Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F11155
RAYE, Acting P. J.A jury convicted defendant Steven Michael Splawn of one count of first degree burglary and one count of second degree burglary. (Pen. Code, § 459.) Defendant admitted allegations of four strikes, three prior serious felony convictions, and a prior prison term. The court sentenced defendant to 31 years to life in state prison.
On appeal, defendant contends: 1) there is insufficient evidence to support his convictions; 2) the court erred in admitting evidence that he possessed several pieces of jewelry, including a woman’s watch, when booked into jail; 3) the denial of his motion for a new trial was an abuse of discretion; and 4) the court applied the incorrect standard in denying his motion to dismiss his prior felony convictions pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). We shall affirm.
BACKGROUND
Sisters Sally Peterson and Linda Moore reside in Redding with Moore’s live-in home care provider, Amber McDonald. There are two buildings on the property, a large house in which the three live, and a small detached cottage in the back. The cottage has a kitchen, living area, bedroom, and bathroom but was used for storage.
McDonald also worked the night shift at Wal-Mart. On June 18, 2006, she got home from work between 7:30 and 8:00 a.m. and discovered a broken window in the rear of the main house. She called the police and went to the cottage once a Redding Police Department community service officer arrived.
One of the two doors to the cottage had no lock. McDonald had last been in the cottage two or three days before she discovered the burglary. According to the community service officer, based on what McDonald told him at the scene, the cottage appeared ransacked.
There were signs someone had been living or staying in the cottage: empty cups and bottled water were scattered about, plastic tubing and a bowl full of cigarette butts were on the bed, and a pair of jeans and a green shirt had been left in a laundry basket. Also, a stainless steel travel mug, which had been stored in a cupboard, was by the bed and contained a small amount of what appeared to be wine from the cottage’s refrigerator.
The officer next examined the main house. A window at the rear of the house showed signs of forced entry. The screen was cut and bent as if pried away, and was propped up against the outside of the house. The lower pane of the window had been removed, making a hole large enough for a person to crawl through. The glass in both the lower and upper panes had been shattered, and a hammer was found outside the window opening. McDonald told the officer the hammer was from a tool box in the cottage.
The trays from a jewelry chest in the master bedroom had been removed. The nightstands had been opened and their contents dumped on the bed. In McDonald’s room, DVD’s had been left on her bed, and there were signs cabinets had been opened and items moved around. Peterson and Moore lost a total of 40 to 50 pairs of earrings, rings, necklaces, a collection of women’s watches, small pocket knives, and credit cards in the burglary.
The officer left 45 minutes to an hour after arriving. McDonald then called her friends Sandra Brown and Debra Rowe to come over with a lock for the cottage door. According to Brown, as they were installing the lock at the cottage, Rowe exclaimed that someone had jumped over the couch, said hi to her, and gone out the back door.
Brown ran outside and went around the cottage to the rear, where she saw a man slowly going toward the back of the property. She said “hey,” and the man stopped and looked at her, then turned around and kept going. Brown got within 10 feet of the man and started to chase after him, but stopped at Rowe’s request.
At trial, Brown could only remember that the intruder was white, wore a baseball cap, and was about 20 pounds thinner than defendant but had the same body type. Brown could not say whether she would have been able to recognize the man if she had seen him again. She might have told the police the man was six feet tall and in his early 20’s.
After Brown and Rowe arrived to install the lock, McDonald went down to the cottage and noticed an open can of tuna that was not present when she was there with the police officer. On her way back to the main house to call the police again, McDonald heard Brown scream. McDonald ran toward the cottage and saw a man running out of the back of the cottage into the bushes. She was about 25 feet from the man, whom she described as “short hair, medium height, skinny.” She did not see his face but believed he was white.
Neil Marwan went to the property that morning to board up the broken window. After assessing the job for about 15 minutes, he returned to his shop to pick up materials, and then went back to the house. Marwan walked around the side of the main house and saw a woman having a conversation with a man by the cottage. The man looked at Marwan and started to run toward a chain link fence at the back of the property. Marwan chased the man, getting no closer than 150 feet.
At trial, Marwan described the person as a white man with brown hair and an average build, around five feet 10 inches tall, and wearing jeans, a T-shirt, and a backwards baseball cap. The man’s hair was long enough to poke out from his hat. The “thirtyish” man escaped from Marwan after going down a hill.
