California Court of Appeal Jun 21, 2013 No. E056648Unpublished
Filed 6/21/13 P. v. Grayson CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
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 1
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.
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.
14
AI Brief
AI-generated · verify before citing
Holding. The court affirmed the defendant's conviction for first degree burglary and his 18-year sentence, finding no arguable issues or errors after an independent review of the record pursuant to People v. Wende.
Issues
Whether the trial court erred in denying the motion to suppress the in-field show-up identification.
Whether the admission of the police dispatch call and tattoo evidence constituted prejudicial error.
Whether the prosecutor committed misconduct by shifting the burden of proof during closing argument.
Whether the trial court abused its discretion in denying the motion to strike the prior strike conviction under People v. Romero.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“We have concluded our independent review of the record and find no arguable issues or errors. The judgment is affirmed.”
“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.”