P. v. Rogers

Filed 3/28/06 P. v. Rogers 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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. Suzanne E. Knauf, Judge. (Retired judge of the San Diego Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Order reversed.

Grover Trask, District Attorney, and Elaina Gambera Bentley, Deputy District Attorney, for Plaintiff and Appellant.

James M. Crawford, under appointment by the Court of Appeal, for Defendant and

Respondent James Lee Rogers.

Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and Respondent Lora Rogers.

Linn Davis, under appointment by the Court of Appeal, for Defendant and Respondent Allen Jerry Andreis.

James R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant and Respondent Johnny Andreis.

Jerry D. Whatley, under appointment by the Court of Appeal, for Defendant and Respondent Lucian Isaia.

James Lee Rogers (James), Lora Rogers (Lora), Allen Jerry Andreis (Allen), Johnny Andreis (Johnny) and Lucien Isaia (Lucien)^[1] were variously charged by information with conspiracies to commit burglaries with a torch, burglaries, vandalism, and receiving stolen property. (Pen. Code,^[2] §§ 182, subd. (a)(1); 459; 496, subd. (a); & 594, subd. (b)(1).) Allen was additionally charged with possession of a firearm by an ex-felon and an assault weapon and Allen and Johnny with possession of child pornography. (§§ 12021, subd. (a)(1); 12280, subd. (a)(1); & 311.11, subd. (a).) As to all but the last offense, it was alleged that the crimes had been committed for the benefit of a street gang and some involved property in excess of $150,000. (§§ 186.22, subd. (b) & 12022.6, subd. (a)(2).) Following a post preliminary hearing bindover on all charges and all the allegations, save the section 12022.6, subdivision (a)(2) allegations as to two of the counts, the defendants brought section 995 motions seeking dismissal of them. The trial court granted their motions as to the gang allegations. The People appeal, challenging that order as to the allegations in counts 1 through 5 and 10. We conclude that the magistrate correctly bound the defendants over on the gang allegations in connection with these counts and therefore reverse the order of the court below regarding them.

Facts Adduced at the Preliminary Hearing

and the Post Bindover Charges

In December 1993, a Riverside jewelry store was burglarized when it was entered through the roof, the phone lines were cut to disable the alarm system, and a torch was used to open the safe. The crime resulted in a loss of $250,000. Although Allen and Johnny denied involvement in the offense, they admitted possessing property stolen in it, and Johnny admitted possessing welding tips. This crime did not form the basis for any charge in this case. Rather, evidence concerning it was introduced as a prior act, under Evidence Code section 1101.

Introduced for the same purpose was evidence that Allen confessed to burglarizing a San Bernardino jewelry store in December 1998 by entering through the roof and using a torch to open the safe. James admitted having participated in this burglary by staying in the car and acting as lookout. The store owner reported losing $300,000 in the crime.

On September 6, 2002, a Palm Canyon jewelry store was burglarized. The store was trashed, the safe was burned open, and there was a hole in the roof. Checks and cash worth $1.685 million and jewelry worth $92,000 were missing. Damage to the store amounted to $79,000. This crime resulted in Johnny, Lucien, James, and Lora being charged in this case with conspiracy to commit burglary by torch, and it was alleged, as overt acts of that conspiracy, that Johnny, Lucien and James had committed the burglary.

On February 9, 2003, a jewelry store in Temecula was burglarized when it was entered through the roof, the phone lines were cut, disabling the alarm system, and the safe was cut open. Merchandise totaling $350,000 was taken, including several Rolex watches. All the defendants, but Allen, were charged in this case with conspiracy to commit this offense. Additionally, Allen, Johnny, James, and â€