Opinion
E043983
2-24-2009
THE PEOPLE, Plaintiff and Respondent, v. LARRY JAMES MARTIN, Defendant and Appellant.
Irma Castillo, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Marilyn L. George, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published in Official Reports
An information filed August 17, 2005, by the Riverside County District Attorney, charged defendant and appellant Larry James Martin with kidnapping during the commission of a carjacking (Pen. Code, § 209.5, count 1); kidnapping for ransom and reward (§ 209, subd. (a), count 2); and robbery (§ 211, count 3). The information alleged that defendant had two prison priors under section 667.5, subdivision (b).
On October 6, 2006, defendant filed a motion to suppress evidence; the court denied the motion on February 2, 2007.
A bifurcated trial commenced on July 5, 2007. On July 10, the trial court dismissed the charge of kidnapping for ransom, but allowed the prosecutor to proceed on the lesser included offense of simple kidnapping. On July 12, the jury found defendant guilty of kidnapping during the commission of a carjacking, simple kidnapping, and robbery. Defendant later admitted the two alleged prison priors. The trial court sentenced defendant to life with the possibility of parole for kidnapping during the commission of a carjacking. The court dismissed the kidnapping conviction because it was a lesser included offense, and stayed the sentence for the robbery conviction.
On appeal, defendant contends that the judgment must be reversed because the trial court erred (1) in denying his motion to suppress, and (2) in instructing the jury with CALCRIM No. 376. For the reasons set forth below, we shall affirm the judgment.
I
FACTUAL AND PROCEDURAL HISTORY
Shortly after midnight on Friday, July 22, 2005, the victim drove to the Walgreens drug store in Banning to shop for some personal items she needed for a trip. She parked a few spaces from the front door. As she walked into Walgreens, she noticed a man wearing a beanie and dark clothes sitting on a bench by the front of the store.
When the victim finished her shopping, she walked back out to her car and unlocked the car door. As she started to get in, a man grabbed her from behind, covered her mouth, and pushed her against the car. The man took her keys, opened her car and pushed her inside. He pushed her across the front into the passenger seat and told her to keep her head down. The man asked the victim if she had any money. She replied that she did not have much, but gave him the $15 she had in her purse. The man asked for more money, but the victim stated that she had no more. He then asked for credit cards. The victim said she only had a bank card, and gave that to him. The man insisted that the victim must have more money, and demanded her purse. The victim gave him her purse.
The man started up the car and drove out of the parking lot. He asked the victim where to locate the headlights. When he could not find them, he pulled her over and told her to turn on the lights, which she did. As the victim turned on the headlights, she got a good look at his face since they were only inches away from each other. After the victim turned on the headlights, the man pushed her back to the passenger side and again told her to keep her head down. As they drove down the street, the victim heard the man say, "I got it." It sounded like he was talking to someone on the phone.
The victim was familiar with Banning. As the man drove, she realized a stop sign was coming up at Sunset Street. As the car slowed down for the stop sign, the victim opened the door, jumped out, and started running. She glanced back to see if she was being chased. To her relief, the car drove away. The victim started screaming. She saw a mobilehome park on the corner. She climbed over the wrought iron fence that blocked the entrance, ran to the first door she saw, and started banging on the door, still screaming.
Two men came to the door. The victim, who was crying, told the men that she had been carjacked, and asked them to call 911. She continued crying while waiting for police to arrive. The police department received the call around 12:46 a.m. Officer Raymond Arretece drove to the mobilehome park and spoke with the victim. The victim told the officer what had happened and provided him with a description of her car. Other officers arrived and the victim was taken to the police station where she was met by her parents.
A few hours later, the police called the victim at home and told her they had found her car and had a suspect. They asked her to go to the Best Western motel in Beaumont to see if she could identify her assailant. Her parents drove the victim there and the police admonished her to be truthful and not to identify him if she was unsure. When the police brought the man out, he was kept about 50 feet away from the victim; she looked at him carefully because she wanted to be sure. The victim was positive the man they showed her, defendant, was the person who had carjacked her. In the courtroom, the victim again identified defendant as her carjacker.