Latent fingerprints were found on two DVD’s in the main house and on the stainless steel travel mug in the cottage. The prints on the DVD’s were determined not to be defendant’s, but the print on the travel mug was defendant’s.
Defendant was booked into the Shasta County jail on an unrelated matter on June 24, 2006. Over defendant’s objection, the court allowed testimony from the booking sergeant at the jail that jail records showed defendant possessed a yellow metal woman’s watch, a brown watch, a yellow metal chain with a charm, a white metal ring, and a black string with a cross when he was booked into the jail. None of the items were known to be stolen when they were returned to defendant upon his July 1, 2006, release.
DISCUSSION
I
Defendant contends there is insufficient evidence to support either burglary conviction. He argues that while the fingerprint evidence shows he was in the cottage at some point, no evidence ties him to the break-in at the main house or to the items stolen from there, and there was no credible evidence of a theft from the cottage. We disagree.
In determining whether the evidence supports a conviction, we review “the whole record in the light most favorable to the judgment” and decide “whether it discloses substantial evidence . . . 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 question, then, “‘is 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.’ [Citation.]” (People v. Hatch (2000) 22 Cal.4th 260, 272, italics omitted.)
The appellate court resolves all conflicts in evidence and questions of credibility in favor of the verdict, and indulges every reasonable inference the jury could draw from the evidence. (People v. Autry (1995) 37 Cal.App.4th 351, 358.) “In cases in which the People rely primarily on circumstantial evidence, the standard of review is the same.” (People v. Thomas (1992) 2 Cal.4th 489, 514.)
Defendant relies on several cases finding fingerprint evidence insufficient to support a conviction. They are readily distinguished.
In People v. Trevino (1985) 39 Cal.3d 667, disapproved on other grounds in People v. Johnson (1989) 47 Cal.3d 1194, 1221, the defendant’s thumbprint was found on a dresser drawer in the murder victim’s bedroom. (Trevino, at p. 696.) However, since the defendant had been a guest in the victim’s home prior to the killing, and because the age of the thumbprint could not be determined, the trier of fact 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 main house or the cottage, which was reserved for storage space. It was clear from the evidence that defendant left the fingerprint after breaking into the cottage within two or three days of the burglary of the main house.
In People v. Johnson (1984) 158 Cal.App.3d 850 and People v. Jenkins (1979) 91 Cal.App.3d 579, the issue was whether the defendants’ fingerprints on bottles and containers found in residences where the defendants were or had been present was insufficient to show the defendants’ “constructive possession” of the contents of the bottles. (Johnson, supra, 158 Cal.App.3d at pp. 854-856; Jenkins, supra, 91 Cal.App.3d at p. 584.) The issue here is not possession but identity -- was defendant the person who broke into the cottage and main house and took items from both structures -- and the fingerprint is powerful evidence identifying defendant as the person who committed the burglaries.
Mikes v. Borg (9th Cir. 1991) 947 F.2d 353 is a federal habeas corpus action where the victim was found dead in the basement of his burglarized fix-it shop. (Id. at p. 355.) The murder weapon was one of several turnstile posts that were part of a disassembled turnstile not accessible to the general public in the shop. (Id. at pp. 355, 357-358.) The victim had purchased the turnstile from a hardware store holding a “going-out-of-business sale” and stored it in his basement. (Id. at p. 357.) Defendant’s fingerprints appeared on one of the turnstile posts. (Id. at pp. 355-356.) The Ninth Circuit Court of Appeals concluded the fingerprints could have been left on the posts while the posts were in the publicly accessible store prior to the victim’s purchasing them. (Id. at pp. 358-359.)
Borg is not binding authority on California courts. (People v. Figueroa (1992) 2 Cal.App.4th 1584, 1587.) It is also factually distinguishable from the instant case. Turnstiles are meant to be used by the public and thus are commonly found in public places, where they will be touched by the general public. However, the travel mug belonged to McDonald and was stored in a cupboard in the cottage, away from the public.
