Filed 4/23/14 P. v. Hannah 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Shasta)
----
THE PEOPLE, C071651
Plaintiff and Respondent, (Super. Ct. No. 12F2464)
v.
DANIEL JAMES HANNAH,
Defendant and Appellant.
Defendant Daniel James Hannah was convicted by jury of attempted burglary,
burglary, and other crimes. Sentenced to an aggregate term of 12 years in state prison, he
appeals. He contends: (1) the trial court abused its discretion in denying his severance
motion, (2) there was insufficient evidence to establish that he committed burglary, (3)
the trial court erred by imposing separate, unstayed terms for burglary of a house and a
separate shop on the same property, and (4) the trial court erred by imposing a separate,
unstayed term for burglary as well as for both grand theft of a firearm and possession of
ammunition by a convicted felon. Only the last contention has merit. We therefore
modify the judgment and affirm the judgment as modified.
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FACTS AND PROCEDURE
Howard Drive Attempted Burglary
On June 14, 2011, Diana Turner was living on Howard Drive in Redding. In the
early afternoon, she heard the doorbell ring incessantly but did not answer the door.
After the doorbell stopped ringing, she heard a pounding sound in the backyard. She
thought it was her landlord. Turner looked into the backyard and saw defendant trying to
break in to the house. She called 911.
Turner went outside and told a woman who had been driving in the neighborhood
that two men who were walking away from Turner’s house had tried to break in. The
two men separated, and the woman followed defendant. Eventually, police officers
arrived and arrested defendant.
An officer who checked Turner’s house found no evidence of actual entry by
defendant, but Turner later called the officer to report that she had found a
methamphetamine pipe in the bathroom. The window to the bathroom was partially open
and the screen was off.
Boulder Ridge Trail Burglaries
In June 2011, Glen Bates lived on Boulder Ridge Trail in Shingletown. He had 20
acres, on which were situated a house with a garage and an outbuilding used as a shop.
Bates left for a few days on vacation. When he returned, he discovered that his house
and shop had been burglarized.
In the garage, Bates had a gun safe with approximately 22 firearms, along with
ammunition, gold and silver, and other items. The safe had been cut open, and the
contents were gone.
In a freezer in the garage, Bates had ribs and ribeye steaks that he had packaged
using a vacuum sealer. They were also gone.
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Other items taken from the property included a television, a knife set, a shotgun, a
computer, platinum, jewelry, baseball cards, cash, an unopened package of underwear, a
backpack, keys, a coin collection, a video game console, and some video game discs.
Someone had also broken into the shop. Many of the items Bates kept in the shop
were in the garage.
Sheriff’s deputies did an investigation at the Boulder Ridge Trail property but
found no evidence there connecting defendant to the scene.
Possession of Personal Property Stolen from Boulder Ridge Trail Property
On June 25, 2011, a backpack taken from the Boulder Ridge Trail property was
found by police. Inside the backpack were several pairs of underwear, a flashlight, cash,
silver coins, platinum, jewelry, and gold coins, all identified by Bates as coming from his
property. Also in the backpack were three Win-River Player’s Club cards bearing
defendant’s name.
On June 30, 2011, defendant was stopped in a car by a Redding police officer. In
the car were found a proof-set of coins, jewelry, a video game disc, cash, and several live
rounds of “35 WCF” ammunition. In a search of defendant’s home the same day,
officers found books with coins in them, .357-caliber ammunition, and a video game
console and discs. In defendant’s freezer were ribs and ribeye steaks in the same
packaging Bates had used. Bates testified that the items found in defendant’s car and
home were from Bates’s property. He also testified that the “35 WCF” ammunition had
been in his gun safe and that it was a very unusual caliber no longer manufactured.
Convictions and Sentencing
A jury convicted defendant of attempted first degree burglary of the home on
Howard Drive. (Pen. Code, §§ 459, 664.) It also convicted defendant of first degree
burglary of the Boulder Ridge Trail home (Pen. Code, §§ 459, 460, subd. (a)) and second
degree burglary of the shop (Pen. Code, §§ 459, 460, subd. (b)), as well as grand theft of
a firearm (Pen. Code, § 487, subd. (d)(2)). The jury found true the allegation that
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defendant took property valued in excess of $100,000 and caused a loss in excess of
$65,000 at the Boulder Ridge Trail property. (Pen. Code, §§ 1203.045, subd. (a);
12022.6, subd. (a)(1).) Defendant pleaded no contest to being a convicted felon in
possession of ammunition (Pen. Code, former § 12316, subd. (b)) and admitted that he
had a prior conviction (Pen. Code, § 667.5, subd. (b)) and that he committed the Boulder
Ridge Trail offenses while on bail (Pen. Code, § 12022.1, subd. (a)).
