People v. Cooper

THE PEOPLE, Plaintiff and Respondent, v. MARQUESE DAVION COOPER, Defendant and Appellant.

E070962

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

January 22, 2020

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BAF1700970)

OPINION

APPEAL from the Superior Court of Riverside County. Jeffrey Prevost, Judge. Affirmed and remanded with directions.

Jason L. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel, Michelle Ryle and Stephanie Chow, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted defendant and appellant Marquese Davion Cooper of first degree residential burglary. After finding true various sentencing allegations that defendant suffered prior convictions, including three "strike" convictions for purposes of sentencing under the three strikes law, the trial court sentenced defendant to a determinate term of 17 years in state prison, plus an indeterminate term of 25 years to life. The court also imposed various fees. On appeal, defendant contends: (1) the trial court erred by admitting evidence of his 2011 first degree residential burglary conviction; (2) we must remand this case for the trial court to consider whether to dismiss one or more of defendant's five-year enhancements for serious prior felonies under statutory amendments enacted after he was sentenced (Pen. Code, §§ 667, subd. (a), 1385, subd. (b), as amended by Stats. 2018, ch. 1013, §§ 1, 2); and (3) various fees imposed at sentencing must be stricken. The People concede one of the fees must be stricken. In addition, the parties agree defendant's two one-year prior prison term enhancements (Pen. Code, § 667.5, subd. (b), as amend. by Stats. 2019, ch. 590, § 1, eff. Jan. 1, 2020) must be stricken under a more recent statutory amendment.

We remand for resentencing and direct the trial court to strike two of defendant's fees, to exercise its new discretion to determine whether to strike one or more of defendant's five-year serious prior felony enhancements, and to strike both of defendant's one-year prior prison term enhancements. In all other respects, we affirm the judgment.

I.

FACTS AND PROCEDURAL BACKGROUND

At 2:30 p.m., on August 25, 2017, A.B. left her Cabazon apartment to go to work. Her front door and windows were closed and locked when she left.

Around 5:00 p.m., J. and defendant visited J.W. (A.B.'s neighbor) at his apartment. J.W. and J. were friends, and J. would visit him three to four times a week. J.W. had never met defendant before. About 20 minutes later, defendant said he was going to walk home and left J.W.'s apartment. Defendant had a jacket with him, but no bag. J. stayed for another 25 minutes before leaving. J.W. walked J. to her car, which was parked in front of the apartment.

After J. drove away, J.W. walked over to see a neighbor. He saw a man with a jacket and a dark bag walk from behind the apartments. J.W. then noticed that a window screen to A.B.'s apartment had been pulled away, and the front door was open about an inch and a half. J.W. had driven by A.B.'s apartment an hour earlier and had not noticed the front door open or the window screen pushed in. As he continued walking in an attempt to discover who had come out from behind the apartments, J.W. saw defendant get into J.'s car. Defendant now had a bag with him.

A.B.'s sister, D.B., lived in a home next door. She was outside smoking a cigarette when she saw J. drive her black vehicle out of the driveway to the apartment complex with defendant in the passenger seat. D.B. recognized J. because of her frequent visits to J.W., and she knew defendant from high school. The dome light to the vehicle was illuminated, and D.B. saw defendant hunched over fiddling with something on the floorboard. A moment later, J.W. walked over and said A.B.'s front door was open. D.B. knew her sister was at work, and she knew of no reason why the front door would be open.

The two then walked to A.B.'s apartment. D.B. saw the front door open and called A.B. on the telephone to let her know. A.B. said she had not left her door open. D.B. and J.W. then entered the apartment. D.B. saw that a kitchen window screen had been pushed open, and a chair placed beneath the window had a shoe print on it. D.B. then exited the apartment and waited for her sister to come home. As she waited outside, D.B. saw J. drive back into the apartment complex, this time accompanied by her boyfriend. This was approximately 25 to 30 minutes after D.B. had seen J. drive away from the complex. D.B. approached J. and asked if she knew anything about the break-in, and J. once more drove off.