Finally, in Birt v. Superior Court (1973) 34 Cal.App.3d 934 (Birt), Rodney McNutt returned to his home one night to find his lights on and a rental van parked on his grass. (Id. at p. 936.) Upon entering his home, McNutt discovered some of his possessions were missing and others were by the kitchen door. (Ibid.) Inside the van, McNutt found two men, who ran from the van and escaped. (Id. at pp. 936-937.) A sheriff’s deputy who later examined the van found a cigarette lighter on the front passenger seat. (Id. at p. 937.) The female defendant’s fingerprint was on the lighter. (Ibid.)
In finding the evidence insufficient to hold the defendant to answer for the burglary of McNutt’s home, the reviewing court observed that the lighter was a “readily movable object” that was not shown to have been taken from McNutt’s home, there was no evidence of the defendant’s fingerprints in the home or on any of the stolen items, and the van was a rental van available to the public. (Birt, supra, 34 Cal.App.3d at p. 938.) The court concluded: “At most, the presence of [the defendant’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 [the defendant] was inside the van, or in the area, at the time of the McNutt burglary.” (Ibid.)
Again, the difference with the instant case is that a lighter is an object generally carried on a person in public places and readily subject to being lost or touched by others. As we have already explained, the travel mug was stored away and isolated from the public, thus distinguishing Birt. Since the cottage was undisturbed when McDonald last checked it two or three days before the burglary, the evidence also paints a much clearer picture regarding when defendant touched the mug.
“‘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, 933.) “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.) The circumstantial evidence in this case, although, as the trial court concluded, “spare,” is nonetheless more than sufficient to support an inference of guilt.
According to McDonald, she last visited the cottage two or three days before the burglary, and many items inside the cottage had been moved since then. Defendant’s fingerprint was on the travel mug inside the cottage, which contained the remains of what McDonald and the investigating officer believed to be wine from the cottage refrigerator. The cottage showed signs of someone having lived there since McDonald’s last visit -- the wine in the travel cup, used water bottles strewn about, the presence of foreign clothes, and the bowl used as an ashtray. The fingerprint evidence thus strongly suggests defendant entered the cottage through the unlocked door, lived there for some time after McDonald’s last visit, and drank wine from the cottage refrigerator without the owner’s permission.
This is substantial evidence of second degree burglary of the cottage. To convict the perpetrator of burglary, the People must establish he “entered the premises with the intent to commit a felony or theft.” (People v. Holt (1997) 15 Cal.4th 619, 669.) Entering the cottage and drinking the wine from the refrigerator without the owner’s express or implied consent established the necessary larceny to support the second degree burglary conviction. (See People v. Martinez (2002) 95 Cal.App.4th 581, 584-585 [unlawful entry into house and use of soap, water, and shampoo in shower sufficient evidence to support a burglary conviction].)
Although Peterson did not recall keeping wine in the cottage refrigerator, McDonald testified there was wine in the refrigerator and it belonged to the homeowners. Contrary to defendant’s contention, this provides substantial evidence supporting the prosecution’s theory that defendant committed a theft in the cottage by drinking the wine he found in the refrigerator.
Circumstantial evidence also supports the first degree burglary conviction for the unlawful entry and theft from the main house. Defendant’s presence in the cottage within no more than two or three days of the main-house burglary and his having already committed a burglary there identifies him as the person with the best opportunity and disposition to commit the main-house burglary. His presence in the cottage also afforded defendant the opportunity to observe the main house and thus discern that it was unoccupied after McDonald left for her night shift at Wal-Mart.
The hammer, which McDonald told the investigating officer was from the cottage, was found next to the removed window pane and broken glass, raising a clear inference that the person from the cottage, defendant, committed the unlawful entry and burglary of the main house. Defendant’s possession of a woman’s watch when booked into jail is further evidence that he was in fact the person who took the women’s watches, pocket knives, credit cards, and jewelry from the main house.
Although the eyewitness testimony was weak and equivocal regarding the identity of the intruder, our analysis does not change.
According to the probation report, filed a month after the trial, defendant was 43 years old, five feet eight inches tall, blond haired, and weighed 170 pounds. As defendant points out, none of the eyewitness testimony describes the intruder in this manner. However, no eyewitness specifically excluded defendant as the intruder. Rather, the witnesses expressed an inability to positively identify anyone as the intruder, did not see his face, or saw him from no closer than 150 feet away. While Brown described defendant in court as being 20 pounds heavier than the person she saw at the cottage, she also testified defendant’s body type “Looks about right.”
