THE PEOPLE v. Traquan Bell, Defendant and Appellant. (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Defendant and appellant, Traquan Bell, appeals from the judgment entered following a jury trial which resulted in his conviction of first degree burglary (Pen.Code, § 459).¹  The trial court sentenced Bell to 14 years in state prison.   We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Anthony Valento has worked as a police officer for the City of Burbank for approximately 15 years.   During the previous four or five months, Valento worked in the area surrounding Parish Place and Winona.   He noted that there had been well over 25 burglaries in that area during that time.

At approximately 10:55 a.m. on October 22, 2010, Valento was in the area near Parish Place and Winona.   He was not on duty at the time and was wearing plain clothes.   While he was standing next to his unmarked car, Valento noticed “a green Chevy Cobalt driving northbound on Parish․  [T]he vehicle was driving very slowly,” and there were at least two occupants inside.  “A driver and a front seat passenger appeared to be looking back and forth at the residences in the area.”

Valento watched the Chevy as it continued northbound, then made a left hand turn “into what would be the west alley of Glen Oaks which ․ runs along Parish[.]”  Valento got into his car and drove around the block in the opposite direction to see where the Chevy might have gone.   Approximately 30 seconds later, as he came back around Parish, Valento saw the green car parked in front of a residence in the same area.   Valento parked his car nearby, in a location where he could watch the Chevy's occupants.   After approximately two minutes, the Chevy pulled away from the curb and drove in Valento's direction.   It came to a stop at a stop sign and Valento drove by them “at a fairly slow speed.”   “At two different points [Valento] passed [the Chevrolet within 5 to 10 feet] going the opposite direction.”   On both of these occasions, he saw only two people occupying the car, a driver and front passenger.

Valento watched the car through his rear-view mirror and when it pulled to the curb at Winona and Parish, he saw the “front seat passenger get out of the vehicle and walk ․ towards the [front door of a] residence on Parish.”   However, Valento lost sight of the passenger for several seconds.

After losing sight of the passenger, Valento used his cell phone to notify Burbank police of what he had seen.   Their dispatch center then sent officers to the area.

Andrey Starkov is a police officer for the City of Burbank.   At approximately 11:00 a.m. on Friday, October 22, 2010, Starkov and a number of other officers were directed to go to the intersection of Winona and Parish Place to investigate a possible residential burglary.   Starkov was the first officer to arrive and he saw a green Chevrolet parked on Winona.   The license plate on the car matched that which had been reported:  6NDA418.   Starkov parked his police car behind the Chevrolet.

Starkov got out of his car, approached the Chevrolet and saw that, although the dispatch had reported that there might be two occupants in the vehicle, there was only one.   A man named Brent Taylor was seated in the driver's seat.   At that time, Taylor appeared to be typing something into his cell phone.

Starkov conducted a search of the Chevy and found, on the floorboard just to the left of the driver's seat, a police scanner.   Starkov, who at this point was accompanied by other officers, tested the scanner.   When he turned it on, the first thing Starkov heard was the transmission from “LAPD Rampart.”   However, when a Burbank officer pressed the button on his radio, he heard himself.   The scanner was apparently tuned to the Burbank Police Department's frequency.

In addition to the scanner, Starkov found in the car a bag from an In–N–Out Burger restaurant.   Inside the bag was a counter slip indicating that the food had been purchased at 10:15 a.m. that day.

After Taylor had been removed from the Chevrolet and placed in a patrol car to be transferred to the station, Starkov assisted with the booking of the evidence from the interior of the car.   Starkov took the scanner, the In–N–Out bag, the counter slip and Taylor's cell phone.   Starkov, however, was unable to operate the phone because “it was on password.”

Approximately 10 minutes after Officer Starkov had parked his patrol car, Taylor was asked to identify an individual another officer had detained in front of a house on Orchard Drive.   Taylor indicated that the individual, who had been riding as a passenger in the green Chevy, was a juvenile named T.B.