The victim believed defendant was the man she had seen sitting on the bench outside of Walgreens. She got a better look at his body and his clothing when she saw him on the bench; she described him to police as being a Black male, five feet 10 inches tall and 240 pounds. The victim had tried not to look at defendant while she was in the car because he seemed "very angry." However, she saw his face clearly from a few inches away when he pulled her over to the drivers side of the car to turn on the headlights.
The victims car was found near the Best Western motel in Beaumont at 2:35 a.m., on July 22, 2005. The license plate matched that of the car reported as stolen in a carjacking, and the engine was still warm to the touch. No one was in the car or in the area. The victims Social Security card was found on the ground about 50 feet away from the car, in the direction of the motel. Sergeant Rodney Garcia, who arrived at the scene after learning the car had been recovered, noticed the motel had security cameras. Sergeant Garcia went to the motel office and spoke with the clerk who showed him some surveillance tapes. After seeing the tapes, a watch was put on room 261, and Banning Police were notified.
The surveillance tapes from the Best Western motel, which were time stamped, depicted a car being parked near the motel at 12:45 a.m. A man got out of the car and walked by the front of the motel and past the office. The man then walked toward a dumpster near the gas station next door. The man returned to the motel and entered room 261 at 12:51 a.m. The tape was played for the jury. Due to the poor quality of the tape, neither the mans face nor the license plate on the car was clear.
Officer Arretece arrived and, with three other officers, knocked on the door to room 261. A woman named Sharyn Madren opened the door and Officer Arretece asked her to step outside; she was detained. Defendant, who was standing near the bathroom, was also called out of the room and detained. Defendant was wearing blue shorts and a black beanie, which matched the beanie the victim had described her carjacker wearing. According to Officer Arretece, defendant was a Black male, five feet eight inches tall, and weighed 230 pounds.
The officer searched the room and found pieces of paper checks floating in the toilet. The pieces of paper had been cut up and were soaking wet, but they were not so wet that they were falling part. The victims name could be seen on some of the pieces. The victims purse was found outside in the dumpster. The dumpster was nearly full with trash bags; not everything in the dumpster was searched.
During the trial, the victim identified several items as her properly, including her large blue purse with the Cinderella design, the luggage she had purchased earlier at Target, which was found in the trunk of her car, and keys to the gates surrounding her parents home. She did not recover a number of items including her car keys, cellular telephone and earpiece, her drivers license, or checkbook. The victim recognized little pieces of cut up paper in a bag, identified as exhibit No. 39, as being from her checkbook. The checkbook had been in her purse.
Defendant took the stand and testified that he had suffered three prior felony convictions for grand theft, possession of drugs, and possession of a weapon. He admitted that he had been the man in the motel room with his girlfriend, Madren. However, he stated that he was not the man seen on the motels security tapes since he had not left the room since 6:00 p.m. the previous evening. Defendant stated that the man seen on the motels surveillance tapes was Madrens cousin, John Madren, who had recently been released from prison and just dropped by. About 20 or 30 minutes before the police arrived, John went into the bathroom and never came out. Defendant knocked on the door to check on John and discovered that John was gone. John must have climbed out the window, which was open and missing its screen. Defendant stated that he did not notice any papers in the toilet because the lid was down, probably to assist John in getting to the window. Defendant stated that he closed the window.
On rebuttal, Best Western manager, Arora, was recalled to testify about the windows and screens at the motel. The windows are 13 or 14 inches tall and 12 inches wide. They slide open about six inches sideways. The window screens are screwed on from the outside to prevent people from stealing them. Arora had to ask the woman in room 261 to leave the day after defendant was arrested for nonpayment of rent. He inspected the room that day and the screen was secure. In fact, they always check the bathroom window, screen, and window lock after guests check out. Arora also testified that he would have seen someone climbing out of one of the windows on his surveillance system; he did not.
