People v. Rocha

• Decision Date: 19 March 2014
• Docket Number: H038703
• Citation: 221 Cal.App.4th 1385,165 Cal.Rptr.3d 190
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Manuel Alfred ROCHA, Defendant and Appellant.

221 Cal.App.4th 1385

165 Cal.Rptr.3d 190

The PEOPLE, Plaintiff and Respondent,

v.Manuel Alfred ROCHA, Defendant and Appellant.

H038703

Court of Appeal,

Sixth District, California.

Filed December 6, 2013

Review Denied March 19, 2014

See 1 Witkin, Cal. Evidence (5th ed. 2012) Circumstantial Evidence, § 90 et seq.

Santa Clara County Superior Court No.: C1103705, The Honorable Teresa Guerrero–Daley.

David S. Adams, under appointment by the Court of Appeal for Appellant, Olathe, for Defendant and Appellant Manuel Alfred Rocha.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Seth K. Schalit, Supervising Deputy Attorney General, Leif M. Dautch, Deputy Attorney General, for Plaintiff and Respondent the People

RUSHING, P.J.

A jury convicted defendant Manuel Alfred Rocha of residential burglary and interfering with a police officer based on evidence that he entered a homeowner's garage and carried away an impact wrench belonging to the homeowner. On appeal his chief contention is that the court erred in admitting evidence of a 2009 burglary, also of a residential garage, to show that defendant committed the present burglary with the requisite larcenous intent. Defendant contends that the circumstances of the earlier burglary were too dissimilar from the charged offense for it to possess substantial probative value, and that its potential for prejudice preponderated over whatever probative value it might have. He also contends, and respondent concedes, that the trial court overstated the time to be deducted from defendant's credit for presentence confinement due to a contemporaneous parole hold. We will direct a modification of the judgment to award additional credit, but will otherwise affirm the judgment.

Background

Around 8:00 on the morning of Saturday, March 26, 2011, Gilberto Gonzales, as was his custom, opened the door of the garage attached to his San Jose home. The garage was used to do laundry as well as to store personal property, including many tools Mr. Gonzalez owned for working on cars and in construction. He usually left the door open when he was home. Toward noon he drove to the auto parts store.¹ A few minutes later, his wife Denise and daughter Bianka stepped out of the house to have a smoke.² Almost as soon as they did, Bianka heard a noise in the garage. Bianka described the sound as “[l]ike going through things; making noises, closing and opening doors,” also “like people scattering things, opening drawers.” She thought the noises were being made by her father, which was odd because he had “just left.” Meanwhile Denise saw the “shadow of a person” in the corner of the garage. She too thought her husband had returned, so she went back into the house on the way to the back yard, because her husband did not like smoking in front of the house.

Bianka reentered the house and opened a door connecting into the garage, apparently expecting to see her father. Instead she saw defendant, a complete stranger, standing about 10 feet away, “opening drawers.” He turned to look at her; neither of them spoke. According to Denise, Bianka called out that someone other than her father was present. She ran to the phone and called 911. While on the phone, she went out the front of the house and saw defendant emerge from the garage and walk down the driveway and then the street. He appeared to be holding a bulky boxlike object to his chest, apparently wrapped in a sweater or jacket. He was walking slowly. He seemed “calm, cool, collected.” He also struck her as “disorientated,” though she could not describe this impression more particularly. She thought he was on drugs. She was familiar with people who use methamphetamine and had seen them under its influence, though she had no formal training in its effects.

Bianka described the intruder to the 911 operator, who relayed it in turn to San Jose Police Officer Cooley, who was patrolling in the area. Within 10 minutes, he saw defendant—who matched the description—in a trailer park a few blocks from the Gonzalez home. Defendant was carrying a black case resembling a lunch pail. Officer Cooley followed him into the mobile home park. When defendant saw him, he froze, and then—disregarding Officer Cooley's command to stop—bolted, dropping the case to the ground. Additional officers were summoned to surround and search the mobile home park. About an hour later, they found defendant standing inside a metal shed. In the shed they also found a pair of pliers and a screwdriver. Officer Cooley did not perceive defendant as “disorientated,” confused, paranoid, hallucinating, delusional, or exhibiting other physical or mental signs of being under the influence of methamphetamine. From Officer Cooley's experience, defendant “had the loo[k] of like he was caught.”