Burbank Police Officer Stephen Maxwell responded to a call directing him to the corner of Winona and Orchard Drive.   Maxwell, a motorcycle officer, had heard a broadcast indicating that an officer had “seen possible burglary casing suspects in the area.”   Maxwell went to assist in “establishing a perimeter.”   He positioned himself in front of 2211 North Orchard, at the corner of Orchard and Winona.   Then, at 11:19 a.m., he observed a woman come out of the front of her house and begin to scream at an individual walking along the south edge of her driveway.

Maxwell “made contact” with the young man walking down the driveway.   He had been identified as T.B. Maxwell searched T.B. and found “[i]n his left front pant[s] pocket what appeared to be a Louis Vuitton address book containing Asian writing, a gold cardboard box with approximately nine earrings in it, and a black cotton glove.   In his right pocket were several cell phones, a thumb drive, an MP 3 player, another black cotton glove, and some ․ miscellaneous items.”

At 11:15 a.m. on October 22, 2010, four and one-half year veteran police officer, Timothy Murphy, responded to a call directing him to Winona and Orchard Drive.   Murphy was informed that there was a possible burglary in progress at 2211 North Orchard and that he was to go there to assist Officer Maxwell and Sergeant Yaden, who had detained a suspect.

The victim of the burglary, Lori Young, showed Murphy around her home.   She first showed Murphy a wooden fence with one plank bent forward.   The ground around the fence was wet and the grass was very thin and muddy.   Officer Murphy noticed “what appeared to be fresh footprints leading away from [the] fence ․ post.”

Burbank Police Officer Gilberto Moreno also responded to the call directing officers to 2211 North Parish Place in Burbank.   The officer drove to the corner of Parish and Winona, where he saw several other officers congregating.   Moreno, accompanied by Burbank Police Sergeant Yaden, began to look for any other residences which might have been burglarized.   The two officers went from house to house until they reached one where the gate was open.   The house, located at 2210 North Parish, belonged to Theodore Lim. Behind the gate was a walkway “with what appear[ed] to be [muddy] footprints.”   In addition, one of the back doors had a broken pane of glass next to the door knob and a kitchen window covered with “pry marks.”   Two backpacks had been set out in the backyard.

After referring to a map, Officer Moreno concluded that the fence behind Lim's house was directly behind a house on Parish.   Another house which shared Lim's fence was Ms. Young's house at 2211 North Orchard.   Finally, there was a house at 2217 North Orchard which was directly north of Ms. Young's house.

Officers Moreno and Yaden went inside Lim's house to find that it had been ransacked.   All of the drawers had been pulled out and emptied and much of the floor was covered with items strewn about.   When the bags in the yard were retrieved, they were found to contain, among other things, jewelry, computer games and a purse.

The officers followed the muddied footprints from the walkway down the side of the house into the room with a broken pane of glass.   There were footprints on the carpeting which seemed to match those outside.

Burbank Police Officer John Voorhis responded to a call regarding a number of burglaries near Winona and Parish on October 22, 2010.   Voorhis, who was in his patrol car, had just seen Starkov pull in behind a green vehicle and get out of his police car.   A number of other officers were in the area in patrol cars.

After a time, the officers “broke down the perimeter” and began going from house to house to see if any of the occupants had seen the two individuals in the green car.   After they had covered the block, Voorhis and another officer were assisting a third officer as he kept “an eye on Taylor and [T.B.]” The resident of 2217 North Orchard, Mr. Madatyan, then “came out of his house [,] flagged [Officer Voorhis] down [and] told [Voorhis] he wanted to show [Voorhis] something ․ in his backyard.”   Voorhis followed Madatyan as they walked past a number of footprints leading to a gardening shed leaning up against the wall next to Madatyan's home.   Some of the plants around the shed had been trampled.   Others looked askew, as though they had been knocked over.

Next to the shed and the wall adjoining two backyards is a planter.   At this point Voorhis could “see a footprint in [the] planter and then footprints leading from that planter area next to the wall.”   Madatyan walked over to the shed and opened the door.   Voorhis heard Madatyan say something.   He turned around and saw Bell standing in the back corner of the shed.   Bell was kind of “crouched down a little bit, and his back was completely ․ up against the shelves” as though he were hiding.   Voorhis ordered Bell out of the shed at gunpoint and placed him in handcuffs.   He then “handed Bell off to Officer Murphy.”