The trial court sentenced defendant to 12 years in state prison, as follows:
six years (upper term) for first degree burglary of home on Boulder Ridge Trail
property,
consecutive eight months for attempted first degree burglary of Howard Drive
home,
consecutive eight months for second degree burglary of outbuilding on Boulder
Ridge Trail property,
consecutive eight months for possession of ammunition by a convicted felon,
concurrent eight months for grand theft of a firearm,
consecutive one year for causing a loss in excess of $65,000 at the Boulder Ridge
Trail property,
consecutive two years for committing the Boulder Ridge Trail crimes while on
bail,
and consecutive one year for his prior felony conviction.
DISCUSSION
I
Denial of Severance Motion
Defendant contends the trial court abused its discretion and violated his
constitutional due process and fair trial rights when it denied his pretrial motion to sever
count 1 (Howard Drive property) from the remaining counts (Boulder Ridge Trail
property). To the contrary, the trial court properly denied the motion to sever.
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Penal Code section 954.1 authorizes the joinder of offenses “of the same class of
crimes or offenses [that] have been charged together in the same accusatory pleading . . . ,
[and] evidence concerning one offense . . . need not be admissible as to the other . . .
offenses before the jointly charged offenses may be tried together before the same trier of
fact.”
However, severance may be constitutionally required if joinder of the offenses
would be so prejudicial as to deny the defendant a fair trial. (People v. Musselwhite
(1998) 17 Cal.4th 1216, 1244.) “A defendant, to establish error in a trial court’s ruling
declining to sever properly joined charges, must make a ‘ “clear showing of prejudice to
establish that the trial court abused its discretion . . . .” ’ [Citations.] A trial court’s
denial of a motion to sever properly joined charged offenses amounts to a prejudicial
abuse of discretion only if that ruling ‘ “ ‘ “ ‘falls outside the bounds of reason.’ ” ’ ” ’
[Citation.]” (People v. Soper (2009) 45 Cal.4th 759, 774, italics omited.)
In assessing the trial court’s exercise of discretion, we consider whether the
benefits of joinder outweigh the prejudice to the defendant. (People v. Hill (1995) 34
Cal.App.4th 727, 735.) Joinder benefits the state by conserving judicial resources and
public funds. Prejudice to the defendant is determined from several factors considered by
the trial court in its ruling on the motion, namely “whether evidence of the crimes to be
tried jointly would or would not be cross-admissible; whether some of the charges are
unusually likely to inflame the jury against the defendant; whether the prosecution has
joined a weak case with a strong case (or with another weak case), so that a ‘spillover’
effect from the aggregate evidence on the combined charges might alter the outcome as to
one; and whether any of the joined charges carries the death penalty. [Citations.]”
(People v. Musselwhite, supra, 17 Cal.4th at p. 1244; Williams v. Superior Court (1984)
36 Cal.3d 441, 452-454.)
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Because the law favors joinder, defendant must make a stronger showing of
potential prejudice than would be required to exclude other crimes evidence in a severed
trial. (People v. Arias (1996) 13 Cal.4th 92, 127.)
In the trial court, defendant agreed that the crimes were of the same class under
Penal Code section 954.1. But defendant argued that joinder in this case would be
prejudicial. His attorney said: “[W]e have one burglary where he is found in possession
of stolen property but it is weeks later, and we have another so-called burglary where he
is ID’d but there is really nothing stolen at all, and we have a real classic issue of mixing
and mashing the burglary on the one hand and the ID on the second burglary and making
it two burglaries.” To the contrary, the factors relevant to joinder favored denial of the
severance motion.
The evidence of the crimes was cross-admissible. For example, defendant’s
burglary of the Boulder Ridge Trail property was evidence that he intended to steal from
the Howard Drive property, not just to break in. There was no evidence that defendant
took anything from the Howard Drive property, but the Boulder Ridge Trail burglary
helped establish that defendant’s intent in trying to break into the Howard Drive property
was to steal something. Also, the Howard Drive attempted burglary was probative as to
whether defendant burglarized the Boulder Ridge Trail property or instead merely
received stolen property because the Howard Drive attempted burglary showed
defendant’s method of operation – that is, breaking into the residence himself to obtain
others’ property. Accordingly, the crimes were cross-admissible. (See People v. Soper,
supra, 45 Cal.4th at pp. 778-779.)
