People v. Pierson CA4/2

• Court: California Court of Appeal
• Decided: February 3, 2021
• Docket: E073784
• Status: Unpublished

Opinion

Filed 2/3/21 P. v. Pierson CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E073784

v. (Super.Ct.No. RIF1600446)

MARC RONALD PIERSON, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. Steven G. Counelis,

Judge. Affirmed as modified with directions.

Law Office of Zulu Ali & Associates and Whitney Ali for Defendant and

Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Daniel Rogers and Christopher P.

Beesley, Deputy Attorneys General, for Plaintiff and Respondent.

1 Pierson and an accomplice burglarized a home one afternoon while one of the

residents was in the house. The resident and two neighbors saw the two men fleeing and

helped identify them after police found them hiding with the stolen property. A jury

convicted Pierson of first degree burglary.

Pierson challenges the trial court’s denial of his motion for acquittal on the ground

that the evidence was insufficient to establish his identity as one of the burglars or that he

had access to the home or the stolen property. He also challenges the trial judge’s denial

of his motion for a new trial on the ground that the evidence didn’t support finding the

victim was entitled to be in the house or that Pierson was in the house or had possession

of stolen property. We conclude substantial evidence supported the jury’s verdict and the

trial judge did not abuse his discretion in denying a new trial. We therefore affirm the

judgment.

Pierson also argues the trial judge abused his discretion by denying his motion to

dismiss a strike prior under People v. Superior Court (Romero) (1996) 13 Cal.4th 497

(Romero). We conclude the decision was well within the judge’s discretion given the

seriousness and repeated nature of Pierson’s offenses. However, the parties agree we

should strike the three prison prior enhancements imposed, but stayed, as part of

Pierson’s sentence due to the passage of Senate Bill No. 136 (2019-2020 Reg. Sess.). We

agree and therefore strike those enhancements.

2 I

FACTS

Fernando T. had just returned home on the afternoon on February 2, 2016, when

he heard the sound of glass breaking in another room in the house. He peeked into his

brother’s bedroom to investigate. He said he heard someone address a second person, saw

shadows moving outside the window, and concluded someone was trying to break into

the house. He grabbed his cellphone, ran out the front door, hid behind a truck parked at a

neighbor’s house, and called police.

While he was on the phone with the 911 dispatcher, Fernando said he saw two

men, one black and the other probably Hispanic, jump over the fence in his backyard and

run away. He described the men as being in their 20s or 30s and said the black man wore 1 a gray sweatshirt and the Hispanic man wore a blue sweatshirt. The black man wore a

red backpack.

A neighbor, Jason G., looked up when he heard dogs barking and saw two men

running away from Fernando’s house. He described them as a black man and a Hispanic

man and said the black man carried a red backpack. Another neighbor, Raul G., called the

police after seeing police patrolling the neighborhood and seeing two men run into the

vacant lot. He said he figured the police were looking for the men after he saw them duck

down into some bushes.

1 The prosecution played an audio recording of the 911 call for the jury, and a transcript is in the clerk’s transcript.

3 When police arrived, Fernando told them two men wearing grey and blue

sweatshirts had broken into his family home and then fled the house and jumped over the

backyard fence. Fernando and the police officers went into the house and discovered the

burglars had ransacked three bedrooms. Police found someone had gone through a

nightstand and dresser drawers, closets, and storage boxes. Fernando said they had stolen

all the money from his wallet and a tablet computer.

Other officers canvassed the neighborhood and found Pierson and a second man a

few blocks away from the crime in a vacant lot, hiding in some tumbleweeds. They also

found a red backpack full of items from the burgled home on the ground, within arm’s

reach of both men. The two men matched the descriptions provided by Fernando and

other eyewitnesses. At trial, a police officer identified Pierson in court as the black man

he had discovered hiding in the vacant lot.

Shortly after police apprehended the two men, officers transported Fernando to an

in-field show up to see if he could identify them as the burglars. He identified both men

and also identified Pierson as one of the burglars at trial. At the same in-field show up,

Jason G. identified the men by their clothes, height, weight, and size. He wasn’t able to

affirmatively identify Pierson at trial.

