People v. Rodriguez
| Decision Date | 23 October 2014 |
| Docket Number | C072461 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. RICHARD CAMACHO RODRIGUEZ, Defendant and Appellant. |
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Quite early one spring morning, Lauren McNeil saw defendant Richard Camacho Rodriguez leaving the storage room in her carport. Officers arrested defendant as he fled on a bicycle stolen from a nearby home. A jury found defendant guilty of burglary and receiving stolen property. Sentenced to 38 years to life in prison, defendant appeals, contending (1) insufficient evidence supports his burglary conviction, (2) the addition of the stolen property count constituted vindictive prosecution, (3) the court erred in not severing the two counts, (4) instructional error, (5) the court erred in denying a mistrial based on the jury's seeing defendant in restraints, (6) the court violated defendant's constitutional rights in requiring him to testify regarding sentencing, (7) sentencing error,(8) the court erred in denying defendant's motion for a new trial based on ineffective assistance of counsel, (9) prosecutorial misconduct, and (10) defendant should receive the benefit of a legislative amendment to the three strikes law. We shall affirm the judgment.
Around 1:30 a.m. on May 1, 2011, Lauren McNeil was working at her residence. She heard the door to the storage room in her carport open. The door stuck and "vibrate[d] the house" when opened and had to be pushed hard to open.
McNeil went downstairs to turn on the carport lights. As she looked out the window, she saw a figure exit the storage room. The storage room light was on; it had been off when she went to bed. The person walked toward McNeil, who saw him for about five seconds before she hid behind the door. McNeil was 13 to 15 feet away.
McNeil pounded on her front door to frighten the intruder and called 911. He ran away. McNeil described him to the 911 dispatcher as of average height, Latino, and wearing a "big red hoodie" jacket. McNeil could not remember if he had any facial hair. At trial, McNeil described the jacket as "loose and long."
Police Officer Kimberly Walker, responding to the 911 call, saw an individual matching the description McNeil gave riding a bicycle across the street from the house. Walker said and made eye contact with defendant. Defendant began to pedal faster, away from Walker. Walker called for assistance and pursued him.
A second officer spotted defendant a short distance away. Defendant failed to comply with the officer's demand that he stop. The officer grabbed defendant, who asked, " 'What did I do?' " Defendant was wearing a "puffy 49er jacket." The bicycle defendant was riding had been stolen from the fenced yard of a house less than a quarter of a mile away.
Shortly after defendant's arrest, McNeil identified him as the intruder. The storage room defendant came out of contained bicycles, sporting equipment, and tools. McNeil did not know if anything had been taken from the storage room.
Officers were not able to process fingerprints lifted from the storage room. When he was arrested, defendant did not have gloves or tools that might assist in a burglary.
An information charged defendant with burglary and receipt of stolen property. (Pen. Code, §§ 459, 496, subd. (a).)1 The information also alleged an enhancement for another person being present in a residence during a burglary and enhancements for five prior convictions, two of them serious felonies and five of them within five years of a prior prison term. (§§ 667.5, subd. (c)(21), 667, subd. (a)(1), (d) & (e), 1192.7, subd. (c), 667.5, subd. (b).)
A jury found defendant guilty of both counts and found true the enhancements for another person being present during the burglary. The trial court found the prior conviction enhancements true.
The trial court sentenced defendant to 38 years to life in prison: 25 years to life for burglary, 5 years each for the two serious felony enhancements, and one year each for three of the prior prison term enhancements. A concurrent term of 25 years to life was imposed for receipt of stolen property, and stayed terms were imposed on two of the prior prison term enhancements. Defendant filed a timely notice of appeal.
Defendant begins by challenging the sufficiency of the evidence in support of his burglary conviction. Specifically, defendant argues there is insufficient evidence of his intent to commit theft at the time he entered the storage room.