As she was returning home from work, A.B. saw J. and her boyfriend driving out of the complex. When she entered her apartment, A.B. saw that things had been thrown around, her window screen had been ripped, and her laptop computer was missing. She then locked her front door and went with D.B. to Banning to speak to J. and find out what she knew about the break-in. When they arrived at J.'s residence, A.B. and D.B. saw the black vehicle parked in the driveway with J.'s boyfriend in the driver's seat. The boyfriend said J. had gone somewhere on a bicycle, and he was going to drive around and look for her. A.B. and D.B. followed. When the boyfriend stopped, J., who had been hiding in the back seat, threw a backpack containing A.B.'s laptop out the window and said: "I had nothing to do with it." The sisters then followed J. and her boyfriend to Moreno Valley where they managed to flag down a police officer, who stopped the vehicle and notified Cabazon police about the break-in.

When she returned to her apartment, A.B. discovered that some of her clothing and shoes were missing, as well as $800 in cash. She then noticed the shoe print on a chair in the kitchen, which had not been there before, and an eyeglass case on the kitchen table, which was not hers. A police officer investigating the burglary opened the blinds to the kitchen window, and a screwdriver that did not belong to A.B. fell out. The shoe print on the chair had a diagonal tread, a distinct border, the letters A, S, and D, and the name Adidas.

Defendant was arrested a few days later at a casino after he was confronted by D.B. and fled on foot. He was wearing Adidas shoes with a diagonal tread and a definite border. A.B. had not given defendant permission to enter her apartment.

At trial, the parties stipulated that on April 19, 2011, defendant was convicted of first degree residential burglary in San Diego County. A jury convicted defendant on the sole felony count of first degree residential burglary. (Pen. Code, § 459.) In a bifurcated proceeding, the trial court found true the allegations that defendant had suffered three strike priors (Pen. Code, §§ 1170.12, subd. (c)(2), 667, subds. (c), (e)(2)(A)), three serious felony priors (Pen. Code, § 667, subd. (a)), and had served two prior prison terms (Pen. Code, § 667.5, subd. (b)).

The court denied defendant's request pursuant to Romero¹ to strike one or more of his "strike" convictions and sentenced him to a determinate term of 17 years in state prison (three five-year serious felony enhancements, plus two one-year prior prison term enhancements), plus an indeterminate sentence of 25 years to life under the three strikes law for the burglary conviction. The court imposed the following fees and fines: a $1,095 presentence probation report fee, but the court found defendant lacked the ability to pay and stayed the fee (Pen. Code, § 1203.1b); a $514.58 booking fee (Gov. Code, § 29550.2); a $1,500 incarceration fee, but stayed it (Pen. Code, § 1203.1c); a $30 conviction assessment (Gov. Code, § 70373); a $40 court operations assessment fee (Pen. Code, § 1465.8); a $300 restitution fine (Pen. Code, § 1202.4, subd. (b)); and a $300 parole revocation restitution fine, to be stayed pending successful completion of parole and to be permanently stayed thereafter (Pen. Code, § 1202.45).

Defendant timely appealed.

II.

DISCUSSION

A. The Trial Court Correctly Admitted Evidence of Defendant's Prior Conviction for First Degree Burglary.

Defendant argues the trial court erred prejudicially by admitting evidence of his 2011 conviction for first degree residential burglary pursuant to Evidence Code section 1101, subdivision (b) (§ 1101(b)), and by not excluding the evidence as overly prejudicial pursuant to Evidence Code section 352. We find no error and, even if we did, it was harmless.

"Only relevant evidence is admissible (Evid. Code, §§ 210, 350), 'and all relevant evidence is admissible unless excluded under the federal or California Constitution or by statute. (Evid. Code, § 351; see also Cal. Const., art. I, § 28, subd. (d).)' [Citation.] 'The test of relevance is whether the evidence tends "logically, naturally, and by reasonable inference" to establish material facts such as identity, intent, or motive.'" (People v. Harris (2005) 37 Cal.4th 310, 337.)

Evidence Code section 1101, subdivision (a), generally prohibits admission of evidence of a person's character, including evidence of character in the form of specific instances of uncharged misconduct, "to prove his or her conduct on a specified occasion." Section 1101(b) clarifies, however, that this rule does not prohibit admission of evidence of uncharged misconduct when it is relevant to establish some fact other than the person's disposition to commit such an act, such as motive, intent, and absence of mistake or accident.

"The least degree of similarity ...