People v. Simmons CA5 ( 2023 )

Filed 5/9/23 P. v. Simmons CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F084185
Plaintiff and Respondent,
(Super. Ct. No. 21CR-03391)
v.
YVETTE MARIE SIMMONS, OPINION
Defendant and Appellant.
THE COURT *
APPEAL from a judgment of the Superior Court of Merced County. Ronald W.
Hansen, Judge (Retired Judge of the Merced Super. Ct. assigned by the Chief Justice
pursuant to art. VI, § 6 of the Cal. Const.).
Jason Szydlik, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and
Ismah Ahmad, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Hill, P. J., Levy, J. and DeSantos, J.
Defendant Yvette Marie Simmons contends on appeal that her case must be
reversed and remanded because she was prejudiced by the trial court admitting irrelevant
evidence. We affirm.
PROCEDURAL SUMMARY
On March 3, 2022, the Merced County District Attorney filed a first amended
information charging defendant with receiving stolen property exceeding $950 in value
(Pen. Code, § 496, subd. (a);1 count 1); conspiracy to commit burglary (§§ 182,
subd. (a)(1) & 459; count 2); and conspiracy to receive stolen property exceeding
$950.00 in value (§§ 182, subd. (a)(1), 496, subd. (a); count 3).
On March 10, 2022, the jury found defendant guilty on count 1. It did not reach a
verdict on either conspiracy count; the court had instructed it not to if it found defendant
guilty on count 1.
On April 4, 2022, defendant was sentenced to 16 months (the low term) and
denied probation.
On April 4, 2022, defendant filed a notice of appeal.
FACTUAL SUMMARY
In May 2018, Russell M.2 had his large musical instrument collection, consisting
of about 200 items worth approximately $147,000, stored in a temperature controlled unit
of a storage facility in Merced. He had a round padlock on the unit to protect the
collection.
On May 12, 2018, defendant went with Ernest L. to the Merced storage facility in
Ernest’s van. Neither she nor Ernest rented a storage unit there. Portions of Ernest’s
van’s rear license plate were covered with cardboard. They drove the van to the
1 All statutory references are to the Penal Code unless otherwise noted.
2 Pursuant to California Rules of Court, rule 8.90, we refer to some persons by their
first names. No disrespect is intended.
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second floor of the facility, where Russell’s unit was located. Defendant and Ernest
looked around the second floor at several of the storage units. The human resources
director of the Merced storage facility testified that he found later that someone had
tampered with the security camera on the second floor by turning it to face upward, away
from the storage units.
The next day, May 13, 2018, Ernest and defendant returned to the Merced storage
facility with defendant’s van as well as Ernest’s van.
On May 27, 2018, Russell went to the Merced storage facility to pick up some of
the musical instruments in his collection from his unit and discovered all the contents of
his unit missing. He notified the Merced Police Department of his missing musical
instrument collection that day.
On June 6, 2018, Russell and the police reviewed the storage facility’s
surveillance footage and still photos taken from the surveillance footage. The next day, a
detective also reviewed the surveillance footage. After reviewing the footage, the
detective went to Ernest’s residence to arrest him. He discovered both Ernest’s van and
defendant’s van at Ernest’s residence.
After the instruments were taken from Russell’s unit at the Merced storage
facility, Russell began to monitor online auctions to see if any of the missing musical
instruments from his collection were being sold there. In July 2018, Russell discovered a
user on an online auction, Charles C., selling several of Russell’s missing musical
instruments on the website. Police assisted Russell in retrieving those items from
Charles.
The discovery of Charles on the online auction led police to a storage unit rented
by Charles and a unit rented by another person, Bridget O., at a storage facility in Tracy,
California.
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Defendant also rented a unit at the same Tracy storage facility from approximately
April 2018 until July 2018. During that time period, Ernest accessed defendant’s storage
unit there, and Ernest and defendant both frequented Charles’s and Bridget’s units.
After executing a search warrant, police located several of Russell’s instruments in
Bridget’s unit at the Tracy storage facility. In total, Russell estimated that he recovered
between 15 to 20 percent of his collection, but never recovered the remainder.
