People v. McFarland CA2/2 ( 2015 )

Filed 11/3/15 P. v. McFarland CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 TWO
THE PEOPLE, B258928
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA103500)
v.
ANTHONY DEIONDRE MCFARLAND,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County.
George Genesta, Judge. Affirmed as modified.
John L. Staley, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr., and Tita
Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
_______________________
In a four count information filed by the Los Angeles County District Attorney,
defendant and appellant Anthony Deiondre McFarland was charged with first degree
residential burglary (Pen. Code, § 459; count 1),1 grand theft of a firearm (§ 487, subd.
(d)(2), count 2), and receiving stolen property (§ 496, subd. (a), count 4).2 The
information also alleged as to count 1 that the offense was a serious or violent felony
requiring registration (§ 1170, subd. (h)(3)). It further alleged that appellant suffered two
prior serious or violent felony convictions for assault in 2009 (§ 245) and first degree
residential burglary in 2011 (§ 459), pursuant to the “Three Strikes” law (§§ 1170.12,
subds. (a)-(d), 667, subds. (b)-(j)) and served a prior prison term for a serious or violent
felony conviction (§§ 667, subds. (a)(1) & (b), 667.5). Appellant pleaded not guilty and
denied the special allegations.
The trial court granted appellant’s motion to bifurcate the prior conviction
allegations. The trial court subsequently advised appellant of his right to a jury, and he
waived that right with respect to the prior conviction allegations.
Trial on the underlying offenses was by jury. Following presentation of the
evidence, the trial court denied appellant’s motion to dismiss pursuant to section 1118.1.
The jury convicted appellant as charged.
Appellant made a Romero3 motion to strike his prior strike convictions. In a
sentencing memorandum, the prosecutor indicated that appellant faced “two strike
priors.” Following appellant’s admission of the truth of the prior conviction allegations,
the trial court found the allegations to be true and granted his Romero motion to dismiss
one strike allegation.
1 All further statutory references are to the Penal Code unless otherwise indicated.
2 The information also charged two additional defendants, Trevon Cinque Thomas
(Thomas) and Terrell Dante Anderson (Anderson), neither of whom are parties to this
appeal, with the same counts. Count 3, alleging dissuading a witness by force or threat,
pertained only to Thomas.
3 People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
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The trial court denied probation and sentenced appellant to a total term of 13 years
in state prison. It credited him with 386 days of presentence custody.
Appellant timely appealed the judgment. He assigns three errors: (1) Insufficient
evidence supports the conviction of count 2; (2) The trial court failed to obtain from
appellant a waiver of his constitutional rights with respect to his prior convictions; and
(3) The judgment should be modified to award appellant additional days of conduct
credit.
We conclude that the evidence sufficiently supports appellant’s conviction on
count 2. We also conclude that appellant was properly advised of his constitutional rights
with respect to his prior convictions and waived them. Thus, we affirm the judgment.
However, the abstract of judgment must be corrected to reflect 287 days of custody
credit.
FACTUAL BACKGROUND
I. Prosecution Evidence
Barbara Decarbo (Decarbo) had lived on Willow Creek Road in Diamond Bar
since 1966. She lived directly across the street from 24031 Willow Creek Road, where
her neighbor, Gretchen Kunze-Fahrney (Kunze-Fahrney), lived.
On September 12, 2013,4 before leaving her house at around 2:30 p.m., Kunze-
Fahrney locked all of the doors. At around 3:00 p.m., Decarbo was driving on Willow
Creek Road. She was almost home when she noticed a shiny black car with very dark,
tinted windows and no rear license plate on the road ahead of her. After Decarbo pulled
into her driveway and went inside, she saw the car again. The driver made a few U-turns
and drove back and forth three or four times on Willow Creek Road.
Soon thereafter, Decarbo saw a Black man walking on the sidewalk near Kunze-
Fahrney’s home. He walked onto the driveway, up the steps to the house, and toward the
front door. Instead of going up to the door, the man walked onto the pathway behind the
4 The People’s brief indicates that the crimes were committed on September 12,
2012. The record indicates otherwise. This date is significant for purposes of calculating
appellant’s presentence custody credits.
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retaining wall in front of Kunze-Fahrney’s house, to the back of the house. She also
noted that the car was parked at the bottom end of the street, near North Del Sol Lane.
