Filed 8/31/15 P. v. Albin CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D067342

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD250964)

SHAWN M. ALBIN,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Louis R.

Hanoian, Judge. Affirmed.

         Siri Shetty, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Parag

Agrawal, Deputy Attorneys General, for Plaintiff and Respondent.
       A jury convicted Shawn M. Albin of one count of robbery (Pen. Code,1 § 211).

The court thereafter found true two prison priors (§ 667.5, subd. (b)); two serious felony

prior convictions (§ 667, subd. (a)(1)); and six strike priors (§ 667, subds. (b)-(i)).

       The court denied Albin's request to dismiss all but one of his strike priors. Albin

was sentenced to an indeterminate term of 25 years to life plus 10 years for the serious

felony prior convictions. The court also imposed an additional eight-month consecutive

sentence following probation revocation in a different case.

       Albin appeals contending the chain of custody for certain items of physical

evidence was not satisfied, thus the court erred in admitting the challenged items. In

addition, Albin contends the court abused its discretion in denying his motion to dismiss

five of the six strike priors. We will find no error and affirm.

                                 STATEMENT OF FACTS

       On August 28, 2013, between 5:00 p.m. and 6:00 p.m., Albin entered a Wells

Fargo bank in San Diego and approached a teller. Albin handed the teller a bank flyer

about home equity loans and asked her questions about it. Albin then handed the teller a

note and told her: "If you don't comply with this note, I'm going to shoot fire within three

seconds." The note stated: "Give me all 10s, 20s, 50s main drawer. No tracking devices.

See weapon." The teller saw what appeared to be the barrel of a gun.

       Albin then began counting. The teller grabbed cash from the drawer, including

"bait money" and handed it to Albin. Albin left the bank and another teller, who would



1      All further statutory references are to the Penal Code unless otherwise specified.
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later identify Albin as the robber, pressed the alert button. The crime was recorded on the

bank's surveillance video. Shortly after the robbery, a surveillance video from a Robbins

Brothers store at the same intersection as the bank showed a man remove the top layers of

his clothing and throw it into the store's gated courtyard. Store employees heard of the

robbery and noticed items of clothing in the store's courtyard. They alerted police.

       San Diego Police Detective Dewayne Glazewski found the items of clothing

which were gray jogging pants, a black short-sleeved shirt, and a black cap with a

Chargers emblem. The detective had reviewed the bank's surveillance video and believed

the items found were related to the robbery. The detective also observed a demand note,

and a Wells Fargo flyer. An identification card with Albin's picture on it was found in

the pants pocket. Subsequent investigation determined Albin's fingerprint was on the

demand note.

                                      DISCUSSION

                                             I

                                 CHAIN OF CUSTODY

       The items of physical evidence discovered by Detective Glazewski were actually

impounded by Officer David Campbell. Officer Campbell did not testify at trial, but the

detective did identify the items seized, explained the department's coding system for

evidence and also recognized the items from photographs taken at the time the items were

discovered. The trial court overruled the defense chain of custody objection, finding

there was adequate foundation that the items were the ones discovered, that the evidence



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was reliable and that any break in the "chain of custody" would go to the weight given

the evidence and not its admissibility.

                                    A. Legal Principles

       A trial court's decision on the admissibility of evidence is reviewed for abuse of

discretion. (People v. Hall (2010) 187 Cal.App.4th 282, 294.) Such decision will only

be overturned on appeal where the record shows a clear abuse of the court's discretion.

       The term "chain of custody" refers to foundational evidence which shows that an

item of physical evidence offered at trial is the same item that was seized by police at the

time of the crime. It not only aids in establishing identity, but also aids in determining if

the item has been altered or tampered with before it is presented at trial. Where there are

breaks in the chain of custody, a question may arise as to the reliability of the proffered

evidence. The courts have addressed chain of custody numerous times.

       In People v. Riser (1956) 47 Cal.2d 566, 580-581, the court dealt with a challenge

to fingerprint evidence. The court found the prosecution does not have to exclude all

possibility of tampering in order to permit admission of physical evidence.