A Riverside County District Attorney investigation technician testified that she had tried to locate a man named John Madren in several databases, including Department of Motor Vehicles and California Law Enforcement Telecommunications System, which includes people sentenced to prison. The investigator could not find any record of anyone by the name of John Madren.
II
DISCUSSION
A. Motion to Suppress
Defendant contends that the search of his motel room violated his Fourth Amendment right to be free from unlawful search and seizure "because there was evidence police removed him from the room and separated him from the co-tenant to avoid a possible objection to the search." We disagree.
1. Background
On October 6, 2006, defendant filed a motion to suppress the evidence found inside the motel room under section 1538.5. The Peoples opposition was filed on January 25, 2007. A hearing on the motion was held on February 2, 2007.
During the hearing, Officer Arretece testified. After giving background information regarding the carjacking, Officer Arretece testified that he went to room 261 of the motel and knocked on the door; Madren answered the door. The officer asked Madren to step out of the room and detained her. Then Officer Hobb stepped up to the doorway and called for someone inside the room to come out. Officer Arretece looked in the room and saw defendant standing at the far end of the room near the bathroom. Defendant was also detained and taken out of the room. Officer Arretece did not know exactly where the two detainees were taken to when he entered the room to do a sweep to make sure no one else was inside.
After Officer Arretece left the room, he asked Madren for her consent to search the room; Madren consented and signed a consent form. According to the officer, defendant and Madren had been handcuffed and separated; they were probably not within earshot of each other. Nevertheless, while defendant remained outside the room, he never voiced an objection to the search.
Defendant was wearing blue shorts and a beanie when officers arrived at the motel. The beanie matched the beanie the victim had described the carjacker as wearing. Inside the motel room, pieces of checks from the victims checkbook were found floating in the toilet. Some pieces of the checks were missing.
Defendant testified to establish his standing to challenge the search of the motel room. Defendant testified that he had been living in the room with Madren for three or four months. Thereafter, there was some testimony regarding whether defendant was a registered guest at the hotel. Later, however, the prosecutor advised the trial court that she found an entry on the second page a report that indicated defendants name was listed next to Madrens drivers license number on the second page or back page of the motel registration form. Hence, defendant was a registered guest.
The trial court explained its understanding of the law—if a person was a part-time guest, the possessor can consent to a search and it is "tough luck for the guest." If they are full-time occupants, one person may not validly consent over the other persons objection. However, one person may consent when the other person is around, but fails to object.
Defense counsel cited the recent United States Supreme Court case of Georgia v. Randolph (2006) 547 U.S. 103, and argued that the police had intentionally separated defendant and Madren, and asked only Madren for consent to search the room, in order to prevent defendant from voicing an objection. The trial court rejected the argument and stated:
"I dont read it that way, the duty they have to bring them together and ask, `Do either one of you object to the search? They just have to ask whoever they ask. If the other person speaks up and says, `You cant search, thats where Randolph comes in. Whether the other person is silent or not there or out of earshot, I dont think that makes a difference. They personally take one guy out of earshot and use the divide-and-conquer strategy. Well take the person who is most likely to say yes and keep the other guy on ice so he cant contradict her. But I dont see that as this sophisticated. That sounds more like a TV plot than a real-life thing. He was in the area and nearby, he didnt say anything. So I think theres no problem. Motion is denied."
2. Standard of Review
"In ruling on a motion to suppress, the trial court must find the historical facts, select the rule of law, and apply it to the facts in order to determine whether the law as applied has been violated. [Citation.] We review the courts resolution of the factual inquiry under the deferential substantial evidence standard. The ruling on whether the applicable law applies to the facts is a mixed question of law and fact that is subject to independent review." (People v. Ramos (2004) 34 Cal.4th 494, 505.) "[W]e view the record in the light most favorable to the trial courts ruling, deferring to those express or implied findings of fact supported by substantial evidence." (People v. Jenkins (2000) 22 Cal.4th 900, 969.)
3. Analysis
As provided above, Officer Arretece testified that defendant was detained outside of room 261 as the officers obtained consent to search the room from Madren. Although defendant had standing to object, defendant never objected to the search as the officers searched the room.