Decarbo called 911 when she lost sight of the man behind Kunze-Fahrney’s house, but
still kept watch. She heard sirens and then saw the man she had seen earlier on the
sidewalk run, with another man, up the steep hill behind Kunze-Fahrney’s house. One of
the men had a backpack.
Also at around 3:00 p.m., another neighbor, Mary Ann Odriozola (Odriozola), had
stopped close to the parked black car, a Ford Taurus, and looked inside of it for about 35
to 45 seconds. She saw a man she later identified as Anderson in the driver’s seat, a man
she later identified as Thomas in the front passenger seat, and a man she later identified
as appellant in the passenger seat behind Thomas. She did not recognize the car or any of
the people inside of it.
After buying lunch, Odriozola returned home and saw a police car driving down
Willow Creek Road. She pulled over and got out of her car in time to see appellant and
Thomas run west from 24017 Willow Creek Road toward the house at 326 North Del Sol
Lane. She told police that she recognized the men from the parked Ford Taurus and that
the car did not have a license plate, but instead had a CarMax sticker or insert plate. She
identified Anderson and the car at an in-field showup.
Within six to seven minutes, Decarbo saw the first police cars arrive and two
helicopters flying over the area. She heard sheriff’s deputies order the men to put their
hands up. She went outside and looked up the hill to the next set of houses on North Del
Sol Lane. The two men were trying to jump over the fence onto the balcony of the house
directly behind Kunze-Fahrney’s house.
Los Angeles County Deputy Sheriff Saul Saucedo arrived in the area and parked
in front of the house located at 326 North Del Sol Lane. He saw a man come out of that
house, go back in, and close the door. He then saw two Black men jump over a fence
toward him onto the street side and jump right back into the backyard again of the same
house on North Del Sol Lane. Deputy Saucedo relayed the information to another deputy
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who had arrived, Aaron Schellar. While Deputy Saucedo got back into his patrol car,
Deputy Schellar went into the backyard of the house located at 326 North Del Sol Lane.
At the North Del Sol Lane house, Deputy Schellar saw a black backpack on the
ground in the backyard. A computer was protruding out from the backpack. Deputy
Schellar walked four to eight feet from the backpack to the cinder block wall at the rear
of the property line of the house. He looked over and down onto the property located
24017 Willow Creek Road. At first, Deputy Schellar only heard rustling noises on the
right side of that house, but then he saw two men run from the side of the house across
the grass. Deputy Schellar drew his gun and ordered the men to stop, put their hands up,
and get on the ground. The men (appellant and Thomas) complied, and Deputy Schellar
handcuffed both of them. Appellant and Thomas were out of breath and sweating.
Meanwhile, Deputy Saucedo had driven to Willow Creek Road and stopped at
24017. There, he saw one man (either appellant or Thomas) trying to jump the fence; he
ordered the man to stop. Deputy Saucedo drew his gun and ordered the man to show his
hands, but the man jumped back into the yard. After about two or three minutes at the
front of the house, Deputy Saucedo spoke to the homeowner, who said that another
officer was in the back of the house.
Salvador Apodoca (Apodoca), a peace officer and investigator with the
San Bernardino County District Attorney’s Office, received a call from a neighbor who
wondered if Apodoca was home. The neighbor informed Apodoca that Decarbo thought
someone was breaking into the house across the street from hers. Although Apodoca was
not home, he went home. He drove westbound on Willow Creek Road. As he passed by
Kunze-Fahrney’s house, he saw that the side gate, which was always locked, was
unlocked and open. Apodoca continued to drive on Willow Creek Road. At the
intersection at North Del Sol Lane, he saw a black, late-model Ford Taurus, with darkly
tinted windows, parked between two houses on North Del Sol Lane, near Willow Creek
Road. After seeing that the car had “paper plates,” Apodoca parked in Decarbo’s
driveway and knocked on her door. She was on the phone with 911. As they stood there,
Apodoca saw two men run up the slope at the Kunze-Fahrney house. He relayed the
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description of the men, including that one wore a hoodie, to the police dispatcher. Soon
thereafter, Apodoca also relayed the description of the Ford Taurus and the direction of
its travel, which at that point was eastbound on Willow Creek Road towards Golden
Springs Drive.
