judgment for that of the jury. If the circumstances reasonably justify the jurys findings, the reviewing court may not reverse the judgment merely because it believes that the circumstances might also support a contrary finding." (People v. Ceja (1993) 4 Cal.4th 1134, 1138-1139.)
Viewing the evidence in the light most favorable to the prosecution, we find that it supports the reasonable inference that appellant knew the Ford Explorer was in the driveway and that he intended to steal it to make his escape from the area when he entered Ms. Cornistas house.
Appellant admitted his knowledge of the Ford Explorer. At trial, the prosecutor cross-examined appellant as follows: "Q. Now, there was a Ford Explorer over at the Rutgers address [Ms. Cornistas home]; right? [¶] A. Yes. [¶] Q. You saw that Ford Explorer? [¶] A. No. I never saw a Ford Explorer. [¶] Q. You just told us there was a Ford Explorer at the Rutgers address; right? [¶] A. I never told you there was a Ford Explorer at the Rutgers address. You never asked me that. [¶] Q. Sir, I just asked you that. [¶] A. I dont recall you asking me about a Ford Explorer."
Appellants attempt to recant his knowledge of the vehicle is not only unbelievable, it was contradicted by other substantial evidence. Ms. Cornistas testimony established that one of the first things appellant did upon entering her bedroom was to ask her for the key to the Ford Explorer. Ms. Cornistas housemate testified that she had seen the Ford Explorer parked in the driveway at 6:30 a.m. and that evening when she returned home from work. Appellant was aware at the time he entered Ms. Cornistas house that the police were on the scene, having just been so informed by Ms. Bainton over the walkie-talkie. Moreover, appellant admitted that when he ran out of the backyard of Ms. Blairs house, he ran over yards and "jumped some fences" before ending up at Ms. Cornistas house with the vehicle in the driveway. The inference can easily be drawn that appellant chose to break into Ms. Cornistas house hoping to find the driver and/or the keys to the vehicle parked in the driveway. Substantial evidence supported appellants conviction.
B. Prior Witness Testimony
Appellant also contends that the trial courts admission of the prior testimony of Ms. Cornista given at the preliminary hearing was reversible error as to counts II and III. Specifically, appellant contends that (1) Ms. Cornista was not unavailable as a witness, (2) her cross-examination during the preliminary hearing was limited, and (3) appellant was denied his constitutional rights to due process and to confront the witnesses against him. (U.S. Const., 6th & 14th Amends.; Cal. Const., art. 1, § 15.)
We note that the court dismissed count II for misdemeanor false imprisonment, on which appellant was sentenced to six months. On count III for first degree burglary with person present, appellant was sentenced to seven years and six months.
Under Evidence Code section 240, subdivision (a)(5), a witness is unavailable when "[a]bsent from the hearing and the proponent of his or her statement has exercised reasonable diligence but has been unable to procure his or her attendance by the courts process." "The proponent of the evidence, here the People, has the burden of establishing unavailability by competent evidence. [Citation.] . . . [W]hether due diligence was demonstrated is a `factual question to be determined by the trial court according to the circumstances in each case; under familiar rules the trial courts ruling will not be disturbed unless an abuse of discretion appears." (People v. Cummings (1993) 4 Cal.4th 1233, 1296.) Moreover, as the People point out, the proponent of the evidence need not show that the declarant is permanently unavailable. (People v. Gomez (1972) 26 Cal.App.3d 225, 229-230.)
The trial court conducted two evidentiary hearings to determine whether the prosecution had diligently sought to locate Ms. Cornista. At the first hearing on February 25, 2003, the investigating officer testified that Ms. Cornista was no longer living at the same address, and that since December 20, 2002, he had attempted unsuccessfully to locate her by "thorough checks with the employment offices, U.S. Post Offices, L.A. County Probations Office, also local hospitals and the school district" and the Department of Motor Vehicles. However, on the morning of the first hearing, he had obtained a new address for her through the DMV that had been posted as of February 5, 2003. When he visited the residence before going to court, no one was home and none of the neighbors recognized Ms. Cornista from a color photograph. The court then continued the hearing to give the investigator another opportunity to visit the residence.