There was also no problem with inflaming the jury. Nothing about the offenses
would likely cause a jury to act irrationally and disregard the court’s instructions.
The same is true with the danger of bolstering a weak case with a strong case.
Although each alleged burglary had its own challenges of proof for the prosecution (for
example, whether defendant intended to enter the Howard Drive property and whether
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defendant was the actual burglar as to the Boulder Ridge Trail property), neither case was
particularly strong or weak. In light of the cross-admissibility, joinder was not
prejudicial in this regard.
And finally, the case did not involve the death penalty.
None of the considerations concerning prejudice strongly favored severance.
Therefore, the trial court’s denial of defendant’s motion to sever count 1 from the
remaining counts was not an abuse of discretion and did not violate defendant’s
constitutional due process and fair trial rights.
II
Sufficiency of Evidence of Boulder Ridge Trail Burglary
Defendant claims there was insufficient evidence that he burglarized the house and
shop on the Boulder Ridge Trail property because none of the physical evidence on the
property tied defendant to the scene and it is more likely that others committed the
burglaries because they knew the owner would be gone. The contention is without merit.
When a defendant challenges the sufficiency of the evidence, we determine
whether a reasonable trier of fact could have found sufficient evidence of the defendant’s
guilt. The evidence must be reasonable, credible and of solid value. We consider the
entire record in the light most favorable to the jury’s verdict and presume in support of
that verdict the existence of every fact that could be reasonably deduced from the
evidence. (People v. Smith (2005) 37 Cal.4th 733, 738-739.) The standard is whether
substantial evidence supports the jury’s verdict, not whether evidence proves the disputed
issue beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 318-319 [61
L.Ed.2d 560, 573-574]; People v. Crittenden (1994) 9 Cal.4th 83, 139.) The same
standard of review applies when a conviction rests, as here, on circumstantial evidence.
(People v. Kraft (2000) 23 Cal.4th 978, 1053.)
Even where there is no evidence at the scene of a burglary tying the defendant
personally to the scene, possession of recently stolen property is so incriminating that
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only slight additional evidence beyond the possession itself is required to warrant a
conviction for burglary. (People v. McFarland (1962) 58 Cal.2d 748, 754; People v.
Hopkins (1963) 214 Cal.App.2d 487, 492.) Suspicious circumstances or conduct tending
to show guilt will constitute corroboration justifying an inference of a taking. (People v.
Mendoza (2000) 24 Cal.4th 130, 176.)
Here, defendant focuses on the fact that nothing found at the Boulder Ridge Trail
property tied him to that scene – no DNA, no footprints, nothing. But the absence of
evidence at the scene does not establish that the evidence, overall, was insufficient to
support the burglary convictions. The sheer amount and variety of property from the
Boulder Ridge Trail property found to be in defendant’s possession in various places
under his control supports an inference that he, himself, took the property from the
Boulder Ridge Trail property rather than acquiring it from someone else. While some
time had passed (perhaps up to two weeks but certainly no more) since the Boulder Ridge
Trail property burglaries, so much of the personal property taken from the Boulder Ridge
Trail property was found in places under defendant’s control that it is hard to imagine any
scenario other than his having personally taken the property that would lead to his
possession of all those items and in such diverse places.
Also, the fact that defendant tried to cast suspicion on others of committing the
burglary does not establish that the evidence was insufficient. Defendant notes that two
men who were working on property adjacent to the Boulder Ridge Trail property knew
that the owner would be absent from the property for an extended period of time. Casting
suspicion on those men may have been a desirable trial strategy, but it does not support
defendant’s argument on appeal that the evidence was insufficient that he committed the
burglaries.
Therefore, the evidence was sufficient to sustain the burglary convictions.
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III
Separate Punishment for Buildings on Boulder Ridge Trail
Defendant argues that the trial court improperly imposed punishment in violation
of Penal Code section 654, which prohibits double punishment for the same act or
omission. He contends that he could not be punished separately for the burglaries of the
home and the shop on Boulder Ridge Trail. This argument is without merit.