Apodoca contacted a detective, Chris Garcia, at the front of Kunze-Fahrney’s
house, identified himself, and shared what he knew. As Apodoca and Detective Garcia
went together to the back of the Kunze-Fahrney house, Apodoca noticed that the kitchen
door had been “broken out”; he also did not hear the Kunze-Fahrney dog barking.
Apodoca and Detective Garcia stayed in the backyard for about one minute until
Apodoca saw two men run down the slope nearby. Apodoca advised deputies that he saw
the men in the backyard at the house located at 24017 Willow Creek Road. When
Apodoca got there, he saw that deputies had two suspects prone on the grass in the
backyard. Apodoca identified appellant and Thomas at trial as the two men that the
deputies had detained.
When appellant and Thomas were taken from the backyard to the patrol car,
Apodoca warned them to think twice about committing burglaries in Diamond Bar.
Appellant responded, indicating that he would be “back.” Detective Garcia remembered
that Thomas, not appellant had said, “‘I’ll be back.’”
Deputy Sheriff Shawn Moreno drove appellant to the Walnut Sheriff’s Station.
During the booking process, Deputy Moreno recovered a silver and gold watch from
appellant’s pants pocket. Kunze-Fahrney’s first, middle, and last names were engraved
on the watch.
At around 3:00 p.m., Deputy Sheriff Nicholas Deleon was dispatched to the area
of North Del Sol Lane and Willow Creek Road. He was driving westbound on Willow
Creek Road, a block from Kunze-Fahrney’s house, when he spotted the dark-colored
Ford Taurus with paper license plates going in the opposite direction. The driver,
identified by Deputy Deleon as Anderson, was the sole occupant.
About 30 minutes later, when Kunze-Fahrney drove down Willow Creek Road to
go home, her street was already closed off, but officers allowed her to park in her
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driveway. Detectives escorted her through the house, which had been ransacked and left
in disarray.
Deputy Schellar found and removed a Gucci fanny pack attached to Thomas’s belt
under his shirt. He also recovered a pair of black gloves from Thomas. Thomas had
dropped one glove and was still holding one glove just before Deputy Schellar detained
him. Appellant had also just thrown a pair of white socks onto the grass nearby. Another
deputy, Afsoon Nafissi, collected and booked into evidence the following additional
items: a black iPhone, earphones, and white ear pieces. Deputy Nafissi also opened the
backpack and recovered a laptop computer, a men’s Fossil brand watch, and a gun.
Kunze-Fahrney identified her watch, which had her name engraved on it, her
husband’s Fossil brand watch, which had been on a small desk by their bedroom door,
her laptop computer, which she had left in the family room, and her husband’s revolver,
which he had kept in a closet shelf in the master bedroom. She did not recognize the
backpack holding her computer.
Detective Garcia recovered additional items from the Ford Taurus: five cell
phones, four gold metal pieces, a Car Max invoice in Anderson’s name for some car
repairs, and two watches.
Detective Garcia spoke separately to appellant and Thomas for about 15 to 30
minutes and to Anderson for about five to 10 minutes. Thomas identified his cell phone
as one of the five found in the car. Detective Garcia allowed him to make a call from the
phone. Appellant, Thomas, and Anderson were subsequently placed in a cell together,
during which they discussed their conduct during the offenses. Their conversation was
played for the jury.
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II. Defense Evidence
Neither appellant nor Thomas presented any evidence.
Anderson testified at trial. Anderson, who had two prior felony convictions for
possession of cocaine in 1990 and possession of marijuana in 2011, was an entertainer
and musician. Although he initially lied to Detective Garcia when he denied knowing
either appellant or Thomas, Anderson had actually known them for more than a year
prior to September 12, 2013. On that day, Anderson was going to visit a friend in
Moreno Valley, so he agreed to take appellant and Thomas to Diamond Bar. Thomas
directed Anderson to exit the freeway onto Willow Creek Road. Anderson drove up and
down that street a couple of times until Thomas told him to stop and he and appellant got
out of the car. Anderson was about to leave, but realized that Thomas’s phone was still
in the car; so, Anderson turned around at the end of the block. Anderson did not know
what appellant and Thomas were planning to do. He would not have given them a ride
had he known that they were going to burglarize a house.
DISCUSSION
I. Appellant’s conviction on count 2 is supported by sufficient evidence
Appellant argues that his conviction for grand theft of a firearm (count 2) must be
reversed because there was no evidence that he (as opposed to Thomas) possessed or took
the firearm from Kunze-Fahrney’s home.
