People v. Bejarano, Cr. 3960

CourtCalifornia Court of Appeals
Citation114 Cal.App.3d 693,173 Cal.Rptr. 71
Decision Date15 January 1981
Docket NumberCr. 3960
PartiesThe PEOPLE, Plaintiff and Respondent, v. Alfred Banuelos BEJARANO, Defendant and Appellant.

Page 71

173 Cal.Rptr. 71
114 Cal.App.3d 693
The PEOPLE, Plaintiff and Respondent,
Alfred Banuelos BEJARANO, Defendant and Appellant.
Cr. 3960.
Court of Appeal, Fifth District, California.
Jan. 15, 1981.
As Modified Jan. 22, 1981.

[114 Cal.App.3d 697]

Page 72

Quin Denvir, State Public Defender, under appointment by the Court of Appeal, and Charles M. Bonneau, Jr., Deputy State Public Defender, Sacramento, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Gregory

Page 73

W. Baugher and James Ching, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

GEO. A. BROWN, Presiding Justice.

Appellant, Alfred Banuelos Bejarano, was convicted of first degree burglary (Pen.Code, § 459) of the home of Opal Hankins and of the first degree burglary of the home of Douglas Tellier. Both crimes occurred during the evening of May 1, 1978. Appellant was also convicted of three counts of violating that part of Penal Code section 496 which prohibits receiving, concealing or withholding property known to be stolen. One count related to the property of Penny Pike which was sold to Herron Fuentez, one count to the property of Robert Jones which was sold to Delores Garcia, and a third count to the property of Sharon Mensch which was also sold to Delores Garcia.

In this appeal from the judgment appellant raises issues of insufficiency of the evidence, failure to give accomplice instructions on the Penal Code section 496 violations and alleged sentencing errors. We will consider these issues seriatim, setting forth the pertinent facts in connection with the discussion of the stated issues.

114 Cal.App.3d 698


The evidence supporting the Tellier burglary showed that commencing at approximately 7:30 p. m. on May 1, 1978, Officer Foy and a companion officer, working incognito and traveling in an unmarked vehicle, conducted a surveillance operation for a period of several hours upon the activities of appellant, Ralph Garcia, and other unnamed persons. The officers followed the station wagon occupied by appellant and others as it stopped at several motels in Bakersfield. At each stop the officers observed a female passenger exit the vehicle, enter the motel office, and return to the vehicle. This activity continued for approximately 45 minutes, until the station wagon stopped at the Globe Motel in Bakersfield. At that point, the officers testified, all the occupants of the station wagon exited and entered a motel room there. Officer Foy testified that he observed Garcia taking several boxes from the station wagon into the motel room and other sundry movements between the station wagon and the motel room.

At approximately 8:30 p. m., Foy testified that they followed the station wagon, then occupied only by appellant and Garcia, as it traveled to various residences nearby. They followed appellant's station wagon to the unlit residence of Douglas E. Tellier at 823 Wilson Road. The officers, from an unobstructed vantage point, observed Garcia and appellant move to the front porch of the house, then to the rear of the house. Thereafter Foy testified that the interior lights of the house flashed on and off two times. After approximately three minutes in the house appellant and Garcia returned to their car and drove off.

Shortly afterwards that evening the officers returned to the Tellier residence, inspected the house, and had a conversation with its owner, who had just returned home. They observed pry marks on and about the back door frame and that the rear window of the house had been apparently pried open. Tellier testified that earlier that evening when he left the house no interior lights were on; when he returned some interior lights were burning.

On May 1 sunset was at 7:42 p. m., and the officers made their observation of appellant's conduct at the Tellier residence in the dark at approximately 8:30 p. m.

Later that evening when appellant was arrested he and his companion, Garcia, were in possession of screwdrivers which were capable of causing pry marks of the size left on the Tellier back door frame.

[114 Cal.App.3d 699] The evidence supporting the Hankins' burglary showed that after leaving the Tellier residence the officers followed Garcia and appellant to the unlit Hankins residence located approximately 7/10ths of a mile from the Tellier residence. The officers observed appellant and Garcia walk to the back of the house and return after approximately

Page 74

30 seconds. The station wagon drove away from the house on South "K" Street with its headlights off. After stopping in front of another unlit residence, Foy testified that the station wagon turned into an alley and disappeared from the view of the officers for a period of 30 minutes.

