People v. Olguin, B198594 (Cal. App. 3/5/2008)
| Decision Date | 05 March 2008 |
| Docket Number | B198594 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. JAIME JUNIOR OLGUIN, Defendant and Appellant. |
Appeal from a judgment of the Superior Court of Los Angeles County, No. LA 051688. Martin L. Herscovitz, Judge. Affirmed.
Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Michael A. Katz, Deputy Attorneys General, for Plaintiff and Respondent.
Jaime Olguin appeals from his conviction of theft of access cards, forgery, transportation and possession of a controlled substance (methamphetamine), and burglary. Olguin contends the evidence was insufficient to establish that he possessed or transported the methamphetamine, blank checks, and access cards that police found in the car Olguin was driving. He also maintains the trial court erred by denying his motion pursuant to Penal Code section 1538.5, subdivision (a)(1)1 to suppress the evidence found in the car. He further contends that Judicial Council of California Criminal Jury Instructions (2006) CALCRIM No. 220, which the trial court used to instruct the jury on reasonable doubt, is constitutionally deficient. We disagree with all three contentions and affirm.
On February 20, 2006, Jeffrey Shaffer was at home in his apartment in Van Nuys along with his roommate and the roommate's girlfriend, who were in the roommate's bedroom playing video games. Hearing a knock at the front door, Shaffer opened the door and saw Olguin, who was armed with a pistol, along with Keith Kirby and an unidentified third man who was armed with a knife. Olguin pointed the pistol at Shaffer's head, pushed him backward into his apartment, and pressed the pistol to Shaffer's forehead. The third man held the knife to Shaffer's throat while emptying Shaffer's pockets. He took Shaffer's keys and wallet, which contained Shaffer's driver's license and credit cards. Shaffer urged the intruders not to bother his roommate, and they did not. Kirby asked which bedroom was Shaffer's. Shaffer indicated which one and then heard someone rifling through the drawers in his bedroom. Still holding the gun to Shaffer's head, Olguin then told Shaffer to go down the hallway to his bedroom. The intruders asked whether there were any valuables. The knife-wielding third intruder demanded the keys to Shaffer's gun safe, which Shaffer provided. The third intruder took the ammunition from the safe and put it in Shaffer's backpack, which Kirby put on his shoulder while the third intruder removed the guns from the safe. Kirby looked through Shaffer's tax and bank statements, saying he was looking for a social security number or credit card number. The intruders took Shaffer's watch and checkbook along with his documents, his car key, his medical marijuana, his state-issued scale for weighing medical marijuana, and his medical marijuana license, along with a navy blue nylon bag that Shaffer used for carrying money at his job. As they left the apartment, Olguin pointed the gun at Shaffer and warned, "If you call the police, I'm going to come back and kill you."
Shaffer waited ten minutes, then called 911 to report the robbery and called his credit card companies to cancel the stolen cards. He described the intruder with the gun to police as being Hispanic, tall and slender, with tattoos on his forearms. Shaffer provided no detail on what the tattoos looked like.
Four days later, on February 24, 2006, Officers Sawada and Dunn were on patrol in an area known for gang and narcotics activity. They saw a grey Dodge Stratus tailgating the car in front of it, in violation of Vehicle Code section 21703. They stopped the car and found Olguin driving and Kirby in the front passenger seat. Olguin said he had no driver's license. A police dispatch indicated that both men had outstanding arrest warrants. The officers ordered Olguin and Kirby out of the car. Two additional officers, Officers Clymer and Leone, arrived at the scene. Officer Leone searched the Stratus and found a large baggie of methamphetamine in the center glove box, a scale in the driver's door pocket, a baggie of marijuana and a narcotics pipe with methamphetamine residue on the back seat, and, under the front passenger floorboard, a navy blue nylon bag containing credit cards, identification cards, a motel receipt listing Kirby's name, and Shaffer's watch, blank checks and checkbook, car key, and medical marijuana license. The officers arrested Olguin and Kirby. Officer Dunn searched Kirby and found two small baggies of methamphetamine in his shoe.