A search conducted without a warrant, but with consent that was voluntarily given, is valid under the Fourth Amendment. (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 222.) A search conducted with the consent of a person who possesses common authority over the property is also valid against an absent cotenant. When a person shares occupancy of a property, that person assumes the risk that the co-occupant will allow someone else inside. (Illinois v. Rodriguez (1990) 497 U.S. 177, 181.) However, police may not search when one cotenant consents to a search, but another present cotenant objects to the search. (Georgia v. Randolph, supra, 547 U.S. at p. 120.)
In this case, defendants cotenant, Madren, consented to the search of the motel room. Defendant, however, contends that the search was illegal because "there was evidence the police had separated [defendant] and Madren for the sake of avoiding a possible objection." We disagree.
First, the United States Supreme Court specifically held that the police were not required "to take affirmative steps to find a potentially objecting co-tenant before acting on the permission they had already received." (Georgia v. Randolph, supra, 547 U.S. at p. 122.) The court explained, "if a potential defendant with self-interest in objecting is in fact at the door and objects, the co-tenants permission does not suffice for a reasonable search, whereas the potential objector, nearby but not invited to take part in the threshold colloquy, loses out." (Id. at p. 121.)
Second, there was no evidence that the police intentionally separated defendant from Madren for the purpose of preventing him from objecting to the search. As provided in detail above, the officers took Madren out first and then took defendant out. Thereafter, they asked Madren for permission to search, and she consented. When the officers entered to search and during the search, defendant did not object to the search. The trial court noted: "[Defendant] was in the area and nearby, [and] he didnt say anything. So I think theres no problem. Motion is denied." We agree with the trial courts assessment of the evidence.
Therefore, we hold that the trial courts finding that the police had not intentionally taken steps to prevent defendant from objecting to the search of the room is supported by substantial evidence. Hence, since the officers had permission to search the motel room from Madren, defendants motion to suppress evidence was properly denied.
B. CALCRIM No. 376
Defendant contends that the trial court erred in instructing the jury with CALCRIM No. 376 (possession of recently stolen property) because it undermined his federal constitutional right to have a jury convict him only if it found him guilty beyond a reasonable doubt.
To begin, we reject the Peoples claim that failure to object below waives the matter on appeal. When an appellant raises an issue of the burden of proof implicating his substantial rights, the matter is not waived for failure to object below. (§ 1259; People v. Holmes (2007) 153 Cal.App.4th 539, 544.)
In reviewing challenged jury instructions, we must determine whether it is reasonably possible the jury could have applied the instruction in a way that violates the Constitution. (People v. Frye (1998) 18 Cal.4th 894, 957.) In conducting this inquiry, we consider the instructions as a whole. (People v. Carrasco (2006) 137 Cal.App.4th 1050, 1061.) We review de novo the validity of the trial courts jury instructions. (People v. Burch (2007) 148 Cal.App.4th 862, 870.)
In this case, the trial court instructed the jury with CALCRIM No. 376, as follows: "If you conclude that the defendant knew he possessed property, and you conclude that the property had, in fact, been recently stolen, you may not convict the defendant of any of the charged crimes, or any of the lesser offenses based on those facts alone. However, if you also find that supporting evidence tends to prove his guilt, then you may conclude that the evidence is sufficient to prove he committed any of the charged crimes or lesser crimes. [¶] The supporting evidence need only be slight and need not be enough by itself to prove guilt. [¶] You may consider how, where, and when the defendant possessed the property along with any other relevant evidence tending to prove his guilt. Remember that you may not convict the defendant of any crime unless you are convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt."
