Filed 10/17/17 P. v. blair CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Arjuna T. Saraydarian, Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.

Kevin J. Lindsley, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

FACTUAL AND PROCEDURAL HISTORY

A. PROCEDURAL BACKGROUND

On November 1, 2016, an information charged defendant and appellant Robert Blair with first degree burglary under Penal Code 459 (count 1); theft or unauthorized use of a motor vehicle under Vehicle Code section 10851, subdivision (a) (count 2); second degree burglary under Penal Code section 459 (count 3); receiving a stolen motor vehicle under Penal Code section 496d, subdivision (a) (count 4); and trespassing under Penal Code section 602, subdivision (m) (count 5). The information also alleged that defendant had suffered two prior felony convictions under Penal Code section 496, subdivision (a) and Health and Safety Code section 113796.6, subdivision (a).

On February 6, 2017, a jury trial commenced. On February 9, 2017, the jury found defendant guilty of first-degree burglary (count 1); theft or unauthorized use of a motor vehicle (count 2); second degree burglary (count 3); and receiving a stolen motor vehicle (count 4). The jury was unable to reach a verdict as to count 5, trespassing, which was subsequently dismissed in the interests of justice under Penal Code section 1385. That same day, defendant was sentenced to three years four months in state prison.

On February 14, 2016, defendant filed a timely notice of appeal.

B. FACTUAL BACKGROUND

1. PROSECUTION CASE

On August 19, 2016, Arturo Ayala and his daughter called the police because someone had stolen several items from inside their house. They lived on Granada Avenue in Desert Hot Springs. Ayala had previously been to the home on August 15 and was in the process of moving with his daughter to a new home. Prior to August 19, the house had been locked. There were also locks on all the windows, except for one.

Ayala testified that the one window without locks appeared to have been the entry point into the home. After the break in, on August 21, 2016, Ayala changed all of the locks on the house because a set of keys to the home had been taken. The keys to Ayala’s red Ford Expedition (the SUV) were also stolen; the keys had been left in a drawer in the kitchen but were missing when Ayala returned to the house on August 19.

Ayala left the SUV in the driveway of his home on August 19. On August 21, Ayala received a call from his neighbor asking if Ayala had sold the SUV. Ayala had not, and had not given anyone else permission to drive it. Ayala reported the theft to the police.

Ayala had never met defendant and never gave him permission to drive the SUV. At the time of the theft, Ayala still had furniture in the home and he was paying the utilities. Ayala went to the home in the evenings; he had not abandoned his residence. Ayala had several boxes of his daughter’s clothes inside the SUV and paperwork with his name inside the glove box. The boxes were missing when the SUV was returned to Ayala after the police recovered it.

On August 21 Ayala’s neighbor Jorge Garcia saw defendant driving the SUV. Garcia lived three houses down and across the street from Ayala. Garcia called Ayala because he had seen three people, including defendant, in Ayala’s driveway. Defendant entered the SUV and drove away. The other two people got into a different car and drove off in another direction. Defendant lowered his head when he drove by Garcia’s house. Garcia identified defendant as the driver of the SUV later that day, after reviewing police photographs.

On August 19, 2016, Desert Hot Springs Police Officer Adam Perez was dispatched to Ayala’s home on Granada Avenue in response to a burglary. Officer Perez spoke with Ayala. He did not find any fingerprints or DNA evidence. On August 26 Officer Perez was dispatched to 13128 Quinta Way in Desert Hot Springs (Quinta House) on a call regarding a trespasser in a vacant house. Officer Perez had been to the Quinta House on previous occasions and knew it was abandoned. When he arrived, Officer Perez found defendant there alone. Defendant could not provide Officer Perez with any proof that he had a legal right to be at the Quinta House. Defendant produced an identification card that showed a different address nearby.

Officer Perez discovered a red Ford Expedition in the garage of the Quinta House. When he ran the license plate on the vehicle, it did not match the VIN on the vehicle. When the officer ran the VIN for the vehicle, it came back as being stolen.