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.) We conclude the circumstantial evidence in this case, when taken together, provides substantial evidence supporting both convictions.
II
Defendant claims the court erred in admitting evidence that he possessed several pieces of jewelry, including a woman’s watch, when booked at the jail, a ruling he claims is contrary to Evidence Code section 352 and violated his constitutional rights to due process and a fair trial. He is mistaken.
We review rulings admitting or excluding evidence pursuant to Evidence Code section 352 under the abuse of discretion standard. (People v. Hillhouse (2002) 27 Cal.4th 469, 496.) We reverse only if the trial court’s ruling was “‘arbitrary, capricious, or patently absurd’” and caused a “‘manifest miscarriage of justice.’” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.)
In support of his claim, defendant argues the probative value of the evidence was nonexistent, as the jewelry in his possession was not identified as stolen, nor could it be directly tied to the robbery. From this, defendant reasons any inference that the jewelry in his possession when booked into jail was stolen “necessarily relied on circular reasoning” by relying on a presumption that he had in fact committed the burglary. Defendant further claims that admitting evidence he possessed the woman’s watch without a foundation that it had been stolen effectively created a presumption that shifted the burden of proof to defendant, thus violating his rights to due process and a fair trial.
The relevance of defendant’s possessing a woman’s watch at booking does not rely on circular reasoning or a presumption that he committed the burglary. As we previously discussed, the fingerprints on the travel mug established defendant’s presence in the cottage not long before the burglary, and the presence of the hammer from that cottage next to the window pane removed to allow illegal entry into the main house implicated defendant in the illegal entry. Among the items stolen from the residence were a collection of women’s watches. The evidence that defendant possessed a woman’s watch when booked into jail less than a week after the burglaries raised the inference that this watch did not belong to defendant, a man who already possessed another watch when he was booked into jail, but in fact was taken in the burglary of the main house.
Viewed alone, the evidence that defendant possessed a woman’s watch could not support a conviction. However, when viewed in the context of the other circumstantial evidence of his guilt, the evidence he possessed a woman’s watch is probative of his guilt. It is one link in a chain of circumstances linking defendant to the burglary of the main house. The court neither abused its discretion nor engaged in an unconstitutional presumption in admitting the evidence.
III
In denying defendant’s motion for a new trial, the court made the following statement: “The evidence concerning the travel mug, the Court takes as it was presented. It was the victim’s personal property, was by her account, as I recall the evidence, cleaned and put away. And when seen elsewhere than she had put it, it turned out to have the fingerprint, without any contrary evidence on that fact by Mr. Splawn. And it was circumstantially disturbed in conjunction with the crimes that were committed. And in the same timeline, which the adjoining residence was burglarized. There is no evidence, direct or circumstantial, that would explain how Mr. Splawn[’s] fingerprint, otherwise would appear on that glass.” (Italics added.)
Defendant contends the italicized portions of the court’s analysis improperly inferred guilt from his decision to exercise his Fifth Amendment privilege and not testify, which he argues is an abuse of discretion. We disagree.
It is improper for a prosecutor to ask the jury to treat a defendant’s silence as evidence of guilt. (Griffin v. California (1965) 380 U.S. 609, 615 [14 L.Ed.2d 106] (Griffin).) In ruling on a new trial motion, “an abuse of discretion arises if the trial court based its decision on impermissible factors [citation] or on an incorrect legal standard [citations].” (People v. Knoller (2007) 41 Cal.4th 139, 156.) Defendant claims the denial of his new trial motion is an abuse of discretion because the inference of guilt from his silence applied the wrong legal standard and relied on impermissible factors.
The court’s statement clearly shows it was not drawing an inference of guilt from defendant’s silence but merely commenting on the state of the evidence. Griffin does not prohibit a prosecutor from commenting on the state of the evidence or on the defense’s failure to introduce material evidence. (People v. Turner (2004) 34 Cal.4th 406, 419.) Likewise, the Fifth Amendment does not prohibit a trial court from making similar observations when ruling on the sufficiency of the evidence.