As Voorhis examined the shed, he noticed a black sweater on a shelf.   When Voorhis asked Madatyan if the sweater belonged to him, Madatyan said that it did not.   The prints from Bell's shoes were unique and matched those found in the planter.   Bell had been wearing “[b]lue Crooks and Cassle tennis” shoes.   Detective Seymour later retrieved Bell's shoes from the evidence locker.  “On the impression [of the shoe] [one] can see a distinct pattern with an opening in the middle portion with portions of lettering that are ․ in the print․”  They match[ed] in size, shape, patterns, and lettering” the Crooks and Cassle shoes worn by Bell on the day of the burglaries.

On the morning of October 22, 2010, Burbank Police Officer Cindy Guillen also responded to a call directing her to the area surrounding Winona and Parish.   She was called to the area because there was a “possible burglary in progress or hot prowl.”   Before arriving at the scene, Guillen radioed other officers to indicate that she was on her way.   When she arrived, Guillen placed Taylor and T.B. in a patrol car.   As far as she knew, the conversations between the two men had been recorded.

Approximately 40 minutes after she had arrived at the scene, Guillen assisted in a search of Bell after he was found in the shed.   During the search, Guillen found a wallet, miscellaneous papers, a receipt from that morning from an In–N–Out Burger, a Sim card and a phone.

Detective Gary E. Seymour is a police officer for the City of Burbank assigned to the Property Detail.   Seymour was the investigating officer on this case and he had called Lim, one of the victims, and arranged for the two men to meet on November 15, 2010 at the Burbank Police Department.   There, Lim could view some of the items which had been found on one of the suspects.   If the items belonged to Lim, they could be returned to him.

Seymour first showed Lim items found on suspect T.B. “There was a [Louis Vuitton] notebook with Korean writing that [Lim] positively identified as belonging to his wife.”   Lim showed Seymour a “scanned disk which is a thumb drive and pointed out the tape that he personally put on it.”   He then showed to Seymour a “small jewelry box that he [had] purchased for his wife.”

Lori Young testified that she lives next door to Robert Madatyan at 2211 North Orchard Drive in Burbank.   At approximately 11:05 a.m. on October 22, 2010, Young noticed “a young kid running across [her] backyard.”  “He was coming from the back of [the] yard,” ran toward the front yard and jumped over the gate.   Young, who had been sitting at a window in her bedroom, went out into the front yard in pursuit of the individual.   She went out her front door to see him walking from the side of her house out to the street.   He was “[v]ery casually walking to the curb.”   Young started yelling at the young man, “asking him why he was in [her] backyard.”   The young man pretended as though he didn't hear Young.   However, “[a]s soon as he hit the curb, a swarm of police officers were there.   Then he immediately sat down[.]”

One of the police officers did a “walkthrough” of Young's property with her.   At that particular time, Young noticed as out of the ordinary a pair of gloves sitting down in the drain.   In addition, on the back wall, which abuts Lim's property, one of the six-foot boards was bent and coming off.  “The bottom screw was still on, but the top half wasn't.”   On the ground next to the gate used by the young man to get out of the yard was a plank.   The plank was usually attached to the gate.   Finally, Young gave to the officers investigating the burglaries, a 13–inch crowbar she had found under the trampoline in her backyard.

Detective Seymour, in the presence of another officer, interviewed Bell on the afternoon of October 22, 2010.   After Bell waived his Miranda ² rights, he agreed to talk with the officer for a short time.   During their first conversation, Bell stated that he had not been with Taylor and T.B. He had come up from Los Angeles with a man named Antwon.   Later, Bell and Seymour had a second interview.   This time it focused on Bell's involvement with Taylor and T.B. Bell told the officer that he and Taylor were “very tight” and had known each other since they were children.   Bell had known T.B. for three or four weeks.