A few hours after the robbery, Fernando went to the police station and identified

his family’s stolen property.

Based on this evidence, a Riverside jury convicted Pierson of first degree burglary.

(Pen. Code, § 459.) The trial judge denied Pierson’s motion for a new trial and his motion

4 to dismiss his prior serious felony allegations. He found Pierson had six prior strike

convictions (Pen. Code, § 667, subd. (b)(i)) and therefore sentenced him to state prison

for an indeterminate sentence of 25 years to life. The trial judge also found Pierson had

three prison priors (Pen. Code, § 667.5, subd. (b)), and three prior serious felony

convictions (Pen. Code, § 667, subd. (a)) but stayed punishment under those provisions.

Pierson filed a timely notice of appeal.

II

ANALYSIS

A. Motion for Acquittal

Pierson argues the trial judge erred when he denied his motion for acquittal on the

ground that insufficient evidence supported his conviction. (Pen. Code, § 1118.1,

unlabeled statutory citations refer to this code.)

“A motion under section 1118.1 seeks a judgment of acquittal for insufficient

evidence. It may be made at the close of the prosecution’s case or at the close of the

defense evidence, before the case is presented to a jury.” (Porter v. Superior Court

(2009) 47 Cal. 4th 125, 132 (Porter), italics omitted.) The purpose of a motion for

acquittal “is to weed out as soon as possible those few instances in which the prosecution

fails to make even a prima facie case.” (People v. Stevens (2007) 41 Cal.4th 182, 200.)

“In ruling on an 1118.1 motion for judgment of acquittal, the court evaluates the

evidence in the light most favorable to the prosecution. If there is any substantial

evidence, including all inferences reasonably drawn from the evidence, to support the

5 elements of the offense, the court must deny the motion. [Citations.] In considering this

legal question, ‘a court does not “‘ask itself whether it believes that the evidence at the

trial established guilt beyond a reasonable doubt.’ [Citation.] Instead, the relevant

question is whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” [Citation.]’” (Porter, supra, 47 Cal. 4th at p. 132.)

This is the same test appellate courts use in deciding whether evidence is legally

sufficient to sustain a verdict. (Porter, supra, 47 Cal. 4th at p. 132.) The trial judge asks

“‘whether from the evidence, including all reasonable inferences to be drawn therefrom,

there is any substantial evidence of the existence of each element of the offense charged

. . . .’ The question ‘is simply whether the prosecution has presented sufficient evidence

to present the matter to the jury for its determination.’” (People v. Lynch (2010) 50

Cal.4th 693, 759.) A trial judge’s ruling that the evidence is sufficient to support a

conviction is a question of law, which we review independently. (People v. Cole (2004)

33 Cal.4th 1158, 1212.)

Here, the evidence was sufficient to establish Pierson was one of the men who

broke into Fernando’s home and stole the family’s personal property. Fernando and his

neighbor, Jason G., were able to describe Pierson by his race, height, weight, and

clothing. Less than a half-hour after the crime, both were independently able to identify

Pierson and his accomplice as the men they had seen fleeing the house. Eyewitnesses

described one of the two men as wearing the red backpack as they sprinted away from the

6 burglary. Their descriptions of the man accurately matched Pierson’s appearance when

the police discovered him hiding in the vacant lot. So did the description provided by

another neighbor, Raul G., who called police after observing two men run into the vacant

lot and hide. Both Fernando and a police officer identified Pierson as one of the burglars

at trial. This evidence is far more than needed to supported the jury’s factual

determination that Pierson was one of the burglars.

Substantial evidence also showed Pierson entered the victim’s home, either

directly or as an aider and abettor. Multiple eyewitnesses reported that Pierson fled the

scene carrying a red backpack. When police discovered Pierson hiding in the vacant field,

he was within arm’s length of a red backpack filled with stolen property. Other than

Pierson’s accomplice, no one else was in or near the vacant lot. In addition, Fernando

identified his property in the backpack police had recovered from Pierson and his

accomplice. It was therefore reasonable for the jury to conclude that Pierson was in

possession of that bag.

