P. v. Gonzales

Filed 2/9/07  P. v. Gonzales CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

 IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

            APPEAL from the Superior Court of Riverside County.  Paul E. Zellerbach, Judge.  Affirmed.

            Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant.

            Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Janelle Boustany and Kathyrn Gayle, Deputy Attorneys General, for Plaintiff and Respondent.

            As ringleader, defendant Louis Steven Gonzales committed a string of burglaries and auto thefts, as well as various other crimes, within a three-month period in Moreno Valley.  Defendant appeals from judgment entered following jury convictions for 13 counts of first degree burglary (Pen. Code, § 459),^[1] eight counts of which someone was home when the burglaries occurred (§ 667.5, subd. (c)(21)); two counts of second degree burglary (§ 459); eight counts of receiving stolen property (§ 496, subd. (a)); five counts of grand auto theft with a prior auto theft conviction (Veh. Code, § 10851, subd. (a), § 666.5, subd. (a)); being a felon in possession of a firearm (§ 12021, subd. (a)(1)); possessing methamphetamine for sale (Health & Saf. Code, § 11378); possessing paraphernalia for ingesting narcotics (Health & Saf. Code, § 11364); and being under the influence of narcotics (Health & Saf. Code, § 11550, subd. (a)).

            The jury also made special findings that certain victims were particularly vulnerable; defendant induced others to participate in the crimes; the crimes were carried out with sophistication and planning; and the crimes involved the taking, attempted taking or causing damage of great monetary value.

            Defendant admitted as true that he had two prior serious and violent felony convictions (§ 667, subds. (c) & (e)(2)(A)); one serious felony prior conviction (§ 667, subd. (a)), and a prior prison term (§ 667.5, subd. (b)).

            The trial court sentenced defendant to a prison term of 431 years to life in prison.

            Defendant contends there was insufficient evidence to support 11 of the 15 burglary convictions since there was no evidence he entered the houses; there was insufficient evidence to support three of the five grand theft auto convictions and one of the convictions for receiving stolen property; and the court should have granted a mistrial based on jury deliberations misconduct.  We reject defendant's contentions and affirm the judgment.

1.  Facts

            This case arises from defendant committing numerous burglaries and auto thefts, beginning with the first charged offense on February 22, 2002, and ending with his arrest on May 21, 2002.  Each of the 15 burglaries and five auto thefts occurred in defendant's neighborhood.  The auto thefts occurred during the burglaries.

            Defendant's associates, Richard Lee Smith, Lebardo Martinez Trujillo, and Donald Dean Meyers assisted defendant in either committing the crimes or disposing of the stolen property.  Smith and Trujillo were charged with defendant in the original complaint but Trujillo was murdered prior to trial.

            Smith testified that he assisted defendant in committing many of the burglaries by acting as a lookout when defendant burglarized occupied homes and helping him remove property from unoccupied homes.  Right after the burglaries Trujillo would normally pick up the stolen property, which defendant stored in a vacant house next door to defendant's house.  Defendant would dispose of the property typically within a half a day or sooner.  Meyers admitted also trying to sell some of the property defendant had stolen.

            Smith admitted assisting defendant in committing four of the charged burglaries (counts 6, 10, 11, and 19) and ultimately pled guilty to six counts of burglary, two counts of auto theft, and two counts of possessing stolen property.  Smith and Meyers testified as prosecution witnesses at defendant's trial.  Smith and Meyers were both drug addicts, who assisted defendant in exchange for methamphetamines.  Defendant also used drugs.

            The facts as to each of the 11 burglaries defendant is challenging on appeal are stated below in the discussion of defendant's sufficiency of evidence challenges to each of the 11 counts.  Defendant is not challenging the four burglaries Smith admitted participating in.  Those burglaries include the Esparza burglary on March 24, 2002; the King burglary on April 19, 2002; the Marquez-Rojas burglary on April 28, 2002; and the Gerdo burglary on April 30, 2002.

            The burglary of the Esparza home occurred sometime between 6:00 p.m., when Esparza left his home, and 1:15 a.m., when he returned.  Upon returning home, Esparza found his home ransacked and discovered various property was missing, including a TV, VCR, DVD player and jewelry.  The burglar entered Esparza's house by prying open a sliding door.  Esparza's home backed up to the vacant house next to defendant's house.  Smith testified that, during the Esparza burglary, he helped defendant lift a stolen TV over the vacant house's fence.

            The King home was burglarized in mid-April, 2002, while she was gone for five days.  Because she was selling her house, she had packed up her belongings in boxes before she left.  When she returned, she discovered papers strewn around and numerous items missing, including toys, jewelry, the refrigerator, washing machine, dryer, and a large entertainment center.  King lived next door to the vacant house where defendant was storing stolen property.

            Smith testified that during the King burglary, he went inside King's unoccupied house with defendant and helped move to the vacant house the stolen property, including the washer, dryer, and an entertainment center.  Smith used a dolly to move the washer and dryer.  Smith said he used a screwdriver to pry open King's back door.