On the night before the burglaries, Taylor and Bell had driven up to Burbank.   They had picked up T.B. on the way and, according to Bell, their goal was to “hook up with three girls.”   Early in the interview, Bell indicated that he knew he was going to Burbank.   Later, he stated that he had not known where he was going.

At approximately 10:15 a.m., the three men had driven through an In–N–Out Burger.   Bell knew that the officers had the receipts from their purchases.

Bell gave to the officers three different versions of what had happened in Burbank.   Initially, he was waiting in the car with Taylor.   When, after approximately 10 minutes, he hadn't heard anything from T.B. about the girls, he got out of the car and walked to a driveway to look for them.   When he saw T.B. coming out of the driveway, Bell “knew that they were in trouble and said we gotta get out of here.”   Next, Bell indicated that he had gotten out of the car, walked to a corner, come back from the corner and, although he was talking on the phone to T.B., he had no idea where T.B. was.   Finally, Bell stated that he was walking with T.B. when he saw a motorcycle officer talking to Taylor.   Bell ran.   He stated that “he runs when he sees police because [of] where he's from.”   Bell then admitted hiding in the shed.

Based on his background, training and years of experience, Seymour indicated that, during a burglary, “[t]here will usually be a driver with the vehicle.”   He will normally act as a lookout and “watch [for] police vehicles coming from multiple directions.”   The driver will frequently have a police scanner and communicate with the individuals in the yard and the house by phone.   A second individual will stay in the yard to the house being burglarized, keeping in contact with the driver.   Finally, the third individual, often a juvenile, will go inside the house.   The group will frequently “try to lay the blame on the juvenile knowing that he will get a lesser sentence.”

Diane Shear is a forensic specialist with the Burbank Police Department.   Out of the prosecutor's 57 photographs, Shear took eight.   She took all eight at the scene of the burglaries on October 22, 2010.   The photographs taken by Shear were of what were “believed to be the point of entry and [areas] throughout the residence where ․ things [had been] disturbed.”

Marsha Laufer is an officer assigned to the Burbank Police Department.   At approximately 2:00 p.m. on October 22, 2010, Laufer assisted in the booking of Bell's property.   She booked into evidence Bell's wallet, in which she found a “Sim” card, and his cellular phone.   There were not very many messages on the phone, but two caught Laufer's attention.   One, sent to T.B., says, “ ‘I can't,’ “ and the other, sent two minutes later, says “ ‘I'm hidin.’ “

Howard Lim lives with his parents at 2210 North Parish Place in Burbank.   On October 22, 2010, he left the house at a little after 9:00 a.m. and went directly to work.   Before leaving, Lim secured all the doors and windows and closed the side gates leading to the backyard.

Before he left, the window panes in the rear door were intact and there were no footprints next to the door.   Lim and his family do not wear shoes in the house.   According to Lim, “it's the Asian custom to take off your shoes.”   In any event, no one in the Lim family wears the “Crooks and Cassle” brand of shoes worn by Bell.

2. Procedural history.

Following a preliminary hearing, on December 21, 2010 Bell and his codefendant, Brent Taylor, were charged with first degree residential burglary, a felony, in violation of section 459.   It was alleged that they entered the inhabited portion of a building occupied by Theodore Lim with the intent to commit larceny and any felony.

It was further alleged that pursuant to sections 667, subdivisions (b) to (i) and 1170.12, subdivisions (a) to (d), that on October 6, 2008, Bell suffered a conviction for robbery (§ 211);  that on October 6, 2008 he suffered a second conviction for robbery (§ 211);  and that on November 1, 2006 he suffered a conviction for grand theft from the person (§ 487, subd. (c)).  Finally, it was alleged that on October 6, 2008, Bell suffered a conviction for robbery in violation of section 211 within the meaning of section 667, subdivision (a)(1).

After various pre-trial proceedings, on February 17, 2011 the matter was transferred to Department NE–C of the Northeast District for a jury trial.   Jury trial began on February 23, 2011.