In the face of such solid evidence, we agree the trial judge rightly denied Pierson’s

motion for acquittal.

B. Motion for a New Trial

Pierson also argues the trial judge erred by denying his motion for a new trial

under sections 1181 and 1182. On appeal he argues, as he did in the trial court, that the

evidence didn’t support finding Fernando was a rightful inhabitant of the burgled home

7 and also didn’t support finding Pierson had any connection to the home or the items taken

from the home.

A trial judge’s job reviewing a motion for a new trial differs from his job

reviewing a motion to acquit. (Porter, supra, 47 Cal. 4th at p. 132 [“[a] motion under

section 1181(6) seeks a new trial because the verdict is ‘contrary to law or evidence.’ The

court performs significantly different tasks” in evaluating a motion to acquit and a motion

for new trial].)

On a motion for a new trial, the trial judge has discretion to order a new trial

“[w]hen the verdict . . . is contrary to law or evidence.” (§ 1181, subd. (6).) “The court

extends no evidentiary deference in ruling on an 1181(6) motion for new trial. Instead, it

independently examines all the evidence to determine whether it is sufficient to prove

each required element beyond a reasonable doubt to the judge, who sits, in effect, as a

‘13th juror.’ [Citations.] If the court is not convinced that the charges have been proven

beyond a reasonable doubt, it may rule that the jury’s verdict is ‘contrary to [the] . . .

evidence.’ [Citations.] In doing so, the judge acts as a 13th juror who is a ‘holdout’ for

acquittal.” (Porter, supra, 47 Cal. 4th at p. 133.)

“In its independent assessment of the evidence, the trial court is guided by a

presumption in favor of the correctness of the verdict and the proceedings in its support.

[Citation.] The presumption that the verdict is correct, however, does not affect the

court’s duty to apply its independent determination to the probative value of the evidence.

[Citation.] [¶] The court has broad discretion in ruling on a new trial motion, and the

8 court’s ruling will not be overturned absent a clear and unmistakable abuse of that

discretion. [Citation.] The court abuses its discretion, however, where it misconceives its

duty, applies an incorrect legal standard, or fails to independently consider the weight of

the evidence.” (People v. Carter (2014) 227 Cal.App.4th 322, 328, citing People v.

Robarge (1953) 41 Cal.2d 628, 634.)

Here, the trial judge correctly conceived his duty to review the evidence, applied

the correct legal standard, and independently considered the weight of the evidence. The

trial court pointed to the fact that Fernando testified that he lived in the burgled house and

his parents owned it at the time as evidence supporting the finding that the victim wasn’t

just a squatter, as Pierson surmised. The trial court noted there was no contrary evidence

and said, “I found [Fernando’s testimony] to be credible at the time.” Regarding the

identification of Pierson as the burglar and his possession of property stolen from the

home, the trial judge said, “I do not agree with the factual analysis presented [by defense

counsel] at all having heard the trial myself and having read the relevant quotations from

the transcript. . . . [¶] . . . [T]he evidence did establish the identification of the defendant

in a variety of ways: Both by direct evidence, by the eyewitness testimony of [the

neighbors]. You add that up with the circumstantial evidence . . . [that] the property from

inside of the house end[s] up in the joint possession of the defendant . . . [a]nd all of that,

both direct and circumstantial evidence, provides the necessary identification.”

The trial judge’s analysis makes clear he applied the correct legal standard,

independently considered the weight of the evidence, and agreed with the jury based on a

9 sound reconstruction of the evidence. We find no legal error, no unsupported factual

determination, and no abuse of discretion.

C. Motion to Dismiss Prior Strike Convictions

Pierson moved to dismiss several of his prior strike convictions so that he would

not have to face an indeterminate 25-year-to-life term. The trial judge denied the motion

and declined to dismiss any of his prior strike convictions. Pierson argues this was an

abuse of discretion.