Hankins testified that her house had been burglarized and items of property stolen sometime in the evening of May 1, 1978. She testified that upon arriving home late in the evening of May 1, she observed pry marks on the rear door frame, a broken screen, and broken windows in the rear door. She further testified that several items of personal property were missing: several valuable dimes from her coin collection, a 16-gauge shotgun, a .22 caliber rifle with a scope, a .38 caliber pistol, and a Montgomery Ward 19-inch television. At trial Hankins positively identified, through the use of matching serial numbers, the television set, .22 caliber rifle, and shotgun confiscated from appellant's car and motel room on the night of his arrest. At the time of arrest a large television was visible in the back of appellant's car. Officer Foy testified that earlier in the evening he had not observed the television in the back seat when he passed appellant's car on the street. Hankins further testified that when she returned to her home late in the evening of May 1 she was unable to turn on the rear porch lights. When she left the house all three porch lights were burning. She discovered the next day that all three bulbs in the rear porch lights had been unscrewed.

In light of the foregoing evidence, appellant's contention that the evidence was insufficient to support the finding that he entered the Tellier and Hankins residences in the nighttime with the intent to commit theft is patently meritless. (See People v. Redmond (1969) 71 Cal.2d 745, 755-756, 79 Cal.Rptr. 529, 457 P.2d 321; In re Frederick G. (1979) 96 Cal.App.3d 353, 362-365, 158 Cal.Rptr. 638.)

Appellant's claim of insufficiency of the evidence with regard to the three counts of concealing, withholding and receiving stolen property derives from his contention that the sole witnesses to support these convictions were Herron Fuentez as to the Pike stolen property and Delores Garcia as to the Robert Jones and Mensch stolen property and that [114 Cal.App.3d 700] those witnesses were accomplices whose testimony was uncorroborated. Accordingly, we will consider his contention under the next heading.


The evidence relating to the three concealing, withholding and receiving charges showed, with respect to the Pike stolen property, that between April 21 and 23 the Pike residence was burglarized and a stereo was taken. It was recovered on May 2 from Herron Fuentez. Fuentez testified that appellant approached him on the street and offered to sell him the stereo for a price of $50. Pike had paid $480 for the stereo. Appellant was not an acquaintance of Fuentez before the transaction, nor had Fuentez ever seen appellant before or after the sale of the stereo took place. The transaction was completed on a public sidewalk.

At trial Penny Pike positively identified, through the use of matching serial numbers, the stereo recovered from Fuentez as her own.

With regard to the Jones stolen property, his apartment was burglarized on April 21. A television set, a turntable, and an amplifier were missing from the apartment. The stereo was recovered from Delores Garcia on May 11.

As to the Mensch property, the victim testified that her house was burglarized in the afternoon or evening of May 1. A 19-inch Quasar color television was taken. The set was recovered from Delores Garcia on May 11.

Delores Garcia testified that sometime at the end of April she had purchased a Quasar television set and a stereo from appellant. Miss Garcia testified that while she

Page 75

was not a friend of appellant, she was acquainted with him because he had lived in her neighborhood for some time. Garcia's son and appellant were friends. She further testified that she had given her phone number to an unnamed person who had told her that appellant was moving and thus was selling much of his furniture and personal possessions. Shortly thereafter appellant called Miss Garcia offering to sell her a television set. Miss Garcia agreed to the offer, and paid appellant $80 cash when he delivered it several days later, in the daytime. The television set was a 19-inch Quasar, positively identified at trial as belonging to Sharon Mensch, which had been [114 Cal.App.3d 701] purchased four and one-half months earlier for $212. Miss Garcia further testified that several days later appellant telephoned her once again, this time offering to sell her a stereo. She again agreed and offered to pay appellant the agreed-upon $40 purchase price in a bar. The stereo was delivered, and Miss Garcia testified that she met appellant in a bar and paid him the $40. The stereo was identified as being the one taken from Jones' apartment and for which he had paid $190 two and...

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