Filed 6/21/13 P. v. Grayson CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E056648

v.                                                                       (Super.Ct.No. FSB1200221)

ROBERT LOUIS GRAYSON,                                                    OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Annemarie G.

Pace, Judge. Affirmed.

         Harry Zimmerman, under appointment by the Court of Appeal, for Defendant and

Appellant.

         No appearance for Plaintiff and Respondent.

                                                             I

                                                 INTRODUCTION

         Following a jury trial, defendant Robert Louis Grayson was convicted of first

degree burglary, with the jury finding true the special allegation that a person not an
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accomplice was present in the residence (Pen. Code, §§ 459, 667.5, subd. (c)).1 The trial

court found true defendant‟s prior serious felony conviction and prison prior allegations.

Defendant was sentenced to an aggregate term of 18 years in prison.

       Defendant‟s appellate counsel has filed a Wende brief under People v. Wende

(1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a

statement of the case, a summary of the facts, and requesting this court to undertake a

review of the entire record. This court offered defendant an opportunity to file a personal

supplemental brief, which he has not done. We have concluded our independent review

of the record and find no arguable issues or errors. The judgment is affirmed.

                                              II

                                FACTUAL BACKGROUND

       On January 13, 2012, around 9:00 a.m., Gilbert Acosta was awakened by a loud

bang. Defendant broke into Acosta‟s home by breaking the front door jamb, using blunt

force. Acosta saw a shadow pass by his slightly open bedroom door. Acosta called out,

“Hey.” Defendant turned around, looked at Acosta, and said, “My bad. Wrong house,”

and then quickly left without taking anything. Acosta identified defendant in court and

testified he had seen defendant from a distance of four to 10 feet.

       As defendant was backing out of Acosta‟s driveway, Acosta grabbed a bat and

stepped out on the porch. Acosta wrote down the license plate number of the small,

white car defendant was driving. There was another person in the car with defendant.


       1   Unless otherwise noted, all statutory references are to the Penal Code.

                                              2
Acosta gave the license plate number to the police when they arrived. The white car was

registered to Darrell Fowler and Kadedra Fowler. Kadedra owned the car at the time of

the burglary. Defendant lived with Betty Fowler, Betty‟s ex-husband, Darrell Fowler,

and their daughter, Kadedra, with whom defendant had children. A police helicopter

flew over the Fowler residence. Police saw the white car parked on the street in front and

two men in the backyard. The residence was two and a half miles from Acosta‟s house.

       Defendant and codefendant Jonathan Lee Goldman were detained at the residence.

The police took Acosta to the residence and admonished him that defendant and

Goldman might not be the offenders. Acosta identified defendant as the intruder but was

unable to identify Goldman. Acosta recognized the white car at the residence as the car

he saw defendant drive away in.

       The police did not find any incriminating fingerprints at the crime scene.

However, they did find latex gloves commonly used by burglars to avoid leaving

fingerprints. Five latex gloves were also found in defendant‟s pocket after his arrest. In

addition, “Kadedra” was tattooed on his left shoulder. A police forensic specialist found

a shoe impression by the kicked-in front door. The shoe impression was consistent with

the right shoe defendant was wearing when he was arrested.

       Betty testified she had met Goldman through defendant and Kadedra. The

morning of the burglary, Kadedra had gone to the store with Darrell in his truck.

Defendant was home with Betty that morning, watching the children. Around 9:00 a.m.,

Betty heard a helicopter and then saw Goldman driving like crazy in Kadedra‟s white car.

When he pulled up to the house, Betty yelled at him for being late. The police arrived

                                             3
shortly after that. By the time Kadedra returned from the store, defendant had already

been arrested and the police had left.

       According to police testimony, Betty made statements to them inconsistent with

her trial testimony. Betty told the police that during the morning of the burglary, Darryl

called to tell her that he was sending defendant to pick her up to look at a home she and

Darrell were considering purchasing. Defendant arrived in a white car at 9:17 a.m.