Section 1385, subdivision (a) grants the trial judge discretion to strike “prior

felony conviction allegations in furtherance of justice.” ( Romero, supra, 13 Cal.4th at

p. 530.) Trial judges balance the constitutional rights of defendants, including the right to

avoid disproportionate punishment, against society’s legitimate interest in the fair

prosecution of properly charged crimes. (Id. at pp. 530-531.) When a trial judge is

considering dismissing a prior serious or violent felony under the “Three Strikes” law it

“must consider whether, in light of the nature and circumstances of his present felonies

and prior serious and/or violent felony convictions . . . the defendant may be deemed

outside the scheme’s spirit . . . and hence should be treated as though he had not

previously been convicted of one or more serious and/or violent felonies.” (People v.

Williams (1998) 17 Cal.4th 148, 161.)

We review such decisions for abuse of discretion. (People v. Carmony (2004) 33

Cal.4th 367, 374.) The Three Strikes law is designed to “punish repeat criminal offenders

severely” and “drastically curtail a sentencing court’s ability to reduce the severity of a

10 sentence.” (People v. Vargas (2014) 59 Cal.4th 635, 641.) Trial judges must apply the

law when a defendant has two or more prior strikes unless the court can articulate why

the defendant lies outside the spirit of the law. (People v. Williams, supra, 17 Cal.4th at

p. 162.)

Before sentencing, Pierson filed a written Romero motion in which he asked the

court to dismiss a felony conviction that was over two decades old. He also asked the

court to dismiss a number of his prior more recent robbery convictions. Pierson also

presented evidence that he was a father with a daughter in nursing school, he had assisted

his mother with his handicapped brother, had attempted to complete his GED and started

a business, and had an honorable record in custody because of his service as a trustee in

the detention facilities.

The trial judge found “Pierson’s conduct in this case and his prior convictions

squarely place him within the three-strikes statute.” After recounting a series of

convictions from 1997 through 2016, the trial judge found “very sadly, an unbroken

chain of crime, punishment, release; crime, punishment, release; crime, punishment,

release, without any significant break.” The court emphasized Pierson had twice

absconded from parole and had failed to benefit from a “wake-up call” when a previous

trial judge had granted him significant lenience. He also noted Pierson had offered no

individual considerations to suggest he fell outside the spirit of the Three Strikes law.

We conclude the trial judge was well within his discretion in denying Pierson’s

Romero motion. Pierson’s background, character, and prospects establish he has led a life

11 of repeated crime and hasn’t learned from prior incarcerations. There was nothing

arbitrary, capricious, irrational, or patently absurd in the trial court’s decision to deny the

motion.

D. Prison Prior Enhancements

The trial judge imposed but stayed three one-year prior prison enhancements

under Penal Code section 667.5, subdivision (b). We asked for supplemental briefing on

whether the enhancements should be stricken under the amendment of that provision by

Senate Bill No. 136 (2019-2020 Reg. Sess.) (Stats. 2019, ch. 590, § 1) (SB 136). The

parties concede the enhancements must be stricken, and we agree.

Effective January 1, 2020, SB 136 amended Penal Code section 667.5, subdivision

(b), to eliminate the one-year prior prison term enhancement for most prior convictions.

There’s an exception, not applicable here, for certain prior convictions for sexually

violent offenses.

The amended law applies to Pierson retroactively because SB 136 became

effective after his sentencing in September 2019 but before his judgment became final.

(People v. Reneaux (2020) 50 Cal.App.5th 852, 876.) Accordingly, Pierson’s Penal Code

section 667.5, subdivision (b) enhancements are unauthorized and must be stricken.

III

DISPOSITION

We affirm the judgment of conviction, modify the judgment by striking Pierson’s

section 667.5 subdivision (b) enhancements, and direct the trial court to prepare an

12 amended abstract of judgment and forward a certified copy to the Department of

Corrections and Rehabilitation.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

SLOUGH J. We concur:

McKINSTER Acting P. J.

RAPHAEL J.