P. v. McCaughern

Filed 6/26/06 P. v. McCaughern CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

THIRD APPELLATE DISTRICT

(El Dorado)

----

Defendant was convicted by jury of 14 counts of first degree burglary (Pen. Code, §§ 459; 460, subd. (a)), 7 counts of second degree burglary (Pen. Code, §§ 459; 460, subd. (b)), 2 counts of receiving stolen property (Pen. Code, § 496, subd. (a)), and 2 counts of grand theft of a firearm (Pen. Code, § 487, subd. (d)). Sentenced to 29 years 4 months in state prison, he appeals. He contends the trial court erred in (1) admitting evidence of another charged crime after severance had been granted; (2) excluding impeachment evidence; (3) instructing the jury that the defense objected to certain evidence; (4) admitting that evidence; (5) ordering defendant to pay for the presentence report; and (6) imposing the upper term and consecutive sentences. We find no prejudicial error and affirm.

FACTS

Detective Gary Parker reviewed numerous reports of property crimes occurring in and near the Deer Valley Oaks subdivision and believed the crimes were connected by the same method of operating or M.O. The crimes occurred in the same area, the same type of property -- guns, jewelry, coins, camera equipment, and a large number of power tools -- was taken, and the burglar tried to camouflage the break-in. After Detective Parker began to develop defendant as a suspect, he learned more about defendant. Another detective told him defendant was living in the area and had a couple of traffic warrants. Defendant's girlfriend, Lori Holzer (hereafter Lori), wanted him to leave because they were not getting along; she planned to serve defendant with a restraining order.

Detective Parker arranged to arrest defendant on April 22, 2004, at Lori's home. Lori had given Parker permission to search the residence. When the police arrived, Greg Jasany was next to a truck with a trailer hitched to it. The trailer was full of power tools and miscellaneous items. Jasany told the officers defendant was inside the residence. After there was no answer to their knock, the officers entered and found defendant underneath a bedspread on the floor of the bedroom.

On top of the bed were five or six small bags containing camcorders, jewelry, coins and wristwatches. Defendant was arrested.

The police contacted victims who had reported stolen property and asked them to come to Lori's property to try to identify their property. There were items of stolen property all over Lori's five-acre property: in a motor home in which defendant had been living, in the shed, and in the backyard. Lori contacted Parker after she found additional stolen property. Numerous people who lived in the area came to identify their property; in some cases they had not even realized the property, particularly tools, had been stolen. As there were no witnesses to the burglaries and no fingerprints or similar direct evidence, the case against defendant was largely circumstantial and Lori was an important witness for the prosecution. She had met defendant in August 2001. The following year they moved to the Deer Valley Oaks subdivision. Defendant owned the property, but it was in foreclosure. Lori bought it, paying off the liens. By early 2003, the relationship deteriorated and defendant became abusive. Towards the end of the year, Lori gave defendant 60 days to move out. In early 2004, defendant had moved into a motor home on the property; he had turned violent.

James Holzer, Lori's father, kept $10,000 in $100 bills in a lockbox in his house. He once paid defendant in cash for work he had done, so defendant knew about the money. There was a key to the house hidden outside for the use of Lori and her children. On April 19, 2004, James Holzer noticed the money was missing. He suspected defendant and called Lori. Lori told her father she had not seen defendant flashing a lot of money. When Lori told defendant about the theft, defendant did not respond, which she thought strange. She then made up a story, telling defendant that the police would get the person because there was a fingerprint on the key. Defendant replied, â€