People v. O'Conner

THE PEOPLE, Plaintiff and Respondent, v. CHARLES EVLIN O'CONNER, Defendant and Appellant.

E060763

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO

June 5, 2015

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super.Ct.No. FVI1302859)

OPINION

APPEAL from the Superior Court of San Bernardino County. Debra Harris, Judge. Affirmed with directions.

Nancy Olsen, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Minh U. Le, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted defendant and appellant Charles Elvin O'Conner of first degree burglary (Pen. Code, § 459, count 1)¹ and receiving stolen property (§ 496, subd. (a), count 2). Defendant waived his right to a jury trial on the alleged prior convictions and admitted two prior strike convictions (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and four prior prison terms (§ 667.5, subd. (b)). The trial court sentenced defendant to a third strike indeterminate term of 25 years to life in state prison for count 1. For count 2, the court imposed and stayed a term of six years.

On appeal, defendant argues that: (1) his attorney rendered ineffective assistance of counsel by failing to object to an officer's multiple hearsay testimony; (2) there is insufficient evidence to support the burglary conviction; (3) the trial court abused its discretion by refusing to strike his prior strike convictions under section 1385; (4) his sentence of 25 years to life for the burglary conviction constitutes cruel and unusual punishment; and (5) the reporter's transcript of the sentencing hearing erroneously states that the court imposed four one-year enhancements for the four prior prison terms. For the reasons discussed post, we affirm the judgment, but direct the trial court to modify the minute order for the sentencing hearing and the abstract of judgment to reflect that the court stayed the four one-year enhancements.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Prosecution's Case

a. The items found in defendant's apartment

Defendant and the victim were both residents of the same apartment complex in Barstow, California. A few days prior to September 5, 2013, the victim had reported to the police that several DVD's and a DVD player were missing from her apartment unit. On September 5, 2013, one of the complex's property managers inspected defendant's unit for floor damage and conducted a maintenance check of the unit's attic crawl space. As the property manager was about to enter the crawl space, defendant approached him and asked him not to say anything about what he saw in the attic and that he had "F'd up." Defendant showed the manager "track marks" on his forearm and told him that he had been on a "dope run" and had been "up for a while."

The manager entered the attic and noticed a bag of DVD's and a DVD player, which he recognized as the same player that the victim had reported stolen a few days previously.² The manager told defendant that he did not like what defendant was doing. He left defendant's unit and told both his wife and his supervisor about what he saw in the attic.

The manager and his wife then confronted defendant about the items in his attic and defendant explained that he had not taken them from the victim, but that "somebody else had given [them] to him." When the manager asked why he had not returned the items to the victim and had instead hidden them in his attic, defendant "got really quiet" and did not respond. The manager's wife chastised defendant because he had claimed to be the victim's friend. At her demand, defendant retrieved the DVD's and DVD player from his attic and gave them to the couple.

Defendant asked the supervisor not to call the police about the incident. He apologized and told her that he "had been on a binge," "slamming speed" for about two weeks and was "trying to get cleaned up." The supervisor did not oblige defendant's request—she called the police.

Defendant left the apartment complex before the police arrived. He was arrested later in the day, after he called the police and they tracked him to a different location.

b. The victim's testimony

The victim testified that at the time her property was stolen (late August 2013), she and her two children lived in an apartment unit in the Barstow complex. About every other day, she took her children to visit her mother-in-law so that they could eat because she did not have food at her apartment. When she returned to her unit on September 1, she noticed that one of her windows "seemed broken into. It was off the hinges . . . [or] off the rail—and the blinds were kind of messed up." Inside the unit, drawers andcabinets were open and "things had been moved around."³ She noticed that several CD's, DVD's, and her DVD player were missing, and she reported this to the police. Sometime after September 5, she was called into the police station and she identified the DVD's and DVD player as her missing property.

c. Defendant's statements regarding the stolen property

i. Defendant's statement to the property manager

The arresting officer testified at trial that he interviewed the manager after arriving at the scene on September 5. The officer stated that he "remember[ed] [the manager] saying that [defendant] told him, yeah, I took it." On direct examination, the manager testified that he recalled giving a statement to the officer on September 5, but he could not remember if he told the officer that defendant had admitted taking the property from the victim's apartment. He did remember that defendant had asked him not to say anything about what was in his attic, but he could not recall whether defendant had admitted to taking the items. He testified that "it happened a while ago, and my memory is not the best in the world."

ii. Defendant's police interview

The prosecution played for the jury the recording of defendant's interview with the arresting officer on September 5. During the interview, defendant admitted that he had fled the apartment complex before the police arrived, but explained that he called the police about an hour after fleeing.

He told the arresting officer that he had been using speed and "lost track of everything [he] was doing . . . ." He then recounted the incident when the manager went into his attic. Before the manager entered the attic, defendant told him, "it's up there [in the attic]. I'm not sure if it's what I think it is." He asked the manager to give him time to go talk to a person called "Scrappy" in apartment 5 (the victim's apartment) to "straighten it out." Defendant explained to the officer that Scrappy lived in apartment 5 with the victim and that Scrappy had told him that "they were gone and never coming back."

During her trial testimony, the victim identified "Scrappy" as the father of her children. She said that he stayed in the apartment complex, but her testimony was unclear as to whether he lived in apartment 5 with her or in some other unit.

When the officer asked defendant if he had taken the property from apartment 5, he replied that he "got it from the guy that got it from apartment 5, knowing he got it from apartment 5." Defendant described the man who gave him the property as a younger, light-skinned Black male who was short, skinny, and had a "big afro."Defendant did not know this man's name, but he called him "the kid." The kid told defendant that he got the property from apartment 5, that he was friends with the residents of that apartment, and that they were not coming back. The kid gave him the property a few days before September 5, at about 3:30 or 4:30 a.m., when defendant was sitting on the stairs at the complex, "tweaking around." Defendant told the officer that the kid comes and goes and, when he does not have a place to stay, "he'll come by and sit on the stairs and drink a beer." When the officer asked defendant whether the kid gave him anything else, he responded, "I was just interested in DVD's. It was my tweak of the night."

On cross-examination, the victim testified that her brother, whom she described as a short, skinny, light-skinned Black male with an afro, used to stay with her at her apartment, but that he was not spending time at the apartment complex at the time of the incident because he was in jail.

2. The Defense's Case

During closing argument, defense counsel admitted that defendant had a serious drug problem and was in possession of the stolen property, but he argued that the evidence failed to show that defendant burglarized the victim's apartment.

ANALYSIS

1. Ineffective assistance of counsel

Defendant argues that his attorney's failure to object to the officer's testimony (that defendant had told the property manager "yeah, I took it") constitutes ineffective assistance of counsel because the testimony was inadmissible double hearsay. He contends that he was prejudiced by counsel's failure, because had counsel objected, the jury would have been instructed to disregard what he characterizes as "the primary basis" for his burglary conviction.

To succeed on an ineffective assistance of counsel claim, the defendant must demonstrate that counsel's performance was deficient (i.e., it fell below an objective standard of reasonableness) and that the deficiency was prejudicial. (Strickland v. Washington (1984) 466 U.S. 668, 687-695 (Strickland); People v. Bolin (1998) 18 Cal.4th 297, 333.) To establish prejudice, the defendant must show that there is a "reasonable probability" that, but for counsel's error, the result of the proceeding would have been more favorable to him. (People...