About a week after the robbery at Shaffer's apartment, Shaffer identified both Olguin and Kirby in photo lineups. When shown a lineup that included Kirby, Shaffer pointed to the picture and said, "That's Keith." Shaffer then told the detective that he had called the number of his stolen cell phone the morning after the robbery and heard a message saying, Shaffer recognized Kirby's distinctive, raspy voice. Shaffer said he had met Kirby six to eight weeks before the robbery when Kirby came by Shaffer's apartment to pick up a woman they both knew and spent about fifteen minutes inside the apartment. Shaffer also knew where Kirby lived and occasionally drove by his house. Asked why he had not told this to police on the evening of the robbery, Shaffer said he was in shock and "mostly paid attention to the male Hispanic pointing the gun at his head." Kirby's identity did not register in his mind until he called his cell phone.
On July 17, 2006, the Los Angeles County District Attorney filed a 9-count information charging Olguin and Kirby with robbery (§ 211), burglary (§ 459), false imprisonment (§ 236), grand theft firearm (§ 487, subd. (d)(2)), dissuading a witness from reporting a crime (§ 136.1, subd. (b)(1)), theft of access cards or account information (§ 484e, subd. (d)), forgery (§ 475, subd. (b)), transportation of a controlled substance (Health & Saf. Code, § 11379, subd. (a)), and possession of a controlled substance for sale (Health & Saf. Code, § 11378.) As to the first five counts, the information further alleged that Olguin was armed with a firearm under section 12022, subdivision (a)(1), and personally used a firearm within the meaning of sections 1203.6, subdivision (a)(1) and 12022.5, subdivision (a), making the offenses serious felonies pursuant to section 1192.7, subdivision (c)(8) and violent felonies under section 667.5, subdivision (c)(8). Regarding count 2 for burglary, the information alleged the offense was a serious felony under section 1192.7, subdivision (c), was not suitable for probation under section 462, subdivision (a), and was a violent felony under section 667.5, subdivision (c)(21), "in that another person, other than an accomplice, was present in the residence during the commission of the ... offense." The information also alleged that Olguin had suffered prior convictions, served a prison term as described in section 667.5, and reoffended within five years. Olguin pleaded not guilty to all counts.
Olguin and Kirby's joint trial began on January 30, 2007. The prosecutor presented testimony from Shaffer and Officers Sawada, Leone, and Clymer. Shaffer recounted the events on the night of the robbery, described from memory the tattoos on Olguin's arms, including one particular tattoo of a woman, and identified that tattoo when the court asked Olguin to show his forearms. Shaffer also identified his watch, checkbook, medical marijuana license, car key, and navy blue nylon bag from police photographs of items that police found in the car. Shaffer described his scale as black and about "four-by-three" in size. Although the prosecutor did not offer a photograph of the scale in evidence, Officer Leone, who searched the car, later described the scale he found in the driver's door pocket as black and about three inches by "four or five[.]"
Officer Clymer described his experience with investigating methamphetamine trafficking and offered his opinion that the methamphetamine found in the car with Olguin and Kirby was possessed for sale. During his testimony, Clymer revealed that there was a supplement to the police report that neither the prosecution nor the defense had seen, which concerned police monitoring of a nearby location for gang and narcotics activity on the night Olguin and Kirby were stopped. Out of the jury's presence, the court conducted a hearing regarding any connection between the stop of Olguin and Kirby and the stakeout. Officer Clymer testified that Olguin and Kirby were seen leaving the stakeout location before the police executed a search warrant there. Olguin's counsel asked, "Mr. Olguin's car was pulled over because of the surveillance, correct?" Clymer answered, Defense counsel then requested permission to file a motion to suppress the newly revealed evidence pursuant to section 1538.5, and the court granted the request. The court instructed counsel and Officer Clymer to avoid any further mention of the stakeout in front of the jury. After the conclusion of Clymer's testimony, the defense presented testimony from the officer who interviewed Shaffer on the night of the robbery, Shaffer's roommate, and Kirby's father. Shaffer's roommate testified that Shaffer was using a white powdery drug smoked in a glass pipe around the time the robbery occurred.
The following Monday, February 5, 2007, the court held a hearing on the defendants' section 1538.5 motion. Officer Sawada, who conducted the traffic stop of Olguin and Kirby, testified that he stopped the car for a traffic violation—tailgating. On cross-examination, Sawada acknowledged that he...
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