Goldman was driving and defendant was a passenger. Betty also told the police that

neither defendant nor Goldman had been there earlier that morning.

                                             III

                                         DISCUSSION

       Defendant has proposed the following issues for our independent review.

       (1) Whether denial of defendant‟s motion to suppress the in-field show-up

constituted prejudicial error under People v. Waidla (2000) 22 Cal.4th 690, 730 and

People v. Nguyen (1994) 23 Cal.App.4th 32, 39.

       There is no basis for challenging the trial court‟s denial of defendant‟s motion to

suppress the in-field showup, under People v. Waidla, supra, 22 Cal.4th at page 730 or

People v. Nguyen, supra, 23 Cal.App.4th at page 39. Acosta‟s identification of defendant

was reliable under the totality of the circumstances. During the in-field showup

conducted shortly after the charged crime, a police officer told Acosta that, although

defendant and Goldman had been detained, he should not infer from this that they had or

had not committed the crime. The officer also told Acosta he was not obligated to

identify anyone. The officer asked Acosta to identify similarities between the persons

                                             4
detained and the persons who committed the crime. Acosta was told to tell the officer if

either of the detained persons committed the crime. Acosta was first shown defendant.

Acosta spontaneously said, “Yeah, that‟s him.” Acosta then was shown Goldman but

was unable to identify him. Based on the foregoing, we find there was substantial

evidence to support the trial court finding that the in-field showup was properly

conducted and was not unduly suggestive or coercive.

       (2) Whether admission of evidence of the police dispatch call constituted

prejudicial error under People v. Brenn (2007) 152 Cal.App.4th 166, 175 (Brenn) and

Davis v. Washington (2006) 547 U.S. 813, 822 (Davis).

       There is no basis for challenging the trial court‟s admission of evidence of the

police dispatch call because the call was nontestimonial. Acosta testified he made the

call right after defendant committed the crime and fled. Acosta immediately wrote down

the license plate of the car and called the police. The primary purpose of the call was to

assist the police with an ongoing emergency, primarily by assisting in apprehending the

fleeing perpetrators of the crime. Acosta “„simply was not acting as a witness; [he] was

not testifying. What [he] said was not “a weaker substitute for live testimony” at trial

. . . .” (Brenn, supra, 152 Cal.App.4th at pp. 175-176, quoting Davis, supra, 547 U.S. at

p. 828.)

       (3) Whether admission of evidence of defendant‟s tattoos constituted prejudicial

error under People v. Partida (2005) 37 Cal.4th 428, 439 and Estelle v. McGuire (1991)

502 U.S. 62, 70.



                                             5
       Police Officer Thomas, testified that he noticed the name, “Kadedra” tattooed on

defendant‟s left shoulder. Thomas connected this name with the name of one of the

registered owners of the car driven by the perpetrator. At trial, Thomas was shown a

photograph of the tattoo and testified that it was the tattoo he had observed on defendant

the day defendant was apprehended. The tattoo evidence was admissible under Evidence

Code section 352, as sufficiently relevant and not unduly prejudicial. Admission of the

tattoo evidence therefore did not violate defendant‟s due process rights.

       (4) Whether the prosecutor prejudicially shifted the burden of proof during

closing argument under People v. Woods (2006) 146 Cal.App.4th 106, 112 (Woods).

       During the prosecutor‟s closing argument, defense counsel objected to the

following statements on the ground the prosecutor was shifting the burden: “You know,

as you‟re probably aware of, I‟m not the only person who has subpoena power in the

case. Defense counsel‟s got subpoena power. They can bring in whoever they want, just

like I brought in people I wanted, the people that I felt I needed to make the case. Not

everyone is going to testify that is remotely related to the case. So if other people are

key, well, then, Ms. Higuera should have brought those people in.”

