P. v. Acevedo

Filed 7/20/06 P. v. Acevedo CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

Appeal from a judgment of the Superior Court of Orange County, Robert R. Fitzgerald, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed in part, reversed in part and remanded.

Tonja R. Torres, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Raquel M. Gonzalez and Quisteen S. Shum, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Anton Acevedo appeals five of seven burglary convictions, arguing the evidence was insufficient. He also appeals his sentence, arguing Penal Code section 654^[1] precludes sentencing for both burglary and receiving stolen property. Given that possession of stolen property alone is not sufficient evidence of burglary, defendant's conviction as to four of the five contested burglary counts must be reversed. With respect to his sentencing argument, while it would be correct if we affirmed all the burglary convictions, given our decision to reverse on four counts, the circumstances have changed. We shall leave it to the trial court to determine whether section 654 applies.

I

FACTS

This case involves seven separate burglaries that took place between February 5 and April 13, 2002 (unless otherwise noted, all dates are in 2002). After the defendant was arrested and substantial property was recovered, the police connected the property to previous burglary victims. We shall briefly summarize the circumstances of each burglary before discussing other relevant facts. To avoid repeating ourselves, we note that with respect to each burglary, the victim did not know defendant or give permission to defendant to enter the victim's home or storage unit and remove any possessions. As always, we review the facts in the light most favorable to the judgment. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)

The Burglaries

As of February 5, Ronald John Romero rented a unit at a storage facility in Huntington Beach. On that date, he received a call informing him that his unit had been broken into. Luggage and some tools were stolen. Sergeant Garon Wyatt of the Irvine Police Department was involved with a follow-up investigation and called the number on the tag of a piece of recovered luggage. He reached Romero, who later identified the luggage.

On February 13, Joseph Pizzata arrived at his Garden Grove home after being away for a week and discovered a substantial amount of property missing. Sergeant Wyatt was also involved in this investigation, and later showed Pizzata several items which he identified as his property, including electronics, a cutlery set, storage bins, and a videocassette recorder.

On or around March 1, after returning from a weekend away, John Briscoe discovered his house in Huntington Beach had been broken into and was in disarray. At a later date, Sergeant Wyatt showed Briscoe recovered property, and he was able to identify various items, including jewelry and antique stamp collections, as having been stolen from his home.

On or about March 17, Henry Logue returned to his Huntington Beach home after a three-day trip. He saw that his home had been burglarized. Sergeant Wyatt investigated the burglary, and later met with him to show him recovered property. Logue identified a shortwave radio, crystal clock, and fax machine as his property, and did the same at trial.

Allison Couch lived in Irvine. She owned a new Volvo convertible and a late model Oldsmobile Intrigue. Upon returning from a trip to Hawaii with her children in April, she discovered the cars were missing and her home had been burglarized. Sergeant Wyatt later showed Couch recovered items. In addition to the two cars, she identified a computer tower, printers, clothing, a backpack, jewelry, and a shower radio. Couch also identified these items at trial.

On or about April 12, Jim Medvitz returned to his Irvine residence after a three-day trip. The garage was open and a car was missing, and the door leading from the garage to the house was open. Sergeant Wyatt later showed Medvitz recovered property. He identified various items as his, including a cutlery set, computer equipment, a handheld computer, a pair of binoculars in a case which was inscribed â€