On March 4, 2022, the prosecution asked Russell, “[T]ell us about the [musical
instrument] collection you had before it was taken.” Russell responded with his
first statement about his future plans for his collection: that he “had the intent in
retirement of setting up a—kind of a non-profit studio ….” Defendant objected to
Russell’s statement, but the trial court overruled defendant’s relevance objection.
Defendant preserved her challenge to the court’s decision to overrule her objection.
The prosecution next asked Russell to tell the court, “more specifics about your
collection.” Russell responded with a second statement about his future plans for his
collection, stating, “[W]ell, as I said before, you know, integrating them into this—and
not really a business, but a—an enterprise where—along with collecting, which I enjoyed
doing, also sharing that, you know, with my family and, you know, the younger
generation.” Defendant did not object to this statement. 3
3 As a threshold matter, defendant first contends that her relevance challenge to
Russell’s second statement, that he intended to set up “an enterprise” with the instruments
to share them with his family and the “younger generation,” is cognizable on appeal
because any objection to it would have been futile, as this second statement was nearly
identical to his first statement, to which her objection was overruled by the court. The
People do not contest this. Generally, a party must make a timely and specific objection
to preserve a challenge to the admission of evidence. (Evid. Code, § 353, subd. (a);
People v. Gomez (2018) 6 Cal.5th 243, 286.) However, “ ‘[r]eviewing courts have
traditionally excused parties for failing to raise an issue at trial where an objection would
have been futile .…’ ” (Gomez, at pp. 286–287.) Accordingly, we agree with defendant
that her appeal to Russell’s second statement is also cognizable on appeal.
4.
Defense
Defendant testified that she was at the Merced storage facility on May 12 and
May 13, 2018. She stated that she was there to help Ernest “clean out a unit” because
Ernest bought and sold storage units for a living.
Defendant testified that while at the Tracy storage facility with Ernest, Ernest
started talking to Charles and heard he was interested in buying musical instruments.
Defendant stated that Ernest then sold some instruments to Charles. Defendant testified
that she peeled off the labels from boxes of musical instruments, as d irected by Ernest,
and helped load the instruments into Charles’s car.
Defendant stated that she did not remember what was on the labels she peeled off
the boxes Ernest sold to Charles and did not remember if the labels had Russell’s
information on them.
DISCUSSION
I. Statements Not Irrelevant
Defendant contends the trial court erred in admitting Russell’s statements
regarding his future plans to use his collection of instruments for a “non-profit studio”
and “enterprise” for the “younger generation” because they were irrelevant, and that the
error prejudiced defendant. The People argue the court did not err because Russell’s
statements were relevant evidence, and alternatively, contend that any error was
harmless. We agree with the People that the court did not err in admitting Russell’s
statements.
A. Law
“No evidence is admissible except relevant evidence.” (Evid. Code, § 350.)
In general, “all relevant evidence is admissible” unless excluded by law. (Evid.
Code, § 351.) The relevance standard is “very broad.” (People v. Scheid (1997) 16
Cal.4th 1, 16.) “ ‘Relevant evidence’ means evidence, including evidence relevant to the
credibility of a witness or hearsay declarant, having any tendency in reason to prove or
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disprove any disputed fact that is of consequence to the determination of the action.”
(Evid. Code, § 210.)
“ ‘A trial court has “considerable discretion” in determining the relevance of
evidence.’ ” (People v. Jones (2017) 3 Cal.5th 583, 609 (Jones).) However, the court
has no discretion to admit irrelevant evidence. (People v. Babbitt (1988) 45 Cal.3d 660,
681.) “[E]vidence which produces only speculative inferences is irrelevant evidence.”
(People v. De La Plane (1979) 88 Cal.App.3d 223, 242.)
The abuse of discretion standard typically applies to review of a ruling on the
admissibility of evidence. (People v. Guerra (2006) 37 Cal.4th 1067, 1140.) We will not
reverse a court’s ruling on such matters unless it is shown “ ‘the trial court exercised its
discretion in an arbitrary, capricious, or patently absurd manner that resulted in a
manifest miscarriage of justice.’ ” (People v. Brown (2003) 31 Cal.4th 518, 534.)