About 15 minutes after defendant was captured, San Jose Police Officer Vela brought Bianka to the mobile home park for an in-field showup. She saw defendant standing by a police car in handcuffs. She apparently identified him as the man she had seen in the garage.³

Defendant was taken into custody by San Jose Police Officer Jennings, who had arrived at the scene of the capture almost immediately after it occurred. Defendant initially refused to identify himself to Officer Jennings, but did so after the officer explained that since he was going to be fingerprinted and identified anyway, he should “just avoid the delay and let us know who you are.” ⁴ Maybe 10 to 15 minutes elapsed between his initial refusal and the yielding of his identity. During this time he sat in the back of Officer Jennings's patrol car. He seemed calm and resigned, exhibiting no signs of mental or emotional upset. The same was true during the 10 minutes it took Officer Jennings to drive him to the “preprocessing center,” and once there, throughout the officer's questions about things like his address and occupation. Nor did he exhibit any untoward behaviors while a phlebotomist took a blood sample. In total Officer Jennings spent perhaps four hours in defendant's presence. Defendant might have exhibited some symptoms consistent with methamphetamine intoxication, but the officer did not see anything that would have led him to charge defendant with being under the influence. In particular, defendant had dry mouth, but while this was consistent with present methamphetamine use, it could also be explained by past or chronic use, or the use of other drugs. Methamphetamine remains detectable in the blood for 24 hours after ingestion and in the urine for four days.

The case defendant had abandoned contained a tool variously referred to in the record as an impact wrench or drill. Officers showed this to Mr. Gonzalez, who said it was his. He said the pliers were not his. He initially identified the screwdriver as his. But when it was shown to him at trial, he denied that it was his.

After the incident it appeared that several things in the garage had been moved, presumably by the intruder. A bike, normally kept near a washer and dryer along the back wall of the garage, had been left near the main garage door. The bike was not functional, having a broken chain. A “TV screen box,” also previously located near the back of the garage, was found next to the bike. Some tools normally kept on top of a desk or dresser near the center of the garage had been scattered, and various cabinets and drawers were open.

It was stipulated that a blood sample drawn from defendant about 2:45 p.m. on March 26th, 2011, tested positive for amphetamine and methamphetamine.

A search incident to defendant's arrest yielded a Costco membership card in the name of Curtis Pembrook. Mr. Pembrook testified that the card had been in his wallet when the wallet and his cell phone were taken from his car by persons unknown while the car was parked in front of his home on the morning of February 17, 2011.

Defendant was charged with (1) first degree burglary of an inhabited dwelling house (Pen. Code, §§ 459, 460, subd. (a)), with an allegation that the house was occupied at the time of the burglary ( id., § 667.5, subd. (c)(21)); (2) receiving stolen property (Pen. Code, § 496, subd. (a)); and (3) obstructing an officer (Pen. Code, § 148, subd. (a)(1)). It was further alleged, by way of enhancement and to establish ineligibility for probation, that defendant had previously been convicted of first-degree burglary and of grand theft, and that he was on both parole and probation when he committed the charged offenses.

The jury found defendant guilty of first-degree burglary and obstructing an officer, but not guilty of receiving stolen property. Defendant made a motion to strike his prior conviction for first-degree burglary under People v. Romero (1996) 13 Cal.4th 497, 53 Cal.Rptr.2d 789, 917 P.2d 628. The court granted the motion for reasons stated in a written decision. The court sentenced defendant to the lower term of two years, plus a five-year enhancement under Penal Code section 667, subdivision (a). The court allowed credit for presentence confinement of 376 actual days plus 49 days conduct credit. Defendant filed this timely appeal.

Discussion

I. Evidence of Prior Burglary

A. Background

Prior to trial the prosecutor moved to admit, and defendant moved to exclude, evidence of a 2009 burglary in which defendant was found to have stolen two pairs of speakers from a residential garage in Gilroy. The trial court ruled that evidence of the prior burglary was admissible to show that defendant possessed the intent to steal when he entered the Gonzalez garage. The court observed that both crimes “involv[ed] single family residences, entering through an open garage door, taking property from the garage.” In addition, both offenses “occur[red] during the daytime when the resident was home.” “All these factors,” the court found, “support a strong inference that the defendant probably harbored the...