“[T]he law is clear that a conviction of a criminal offense, including grand theft,
may be based on circumstantial evidence.” (People v. Orr (1974) 43 Cal.App.3d 666,
670.) Here, there is ample evidence that appellant participated in the burglary of Kunze-
Fahrney’s home. The issue presented is whether there is evidence that appellant (as
opposed to Thomas) actually took the firearm. Whether as the actual perpetrator or as an
aider and abettor, there is evidence that appellant took the firearm. (§ 31; People v.
McCoy (2001) 25 Cal.4th 1111, 1120 [“When two or more persons commit a crime
together, both may act in part as the actual perpetrator and in part as the aider and abettor
of the other, who also acts in part as an actual perpetrator”]; People v. Nguyen (1993) 21
Cal.App.4th 518, 529–530.)
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Appellant complains that the aiding and abetting theory was not presented to the
jury, and aiding and abetting instructions were not given for count 2. The appellate
record shows otherwise. The jury was told that appellant, Thomas, and/or Anderson
could be found guilty based on an aiding and abetting theory of the crime. The fact that
the prosecutor argued that appellant and Thomas were the actual perpetrators does not
preclude the jury from finding appellant guilty on the properly instructed aiding and
abetting theory.
II. Appellant was properly advised of his constitutional rights with respect to his prior
convictions and he waived those rights
“[A] defendant seeking to plead guilty is denied due process under the federal
Constitution unless the plea is voluntary and knowing.” (People v. Mosby (2004) 33
Cal.4th 353, 359 (Mosby).) Accordingly, the United States Constitution requires that a
defendant knowingly and voluntarily waive his privilege against self-incrimination, to a
jury, and to confront witnesses before a court may accept his guilty plea. (Mosby, supra,
at p. 359.) By statute, a defendant must also knowingly and voluntarily waive the same
rights before a court may accept his admission regarding prior felony convictions. (Id. at
p. 360.)
Here, the trial court advised appellant that he had a right to a jury trial for his prior
conviction allegations and that he could have the court determine the truth of the prior
conviction allegations; appellant expressly waived those rights. But, appellant urges
reversal because he was not expressly advised of his right to confront witnesses or to the
consequences of his admissions. We cannot agree. He was expressly told about his right
to a jury; he had just exercised his rights to remain silent and confront witnesses
following a jury trial on the issue of guilt for his underlying offenses; and he had been
previously convicted twice of other strike offenses. Under the totality of the
circumstances (Mosby, supra, 33 Cal.4th at p. 360), we conclude that appellant’s
admission and waiver were voluntary and intelligent.
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III. Appellant should be awarded 287 additional days of custody credit
Appellant accrued 337 days of custody credit for time actually spent in custody.
In addition, the trial court awarded him 49 conduct credits under section 2933.1.
Appellant contends that the trial court should have applied section 4019 when
determining his conduct credits and awarded him an additional 2885 days of custody
credits. The People agree that section 4019 governs the calculation of appellant’s
custody credits; however, it submits that appellant is entitled to only an additional 168
days of presentence custody credits, not 288 days.
As the parties agree, section 4019, subdivision (f), governs the calculation of
appellant’s presentence custody credits. That statute provides: “It is the intent of the
Legislature that if all days are earned under this section, a term of four days will be
deemed to have been served for every two days spent in actual custody.” (§ 4019,
subd. (f).) Here, appellant spent 337 days in actual custody. Under “the two-for-two
formula” set forth in section 4019, appellant was entitled to 336 days of conduct credit
for his 337 days served. (People v. Whitaker (2015) 238 Cal.App.4th 1354, 1362.)
Appellant was only awarded 49 days of presentence credit. The abstract of judgment
must be modified to add 287 days (336 – 49 = 287).
5 In his opening brief, appellant requests an additional 288 days of conduct credits;
in his reply brief, he requests an additional 287 days of conduct credits.
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DISPOSITION
The judgment is affirmed as modified. The abstract of judgment shall be modified
to reflect additional 287 presentence custody credits, for a total of 336 presentence
conduct credits.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________________, J.
ASHMANN-GERST
We concur:
______________________________, P. J.
BOREN
______________________________, J.
CHAVEZ
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