B. Analysis
The trial court did not abuse its discretion in ruling that Russell’s statements that
he “had the intent in retirement of setting up a—kind of a non-profit studio,” and
intended to integrate his instruments into “an enterprise” where he shared them with his
family and the “younger generation,” were relevant evidence to prove defendant
committed the offenses with which she was charged. 4 Russell’s statements were relevant
to prove that he both owned the collection, and did not consent to Ernest taking it from
his storage unit, which the prosecution was required to show to prove that defendant
4 We review the trial court’s ruling for abuse of discretion. Defendant contends that
the appropriate standard of review is de novo because the court’s evidentiary ruling
depended on its improper interpretation of “relevance,” as used by the Evidence Code.
However, the issue here is one of fact: whether the trial court properly found Russell’s
statements “[had] any tendency in reason to prove or disprove any disputed fact that
[was] of consequence to the determination of the action” (Evid. Code, § 210).
Accordingly, the proper standard of review is abuse of discretion.
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committed the offenses of receiving stolen property (§ 496, subd. (a)) and conspiring to
receive stolen property (§§ 182, 496, subd. (a)).
Here, the prosecution had the burden of proving defendant committed the charged
offenses. For both the offense of receiving stolen property (§ 496, subd. (a)) and the
offense of conspiring to receive stolen property (§§ 182, 496, subd. (a)), it had to prove
that she received stolen property. To prove she received stolen property, the prosecution
had to prove that the property was stolen. To do this, it had to prove the property
belonged to Russell, and that Ernest took the property without Russell’s consent.
Russell’s two statements about his future plans for his collection both have a tendency in
reason to prove that Russell owned the collection taken from his storage unit, and that he
did not consent to Ernest taking it. It stands to reason that someone who owns property
and has future plans for its use—such as Russell’s plan to keep the instruments for a
future “enterprise” where he loaned instruments out to friends and created a “non-profit
studio”—would not consent to someone taking it. Accordingly, the trial court did not
abuse its discretion by admitting Russell’s statements about his future plans for the
collection as relevant to proving Russell owned the collection and did not consent to
Ernest taking it.
Defendant contends that the trial court erroneously admitted Russell’s statements
because the only “critical factual issue” at trial for each of defendant’s charged offenses
was “what [defendant] knew at the time”: for the charge of receiving stolen property and
conspiracy to receive stolen property, she argues the critical factual issue was whether
defendant “ ‘knew that the property had been stolen’ ”; and for conspiracy to commit
burglary, she argues the critical factual issue was whether defendant “ ‘knew Ernest …
intended to commit theft.’ ” Accordingly, defendant contends, Russell’s statements about
his future plans for his collection did not “ ‘hav[e] any tendency in reason to prove any
disputed fact that [was] of consequence to the determination of the action,’ ” because
Russell’s testimony about his future plans does not prove that defendant “ ‘knew that the
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property had been stolen’ ” or that Ernest intended to commit theft. (§§ 459, 496,
subd. (a); Evid. Code, § 210.)
However, the prosecution was required to prove all the elements of defendant’s
charged offenses. A “ ‘defendant’s plea [of not guilty] does put the elements of the crime
in issue for the purpose of deciding the admissibility of evidence … unless the defendant
has taken some action to narrow the prosecution’s burden of proof.’ ” (People v. Ewoldt
(1994) 7 Cal.4th 380, 400, fn. 4.) In addition, “the prosecution’s burden to prove every
element of the crime is not relieved by a defendant’s tactical decision not to contest an
essential element of the offense.” (Estelle v. McGuire (1991) 502 U.S. 62, 69.)
Defendant’s tactical decision not to contest Russell’s ownership of the collection or
whether he consented to Ernest taking it did not narrow the prosecution’s burden of
proof. Accordingly, the prosecution was still required to prove these facts to meet its
burden of proof as to all the elements of defendant’s charged offenses.