       In People v. Wallace (2008) 44 Cal.4th 1032, the court dealt with the chain of

custody of a pair of socks that had been separated and placed in two envelopes. The

police did not fully comply with procedure that would have included initialing the third

envelope into which the two separate envelopes had been placed. Although the court

found the record of the chain of custody was "far from perfect," the court rejected the

defendant's claim that the foundation for admissibility was inadequate. (Id. at pp. 1061-



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1062.) The court in People v. Catlin (2001) 26 Cal.4th 81, 134, reached a similar

conclusion.

                                        B. Analysis

       Albin's challenge to the chain of custody of the clothes, hat, flyer, identification

card and demand note arises from the fact that Officer Campbell, who physically

impounded the items, did not testify. Instead, Detective Glazewski obtained the items

from police evidence storage and brought them to court. These items are not fungible

things such as drugs or money. The detective testified he recognized the items as those

he had seized. They had been photographed and he viewed the photographs and testified

the items he brought to court were those in the photographs. The detective also identified

the bar code tracking system used by the police department in securing evidence. He

testified the numbers on the items were those for this specific case. Two other witnesses

testified to the police evidence tracking system.

       The defense motion to exclude did not argue the evidence had been altered or

tampered with in any fashion. The trial court denied the motion to exclude the evidence,

finding the chain of custody, although not perfect, was adequate to insure the reliability

of the evidence. The court correctly found under the circumstances of this case that any

"break" in the chain of custody would go to the weight of the evidence, not its

admissibility. We agree with the trial court and find no error in the admission of the

items of physical evidence.




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                                              II

                    THE MOTION TO DISMISS FIVE STRIKE PRIORS

        The defense requested, pursuant to People v. Superior Court (Romero) (1996) 13

Cal.4th 497 that the court dismiss at least five of Albin's strike priors in order to impose a

determinate sentence. The defense argued the strike priors, occurring between 1990 and

1994 were remote and that his crimes since then have all been minor. The defense also

argued that Albin's mental health issues and his age justified dismissing strikes. The

court denied the motion.

        A trial court's decision to deny a motion to dismiss strike priors is reviewed under

the abuse of discretion standard of review. Under that standard we will not overturn such

decision unless the court's decision " 'falls outside the bounds of reason' under the

applicable law and the relevant facts." (People v. Williams (1998) 17 Cal.4th 148, 162

(Williams).) In determining whether to dismiss serious and/or violent felony priors the

trial court "must consider whether, in light of the nature and circumstances of his present

felonies and prior serious and/or violent felony convictions, and the particulars of his

background, character, and prospects, the defendant may be deemed outside the [Three

Strikes Law], in whole or in part, and hence should be treated as though he had not

previously been convicted of one or more serious and/or violent felonies." (Id. at p. 161.)

The trial court should also consider whether there are any extraordinary circumstances

which would justify finding a person with a lengthy record should be deemed to fall

outside the spirit of the Three Strikes Law. (People v. Carmony (2004) 33 Cal.4th 367,

378.)

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       In this case the trial court conducted the trial on the alleged prior convictions.

Accordingly, the court was very familiar with Albin's criminal history and the nature of

Albin's serious felony offenses. The record shows the trial court was aware of its

discretion and carefully exercised it in ruling on the motion to dismiss.

       In short, Albin has been committing crimes, in custody for crimes, or on probation

or parole almost constantly since 1990. He accumulated six strike priors and two prison

commitments before he committed the 2013 bank robbery in this case. It cannot be

seriously argued that the trial court abused its discretion in finding Albin fell fully within

the spirit of the Three Strikes Law as expressed in Williams, supra, 17 Cal.4th 148. The

court acted well with the range of its discretionary authority.

                                       DISPOSITION

       The judgment is affirmed.




                                                                    HUFFMAN, Acting P. J.

WE CONCUR:


                    McINTYRE, J.


                    O'ROURKE, J.




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