California courts have rejected the argument that CALCRIM No. 376 is defective in failing to require that the defendants possession of stolen property be unexplained before a permissive inference of guilt could arise from such possession. In People v. Anderson (2007) 152 Cal.App.4th 919, the defendant challenged the use of CALCRIM No. 376 on the ground, among others, that it " `misstate[d] the common law permissive inference of guilt of theft from possession of recently stolen property by removing the requirement that such possession must be unexplained." (Id. at p. 947.) To support his argument, the defendant relied on People v. McFarland (1962) 58 Cal.2d 748 and Barnes v. United States (1973) 412 U.S. 837. (People v. Anderson, at p. 947.) The court rejected the defendants argument, holding that neither McFarland nor Barnes supported the defendants position. The court explained, "In McFarland, the court stated the following rule: `Where recently stolen property is found in the conscious possession of a defendant who, upon being questioned by the police, gives a false explanation regarding his possession or remains silent under circumstances indicating a consciousness of guilt, an inference of guilt is permissible and it is for the jury to determine whether or not the inference should be drawn in the light of all the evidence. [Citation.] However, before stating the foregoing rule, the state high court in McFarland acknowledged the more general rule that possession of recently stolen property together with other corroborating evidence is sufficient to infer guilt. [Citation.] The court went on to state that a failure to explain or a false explanation of such possession is one type of corroborating evidence. In other words, the court in McFarland did not say that possession must be unexplained to be relevant but that the lack of an explanation for possession is one type of corroborating evidence sufficient to support a conviction. [Citation.]
"In Barnes, the jury was instructed that ` "[p]ossession of recently stolen property, if not satisfactorily explained, is ordinarily a circumstance from which you may reasonably draw the inference and find, in the light of surrounding circumstances shown by the evidence in the case, that the person in possession knew the property had been stolen." [Citation.] The United States Supreme Court found no problem in this instruction, which permitted an inference of guilt from unexplained possession. In other words, as in McFarland, possession of recently stolen property coupled with a lack of explanation is sufficient to support conviction. However, the court did not say this was the only acceptable type of corroborating evidence." (People v. Anderson, supra, 152 Cal.App.4th at p. 948; see also People v. Williams (2000) 79 Cal.App.4th 1157, 1172 [holding that CALJIC No. 2.15, which is substantively similar to CALCRIM No. 376, properly permitted the jury to draw an inference of guilt when the defendant consciously possessed stolen property, and there was "additional corroborating evidence"]; People v. ODell (2007) 153 Cal.App.4th 1569, 1577 [holding that CALCRIM No. 376 did not infringe on a defendants constitutional rights so long as the jury found some slight corroborating evidence].)
We agree with and adopt the reasoning and conclusion of the courts in Anderson, Williams, and ODell.
Here, corroborating evidence was more than just slight—it was overwhelming. Defendant matched the victims description of the carjacker. The victim also identified defendant as the person who committed the crime at the motel and in the courtroom. Moreover, the victims stolen car and her personal belongings were found near and in the dumpster by the motel, in addition to the pieces of paper from her checkbook found in the toilet bowl of the motel room wherein defendant was discovered. Although defendant would like us to believe the summarized evidence as "slight," we find otherwise.
Not only was the evidence against defendant overwhelming, defendants defense was incredible. Defendant claimed that the man on the security tape had been Madrens cousin, John Madren. Defendant claimed that John Madren just dropped by and left about 20 to 30 minutes prior to the polices arrival. Defendant stated that John went into the bathroom but never came out. According to defendant, John must have climbed out the bathroom window. However, the motel manager stated that the bathroom windows were only about 13 to 14 inches tall and 12 inches wide; the windows slide open only about six inches sideways. Moreover, the window screens are screwed on from the outside. In fact, when the manger inspected the room one day after the incident, the screen was still intact. Additionally, the manager stated that he would have seen someone climbing out of a window on his surveillance system; he did not on the evening in question. Furthermore, an investigation technician from the district attorneys office testified that she could not locate a man named "John Madren" using several state databases.
Therefore, based on the strong evidence against defendant, and no credible evidence presented by the defense, the trial court properly instructed the jury with CALCRIM No. 376.
III
DISPOSITION
The judgment is affirmed.
We concur:
RAMIREZ, P. J.
GAUT, J. --------------- Notes: All statutory references are to the Penal Code unless otherwise specified.