People v. Lugo, B208806 (Cal. App. 7/14/2009)

• Decision Date: 14 July 2009
• Docket Number: B208806
• Parties: THE PEOPLE, Plaintiff and Respondent, v. MICHAEL JOHN LUGO et al., Defendants and Appellants.
• Court: California Court of Appeals Court of Appeals

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THE PEOPLE, Plaintiff and Respondent, v. MICHAEL JOHN LUGO et al., Defendants and Appellants.

B208806

Court of Appeals of California, Second Appellate District, Division Five

July 14, 2009

Not to be Published in the Official Reports

Appeals from judgments of the Superior Court of Los Angeles County, Nos. PA055675 & PA055856. Harvey Giss, Judge. Affirmed as modified.

Nicholas C. Arguimbau, under appointment by the Court of Appeal, for Defendant and Appellant Michael John Lugo.

Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and Appellant Cynthia Alice Brandon.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec and Robert S. Henry, Deputy Attorneys General, for Plaintiff and Respondent.

TURNER, P. J.

I. INTRODUCTION

Defendants, Cynthia Alice Brandon and Michael John Lugo, appeal from their convictions for: first degree burglary with a person present (Pen. Code¹ §§ 459, 667.5, subd. (c)(21)); receiving stolen property (§ 496, subd. (a)); and conspiring to commit burglary. (§ 182, subd. (a)(1).) Mr. Lugo was also found guilty of an additional count of first degree burglary. Mr. Lugo was found to have served two prior prison terms. Ms. Brandon was found to have served seven prior prison terms. (§ 667.5, subd. (b).) Defendants argue there was instructional error. Mr. Lugo further argues: the trial court improperly excluded opinion testimony and committed error regarding the fingerprint evidence; he was denied effective assistance of counsel; and, the trial court failed to hold a hearing regarding jury misconduct. Ms. Brandon argues there was insufficient evidence to either support her conviction for conspiracy to commit burglary or that she aided and abetted Mr. Lugo. Both defendants join the arguments of the other where they accrue to their benefit. We asked the parties to address a minor sentencing issue.

II. FACTUAL BACKGROUND

We view the evidence in a light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Elliot (2005) 37 Cal.4th 453, 466; Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) At approximately 7 a.m. on September 14, 2006, Ronald Alexander and his wife left their home on Lakecrest Avenue in Santa Clarita to go on vacation. Before leaving, Mr. Alexander closed and locked the doors and windows of the house. When the Alexanders returned one and one-half weeks later, they found the front door ajar. Two living room sliding glass doors had been pried open and damaged. When Mr. Alexander entered the front door, he saw a pair of black socks on the floor. Mr. Alexander found a drill case turned upside down in the master bedroom. Mr. Alexander prepared a list of the items taken from his home, including jewelry, cash, binoculars, and a small tape recorder. Mr. Alexander did not know Mr. Lugo.

On September 22, 2006, Forensic Identification Specialist Marisela Rowles lifted three sets of latent fingerprints from the Alexander home and placed them on separate cards. One set of prints was found on the sliding glass door. The other two sets were found on the sliding screen door. Latent Print Examiner Fred Roberts later examined the fingerprint cards and compared them to the fingerprints taken from Mr. Lugo. The first and second cards matched the ring and index fingers of Mr. Lugo. These matches were later confirmed by two other latent print examiners, Ralph Quezada and Sarah Watson.

On September 29, 2006, Richard Tilton lived on North Sunset Canyon in Burbank with his wife. They lived with their youngest son, Brian. Mr. Tilton and Brian left the house at approximately 11 a.m. The front and rear doors were locked at the time. Ms. Tilton had left earlier that day.

When Mr. Tilton and Brian returned shortly after 3:30 p.m., they discovered the bathroom window was open. They noticed the towel rack was broken and some things were on the floor. Mr. Tilton then found the back door wide open. The bathroom window screen was found approximately 50 feet away from the window. Mr. Tilton called the police. Mr. Tilton reported that a pillowcase had been removed from the bed. Several items of jewelry, a digital video disk player, two digital cameras, and four credit cards were missing. At trial, Mr. Tilton identified one of his credit cards that had been stolen on September 29, 2006. Mr. Tilton did not know Ms. Brandon. Mr. Tilton knew of no legitimate reason for Ms. Brandon to be in possession of his credit card.

