THE PEOPLE v. NATHANIEL JOHNSON JR (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Nathaniel Johnson, Jr., appeals from the judgment entered following his conviction by a jury of three counts of robbery (Pen.Code, § 211) and one count of first degree residential burglary. (§§ 459, 460, subd. (a).)  On two of the robbery counts, the jury found true an allegation that appellant had personally used a deadly weapon (a knife). (§ 12022, subd. (b)(1).)   The trial court found true allegations of one prior serious felony conviction (§ 667, subd. (a)(1)), one prior prison term (§ 667.5, subdivision (b)), and one prior serious or violent felony conviction within the meaning of California's “Three Strikes” law. (§§ 1170.12, subds.(a)-(d);  667, subds. (b)-(i).)   Appellant was sentenced to prison for 24 years, 8 months.

Appellant contends that (1) the evidence is insufficient to support his conviction for the robbery of Kathleen Asdel, (2) the trial court abused its discretion in denying his motion to dismiss the prior strike conviction for carjacking, and (3) the trial court erroneously imposed prison terms for both the prior serious felony (§ 667, subd. (a)(1)) and the prior prison term (§ 667.5, subd. (b).)  Only the third contention is meritorious.   We modify the judgment by striking the one-year prior prison term enhancement.   As modified, we affirm.

Facts

On January 6, 2008, appellant entered a Baskin–Robbins store in Paso Robles, threatened two teenage employees with a knife, and took about $300 from the cash register.   Appellant put the tip of the knife “right up against” the stomach of one of the victims.   This incident was the basis for two of the robbery counts.

On October 22, 2008, appellant committed a burglary of a residence in Atascadero.¹

Six days later, on October 28, 2008, at approximately 8:00 p.m., Kathleen Asdel was walking home from work in Atascadero.   It was dark outside.  (4RT 950) A man walking behind Asdel grabbed her backpack.   Asdel and the man “were kind of doing a tug-of-war over the straps of the backpack.”   The man said, “Give me your purse.”   The man won the struggle over the backpack and ran away with it.

Asdel walked to a nearby store and telephoned 911.   The transcript of the 911 call shows that the time was 7:14 p.m. But Asdel was “quite sure” that she had made the 911 call after 8:00 p.m. During the 911 call, Asdel said that the robbery had occurred five to ten minutes earlier.   Asdel also said that the robber “sounded like a black person.”

At about 9:10 p.m. that same evening, appellant arrived at his apartment in Paso Robles.   He was carrying Asdel's backpack.   Police officers were already inside the apartment.   They had come there at the request of appellant's wife.  (6RT 1545–1546) The police arrested appellant and searched Asdel's backpack.   The only property missing from the backpack was $30 in cash.

Asdel testified that she had not seen the face of the man who had taken her backpack.   Based on “the sound of [his] voice,” she “had the impression” that he was African–American.   He was “close to six feet” tall.  (4RT 953) Appellant is African–American and approximately six feet tall.

Sufficiency of the Evidence

Appellant contends that the evidence is insufficient to support his conviction for the robbery of Asdel.  “ ‘ “[W]e review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.  [Citations.]”  ‘ [Citation.]  ‘ ․ [W]e presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence.’  [Citation.]”  (People v. Wilson (2008) 44 Cal.4th 758, 806.)   All conflicts in the evidence are resolved in favor of the judgment.   (People v. Neely (2009) 176 Cal.App.4th 787, 793.)

In support of his contention that the evidence is insufficient, appellant relies on the rule that possession of recently stolen property, without corroborating evidence, is insufficient to sustain a conviction for a theft-related crime.  (People v. Gamache (2010) 48 Cal.4th 347, 375;  People v. Najera (2008) 43 Cal.4th 1132, 1138.)   The reason for this rule is that “there may be an innocent explanation for the circumstance of possession.  ‘ “The real criminal ․ may have artfully placed the article in the possession or on the premises of an innocent person, the better to conceal his own guilt;  or it may have been thrown away by the felon in his flight, and found by the possessor, or have been taken from him in order to restore it to the true owner, or otherwise have come lawfully into his possession.”  ‘ [Citations.]”  (Ibid.)

