People v. Sowell CA2/8

Filed 7/24/15 P. v. Sowell CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE, B256340

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. SA084462) v.

MICHAEL OKEEFE SOWELL et al.,

Defendants and Appellants.

APPEAL from judgments of the Superior Court of Los Angeles County, Mark E. Windham, Judge. Affirmed. Russell S. Babcock, under appointment by the Court of Appeal, for Defendant and Appellant Michael Okeefe Sowell. John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant Derrick Allen Palmer. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Zee Rodriguez and David Zarmi, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendants Derrick Allen Palmer and Michael Okeefe Sowell were convicted of one count of first degree residential burglary and one count of grand theft. Identity was not an issue at trial. Jurors must have accepted the prosecution’s theory that Palmer and Sowell removed a television from the home of Brian Happy. Jurors must have rejected Palmer’s testimony that the television had been abandoned on the sidewalk as well as defendants’ argument that they were operating under a mistake of fact.1 On appeal, Sowell argues the record lacks substantial evidence to support his convictions, and the prosecutor committed misconduct by referring collectively to Palmer and Sowell during her rebuttal argument. Sowell’s contentions lack merit, and we affirm his convictions. Palmer’s attorney filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) identifying no issue and requesting that this court review the record and determine whether any arguable issue exists on appeal. We find no arguable issue on appeal and affirm Palmer’s convictions. FACTS AND PROCEDURE The victim, Brian Happy, testified that on June 19, 2013, he left his home about 11:30 a.m., locked the front door, and set his alarm system. That afternoon about 1:00 p.m., he received a telephone call from someone at the company monitoring his alarm, informing him that his home had been burglarized. Shortly afterwards, Happy returned home and discovered that his large plasma television, which had been in his living room, was missing. The television cost $2,713. Happy testified that he had not placed any trash cans or property out on the sidewalk. He further testified that he did not give Sowell or Palmer permission to take his television. Happy estimated the plasma television weighed between 50 and 100 pounds. When Happy returned home, he noticed that his front door was damaged, suggesting a forced entry. The front door had paint removed, and the marks appeared to have been made by a prying tool. Additionally, wood was separated from the door. The door looked as if someone had forcefully kicked it.