California Court of Appeal Aug 31, 2015 No. D067342Unpublished
Filed 8/31/15 P. v. Albin CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
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. 2
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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AI Brief
AI-generated · verify before citing
Holding. The court held that the trial court did not abuse its discretion in admitting physical evidence despite a challenge to the chain of custody, nor did it abuse its discretion in denying the defendant's motion to dismiss strike priors.
Issues
Whether the trial court erred in admitting physical evidence where the officer who impounded the items did not testify at trial.
Whether the trial court abused its discretion in denying the defendant's motion to dismiss five of his six strike priors under the Three Strikes Law.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“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”