P. v. Maldonado

Filed 8/15/06 P. v. Maldonado CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from a judgment of the Superior Court of Los Angeles County. Clifford L. Klein, Judge. Affirmed.

Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Mary Sanchez and Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent.

_______________

A jury found appellant Luis Jose Maldonado guilty of one count of first degree residential burglary in violation of Penal Code section 459.[1] The jury found true the allegations that appellant had suffered a prior serious or violent felony conviction within the meaning of sections 667, subdivisions (b) through (i) and 1170.12, subdivisions (a) through (d) (the three strikes law) and a prior serious felony conviction within the meaning of section 667, subdivision (a)(1).

The trial court sentenced appellant to 17 years in state prison. The sentence consisted of the upper term of six years on the burglary, doubled to 12 years pursuant to the three strikes law, and an additional five years for the prior serious felony conviction.

Appellant appeals on the grounds that: (1) the trial court improperly refused to instruct the jury regarding voluntary intoxication, as requested by appellant; (2) the trial court abused its discretion by permitting the prosecutor to use appellant's remote conviction for negligent discharge of a firearm to impeach appellant's testimony at trial; and (3) despite the California Supreme Court's decision in People v. Black (2005) 35 Cal.4th 1238 (Black), the trial court's imposition of the upper term violated appellant's federal constitutional rights to a jury trial and proof beyond a reasonable doubt under the decision in Blakely v. Washington (2004) 542 U.S. 296 (Blakely).

FACTS

I. Prosecution Evidence

On the afternoon of October 16, 2004, Paul Quintero drove up to his home on Elm Street in San Gabriel and saw a young man, later identified as appellant, walking out the back door. Appellant looked at Paul in surprise and approached the car. Paul, who was 16 at the time, asked appellant what appellant was doing in his house. Appellant replied that Paul's father had asked him to come to the house and wait for a possible job. Paul told appellant that he had no father. Appellant merely repeated what he had said and walked away. Paul followed him for a short time. He then called his grandparents and asked his grandfather to meet him at Paul's home. Paul ran back to his home, but his grandfather had not yet arrived. Paul drove back to where appellant had been walking and spotted him. Paul saw appellant reach into his pockets, remove some items, and put them in some bushes. Appellant then began walking again in the opposite direction.

Paul returned home again and found his grandfather. The two men drove to find appellant and found him on Santa Inez Lane. Paul's grandfather confronted appellant and asked him what he had been doing in the house. Appellant repeated his story that a man had asked him to wait there. Appellant said he was going to paint the house. Paul called his mother and asked her to call the police. When the police arrived they detained appellant.

Paul accompanied a sheriff's deputy to the bushes where he had seen appellant discard some items. The deputy found Paul's mother's military identification card, as well as a credit card and a watch belonging to her. Police also found an address book that did not belong to Paul's mother or anyone else in the family. When police patted down appellant, Paul's mother saw them remove a small object from one of his front pockets. An officer brought the object to her, and she identified it as one of her pearl earrings. Appellant told police it was his daughter's earring. Later, Paul and a deputy sheriff followed the route appellant had taken and found items from the Quintero home in the back of a truck. These items included Paul's brother's video games, a CD player, and a pair of pliers. Later, Paul himself found his pocket knife in the front lawn of a house along appellant's route.

II. Defense Evidence

Appellant testified that he went to San Gabriel and Garvey Boulevard to look for work a few days before the burglary. There he saw an Asian man for whom he had worked 10 years earlier. Appellant asked the man for work, and the man told him to go to the house appellant had painted for him 10 years ago. Appellant walked for two to three hours and arrived at the house he believed he had painted 10 years earlier. He knocked on the front door, saw a note, and waited for someone to arrive. While appellant was waiting a man approached and asked appellant what he was doing, and appellant explained. The man asked for a cigarette and appellant handed him his pack of cigarettes. Appellant eventually fell asleep because he had not eaten or slept for three or four days. Also, he had drunk two 24-ounce light beers on that day.

When appellant awoke he walked around the house to the back. He waited for approximately 30 minutes and then knocked on the back door. The door was slightly ajar. Paul drove up at that point, and appellant walked up to him. In answer to Paul's question, appellant told him that Paul's father had told him to come and do some work, and that he had been waiting for an hour. Appellant lifted up his shirt to show Paul he had nothing on him. Paul seemed very upset when appellant said he was a friend of Paul's father, and appellant decided to walk away. He took a route that was different from the one Paul described.

Paul and his grandfather caught up with appellant, and the grandfather asked appellant if he had raped or killed his grandchildren. Appellant again explained that he had been at the house because Paul's father told him to go there for work. Appellant lifted up his shirt to show he was carrying nothing and told them to call the police and check his record.

The police arrived and treated the three of them violently. They searched appellant and found an earring that belonged to his daughter in Mexico. The pearl earring was never in his pocket. Appellant did not hide anything in the bushes, and he denied that the address book was his.

III. Rebuttal Evidence

Deputy Paul Valle of the Los Angeles County Sheriff's Department was one of two officers who booked appellant. When Valle asked appellant for his telephone number, appellant said he did not remember. Valle held up the address book that had been found in the bushes and asked if the number might be inside. Appellant replied that it was. Appellant never said the book was not his. Valle could not find appellant's telephone number in the book. When he told appellant this, appellant said that some of the pages might be missing. Valle did not notice any indications that appellant had been drinking, and he would have noted it on the booking slip if he had.

Paul Quintero again testified that he had seen appellant walking out of his back door. Appellant was not merely knocking on the back door. Appellant did not lift up his shirt outside Paul's house to show he was not carrying anything. Paul himself saw an officer remove the address book from the bushes. The officers who arrested appellant did not treat them violently; rather, they told Paul and his grandfather and appellant to sit down.

Paula Quintero also witnessed the extraction of the address book from the bushes where her jewelry and cards were found. She saw the police remove her pearl earring from appellant's pocket. She did not believe that appellant appeared intoxicated. Deputy Eric Rodriguez of the Los Angeles County Sheriff's Department was the officer who accompanied Paul Quintero on the route appellant had walked. Paul directed Rodriguez to some bushes on the corner of Willard and Hermosa. Rodriguez found jewelry, papers, an identification card, and an address book in that location. He also found a CD player, a Gameboy video game player, video game cartridges, jewelry and pliers in a white truck in the neighborhood. Rodriguez came within five feet of appellant and did not notice any alcohol smell. Appellant did not appear to be intoxicated.

DISCUSSION

I. Intoxication Instruction

A. Appellant's Argument

Appellant contends that the trial court erred in refusing to instruct the jury regarding the issue of whether appellant was intoxicated at the time of the burglary. Appellant's state of mind was an essential element of the crime of burglary, and the trial court ignored the fact that there was ample evidence to support a finding that appellant's voluntary intoxication negated the required state of mind.[2] The trial court also ignored the principle that a jury must be instructed, upon request, regarding all issues for which there is evidentiary support. In refusing the instructions, the court relied on an improper legal standard and case law governing a trial court's duty to instruct sua sponte, which have no application when the instruction was specifically requested by the defendant.

B. Proceedings Below

During the discussion of jury instructions, the prosecutor argued that there was no substantial evidence of intoxication, and the theory was inconsistent with the defense theory of the case, because appellant denied committing the burglary. Defense counsel countered that when there is evidence that raises an issue to which a specific instruction is applicable, the court must give that instruction. Counsel pointed out that there were several occasions in which appellant testified that he had difficulty remembering certain things due to the fact he had not eaten or slept and also due to the fact he had been drinking.

In refusing the instruction, the trial court stated, â€