P. v. Daniels 12/7/07 CA3

SUPREME COURT CASES

Laws-info.com » Cases » California » Court of Appeal » 2008 » P. v. Daniels 12/7/07 CA3

State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: C052984

Case Date: 02/20/2008

Preview:Filed 12/7/07

P. v. Daniels CA3

NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, Plaintiff and Respondent, v. CLARENCE DANIELS et al., Defendants and Appellants.

C052984 (Super. Ct. Nos. 05F03867, 05F04126)

Convicted of a number of counts of robbery and burglary, defendants Clarence and Tyron Daniels appeal,1 arguing: (1) there was insufficient evidence to support their convictions of robbing J. C. (count 2); and (2) the trial court erred in imposing the upper term for robbery (count 1) based on facts not found by a jury or admitted by them. Clarence also argues that

his conviction for possession of stolen property (count 5) must be reversed because he was convicted of stealing the same

1

Because defendants have the same last name, we will refer to them by their first names for simplicity and to avoid confusion. 1

property and that his abstract of judgment must be amended to reflect a concurrent sentence on one of his burglary convictions (count 4). Agreeing with Clarence's latter two arguments, we will reverse his conviction for possession of stolen property (count 5) and direct the trial court to correct the abstracts of judgment for both defendants to reflect concurrent sentences on count 4. Finding no merit in defendants' remaining arguments,

we will affirm the judgments in all other respects. FACTUAL AND PROCEDURAL BACKGROUND As relevant here, the evidence showed that in May 2005, three men robbed King Jewelers at gunpoint. Present in the

store at the time were the owner, his 12-year-old daughter (J. C.), and an employee. In December 2005, defendants (and another individual2) were charged by amended consolidated information with three counts of robbery (counts 1 through 3) -- one count for each of the persons present in the store. Defendants were also charged with

burglary (count 4), and Clarence was charged with possession of property stolen from King Jewelers (count 5). The information

also contained two more counts of robbery (counts 6 and 8) and two more counts of burglary (counts 7 and 9) against Clarence relating to other incidents not directly at issue here. Counts

6 and 7 were also charged against Tyron, but counts 8 and 9 were

2

Because only Clarence and Tyron are before us on appeal, we do not discuss the third culprit further. 2

not.

The information also contained various enhancement

allegations. Following trial in April 2006, a jury found both defendants guilty of counts 1 through 4 and found Clarence guilty of count 5. The jury found both defendants guilty of counts 6 and

7, but were unable to reach a verdict against Clarence on counts 8 and 9, and the trial court declared a mistrial on the latter counts (which were later dismissed). As relevant here, the trial court chose count 1 as the principal term for both defendants and imposed the upper term of five years on both of them based on various aggravating circumstances the court found to exist. The trial court also

imposed but stayed sentence on both defendants as to count 4 without stating whether the sentences were concurrent or consecutive. Finally, the court imposed a consecutive, stayed Ultimately, Clarence received

sentence on Clarence for count 5.

an aggregate prison term of 28 years and Tyron received an aggregate term of 25 years. notices of appeal. DISCUSSION I Sufficiency Of The Evidence: Robbery Of J. C. Both defendants filed timely

Both Clarence and Tyron challenge the sufficiency of the evidence to support their convictions of robbing J. C. during the robbery at King Jewelers (count 2) because they contend there was no evidence any property was taken from her or that

3

she was in actual or constructive possession of any of the property taken. They are mistaken.

The People effectively concede that the testimony at trial did not supply any evidence property was taken from J. C., but they contend the surveillance video of the robbery, which was admitted into evidence, "may provide sufficient evidence to uphold the robbery of [J. C.]" To bolster their suggestion that

the video might provide the missing link, the People refer to the recitation in the probation reports (taken from a police report) that J. C. opened the cash register at gunpoint during the robbery, and one of the suspects took the cash from the register.3 In reply, Clarence does not dispute that the video may supply what was lacking in the trial testimony; he complains only about the People's reference to information from a police report that was not offered into evidence at trial. For his

part, Tyron contends he must prevail on his challenge "[u]nless the video clearly shows J. C. opening the cash register." Having now reviewed the video (which the parties should have done before filing their briefs), we find that it does indeed supply the evidence missing from the trial testimony. The video depicts J. C. opening the cash register for one of the robbers, and later depicts a robber removing things from the register. At trial, J. C.'s father testified that one of the

3

At trial, J. C. testified that she did not remember if she did anything with the cash register during the robbery. 4

things the robbers took during the robbery was cash from the cash register. "[I]n order to constitute robbery, property must be taken from the possession of the victim by means of force or fear." (People v. Nguyen (2000) 24 Cal.4th 756, 761.) "Actual

possession requires direct physical control, whereas constructive possession can exist when a person without immediate physical control has the right to control the property, either directly or through another person." v. Frazer (2003) 106 Cal.App.4th 1105, 1111-1112.) By opening the cash register, J. C. demonstrated possession -- actual or constructive -- of the money inside. Accordingly, (People

defendants' challenges to the sufficiency of the evidence of the robbery of J. C. (count 2) are without merit. II Clarence's Conviction For Possession Of Stolen Property Clarence was convicted of both robbing King Jewelers (counts 1, 2, and 3) and possessing some of the property stolen from King Jewelers (count 5). He contends -- and the People (See Pen. Code,

Download P. v. Daniels 12/7/07 CA3.pdf