P. v. Millan
Filed 4/19/06 P. v. Millan CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 FOUR
| THE PEOPLE, Plaintiff and Respondent, v. FERNANDO MILLAN, Defendant and Appellant. | B183256 (Los Angeles County Super. Ct. No. KA069151) |
APPEAL from a judgment of the Superior Court of Los Angeles County, Philip S. Gutierrez, Judge. Affirmed as modified.
Law Offices of Simmons & Koester and James Koester, 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, Ana R. Duarte and Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
Fernando Millan appeals from judgment entered following a jury trial in which he was convicted of three counts of first degree burglary with the finding in two of the counts that a person, other than an accomplice was present (Pen. Code, §§ 459, 667.5, subd. (c)), receiving stolen property (Pen. Code, § 496, subd. (a)), and petty theft (Pen. Code, § 488). Sentenced to prison for a total of seven years and four months,[1] he challenges the sufficiency of evidence to support his conviction for receiving stolen property and alleges sentencing errors. For reasons explained in the opinion, we modify his sentence and affirm the judgment in all other respects.
FACTUAL AND PROCEDURAL SUMMARY
On December 28, 2004, at approximately noon or 1:00 p.m., April Montes was in her condominium in Azusa upstairs sleeping when she heard noises like someone was in her home. When she went downstairs to check, she saw appellant coming through a broken window. She asked him what he was doing in her living room and he said he had the wrong house. Appellant left through the window and climbed a backyard wall. Ms. Montes called the police.
Azusa Police Officer Jerry Jarrett responded to the radio call of a burglary in progress. He saw a large window which had been broken and removed from the frame and that the screen had also been removed.
At approximately 1:00 p.m. on that same date, Teresa Ponce was washing the carpets in her apartment when she saw her bathroom curtains moving. She left her apartment and encountered a police officer who asked her if someone was in her apartment. When she told the officer that there probably was someone in the apartment, the officer entered the apartment. Ms. Ponce had never seen appellant before that day and had not given him permission to go into her apartment.
Azusa Police Officer Stephan Hunt received a call regarding a burglary seeking assistance to officers who were chasing the suspect. He spoke to Ms. Ponce and when he entered the bathroom of her apartment, he found appellant standing in the shower behind the shower curtain.
On November 15, 2004, at approximately 9:30 a.m., Olivia Olague was at home in Azusa when she saw appellant knocking on the door. She had never seen appellant before and he kept knocking on the door. She then saw him walk to the side of her house and then heard the sliding glass door to the back porch open. She ran to lock the door from the patio to her kitchen and saw appellant in the enclosed porch. Ms. Olague asked appellant what he wanted and he appeared surprised when he saw her and said something to the effect, â€