Defendant next argues that Russell’s statements about his future plans for his
collection are too speculative and too attenuated from the elements of her charged
offenses “ ‘to prove any disputed fact that is of consequence to the determination of the
action.’ ” However, “ ‘ “[c]ircumstantial evidence involves a two-step process—first, the
parties present evidence and, second, the jury decides which reasonable inference or
inferences, if any, to draw from the evidence.” ’ ” (Jones, supra, 3 Cal. 5th at p. 610.)
Furthermore, the trial court has “ ‘ “considerable discretion” ’ ” in determining the
relevancy of evidence. (Id. at p. 609.) Here, the court could reasonably have inferred
that Russell’s future plans showed he owned the collection and did not consent to Ernest
taking it from his storage unit. The meaning of Russell’s statements about his future
plans for the collection was not speculative, nor too attenuated from the elements of the
charges, merely because inferences were required to find that Russell’s statements
showed he owned the collection and did not consent to Ernest taking it. Accordingly, it
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was within the court’s “ ‘ “considerable discretion” ’ ” to find that Russell’s statements
were relevant to proving defendant committed the charged offenses. (Id. at p. 609)
As the trial court’s admission of Russell’s statements about his future plans for his
musical instrument collection was not arbitrary, capricious, or patently absurd resulting in
a manifest miscarriage of justice, we conclude that the court did not err by admitting
Russell’s statements as relevant to proving the elements of defendant’s charged offenses.
II. Harmless Error
Defendant further contends there is a “ ‘reasonable chance, more than an abstract
possibility,’ ” that at least one juror would not have found the knowledge element for any
of the offenses had the trial court not admitted the statements at issue. He argues the
statements caused the jury to sympathize with Russell, “transform[ing] his private loss
into the entire community’s loss,” and that the jury’s seven-hour deliberation shows that
this was not a “simple case” for the jury. As discussed above, we conclude that the
statements were relevant to show Russell owned the property and did not consent to
Ernest taking it. However, assuming the statements were irrelevant, any error is harmless
and defendant is not prejudiced. It is not reasonably probable that a result more favorable
to defendant would have been reached in the absence of Russell’s statements about his
future plans for the collection. “It is … well settled that the erroneous admission or
exclusion of evidence does not require reversal except where the error or errors caused a
miscarriage of justice. (Evid. Code, §§ 353, subd. (b), 354.) ‘[A] “miscarriage of
justice” should be declared only when the court, “after an examination of the entire cause,
including the evidence,” is of the “opinion” that it is reasonably probable that a result
more favorable to the appealing party would have been reached in the absence of the
error.’ ” (People v. Richardson (2008) 43 Cal.4th 959, 1001; People v. Watson (1956) 46
Cal.2d 818, 836.) Reasonably probable “does not mean more likely than not, but merely
a reasonable chance, more than an abstract possibility.” (College Hospital Inc. v.
Superior Court (1994) 8 Cal.4th 704, 715.) “[A] hung jury is a more favorable result
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than a guilty verdict.” (People v. Soojian (2010) 190 Cal.App.4th 491, 520.) Here,
ample evidence on the record, including video evidence that the jury reviewed during
their seven-hour deliberation, supports the jury’s findings against defendant. Further, the
trial court instructed the jury, “ ‘[y]ou must not let bias, sympathy, prejudice, or public
opinion influence your assessment of the evidence or your decision,’ ” and “ ‘[y]ou must
follow the law as I explain it to you even if you disagree with it.’ ” Juries are presumed
to follow the court’s instructions. (People v. Boyette (2002) 29 Cal.4th 381, 436.) There
is no evidence on the record to support defendant’s contention that the jury failed to
follow these instructions, and there is no evidence to support defendant’s speculation that
the jury deliberated for seven hours because the statements at issue caused it to
sympathize with Russell. Accordingly, regardless of whether the statements were
relevant, we conclude defendant was not prejudiced because any error was harmless.
DISPOSITION
The judgment is affirmed.
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