P. v. Johnson

Filed 8/18/06 P. v. Johnson CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

Eric William Johnson appeals from a judgment of conviction upon a jury verdict finding him guilty of second degree burglary (Pen. Code, § 459). He contends that the trial court erred in failing to give CALJIC No. 2.71, the cautionary instruction on admissions of the accused. He also argues that the trial court erred in giving CALJIC No. 2.15 on possession of recently stolen property, and that the matter must be remanded to correct the amount of the probation supervision fee on the probation minute order. We modify the judgment to correct the amount of the probation supervision fee but otherwise affirm.

I. FACTS

At approximately 2:15 a.m. on October 30, 2004, Officer Jon Mills responded to a dispatch call regarding two males breaking into a container trailer at a construction site at 3214 Arden Road in Hayward. Officer Robert Farro arrived on the scene at the same time as Mills. Mills proceeded to check the fence line on Baumberg Avenue while Farro went in the opposite direction on Arden Road. Farro stopped a pickup truck as it was coming out of the driveway of the construction site. He radioed Mills who immediately responded to assist. They approached the truck and contacted the two male occupants. Farro identified the driver as Don Lucas Caban, while Mills spoke with defendant, who was in the front passenger seat. Both men were wearing orange Caltrans-type vests turned inside-out. Mills, who is also a licensed contractor, testified that wearing the vests in that manner prevented the reflection of light from the vests, and that vests were not generally worn on a construction site but were used for highway work. Mills also observed construction equipment, tools, and boxes in the bed of the truck. Most of the equipment and tools bore the name of Rex Moore Construction.

Defendant told Mills that he was at the construction site to watch over the equipment to make sure it was not stolen. Defendant also said that he was working for â€