People v. Bernard CA2/6 ( 2021 )

Filed 1/27/21 P. v. Bernard 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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. B299406
(Super. Ct. No. NA109423)
Plaintiff and Respondent, (Los Angeles County)
v.
DANZEL DEJON BERNARD,
Defendant and Appellant.
Danzel Bernard appeals after a jury convicted him on two
counts: (1) first degree residential burglary (Penal Code, § 459)1;
and (2) bringing contraband into a jail (§ 4573, subd. (a)). He
contends the trial court erred by admitting motive evidence of
prior burglaries and by issuing a flight instruction to the jury.
He also contends the jury heard insufficient evidence to find he
possessed a usable amount of methamphetamine in jail. These
arguments lack merit. However, we accept the Attorney
All statutory references are to the Penal Code unless
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otherwise stated.
General’s concession that appellant’s one-year section 667.5(b)
enhancement must be stricken pursuant to Senate Bill 136.
Judgment is otherwise affirmed.
FACTS AND PROCEDURAL HISTORY
Appellant is 40 years old and has spent most of his life in
custody. He was incarcerated at the California Youth Authority
from age 15 thru 21 for robbery. As an adult he was incarcerated
in California for drug possession. He moved to Oklahoma at age
23 and served a year in custody for armed robbery. He returned
to California and soon faced convictions for theft and burglary.
The burglary at issue here occurred in 2018. A resident of
the Alamitos Beach neighborhood in Long Beach noticed
appellant walking down the street wearing a light-colored straw
hat. Appellant spoke to himself and appeared paranoid. When
asked if he needed help, appellant responded that he was looking
for his shoes and continued walking up and down the sidewalk.
The resident saw him approach the house across the street, check
the door, and look in the front window. Appellant then
disappeared down the side of the house. The resident called the
police after hearing loud banging sounds. Police arrived and saw
appellant walk out of the house. Appellant went to the backyard
and removed a plank from the back fence. He then walked to the
front yard where police arrested him without incident.
Detectives found the house’s side door broken off the frame
and the inside ransacked. Appellant’s straw hat sat on a dryer in
the backyard. Detectives recovered a trash bag containing small
purses or makeup bags near the fence where appellant removed
the plank. The arresting officer asked appellant if he possessed
controlled substances and warned he would face additional
charges if he brought contraband into jail. Appellant did not
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respond. Officers at the jail later found a small bag of
methamphetamine in his sock.
At trial, the jury found appellant guilty of first-degree
residential burglary and bringing contraband into jail. It also
found he had four prior serious felony convictions within the
meaning of section 667, subdivisions (b)-(i) and 1170.12,
subdivisions (a)-(d), and two prior convictions within the meaning
of section 667.5, subd. (b). In bifurcated proceedings, the trial
court found the prior allegations true but dismissed two of
appellant’s prior convictions. It sentenced him to a term of
eighteen years in prison, determined as follows: a high term of
six years on the count of residential burglary, doubled pursuant
to sections 667, subdivisions (b)-(i) and section 1170.12,
subdivisions (a)-(d); a five-year “serious on serious” enhancement
pursuant to section 667, subdivision (a); and a one-year
recidivism enhancement pursuant to section 667.5, subdivision
(b). Appellant received a concurrent three-year term on the
second count of bringing contraband into a jail.
DISCUSSION
1. Evidence of Appellant’s 2012 Burglaries
The prosecution introduced evidence of appellant’s 2012
burglary conviction to establish motive and intent. (Evid. Code,
§ 1101, subd. (b).) Appellant argues they were probative of
neither motive nor intent, and served only to prove appellant’s
propensity for criminal behavior. We disagree.