At the continued hearing the following day, the investigator testified that he had returned four more times to the residence. On one of the visits, he spoke with Ms. Cornistas friend, who informed him that Ms. Cornista worked as a live-in caretaker in Pasadena, California. She gave him Ms. Cornistas cell phone number, which turned out to be disconnected. He also spoke with Ms. Cornistas sister-in-law and brother, who had no information on how to reach her. None of the witnesses knew the name of her employer.
Over defense counsels argument that additional attempts should be made to locate her, the court found that the People had "done everything they [could]" to locate Ms. Cornista, and declared her "legally unavailable." Defense counsel then argued that several of Ms. Cornistas answers in her prior testimony were confusing, and asked the court to review the transcript to determine whether she should have been provided a Tagalog interpreter. The court agreed to read the transcript, but made no specific ruling regarding defense counsels concern. Because the transcript was read at trial, we presume the court found that no interpreter was necessary.
After the reading of Ms. Cornistas prior testimony had begun, the court called counsel to sidebar and stated the following: "Just for the record, my clerk told me, I guess, the investigating officer called maybe the D.A. investigator and said he had been contacted by the witness, and he could have her here at some point in time. I told my clerk we already put on the testimony. We are going to finish it this way because I have already declared her unavailable." Defense counsel then stated, "And I would object for the record." The reading of her prior testimony, both on direct and cross-examination, was then completed.
Evidence Code section 1291 provides in relevant part: "(a) Evidence of former testimony is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and: [¶] (1) The former testimony is offered against a person who offered it in evidence in his own behalf on the former occasion or against the successor in interest of such person; or [¶] (2) The party against whom the former testimony is offered was a party to the action or proceeding in which the testimony was given and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing."
We find that the trial courts findings that the investigating officer had been diligent in searching for Ms. Cornista and that she was unavailable are supported by the evidence. We also find that the trial court did not abuse its discretion in allowing the reading of the prior testimony to continue after being informed of Ms. Cornistas possible later availability. At that point, the reading had already begun and it was not certain the witness would actually show up at trial to testify.
Appellant also contends that Ms. Cornistas prior testimony should not have been admitted "because of the limited cross-examination at the preliminary hearing." Appellant asserts this was an issue the trial court never considered. But no objection was made below on this basis. In addition, appellant never raised the objection that admitting the witnesss prior testimony violated his constitutional rights. The People contend that appellant has therefore waived these objections on appeal. We agree. "Absent a timely and specific objection on the ground defendant now asserts on appeal, his contention is deemed waived." (People v. Mitcham (1992) 1 Cal.4th 1027, 1044 [finding defendant waived his claim that his Sixth Amendment right of confrontation was violated when the trial court admitted a redacted statement of his codefendant and defendant failed to raise any objection below].)
In any event, we find no merit to these contentions. Not only did appellants attorney have an adequate opportunity to cross-examine Ms. Cornista at the preliminary hearing, his attorney in fact did so. "[A]n adequate opportunity for cross-examination in an earlier proceeding may satisfy the confrontation clause even in the absence of physical confrontation at the time of trial." (People v. Brock (1985) 38 Cal.3d 180, 189.) To the extent appellant complains that his attorney did not cross-examine Ms. Cornista as fully as he should have, that decision does not render her prior testimony inadmissible. "Defense counsels testimony that he chose, for strategic considerations, not to vigorously cross-examine [the witness] does not render her former testimony inadmissible. As long as defendant was given the opportunity for effective cross-examination, the statutory requirements [of Evidence Code section 1291] were satisfied; the admissibility of this evidence did not depend on whether defendant availed himself fully of that opportunity." (People v. Zapien (1993) 4 Cal.4th 929, 975.)
DISPOSITION
The judgment is affirmed.
We concur: NOTT, Acting P.J., ASHMANN-GERST, J.