Filed 7/24/15 P. v. Sowell CA2/8

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

MICHAEL OKEEFE SOWELL et al.,

Defendants and Appellants.

 B256340

 (Los Angeles County

 Super. Ct. No. SA084462)

APPEAL from judgments of the Superior Court of Los Angeles County, Mark E. 

Windham, Judge. Affirmed.

Russell S. Babcock, under appointment by the Court of Appeal, for Defendant and 

Appellant Michael Okeefe Sowell.

John L. Staley, under appointment by the Court of Appeal, for Defendant and 

Appellant Derrick Allen Palmer.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

General, Lance E. Winters, Assistant Attorney General, Zee Rodriguez and David Zarmi, 

Deputy Attorneys General, for Plaintiff and Respondent.

* * * * * *
2

Defendants Derrick Allen Palmer and Michael Okeefe Sowell were convicted of 

one count of first degree residential burglary and one count of grand theft. Identity was 

not an issue at trial. Jurors must have accepted the prosecution’s theory that Palmer and 

Sowell removed a television from the home of Brian Happy. Jurors must have rejected 

Palmer’s testimony that the television had been abandoned on the sidewalk as well as 

defendants’ argument that they were operating under a mistake of fact.

1 On appeal, 

Sowell argues the record lacks substantial evidence to support his convictions, and the 

prosecutor committed misconduct by referring collectively to Palmer and Sowell during 

her rebuttal argument. Sowell’s contentions lack merit, and we affirm his convictions.

Palmer’s attorney filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 

(Wende) identifying no issue and requesting that this court review the record and 

determine whether any arguable issue exists on appeal. We find no arguable issue on 

appeal and affirm Palmer’s convictions.

FACTS AND PROCEDURE

The victim, Brian Happy, testified that on June 19, 2013, he left his home about 

11:30 a.m., locked the front door, and set his alarm system. That afternoon about 

1:00 p.m., he received a telephone call from someone at the company monitoring his 

alarm, informing him that his home had been burglarized. Shortly afterwards, Happy 

returned home and discovered that his large plasma television, which had been in his 

living room, was missing. The television cost $2,713. Happy testified that he had not 

placed any trash cans or property out on the sidewalk. He further testified that he did not 

give Sowell or Palmer permission to take his television. Happy estimated the plasma 

television weighed between 50 and 100 pounds.

When Happy returned home, he noticed that his front door was damaged,

suggesting a forced entry. The front door had paint removed, and the marks appeared to 

have been made by a prying tool. Additionally, wood was separated from the door. The 

door looked as if someone had forcefully kicked it.

 

1 Jurors were instructed on mistake of fact.
3

The director of operations at the alarm company, Jeffrey Butler, testified that 

Happy’s alarm was triggered on June 19, 2013; Happy was called; and the police were

dispatched.

John and Kelly Greenway lived across the street from Happy.2 On June 19, 2013, 

as they were eating lunch in their dining room, they noticed suspicious activity at 

Happy’s residence. John saw Palmer speed and then abruptly stop his pickup truck. 

Then John saw Palmer and Sowell walking with a large television and observed them 

place the television in the back of Palmer’s truck. Sowell helped Palmer place the

television in Palmer’s truck. John saw defendants on Happy’s driveway but could not see 

Happy’s front door. John heard Happy’s alarm and called 911, a recording of which was 

played for jurors. In the 911 call, John said “[h]e just saw guys running out with a big 

screen T.V. and jump into a white GMC jacked up pick up truck.”

Kelly observed two men get out of a truck and walk up Happy’s driveway. After 

about a minute, she saw the two men walking down Happy’s driveway carrying a 

television. After they were able to place the television in Palmer’s truck, the two men 

sped off. Kelly heard Happy’s alarm.

Police were dispatched and were able to recover Happy’s television from Palmer’s 

truck shortly after Palmer drove away from Happy’s house. When they were stopped by 

police, Palmer was driving and Sowell was a passenger.

Palmer testified in his defense. He testified that he and Sowell collect scraps for a 

living and take them to a recycling center. On June 19, 2013, the two were in his pickup 

truck when Palmer noticed a television on the sidewalk. Palmer told Sowell they would 

pick up the television. Palmer testified the television was heavy, and he could not carry it 

alone. The two put the television in the back of his truck. Palmer denied entering 

Happy’s house. Palmer admitted that he had been convicted of two crimes involving 

 

2 Because they share a surname we refer to John and Kelly by their first names. We 

intend no disrespect.
4

moral turpitude. When cross-examined by Sowell’s counsel, Palmer testified Sowell 

exited the vehicle only to help Palmer put the television in the truck.