       The prosecutor did not prejudicially shift the burden of proof. As explained in

Woods, supra, 146 Cal.App.4th at page 112: “A prosecutor may fairly comment on and

argue any reasonable inferences from the evidence. [Citation.] Comments on the state of

the evidence or on the defense‟s failure to call logical witnesses, introduce material

evidence, or rebut the People‟s case are generally permissible. [Citation.] However, a

prosecutor may not suggest that „a defendant has a duty or burden to produce evidence, or

                                              6
a duty or burden to prove his or her innocence.‟ [Citations.]” In the instant case, the

prosecutor fairly commented on the state of the evidence and the defense‟s failure to call

logical witnesses.

       (5) Whether there was insufficient proof of defendant‟s prior convictions, because

there was no fingerprint or comparison testimony implicating defendant (People v.

Matthews (1991) 229 Cal.App.3d 930 (Matthews); § 969b).

       The parties waived a jury trial on defendant‟s prior convictions. During the court

trial on the priors, the prosecutor submitted the following evidence: (1) a certified rap

sheet for defendant, indicating a May 14, 2009, conviction for assault with a firearm and

violation of section 12021, with a 24-month prison sentence (§ 245, subd. (a)(2)) (exh.

60); (2) a certified prior packet for FSB901539, in defendant‟s name, corroborating the

May 14, 2009, conviction, with a 24-month prison sentence (exh. 61); (3) a certified prior

packet for FSB048568, in defendant‟s name, showing a conviction on June 1, 2005, for

violating section 245, subdivision (a)(1), with a commitment to state prison for two years

(exh. 62); (4) a certified prior packet for FSB051631, in defendant‟s name, shows a

conviction for violating Health and Safety Code section 11350, subdivision (a), on

October 28, 2005, with a two-year sentence (exh. 63); and (5) a certified 969b packet, in

defendant‟s name, corroborating the May 14, 2009, June 1, 2005, and October 28, 2005,

convictions (exh. 61).

       Without specifying any grounds, defense counsel asserted that the packet was

insufficient to prove defendant‟s prison priors. The trial court found beyond a reasonable

doubt that the priors alleged in the information were true, but that the June 1, 2005, and

                                             7
October 28, 2005, convictions were concurrent and therefore constituted one prior prison

term. Under Matthews, supra, 229 Cal.App.3d 930 and section 969b, sufficient evidence

was presented to establish defendant‟s prior convictions. Fingerprint and comparison

testimony implicating defendant was not required. “[T]he trier of fact may „look to the

entire record of the conviction to determine the substance of a prior foreign conviction.‟

[Citations.] „[T]he “entire record of conviction” includes all relevant documents in the

court file of the prior conviction.‟ [Citation.]” (Matthews, supra, 229 Cal.App.3d at p.

936.) Section 969b “specifically authorizes proof of the fact that the defendant suffered a

prior conviction by evidence of certified prison records; . . . Under section 969b, the

People may satisfy the burden of proving a prior conviction by introducing into evidence

a certified copy of a prison record.” (Id. at p. 937.)

       (6) Whether the trial court erred in finding that defendant could be impeached

with his prior convictions for violating section 245, subdivision (a)(1) and (a)(2) (People

v. Ledesma (2006) 39 Cal.4th 641, 731 (Ledesma); People v. Hinton (2006) 37 Cal.4th

839, 888 (Hinton); People v. Elwell (1988) 206 Cal.App.3d 171, 177).

       Over defendant‟s objection, the trial court granted the prosecution‟s motion in

limine to impeach defendant with his prior felony convictions for violating section 245,

subdivision (a)(1) and (2). Defense counsel argued that it would be prejudicial if he was

impeached with these prior convictions because the jury would be judging him based on

his past if he testified. The trial court noted that doing so was permissible to some degree

and that evidence of his prior convictions was not unduly prejudicial because they were



                                              8
recent and not similar to the charged offense, in that the issues were different than in the

instant case. Defendant ultimately did not testify at trial.