“ ‘[Penal Code] Section 654 precludes multiple punishments for a single act or
indivisible course of conduct. [Citation.]’ [Citation.]” (People v. Galvez (2011) 195
Cal.App.4th 1253, 1262.) When it applies, “the accepted ‘procedure is to sentence
defendant for each count and stay execution of sentence on certain of the convictions to
which [Penal Code] section 654 is applicable.’ [Citations.]” (People v. Jones (2012) 54
Cal.4th 350, 353.) “ ‘Whether a course of criminal conduct is divisible and therefore
gives rise to more than one act within the meaning of [Penal Code] section 654 depends
on the intent and objective of the actor. If all of the offenses were incident to one
objective, the defendant may be punished for any one of such offenses but not for more
than one.’ [Citation.]” (People v. Correa (2012) 54 Cal.4th 331, 336.) “A trial court’s
[express or] implied finding that a defendant harbored a separate intent and objective for
each offense will be upheld on appeal if it is supported by substantial evidence.
[Citation.]” (People v. Blake (1998) 68 Cal.App.4th 509, 512.)
Defendant cites cases in which defendants were punished for both the burglary and
the crime committed inside the structure, such as theft or robbery. (See, e.g., People v.
Alford (2010) 180 Cal.App.4th 1463, 1468 [burglar may not be separately punished for
theft]; People v. Smith (1985) 163 Cal.App.3d 908, 912 [burglar may not be separately
punished for robbery].) Those cases are inapposite because, here, the house and shop
were separate structures that necessarily were unlawfully entered at separate times.
Penal Code section 654 notwithstanding, multiple burglary punishments may
lawfully be imposed for each separate felonious entry. (See, e.g., People v. James (1977)
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19 Cal.3d 99, 119 (James) [burglary of separate office suites within single commercial
building each separately punishable]; People v. O'Keefe (1990) 222 Cal.App.3d 517, 522
[multiple burglaries of several dormitory rooms separately punishable] (O’Keefe); see
also, In re William S. (1989) 208 Cal.App.3d 313, 318 [two burglaries of same house
several hours apart separately punishable because “second entry . . . was inspired by a
desire to purloin additional loot”].)
Defendant’s argument is without merit because he feloniously entered two
separate buildings. Any other conclusion would allow defendant to burglarize as many
buildings as he desired and get punished just once, as long as the buildings happened to
be on the same property. That is not the rule. (See James, supra, 19 Cal.3d at p. 119.)
Defendant tries to distinguish O’Keefe, supra, 222 Cal.App.3d at page 522, in
which the defendant was properly punished for multiple burglaries of dormitory rooms
under one roof. He claims that the distinguishing factor is that the defendant there took
property from multiple victims but here there was only one victim. This attempt to
distinguish O’Keefe does not help defendant. The principle followed in O’Keefe was an
exception to the general rule that a defendant may be punished only once for entering
each structure – that exception coming when separate victims leased the separate rooms
under the same roof. Here, the exception is not relevant to our consideration because
defendant entered multiple unconnected structures.
Therefore, the evidence was sufficient to justify the trial court in concluding that
defendant harbored separate intents and divisible courses of conduct as to the two
structures and properly imposed punishment for each burglary.
Defendant also contends that punishing him separately for the two burglaries
violated his constitutional due process rights because it violated Penal Code section 654.
That contention is without merit because there was no violation of the statute.
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IV
Separate Punishment for Theft of Firearm and Possession of Ammunition
Defendant contends, and the Attorney General concedes, that the trial court erred
by not staying punishment for theft of a firearm and possession of ammunition by a
convicted felon. We also agree.
Penal Code section 654 precludes punishment for both burglary and for the theft
of the personal property the burglar entered the structure to steal. (People v. Alford,
supra, 180 Cal.App.4th at p. 1468.) The same section precludes punishment for both
burglary and possession of the item stolen, even when possession of that stolen item is a
crime because the defendant is a convicted felon. (See People v. Atencio (2012) 208
Cal.App.4th 1239 [defendant may not be punished separately for theft of firearm and
subsequent possession of firearm by convicted felon].)
The trial court imposed a concurrent term of eight months for grand theft of a
firearm that he obtained during the burglary and a consecutive term of eight months for
possession by a convicted felon of ammunition that he also obtained in the burglary.
Those terms must be stayed pursuant to Penal Code section 654.
DISPOSITION
The judgment is modified by staying, pursuant to Penal Code section 654, the
terms imposed for grand theft of a firearm and possession of ammunition by a convicted
felon. As modified, the judgment is affirmed. The trial court is directed to prepare an
amended abstract of judgment and send it to the Department of Corrections and
Rehabilitation.
NICHOLSON , Acting P. J.
We concur:
BUTZ s, J.
MAURO , J.
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