People v. Rogers CA2/6 ( 2020 )

Filed 12/16/20 P. v. Rogers CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX
THE PEOPLE, 2d Crim. No. B296696
(Super. Ct. No. 2018024455)
Plaintiff and Respondent, (Ventura County)
v.
DANIEL STEVEN ROGERS,
Defendant and Appellant.
Daniel Steven Rogers appeals a judgment following his
conviction for home invasion robbery (Pen. Code,1 §§ 211, 213,
subd. (a)) and conspiracy to commit a crime (§ 182, subd. (a)(1)).
He fell within the purview of the “Three Strikes” law and the
trial court sentenced him to an aggregate prison sentence of 17
years. We conclude, among other things, that: 1) sufficient
evidence corroborated the evidence presented against him by his
accomplices, and 2) the trial court erred by sentencing him to a
concurrent 12-year sentence on the conspiracy count. (§ 654.)
1 All statutory references are to the Penal Code.
We modify the judgment to stay the sentence on the conspiracy
count. As so modified, the judgment is affirmed.
FACTS
On June 7, 2017, Aaron Smith reported to police that three
African-American men entered his home, assaulted him, and took
cash from a table in his residence. The men who attacked Smith
were wearing masks. Smith testified he was unable to identify
the men who attacked him because their faces were covered.
Jenny Batdorj, Smith’s neighbor, made a 911 call to police.
In that call she said she saw “[a] bunch of people” running from
Smith’s residence screaming “he’s dead, he’s dead.” She said that
“two of ‘em ran” to one side of the building and “two of ‘em ran” to
the other side.
On August 16, 2017, the police interviewed Brandon
Jefferson. Jefferson admitted that he, along with Xavier Smith,
Brandon Dreher, and Rogers, committed the June 7th robbery.
He said Rogers was the “lookout.” The victim Aaron Smith had
owed Jefferson money for pills he had supplied to Smith.
Jefferson testified Smith sold prescription drugs. Rogers
texted Jefferson stating, “What’s up with TO, dude [Aaron
Smith].” Jefferson responded on June 7, 2017, that Smith “just
got a shipment . . . . he’s loaded.” Rogers responded, “[L]et’s go
scope the scene and then we can do it.”
In August 2017, Dreher was interviewed by the police. He
confessed that he was involved in the June 7th crime. He said he
and Rogers acted as lookouts.
About two months after the June 7th robbery, Sheriff’s
Deputy James Douglas interviewed Rogers. In response to a
question about where he was on June 7, Rogers said he was
watching his girlfriend’s son. Douglas testified that Rogers’s
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girlfriend had sent Rogers a text message immediately after the
time the robbery took place. In that message she asked Rogers
why he left her child alone. Rogers responded to her message by
stating he was in Thousand Oaks “performing a liq.” Douglas
testified a “liq” is a slang term meaning a criminal act such as a
burglary or robbery.
DISCUSSION
Corroboration of the Evidence Presented by The Accomplices
Rogers contends the judgment must be reversed because
there was insufficient evidence to corroborate the evidence the
People presented from his accomplices. We disagree.
Evidence presented by accomplices to a crime must be
corroborated. (People v. Williams (2013) 56 Cal.4th 630, 678-
679.) “ ‘ “The trier of fact’s determination on the issue of
corroboration is binding on the reviewing court unless the
corroborating evidence should not have been admitted or does not
reasonably tend to connect the defendant with the commission of
the crime.” ’ ” (Ibid.) “ ‘ “The corroborating evidence may be
circumstantial or slight and entitled to little consideration when
standing alone, and it must tend to implicate the defendant by
relating to an act that is an element of the crime.” ’ ” (Id. at
p. 679.) “ ‘ “The corroborating evidence need not by itself
establish every element of the crime, but it must, without aid
from the accomplice’s testimony, tend to connect the defendant
with the crime.” ’ ” (Ibid.)
Here there was sufficient corroborating evidence. Batdorj’s
911 call corroborated Jefferson’s statement to police that there
were four individuals involved in the June 7th crime.
Rogers states, “Batdorj actually testified that she did not
know exactly how many persons she saw running from Aaron
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Smith’s apartment.” But he selectively cites only a portion of her
testimony. Batdorj was asked about the number of people she
saw running from Smith’s apartment. She initially answered, “I
don’t know exactly, but I would say probably three or four.” She
did not remember her 911 call. But she was later shown the 911
transcript and she was asked, “Did you say anything about four
of them might be there?” Batdorj responded, “Yeah, I did.”