In reviewing a defendant's challenge to the sufficiency of the evidence, we review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence. Substantial evidence is evidence that is credible,reasonable, and of solid value such that a reasonable jury could find the defendant guilty beyond a reasonable doubt. (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
We do not reassess the credibility of witnesses and we draw all inferences from the evidence that supports the jury's verdict. (People v. Olguin (1994) 31 Cal.App.4th 1355, 1382.) Unless it is physically impossible or inherently improbable, the testimony of a single witness is sufficient to support a conviction. (People v. Young (2005) 34 Cal.4th 1149, 1181.)
Under section 459 burglary requires an unlawful entry with the specific intent to commit a felony. However, a defendant may be guilty of burglary regardless of whether any felony or theft is actually committed, or the crime actually committed is different from that originally contemplated. The carrying away of stolen property is not an element of burglary. (People v. Montoya (1994) 7 Cal.4th 1027, 1041-1042.) Burglary requires entry with the proscribed intent; such entry constitutes the completed crime of burglary regardless of whether any felony or theft is actually committed. (People v. Allen (1999) 21 Cal.4th 846, 863, fn. 18.)
The intent required for burglary may be inferred from facts and circumstances. (In re Leanna W. (2004) 120 Cal.App.4th 735, 741; People v. Moody (1976) 59 Cal.App.3d 357, 363.) The mere possession of stolen property will not alone support a conviction for theft of property; however, the possession of recently stolen property is so incriminating that only slight additional evidence is necessary to sustain a burglary conviction. The jury determines, in light of all the evidence, whether or not such an inference should be drawn. (People v. McFarland (1962) 58 Cal.2d 748, 754-755.)
Similarly, intent to burglarize can be shown by evidence of unlawful entry, flight from the scene, and failure to provide a plausible reason for being on the premises. Even if no crime is committed after entry, flight and the lack of an explanation for being on the premises provide sufficient evidence for the jury to convict a defendant of burglary. (People v. Martin (1969) 275 Cal.App.2d 334, 339.)
Defendant argues insufficient evidence supports the jury's finding that he intended to commit theft when he entered the storage room. According to defendant, the People relied on his possession of the stolen bicycle to demonstrate the requisite intent. Defendant contends that in order to prove intent, the uncharged misconduct must be sufficiently similar to the charged offense to support the inference that defendant acted with the same intent in each instance. (People v. Kelly (2007) 42 Cal.4th 763, 783.) However, "[i]nasmuch as [defendant] was not charged or convicted of the theft of the bicycle that he possessed, there is too much dissimilarity to infer that he had entered the storage room for the purpose of stealing a bicycle." In support, defendant cites numerous cases in which the court admitted evidence of actual prior burglaries to establish intent in a pending charged burglary.
We disagree with defendant's analysis of the two crimes. To be admissible to prove intent, the two charges must be sufficiently similar to support the inference that defendant possessed the same intent in carrying out each crime. (People v. Scott (2011) 52 Cal.4th 452, 471-472 (Scott).) The least degree of similarity is required to prove intent. A higher degree of similarity is required to prove common plan and the highest to prove identity. (People v. Soper (2009) 45 Cal.4th 759, 776; People v. Ewoldt (1994) 7 Cal.4th 380, 402-403 (Ewoldt).) However, despite defendant's argument to the contrary, there is no requirement that the two charges be the same.
Here, the trial court found that the jury could make the logical inference that defendant harbored the same criminal intent in entering the storage room and when he came into possession of the bicycle. The court also rejected a requested defense instruction because it would have prevented the jury "from making what could be a logical conclusion that the defendant had the intent at the time the bicycle was taken or came into his possession, and he had that same intent at the time he was inside the storage room at the McNeil residence."
We agree that the crimes were sufficiently similar to allow admission of the stolen bicycle to prove defendant's intent on entering McNeil's storage room. Defendant, early one morning, entered the McNeils' storage room and turned on the light. When confronted by McNeil, defendant fled. He initially evaded police but was subsequently apprehended. When police arrested him, he was riding a bicycle stolen that night from the courtyard of a nearby house. Both crimes occurred on the same evening, in the same neighborhood, and involved entering an unoccupied area adjacent to a...
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