Appellant’s 2012 convictions were the result of stealing two
bicycles from a neighborhood in Long Beach. He contends these
events were motivated by the psychological effects of
methamphetamine rather than a need for quick cash to “fuel his
addiction,” as prosecutors alleged. But one cannot ignore the
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similarities between the 2012 thefts and appellant’s most recent
crime. Both followed an incident in which alarmed residents
found him wandering their neighborhood and breaking into
unoccupied houses. He again took household items and police
obtained evidence of drug use after arresting him. The trial
court’s decision to permit prosecutors to admit the evidence and
present their theory of motive and intent did not exceed the
bounds of reason under these circumstances. (People v. Williams
(1997) 16 Cal.4th 153, 196-197.) Jurors received the proper
instruction directing them to consider evidence of the uncharged
offenses for this limited purpose. The overwhelming evidence of
appellant’s guilt for the current crime meant he suffered little
prejudice even if the trial court had erred. Accordingly, any error
in admitting the evidence of appellant’s 2012 burglaries was
harmless. (People v. Watson (1956) 46 Cal.2d 818, 836; People v.
Mullens (2004) 119 Cal.App.4th 648, 659.)
2. Flight Instruction to the Jury
Appellant contends the trial court erred when it issued a
jury instruction on flight, CALCRIM 372, over defense counsel’s
objection.2 He argues the evidence was insufficient to warrant
the instruction because he made no effort to leave the scene or to
evade police. We disagree. A flight instruction is proper “where
the evidence shows that the defendant departed the crime scene
under circumstances suggesting that his movement was
2 The trial court instructed the jury as follows: “If the
defendant fled immediately after the crime was committed, that
conduct may show that he was aware of his guilt. If you conclude
that the defendant fled, it is up to you to decide the meaning and
importance of that conduct. However, evidence that the
defendant fled cannot prove guilt by itself.”
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motivated by a consciousness of guilt.” (People v. Ray (1996) 13
Cal.4th 313, 345.) The first officer on the scene testified that he
saw appellant leave the house, walk to the backyard, and remove
a plank from the fence. This testimony was substantial evidence
supporting the court’s decision to give the jury the standard
instruction on flight. (People v. Pensinger (1991) 52 Cal.3d 1210,
1245.)
3. Amount of Methamphetamine Possessed by Appellant
Appellant argues the jury did not have substantial evidence
that he possessed a usable quantity of methamphetamine when
he entered jail. (See People v. Rubacalba (1993) 6 Cal.4th 62, 66
[The “usable-quantity rule” prohibits a defendant’s conviction
“when the substance possessed simply cannot be used, such as
when it is a blackened residue or a useless trace”].) We do not
agree. The small bag found in appellant’s sock contained enough
material for the arresting officer to discern its color and texture
without magnification. The .139 gram sample was large enough
for the scientist to perform five different tests and to identify the
substance. The court admitted his report and a picture of the bag
as exhibits and instructed the jury properly. We decline to re-
weigh the evidence or decide the credibility of the People’s
witnesses on this issue. (People v. Maury (2003) 30 Cal.4th 342,
403.)
4. One Year Enhancement Under Penal Code Section 667,
Subdivision (b)
Appellant contends, and the Attorney General concedes,
the one-year enhancement must be stricken pursuant to the
amended section 667.5(b), which now applies only when the prior
prison term was served for a sexually violent offense. (Senate
Bill 136 (2019-2020 Reg. Sess.) § 1.). None of appellant’s priors
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fall within this category. We accept the concession and order the
trial court to strike the enhancement.
DISPOSITION
The sentence is vacated. On remand, the trial court shall
strike the one-year section 667.5(b) enhancement and resentence
appellant. Appellant’s new sentence may not exceed his previous
one. The court shall notify the California Department of
Corrections and Rehabilitation or any other appropriate agency
of the modified judgment. In all other respects, the judgment is
affirmed.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
GILBERT, P.J.
TANGEMAN, J.
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James D. Otto, Judge
Superior Court County of Los Angeles
______________________________
Alan E. Spears, 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, Senior
Assistant Attorney General, Steven D. Matthews, Supervising
Deputy Attorney General, and J. Michael Lehmann, Deputy
Attorney General, for Plaintiff and Respondent.
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