Moreover, the jury could reasonably find that it was more
than highly probable that her 911 call in 2017 provided more
accurate information about the number of individuals than her
memory about the event in 2019 when she testified. In her 911
call, she provided police with specific information about the
number of men who ran from the apartment and the location
they ran to. She said two men ran to one side of the building and
two ran to the other side. In 2017, she provided the information
to the police immediately after the crime took place when her
memory was fresh. That her memory of the incident was not as
clear in 2019 is not surprising. It is well established that the
passage of time “may impair memories.” (People v. Nelson (2008)
43 Cal.4th 1242, 1251.) In her 911 call, she also said she heard
“screaming like he’s dead, he’s dead.” This supported a
reasonable inference that the four men were running away
because they mistakenly believed Smith died during the robbery.
Rogers claims there was cell phone evidence introduced,
but it was not precise enough to place him “directly” at Smith’s
apartment. He contends it could only provide a rough estimate
that his “phone was within 2.3 miles and one mile of Aaron
Smith’s apartment the night of the incident.” But Kathryn
Munyon, a sheriff’s department’s “intelligence analyst,” testified
those distances related to the closest cell phone towers that were
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utilized at the time of the crime. That evidence may not have the
precision of a GPS locator, but the jury could find it was evidence
showing that it was more than highly probable that he was in the
area where the crime took place at the time of the robbery.
(People v. Vu (2006) 143 Cal.App.4th 1009, 1022-1023.) Cell
phone evidence may be introduced to show that a defendant’s
alibi is false. (Id. at p. 1023.) “[F]alse or misleading statements
made to authorities may constitute corroborating evidence.” (Id.
at p. 1022.) A showing that the defendant lied to the police may
prove consciousness of guilt. (Id. at p. 1029.) The cell phone
evidence showed that Rogers lied to the police about his
whereabouts at the time of the robbery and that he told that lie
because of his consciousness of guilt.
The text messages between Rogers and his girlfriend were
highly incriminating. These showed his participation in the June
7th crime. In one message Rogers admitted that on June 7 he
was “performing a liq.” The term “liq” is slang for a criminal act
such as a burglary or robbery. The text messages were additional
evidence showing Rogers had lied to the police about his
whereabouts at the time of the June 7th crime. It was also
additional evidence showing his consciousness of guilt. Moreover,
the text messages between Rogers and Jefferson provided further
corroboration regarding Rogers’s motive, plan, and participation
in the crime against Smith. When Jefferson texted Rogers on
June 7, 2017, to inform him that Smith “just got a shipment . . .
he’s loaded,” Rogers replied, “So let’s go scope the scene and then
we can do it.” This was highly incriminating evidence. As the
People note, Rogers’s “own statements sufficiently corroborated”
what the accomplices claimed.
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Sentencing
The trial court sentenced Rogers to an aggregate term of 17
years. It imposed six years for the robbery count; it doubled that
to 12 years because Rogers had a prior strike conviction. The
court then added a consecutive five years for a true finding on a
prior prison term enhancement. (§ 667, subd. (a)(1).) The court
then imposed a concurrent 12-year sentence for the conspiracy
count.
Rogers contends the trial court erred by sentencing him to
the 12-year concurrent sentence for conspiracy because the
conspiracy contemplated only the act performed in the
substantive offense. The People agree. They claim the sentence
on the conspiracy count must be stayed.
The trial court found “[t]he crimes and their objectives were
not independent from” each other. (Italics added.) “ ‘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.’ ”
(People v. Correa (2012) 54 Cal.4th 331, 336, § 654.) Here the
court imposed a 12-year concurrent sentence for the conspiracy
count. Because the court found the offenses were incident to one
objective, it was required to stay the sentence on the conspiracy
count. (Ibid.; § 654; People v. Alford (2010) 180 Cal.App.4th 1463,
1468.)
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DISPOSTION
The judgment is modified by imposing and staying the
sentence on the conspiracy count. The trial court is directed to
prepare and serve a new abstract of judgment. As so modified,
the judgment is affirmed. (People v. Alford, supra, 180
Cal.App.4th at p. 1474.)
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
YEGAN, J.
PERREN, J.
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David R. Worley, Judge
Superior Court County of Ventura
______________________________
Earl E. Conaway III, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Zee Rodriguez and Christopher G. Sanchez,
Deputy Attorneys General, for Plaintiff and Respondent.
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