“ ‘ “ It is settled that when a person is shown to be in possession of recently stolen property slight corroborative evidence of other inculpatory circumstances which tend to show guilt supports the conviction of robbery.”   [Citation.]’  [Citations.]”  (People v. Gamble (1994) 22 Cal.App.4th 446, 453, italics added;  accord, People v. Mendoza (2000) 24 Cal.4th 130, 176.)   Considering the evidence in the light most favorable to the judgment and resolving all conflicts in its favor, we conclude that there is adequate corroborating evidence.   Appellant possessed Asdel's backpack only about one hour after the commission of the robbery.   In view of this short time frame, it is very unlikely that appellant would have come into possession of the backpack if he had not been the robber.   Moreover, appellant matched Asdel's description of the robber:  “close to six feet” tall and African–American based on his accent.   In addition, six days before the robbery appellant had committed a residential burglary in Atascadero, the same city in which the robbery occurred.   The location of the burglary shows that, although appellant lived in Paso Robles, he was familiar with Atascadero and had recently engaged in theft-related activity there.

The corroborating evidence here is no less probative than the corroborating evidence in People v. Mendoza, supra, 24 Cal.4th 130.   In Mendoza our Supreme Court rejected the defendant's contention that the evidence was insufficient to support his conviction for two burglaries committed in the Chinatown section of Los Angeles.   The defendant claimed that “the only evidence pointing to his commission of the two burglaries was testimony that he was found in possession of property stolen in the burglaries.”  (Id., at p. 175.)   Our Supreme Court noted that the corroborating evidence “need only be slight to sustain the burglary convictions.”  (Id., at p. 176.)   It reasoned:  “Here, there is adequate corroborating evidence.   The burglaries were committed after 2:00 a.m. on February 7, 1986.   Later that same morning, both Patricia Saldivar and Ann DiPrima saw defendant with property taken in the burglaries.   In addition, defendant told DiPrima he had ‘been to Chinatown’ when asked where he had obtained some of the stolen property.”  (Ibid.)

Denial of Motion to Dismiss Strike

Appellant contends that the trial court erroneously refused to dismiss the prior strike conviction for carjacking. (§ 215, subd. (a).  A “court's [refusal] to dismiss or strike a prior conviction allegation is subject to review under the deferential abuse of discretion standard.”  (People v. Carmony (2004) 33 Cal.4th 367, 374.)   In People v. Williams (1998) 17 Cal.4th 148, 161, our Supreme Court declared that, in exercising its discretion, the trial court “must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the ․ spirit [of the Three Strikes scheme], ․ and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.”  (Accord, People v. Garcia (1999) 20 Cal.4th 490, 503.)  “[A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.”  (People v. Carmony, supra, 33 Cal.4th at pp. 376–377.)

Appellant argues that the trial court abused its discretion because it considered an improper factor:  appellant's failure to show emotion while the victims of the Baskin–Robbins robberies were testifying.   In response to appellant's motion to dismiss the prior strike conviction at the time of sentencing, the court declared:  “Mr. Johnson, I sat through the trial and I sat through two preliminary hearings, so I had opportunities to observe you and opportunities to hear from these victims on several occasions.  [¶] And while they testified, you were denying that you were the person responsible for these crimes, so I wasn't expecting you to show much emotion while these people testified.   But you showed no emotion, not a flicker as these girls were testifying about how frightened they were by your conduct, so the Romero motion is denied.²  I think [appellant] is the kind of person that three strikes was written for.”