       “Defendant has failed to preserve this claim of error. It is well established that the

denial of a motion to exclude impeachment evidence is not reviewable on appeal if the

defendant subsequently declines to testify. (See Luce v. United States (1984) 469 U.S. 38

(Luce ) [denial of in limine motion to preclude impeachment of the defendant with a prior

conviction is not reviewable on appeal if the defendant did not testify]; People v. Collins

(1986) 42 Cal.3d 378, 383-388 (Collins) [prospectively adopting the Luce rule].)”

(Ledesma, supra, 39 Cal.4th at p. 731.)

       Furthermore, subject to the trial court‟s discretion under Evidence Code section

352, Proposition 8 “„authorizes the use of any felony conviction which necessarily

involves moral turpitude, even if the immoral trait is one other than dishonesty.‟”

(Hinton, supra, 37 Cal.4th at p. 888.) Defendant‟s convictions for assault with a firearm

(§ 245, subd. (a)(2)) and assault with a dangerous weapon other than a firearm (§ 245,

subd. (a)(1)) denote moral turpitude and were therefore admissible for impeachment.

(Hinton, at p. 888.) Any objection that the priors should have been excluded as too

similar to the charged crime is likewise without merit. “„While before passage of

Proposition 8, past offenses similar or identical to the offense on trial were excluded, now

the rule of exclusion on this ground is no longer inflexible.‟ [Citations.]” (Ibid.)

       (7) Whether admission of Betty‟s hearsay statements as prior inconsistent

statements constituted prejudicial error under People v O’Quinn (1980) 109 Cal.App.3d

219 (O’Quinn).

                                              9
       According to police testimony, Betty made statements to the police inconsistent

with her trial testimony. Betty told the police that the morning of the burglary, Darrell

called to tell her that he was sending defendant to pick her up to look at a prospective

new home. Defendant arrived in a white car at 9:17 a.m. Goldman was driving and

defendant was a passenger. According to Betty, neither defendant nor Goldman had been

to Betty‟s home earlier that morning. Contrary to Betty‟s statements to the police, Betty

testified that the morning of the burglary, defendant was home with Betty, watching the

children. Around 9:00 a.m., Betty heard a helicopter and then saw Goldman driving like

crazy in Kadedra‟s white car. When he pulled up to the house, Betty yelled at him for

being late. The police arrived shortly after that.

       Under Evidence Code section 1235, “Evidence of a statement made by a witness is

not made inadmissible by the hearsay rule if the statement is inconsistent with his

testimony at the hearing and is offered in compliance with Section 770.” “Inconsistency

in effect, rather than contradiction in express terms, is the test for admitting a witness’

prior statement [citation], . . .” (O’Quinn, supra, 109 Cal.App.3d at p. 225.) In the

instant case, Betty‟s statements made to the police were inconsistent with her trial

testimony and therefore were admissible under the Evidence Code section 1235 hearsay

exception.

       (8) Whether admission of evidence of only a portion of the jail recordings, instead

of the entire recordings, constituted prejudicial error under Evidence Code section 356

and People v. Stallworth (2008) 164 Cal.App.4th 1079 (Stallworth).



                                             10
       Before the trial, outside the presence of the jury, the parties and the court

discussed the prosecution‟s request to introduce evidence of a portion of a recorded jail

call. Defense counsel objected to the evidence on the grounds of lack of foundation and

based on the rule of completeness. Defense counsel complained that the call was being

introduced piecemeal. Defense counsel argued that the defense should be permitted to

introduce additional statements from the recording; specifically statements made at the

beginning of the recording in which someone answered the telephone and had a

conversation with defendant, during which defendant was asked if he was in trouble, and

defendant said he was not and was innocent. Defense counsel argued the requested

additional statements should have been included because they gave context to the

subsequent conversation. The trial court disagreed because the additional statements

were made by a female to defendant, before defendant‟s conversation with a male. The

portion of the conversation provided to the jury was solely between defendant and the

male. The trial court therefore found that the additional statements were not admissible

under Evidence Code section 356 because the conversation with the female did not give

context or meaning to defendant‟s conversation with the male.