            King testified that during the four-month period of defendant's string of charged burglaries, she had noticed men going in and out of defendant's house and into the vacant house next door day and night.  She called the police but when the police arrived, no one was there.  She also thought it was odd that, when the neighbors gathered to discuss the neighborhood burglaries, defendant would listen but did not say anything.

            The Marquez-Rojas home was burglarized after midnight, while she was sleeping.  The burglars entered through the garage.  When Marquez-Rojas awoke, she discovered the burglars had taken money, car keys, birthday gifts, a car TV/VCR, and CD's.  Smith testified that he acted as lookout during the Marquez-Rojas burglary and confirmed that defendant stole a car TV/VCR.

            No one was living at Gerdo's father's house when it was burglarized in April.  The house was located a couple blocks from defendant's home.  Gerdo's father had died in February 2002.  Gerdo went over to the house after a neighbor called her to tell her the front door was open.  Gerdo discovered a TV, VCR, and some pills were missing.  The burglars had entered the house through the attached garage.  Smith testified that during the Gerdo burglary, he acted as lookout and helped defendant load a stolen TV and VCR into a car.

            At trial, defendant's neighbors testified they saw a lot of people frequently going to and from defendant's home and the vacant house next door.  The people were there at odd hours, in the middle of the night.  Smith was frequently seen with defendant or around defendant's house, and defendant was seen entering the vacant house.  Smith was also seen with Meyers.

            In May 2002, Deputy Mullin began investigating 13 of the burglaries.  Two had not yet been committed.  During the evening of May 20, Smith's house was placed under surveillance, beginning at 11:00 p.m.  Smith was seen leaving his house at 11:55 p.m. and returning at 2:00 a.m.  Upon his return, his home was searched.  During the search, officers found two screwdrivers, methamphetamine hidden in a tape deck, and a glass pipe for smoking methamphetamine.

            After Smith was arrested, he agreed to cooperate in investigating the burglaries.  Smith was placed in a police car and was taken to three homes he admitted helping defendant burglarize.  Those homes belonged to Gerdo, King, and Esparza.  He tried to show the police a fourth home but could not remember where it was.  The fourth home was later determined to be the home of Marquez-Rojas.  Smith said he acted as lookout during the burglaries of two occupied homes, and went inside the unoccupied houses with defendant and acted as a mover.  According to Smith, after the burglaries, the stolen property was taken to the vacant house next door to defendant's house.

            After searching Smith's house, Deputy Aveling and other deputies went to defendant's house, which also was under surveillance.  Deputy Cloutier, who was responsible for surveilling defendant's home, began the surveillance at 4:00 a.m. on May 21.

            At 4:00 a.m., Cloutier saw Trujillo stop and speak to a man at defendant's house, and then drive away.  A little later Trujillo was stopped, searched, and arrested.  Trujillo's pager indicated he had received a phone call from defendant at 1:44 a.m.

            At 4:30 a.m., Aveling knocked on defendant's door.  A man, presumably defendant, looked out the window at the police.  Two or three minutes later defendant's mother, Loretta Gonzales, opened the door.  Mrs. Gonzales and defendant's girlfriend, Marian Silva, sat on the couch while officers called for defendant to come out.  Three or four minutes later he appeared with white powder on him, smelling of laundry detergent.  Aveling believed he was under the influence of methamphetamine.  Defendant later tested positive for methamphetamine.

            Deputy Warrington and his dog searched defendant's bedroom.  The dog shook a pillowcase and a baggie of methamphetamine flew out.  Officers also found in defendant's bedroom screwdrivers, a hammer, a paintbrush with brown paint, and a glass pipe for smoking methamphetamine.  Under the mattress, officers found paperwork and a receipt for a diamond ring.  The paperwork and receipt were later determined to have been stolen during the Navarro burglary.  In the garage, officers found baggies of methamphetamine and a glass pipe in a laundry detergent box.

            Aveling next searched the vacant house next door to defendant's home.  Inside a closet, officers found a nylon bag containing paperwork stolen during the Flammang and Bilton burglaries.  The Flammang burglary had just been committed that evening.  There were also gloves and a pillowcase stolen from Bilton two months before.  In a cupboard, officers found a tan Nine West purse with paperwork stolen during the Navarro burglary.  A dolly was also found in the house.  Inside the garage, officers found a DMV renewal slip for a Jeep Cherokee stolen from L. McDaniel.

            Outside the vacant house, officers found a black purse inside a disabled red car.  The purse was later determined to be stolen during the Morris burglary.  Officers also found on the property a briefcase inside a trashcan, near the garage.  It was later determined that the briefcase and some of the paperwork inside it were stolen during the Sumagasay burglary.  The briefcase also contained property stolen from the Alcantara family.

            When Deputy Viveros told defendant, at the time of his arrest on May 21, that Smith and Trujillo had given statements implicating defendant as the ringleader of numerous burglaries, defendant replied that he was â€