“[A]n abuse of discretion occurs where the trial court ․ considered impermissible factors in declining to dismiss [Citation].”  (People v. Carmony, supra, 33 Cal.4th at p. 378.)   The trial court abused its discretion in considering that appellant did not display emotion while the robbery victims were testifying.   This matter is irrelevant to the issue of “whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the ․ spirit [of the Three Strikes scheme].”  (People v. Williams, supra, 17 Cal.4th at p. 161.)

But the trial court's error did not prejudice appellant.   The trial court would have abused its discretion had it dismissed the prior strike conviction.   The strike was a crime of violence:  carjacking.   Appellant committed the carjacking in 1998 when he was 19 years old.   He was sentenced to prison for 10 years, 8 months.   In May 2007 he was released on parole.   Eight months later, while still on parole, he committed the Baskin–Robbins robberies.   These crimes were particularly violent.   Appellant put the tip of his knife “right up against” the stomach of one of the teenage victims.   In October 2008, while still on parole, appellant committed the Atascadero residential burglary and another robbery.

Appellant points to no redeeming qualities that would justify dismissing the strike conviction.   Appellant alleges that he “completed an ‘At–Risk’ program while confined in a juvenile facility.”   But his subsequent criminal record shows that he derived no benefit from the program.   Nor did he benefit from his lengthy incarceration for carjacking.   Thus, appellant's prospects for rehabilitation are poor.

Appellant contends that “[t]here was evidence that [he] had potential in clothing design business.”   The only “evidence” cited by appellant is the following statement of his trial counsel:  “[Appellant's] goal is to own and operate a clothing design business.   He has a personal interest in design and has a full portfolio that is in the possession of his wife.”   Appellant cites no evidence that he has taken courses in clothing design or that he has been employed in the field.   Trial Counsel also stated that, “just prior to his arrest, [appellant] had taken steps to enroll at the Cuesta College to work toward a degree in business or take courses in small business management.”   But there is no evidence as to what “steps,” if any, appellant had taken.   Accordingly, no reasonable person could deem appellant to fall “outside the ․ spirit [of the Three Strikes scheme].”  (People v. Williams, supra, 17 Cal.4th at p. 161.) ³

Sentencing Error

The People concede that, for the carjacking conviction, the trial court erroneously imposed both a five-year prison term for a prior serious felony (§ 667, subd. (a)(1)) and a one-year prison term for a prior prison term (§ 667.5, subdivision (b)).  (RB 16) We accept the concession.  “[W]hen multiple statutory enhancement provisions are available for the same prior offense, one of which is a section 667 enhancement, the greatest enhancement, but only that one, will apply.”  (People v. Jones (1993) 5 Cal.4th 1142, 1150.)   Thus, the one-year prior prison term enhancement must be stricken.  (Id., at p. 1153.)

Disposition

The judgment is modified by striking the one-year prior prison term enhancement imposed pursuant to section 667.5, subdivision (b).  As modified, the judgment is affirmed.   The trial court shall prepare a corrected abstract of judgment and send a certified copy to the Department of Corrections and Rehabilitation.

NOT TO BE PUBLISHED.

We concur:

Superior Court County of San Luis Obispo

Wayne C, Tobin, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, Carl N. Henry, Deputy Attorney General, for Plaintiff and Respondent.

FOOTNOTES

FN1. We omit the facts pertaining to the burglary because they are not relevant to the issues on appeal..  FN1. We omit the facts pertaining to the burglary because they are not relevant to the issues on appeal.

FN2. People v. Superior Court (Romero ) (1996) 13 Cal.4th 497..  FN2. People v. Superior Court (Romero ) (1996) 13 Cal.4th 497.

FN3. We need not consider appellant's contention that, if the trial court's consideration of an improper factor was waived by defense counsel's failure to object, appellant was denied his constitutional right to the effective assistance of counsel..  FN3. We need not consider appellant's contention that, if the trial court's consideration of an improper factor was waived by defense counsel's failure to object, appellant was denied his constitutional right to the effective assistance of counsel.

GILBERT, P.J. PERREN, J. Michael L. Duffy, Judge