       There was no error in excluding the initial conversation between the female and

defendant. Under Evidence Code section 356, when part of a conversation is given in

evidence by one party, “the whole on the same subject may be inquired into by an

adverse party; . . . and when a . . . conversation . . . is given in evidence, any other . . .

conversation . . . is necessary to make it understood may also be given in evidence.”

(Evid. Code, § 356.) Here, the trial court reasonably redacted the initial conversation

                                                11
between defendant and a female. Doing so did not prejudicially distort the subsequent

conversation between defendant and a male or present a misleading or distorted version

of the relevant events. The redaction also did not negatively impact defendant‟s

credibility. (See Stallworth, supra, 164 Cal.App.4th at p. 1098.)

       (9) Whether the trial court prejudicially erred in not giving CALCRIM No. 225,

when the jury was instructed with CALCRIM Nos. 224 and 252.

       CALCRIM No. 224 instructed the jury on finding guilt based on circumstantial

evidence. CALCRIM No. 252 instructed on the need for the jury to find proof of the

union, or joint operation, of act and wrongful intent. The instruction also specified

whether the charged crimes required a finding of specific or general intent. CALCRIM

No. 225, which was not given to the jury, instructs on reliance on circumstantial evidence

to prove intent. The bench notes for CALCRIM No. 225 state: “The court has a sua

sponte duty to instruct on how to evaluate circumstantial evidence if the prosecution

substantially relies on circumstantial evidence to establish the element of a specific intent

or a mental state. [Citation.] [¶] Give this instruction when the defendant‟s intent or

mental state is the only element of the offense that rests substantially or entirely on

circumstantial evidence. If other elements of the offense also rest substantially or entirely

on circumstantial evidence, do not give this instruction. Give CALCRIM No. 224,

Circumstantial Evidence: Sufficiency of Evidence. [Citations.]”

       Defendant was charged with first degree burglary of residence while a person not

an accomplice was present. (§§ 459, 667.5, subd. (c).) The elements of the crime of

burglary are (1) unlawfully entering (2) a residence (3) with intent to commit a crime,

                                             12
such as larceny or theft. (§ 459.) Here, CALCRIM No. 225 was inappropriate because

defendant‟s intent or mental state was not the only element of the offense that rested

substantially or entirely on circumstantial evidence. Other elements of the offense, such

as identification of defendant and Goldman as the perpetrators, also rested substantially

or entirely on circumstantial evidence. Defendant argued there was insufficient evidence

that he was the perpetrator, because when Acosta observed the perpetrator, it was dark,

Acosta only saw a glimpse of him through a crack in the door, Acosta only saw the

perpetrator for a couple seconds, Acosta was under stress, and his description of the

perpetrator was not detailed. Defense counsel asserted that Acosta had no idea of who

broke into his home and the circumstantial evidence was insufficient to establish that

defendant was the perpetrator.

       (10) Whether the trial court erroneously denied defendant‟s motion to strike his

Three Strikes prior conviction under People v. Wallace (2004) 33 Cal.4th 738, 753-754

(Wallace).

       Defendant moved to have his prior strike conviction dismissed pursuant to section

1385. (People v. Superior Court (Romero ) (1996) 13 Cal.4th 497.) The trial court

denied defendant‟s motion. The court concluded defendant was “the perfect example of

why we have the Three Strikes law,” because he had a juvenile felony finding for

possession for sale; five violations of parole; two felony priors, including the felony

conviction strike for violating sections 245, subdivision (a)(2), and 12021; and two

misdemeanor priors. The court concluded defendant‟s criminal history reflected an

unwillingness to follow the law. There was no abuse of discretion in denying defendant‟s

                                             13
Romero motion. The court provided a proper basis for not dismissing defendant‟s prior-

strike-conviction allegation. (Wallace, supra, 33 Cal.4th at p. 754.)

          We have concluded our independent review of the record and find no arguable

issues.

          NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                               CODRINGTON
                                                                                         J.

We concur:


RAMIREZ
                          P. J.


McKINSTER
                             J.




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