The court’s ruling was not based on an improper inference of guilt from defendant’s decision not to testify, but on a fair assessment of the evidence, including defendant’s failure to produce evidence contradicting the evidence of his guilt. This was not an abuse of discretion.
IV
Defendant filed a Romero motion to strike some or all of his prior strikes. At the hearing on the motion, defense counsel urged the court to consider defendant “as a person,” the nature of the present crimes, and the circumstances of defendant’s prior strikes. The defense argued various mitigating factors regarding his strike priors as well as his ability to be a contributing member of society.
Romero, supra, 13 Cal.4th 497.
Specifically, the defense noted the relative lack of violence in his prior strikes -- burglaries he claimed were motivated by extreme need and an almost 20-year-old assault with a deadly weapon conviction in which defendant was not the aggressor. He also argued the relatively innocuous nature of the present burglaries. Defendant submitted a letter describing his efforts to better himself during his previous prison term and after his release.
In reply, the prosecutor noted that while defendant was attacked first in the prior assault with a deadly weapon conviction, in that case defendant and his brother held the victim down and stabbed him nine times. The People also argued defendant had a criminal record going back to 1983 and had been in and out of trouble almost consistently for 20 years.
Ruling on the motion, the court recognized that while one of the current burglaries involved a trivial amount of property, the burglary of the main house involved a very substantial theft.
The court then stated: “The circumstances observed by [defense counsel] are the kind of circumstances that are to be considered by a prosecutor in exercising the prosecutor’s discretion as to how to charge a public offense and that discretion is very broad. And far broader than the discretion of the Court, in considering a so called Romero application.” The court denied the motion.
Defendant contends the court’s statement shows it did not apply the correct standard in ruling on his Romero motion by comparing its discretion to that of the prosecutor’s charging function. We disagree.
Defendant remained silent in the face of the court’s denial of his Romero motion, making no objection to either the decision or the reasoning given by the court. As a result, his claim is forfeited on appeal. (People v. Saunders (1993) 5 Cal.4th 580, 589-590 [failure to make timely assertion of a right before a tribunal having jurisdiction to determine it results in forfeiture of that right]; People v. Walker (1991) 54 Cal.3d 1013, 1023.)
Defendant’s claim also fails on the merits.
When faced with the decision whether a particular dismissal is in the furtherance of justice, the court must consider the following factors: 1) the nature and circumstances of the defendant’s present felonies and prior strike convictions; and 2) the particulars of the defendant’s background, character, and prospects. (People v. Williams (1998) 17 Cal.4th 148, 161.) If, in light of these factors, the court finds that “the defendant may be deemed outside the scheme’s spirit, in whole or in part,” then the court should strike one or more of his strikes. (Ibid.) However, such a case would be “‘extraordinary,’” because the defendant ordinarily falls within the spirit of the “three strikes” law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12) “‘once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack’ [citation].” (People v. Carmony (2004) 33 Cal.4th 367, 378.)
The court correctly described its discretion to strike defendant’s prior strikes as less than the prosecutor’s discretion to exercise leniency in charging. A sentencing court has only limited discretion to strike a prior felony conviction in the furtherance of justice. (Romero, supra, 13 Cal.4th at p. 530.) By contrast, a prosecutor has considerable discretion to exercise leniency through the charging function. (See Davis v. Municipal Court (1988) 46 Cal.3d 64, 86-87.)
We view the court’s statement as reflecting what is clear from the record, that defendant’s case is not so extraordinary that he is outside the spirit of the three strikes law. Defendant’s record shows a career of crime starting in 1983 with few breaks in the intervening years. One of the instant convictions, the first degree burglary count, would qualify as defendant’s fifth strike. Although no one was physically harmed and most of the stolen property was found after the trial, defendant nonetheless committed a nighttime burglary of a normally occupied residence after already committing a burglary of a cottage on the same property.
While the circumstances of past and current offenses can be relevant to a court’s discretion to strike a prior conviction pursuant to Romero, in light of the limited nature of that discretion, the circumstances cited by defendant could not justify a decision to strike the prior strikes. The court’s analysis was fundamentally correct and the ruling was not an abuse of discretion.
DISPOSITION
The judgment is affirmed.
We concur: MORRISON , J., HULL , J.