Defendant told Officer Perez that he knew the SUV was at the Quinta House. The officer asked defendant if he had keys to the SUV; defendant told the officer that the keys were in a kitchen drawer inside Quinta House. Defendant told Officer Perez that the SUV had been at the Quinta House for a few days. Defendant also told the officer that he had seen the keys in the kitchen drawer a day or so prior, and that he was living at the Quinta House.

During a search of the Quinta House, Officer Perez did not find any other people or evidence that anyone else lived there. Defendant told the officer that he did not know the SUV was stolen. Defendant also told Officer Perez that the owner of the Quinta House had given him permission to be there and had hired him to fix it up. Officer Perez saw nothing that had been recently repaired.

On August 18, 2016, Deborah Martin called 911 to report a trespasser in the Quinta House. Martin described the trespasser to police dispatch. The trespasser was using battery-powered light, had removed plywood boards covering the rear sliding glass door, and had hung a curtain. Martin knew that the Quinta House was vacant and had been boarded up. On August 26, 2016, Martin called police again to report that someone was inside. Martin had contacted police 10 times to report suspicious activity at the Quinta House since she had moved into her home—a period of three years.

2. DEFENSE CASE

Defendant testified that he had previously been convicted of felony crimes in 2003, 2012, and 2013. He also confirmed that he was on probation when he spoke to Officer Perez on August 26, 2016. Defendant knew the owner of the Quinta House was William Akins. He met Akins at a casino in Palm Springs in early 2016.

Defendant agreed to do some repair work on the Quinta House in July 2016. Akins gave the keys to defendant; defendant worked on the yard, did some plumbing, and replaced windows. Defendant did not own his own business and did not have a contractor’s license or any other professional license. Before defendant was arrested, he had a ledger listing the work to be done on the Quinta House; after his arrest the ledger and his tools were stolen from the Quinta House. Defendant kept lumber and tools in the garage.

Defendant went to the Quinta House seven to eight times in August 2016 to perform repairs. Sometimes, he would work at night and use battery-powered lights for illumination because the electricity was off.

On August 21, 2016, a Mr. Jenkins and a female companion came to the Quinta House. Jenkins was a friend of defendant’s son; his first name was either Kenneth or Kevin. Jenkins asked defendant for help with a car that would not start. Defendant went to his home and got jumper cables to help Jenkins start the car.

Jenkins drove them to Granada Avenue and helped defendant jump start a red Ford Expedition parked in front of the home there. Jenkins had keys to the vehicle, and defendant believed that the vehicle belonged to Jenkins. After they started the vehicle, defendant drove it back towards his house because it was having mechanical problems. Jenkins did not initially follow defendant but eventually met defendant at his home. Because the vehicle was still having problems, defendant suggested to Jenkins that they keep it parked at the Quinta House while defendant got the parts needed to fix it. Jenkins then drove the vehicle to the Quinta House and defendant drove Jenkins’s other car. Defendant did not get permission from Akins to park the vehicle at the Quinta House.

Jenkins parked the vehicle in the garage at the Quinta House and placed the keys on the kitchen counter. Defendant did not notice anything out of the ordinary when he drove the vehicle. When defendant later spoke with Officer Perez, defendant told the officer he had no idea that the vehicle was stolen. Defendant also told the officer that he was working on the house for the owner and he had permission to be there.

Defendant admitted to driving the vehicle without a valid driver’s license. He had never been inside the house at Granada Avenue. Defendant also stated that he had not been to the Granada Avenue house prior to August 21, 2016.

DISCUSSION

After defendant appealed, and upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 setting forth a statement of the case, a summary of the facts, and potential arguable issues, and requesting this court to undertake a review of the entire record.

We offered defendant an opportunity to file a personal supplemental brief, but he has not done so. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error and find no error.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

J.

We concur:

McKINSTER

Acting P. J.

SLOUGH

J.