On September 29, 2006, Trudy Rich went to her parents' home on Pearblossom Highway in Palmdale. Ms. Rich's parents,² Georgina and Raymond Rich, left on vacation on September 25, 2006. Trudy was watching her parents' home. When Trudy arrived on September 29, 2006, she noticed a red wagon in the front yard. The wagon was usually in the front hallway of the home. Trudy also noticed that most of the lights were on in the house. Trudy's parents had only a few lights on timers. Trudy found the front door unlocked. When Trudy entered the home, she noticed some things lying on the floor. As Trudy went toward the back of the house, she saw the back sliding glass door was on its side in the dining room. Trudy called the sheriff's department. When the deputies arrived, they drew their guns and inspected the remainder of the house. The deputies reported that the upstairs portion of the house had been ransacked. Trudy later walked around the house. Trudy noticed that the safe and some jewelry were missing. On October 2, 2006, sheriff's department personnel took fingerprints from the house.

Mr. Rich testified that in September 2006 he and his wife went on a three-week vacation to the United Kingdom. Mr. Rich was notified by his daughter that his home had been burglarized. When they returned from vacation, his daughter had "tidied" the house up. However, Mr. Rich saw photographs of the house taken after the burglary. Mr. Rich's office had been ransacked. Two laptops and printers had been stolen. The safe, containing jewelry, coins, and records was also missing. Many of Georgina's belongings had also been taken. Trudy's parents owned a red wagon, which had been purchased for their grandson. Trudy's parents later went to the sheriff's station in Santa Clarita where they found two of their belongings. Mr. Rich identified his Social Security card and a credit card statement from J.C. Penney's that had been in his safe. Except for family members, Mr. Rich had not given anyone permission to enter his home while he was away. Mr. Rich neither knew Ms. Brandon nor was there any reason for her to be in possession of his credit card statement or social security card.

Deborah Tate went to check on her parents' home on Caprock Street in Aqua Dulce at approximately noon on October 18, 2006. Ms. Tate's parents, Susan and Daniel Winthers, had left on vacation a few days earlier. As Ms. Tate walked up the walkway, she could see the front door was open and a screen from the front window was laying on the walkway. As Ms. Tate entered the front door, she could see papers on the floor and open desk drawers in the nearby computer room. An entry closet was open. Items had been pulled out of the closet. Ms. Tate did not want to be alone at the house. Ms. Tate walked across the street to a neighbor's house. The neighbor returned to the house with Ms. Tate. They determined that someone had been inside the house. The computer was missing off the desk and things were "generally" a mess.

The neighbor called the sheriff on her cellular telephone. Ms. Tate gave a report to a sheriff's deputy. Ms. Tate telephoned her parents the same day to report the burglary. A few days later, Ms. Tate met someone from the crime laboratory at her parents' home. The technician dusted for fingerprints.

When the Winthers left their home on October 13, 2006, all the doors and most of the windows were locked. An 18-inch window in their computer room was left open approximately 3 inches. The Winthers travelled to Seattle and Canada. They were notified by Ms. Tate that their home had been burglarized. When they returned home, Mr. Winthers noticed that a computer and printer, checks from three separate checking accounts, a piggy bank, papers related to the purchase of his house and time share property, and other items were missing. On October 24, 2006, the Winthers went to the Santa Clarita Sheriff's station, where they identified several pieces of property stolen from their home. All of the items were returned to them. Deputy Michael Konecny took a photograph of the Winthers with the property they identified. Other than family members and one neighbor, no one had been given permission to go into the Winthers' home or take anything from their house while they were on vacation. Mr. Winthers did not know either Mr. Lugo or Ms. Brandon. There was no legitimate reason for either defendant to have been in possession of the Winthers' property.

On October 18, 2006, Samuel Boyer and his wife lived on Nearview Drive in Canyon Country. At approximately 10:30 a.m., Mr. Boyer heard a loud knock and pounding at the front door. When Mr. Boyer opened the door, a man in his late 20's or early 30's, who was dressed in mismatched camouflage clothing and a hat, asked if Tom Jones lived there. Mr. Boyer responded, "No." As the man began to leave, a Federal Express delivery man approached the door. The man walked down the steps to the driveway. A small red car had been parked in front of the house when Mr. Boyer first opened the door. Mr. Boyer spoke to the Federal Express representative. As they were walking, Mr. Boyer heard a car accelerate. When Mr. Boyer looked up, the red car was gone. Mr. Boyer reported these events to the sheriff's department on October 19, 2006.

Between 10:30 and 10:45 a.m. on October 18, 2006, Christy Stoker was alone at her home on Alder Peak Avenue in Canyon Country....