Rosario Lim testified in Sowell’s defense. She said that, on June 19, 2013, Sowell 

had recycled items weighing 30 pounds at Active Recycling.

During closing argument, Palmer’s counsel argued that Palmer was driving around 

looking for scrap and saw the television on the sidewalk. Sowell’s counsel argued, 

Sowell and Palmer were out recycling. Sowell exited the vehicle because Palmer said 

there’s a television “over there.” If Sowell believed the television had been abandoned,

he did not have the specific intent for grand theft.3

During rebuttal, the prosecutor argued: “[W]hen you go back into the backroom 

and you think about all of the evidence that’s been presented and you think about what 

they’re asking you to believe to come up with some reasonable doubt, I submit to you it’s 

not reasonable. There’s nothing about their story that makes it reasonable.” The court 

overruled Sowell’s counsel’s objection to the prosecutor’s use of the phrase “their story.” 

Sowell’s counsel request for a mistrial based on the prosecutor’s use of the phrase “their 

story” was denied.

Palmer and Sowell were convicted of one count of first degree residential burglary 

and one count of grand theft. Defendants were acquitted of possession of burglar’s tools.

In a separate court trial, the court found Palmer suffered three prior serious or 

violent felonies and two prior felonies for which he did not remain free from prison 

custody for a five-year period. The court denied Palmer’s motion to dismiss the strike 

allegations.

 

3 During opening statement, Palmer’s counsel argued that Happy abandoned his 

television on the street and Palmer and Sowell picked it up and put it in Palmer’s truck. 

Sowell’s counsel argued that Sowell and Palmer drove around and looked for items to 

recycle. Counsel argued there was no dispute that Happy’s television was in Palmer’s 

truck but there was a dispute whether Sowell committed a crime.
5

The court sentenced Palmer under the “Three Strikes” law.4 He was sentenced to 

35 years to life in state prison (consisting of 25 years to life for the burglary, which was 

his third strike, and two 5-year terms pursuant to Penal Code section 667, subdivision 

(a)(1). The court struck two Penal Code section 667.5, subdivision (b) priors. The court 

stayed Palmer’s sentence for the grand theft.

The court sentenced Sowell to the low term of two years for the burglary and 

stayed his sentence for the grand theft. These appeals followed.

DISCUSSION

We first discuss Sowell’s appeal in which he challenges the sufficiency of the 

evidence and argues the prosecutor committed misconduct. We then consider Palmer’s 

appeal in which he raises no challenges.

1. Sowell

a. Sufficiency of the Evidence

Burglary requires entry into a building with the intent to commit a felony or theft. 

(People v. Lujano (2014) 229 Cal.App.4th 175, 184.) Grand theft requires taking 

property valued over $400 from the owner without the consent of the owner and with the 

specific intent to deprive the owner of the property. (People v. Whitmer (2014) 230 

Cal.App.4th 906, 922.) Sowell argues there was insufficient evidence that he entered an 

inhabited dwelling or knew the television had been stolen.

In evaluating a challenge to the sufficiency of the evidence “we review the whole 

record to determine whether any rational trier of fact could have found the essential 

elements of the crime or special circumstances beyond a reasonable doubt. [Citation.] 

The record must disclose substantial evidence to support the verdict—i.e., evidence that 

is reasonable, credible, and of solid value—such that a reasonable trier of fact could find 

the defendant guilty beyond a reasonable doubt. [Citation.] In applying this test, we 

review the evidence in the light most favorable to the prosecution and presume in support 

of the judgment the existence of every fact the jury could reasonably have deduced from 

 

4 First degree burglary is a serious felony. (Pen. Code, § 1192.7, subd. (c)(18).)
6

the evidence. [Citation.] ‘Conflicts and even testimony [that] is subject to justifiable 

suspicion do not justify the reversal of a judgment, for it is the exclusive province of the 

trial judge or jury to determine the credibility of a witness and the truth or falsity of the 

facts upon which a determination depends. [Citation.] We resolve neither credibility 

issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]’ [Citation.] 

A reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no 

hypothesis whatever is there sufficient substantial evidence to support”’ the jury’s 

verdict.” (People v. Zamudio (2008) 43 Cal.4th 327, 357.)

Applying the appropriate standard of review, there was overwhelming evidence 

Sowell entered Happy’s residence and knew that the television had been stolen. Happy 

testified that when he left his home his television was in his living room. When he 

returned after being notified that his home was burglarized, the television was missing. 

Eyewitnesses saw Sowell walk down Happy’s driveway. Palmer testified that the 

television was heavy and Palmer could not have carried it by himself and Happy testified 

it could have weighed as much as 100 pounds. Happy’s front door was damaged and his 

alarm had been triggered. This evidence strongly supported the inference that both 

Palmer and Sowell entered Happy’s house and removed his television from the living 

room.

b. Alleged Prosecutorial Misconduct

Sowell argued that during rebuttal argument, the prosecutor improperly attributed 

Palmer’s testimony to him. He argues this constitutes prosecutorial misconduct and 

requires the reversal of his convictions.

“A prosecutor’s conduct violates the Fourteenth Amendment to the federal 

Constitution when it infects the trial with such unfairness as to make the conviction a 

denial of due process. Conduct by a prosecutor that does not render a criminal trial 

fundamentally unfair is prosecutorial misconduct under state law only if it involves the 

use of deceptive or reprehensible methods to attempt to persuade either the trial court or 

the jury.” (People v. Morales (2001) 25 Cal.4th 34, 44.) “Furthermore . . . , when the 

claim focuses upon comments made by the prosecutor before the jury, the question is 
7

whether there is a reasonable likelihood that the jury construed or applied any of the 

complained-of remarks in an objectionable fashion.” (Ibid.) “At closing argument a 

party is entitled both to discuss the evidence and to comment on reasonable inferences 

that may be drawn therefrom.” (Ibid.)

Assuming the issue is properly preserved, Sowell demonstrates no error and no 

prejudice. First, the prosecutor did not misstate the evidence. Sowell’s counsel argued 

that Sowell believed the television had been abandoned, which was consistent with 

Palmer’s testimony that he found the television on the sidewalk. That was the only real 

dispute at trial. Palmer and Sowell claimed that they did not enter Happy’s residence. 

Palmer’s additional testimony in no manner implicated Sowell. If anything, it assisted 

Sowell as Sowell did not testify and provided no evidence that he did not enter Happy’s 

house. In short, the prosecutor did not mislead the jury when she referred to “their 

story,” and her argument did not constitute misconduct.

In any event even assuming misconduct, Sowell cannot identify any prejudice. He 

did not testify, and evidence that he recycled other items earlier that morning did not 

undermine Happy’s testimony that the television was in his living room when he left his 

home. Nor did the fact Sowell recycled items earlier that day undermine the Greenways’ 

testimony that both Palmer and Sowell were carrying the television down Happy’s

driveway and loaded it in Palmer’s vehicle. Thus, Sowell’s best defense was that the 

television had been abandoned. Even assuming the prosecutor committed misconduct, 

the error was harmless beyond a reasonable doubt.5

 

5 Sowell argues that Palmer’s testimony that he carried the television by himself 

was inherently incredible. But Palmer did not say that. He testified that the first time he 

saw the television, Sowell was not there. When Palmer went back to retrieve the 

television, Sowell accompanied him.

Sowell also argues that his counsel provided ineffective assistance for failing to 

request an admonition based on the prosecutor’s improper argument. Because we have 

considered the argument on the merits, we need not evaluate his claim of ineffective 

assistance.
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2. Palmer

Palmer’s appointed counsel filed a brief pursuant to Wende, supra, 25 Cal.3d 436, 

raising no issue. Palmer has been notified of his right to file a supplemental brief in this 

court and has not done so.

Having reviewed the entire record, we are satisfied that counsel has fully complied 

with his responsibilities and no arguable issue exists. (People v. Kelly (2006) 40 Cal.4th 

106, 123-124; Wende, supra, 25 Cal.3d at p. 441; see Smith v. Robbins (2000) 528 U.S. 

259, 279-284.)

DISPOSITION

The judgments are affirmed.

FLIER, J.

WE CONCUR:

BIGELOW, P. J.

GRIMES, J.