On February 28, 2011, the jury indicated that it had reached a verdict.   The foreperson handed the verdict to the bailiff, who handed it to the court clerk.   The clerk read the verdict as follows:  “Title of court and cause;  we the jury in the above entitled action, find the defendant, Traquan Bell, guilty of the crime of burglary, in violation of Penal Code section 459, a felony as charged in count 1 of the information.   We further find the burglary to be in the first degree.”

At proceedings held on March 16, 2011, Bell indicated that he would admit his three prior convictions.   He then admitted that he had suffered a conviction for robbery in violation of section 211 on October 6, 2008, for which he served two years in state prison, and that on November 26, 2007, he committed the felony of being a felon in possession of a firearm in violation of section 12021, subdivision (a)(1) and for which he served 16 months in state prison.   Finally, he admitted that on November 1, 2006, he was convicted of grand theft from the person, a felony in violation of section 487, subdivision (c).  Although he was initially granted probation for the offense, he ultimately served 16 months in state prison.

Defense counsel made a motion to strike the prior robbery conviction in furtherance of justice.   After hearing argument on the matter, the trial court denied the motion, stating:  “[W]ith respect to the argument or observation that the matter concerned an argument with respect to a debt owed or some longstanding disagreement, that is not unlike the cases where a debt is owed and individuals go about the collection of it with violence in a self-help manner.   And that's robbery.  [¶] So taking those facts and then combining those facts with the additional facts of the rapid sequence of convictions over a relatively short period of time and the fact that Mr. Bell was still on parole from the 211when this case happened, I just don't think it is appropriate to strike the strike.   I didn't think that it was before the trial began, and I continue to think it is not appropriate.  [¶] So, given that, the Romero [ ³ ] motion is denied.”

After denying Bell probation and considering various factors in aggravation and mitigation, the trial court sentenced him to the midterm of four years in prison as to count 1, first degree burglary, then doubled the term to eight years pursuant to the Three Strikes law.   In addition, the court found “[b]ecause Mr. Bell did not remain free of prison custody and committed an offense resulting in a felony conviction within a five-year period, by the terms of ․ section 667[, subdivision] (a)(1), the court imposes an additional and consecutive term of five years.  [¶] [Moreover,] [t]he defendant has two prior prison commitments in addition to the prior strike.   By the terms of ․ section 667.5[, subdivision] (b), the court imposes an additional and consecutive term of two years.”  “Accordingly, the aggregate term of imprisonment is a term of 14 years.”

Bell was awarded a total of 174 days of presentence custody credits.⁴

He was ordered to pay a $40 court security fee (§ 1465.8, subd. (a)(1)), a $30 court assessment fee (Gov.Code, § 70373), a $200 victim restitution fine (§ 1202.4, subd. (b)) and a suspended parole revocation restitution fine (§ 1202.45).

Bell filed a timely notice of appeal on March 16, 2011.

This court appointed counsel to represent Bell on appeal on June 14, 2011.

CONTENTIONS

After examination of the record, counsel filed an opening brief which raised no issues and requested this court to conduct an independent review of the record.

By notice filed July 21, 2011, the clerk of this court advised Bell to submit within 30 days any contentions, grounds of appeal or arguments he wished this court to consider.   No response has been received to date.

REVIEW ON APPEAL

We have examined the entire record and are satisfied counsel has complied fully with counsel's responsibilities.  (Smith v. Robbins (2000) 528 U.S. 259, 278–284;  People v. Wende (1979) 25 Cal.3d 436, 443.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. All further statutory references are to the Penal Code unless otherwise indicated..  FN1. All further statutory references are to the Penal Code unless otherwise indicated.

FN2. Miranda v. Arizona (1966) 384 U.S. 436..  FN2. Miranda v. Arizona (1966) 384 U.S. 436.

FN3. People v. Superior Court (Romero) (1996) 13 Cal.4th 497..  FN3. People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

FN4. Bell's assertion he was awarded an improper number of presentence custody credits should be brought before the trial court. (§ 1237.1.).  FN4. Bell's assertion he was awarded an improper number of presentence custody credits should be brought before the trial court. (§ 1237.1.)

KITCHING, J. ALDRICH, J.