P. v. Baldiva

Filed 9/28/06 P. v. Baldiva CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

Appellant Katrina Monique Baldivia was sentenced to prison for the two-year lower term after a jury convicted her of first degree residential burglary under an aiding and abetting theory. (Pen. Code, § 459, 460.) She argues that her conviction was improperly based on "guilt by association" because the jury heard evidence that her co-defendant had committed several prior burglaries. We affirm.

FACTS AND PROCEDURAL BACKGROUND

Jay Kuhlman's home on Blue Heron Lane in the city of Guadalupe was burglarized sometime after he left for work at 6:30 a.m. on December 2, 2004. Various valuables were taken. A screen on one window had been removed and a sliding glass door had been forced open. A muddy shoeprint was found on the screen.

At about 10:45 a.m., Guadalupe Police Chief William Tucker was driving down Blue Heron Lane and saw appellant standing near the front door of Kuhlman's house. Appellant walked away from the house, approached Tucker, and spoke to him briefly before walking to her nearby home. At about noon that same day, Guadalupe Police Officer Frank Medina saw appellant's boyfriend Silviano Contreras hand a windbreaker to another man, who tucked it under his arm and ran away. Medina asked Contreras why he had given his jacket to the other man and Contreras denied doing so.

When Kuhlman returned home at 3:45 p.m., he discovered that his house had been burglarized and called the police. Officers went to appellant's home at about 5:30 p.m. and found appellant and Contreras together. Contreras was not wearing shoes, but at the officers' direction, he retrieved a pair of Nike sneakers, the patterns of which were consistent with the muddy footprint found on Kuhlman's screen. A palm print recovered at the scene of the burglary was traced to Contreras.

Appellant and Contreras were each charged with first degree residential burglary and were jointly tried. The prosecution presented evidence that in March of 2003, a home on Surfbird Lane in Guadalupe was burglarized and several valuables were taken. The burglar entered by forcing open a window. Appellant called the police and turned over several items that had been taken from the home, and other stolen goods were found in Contreras's possession. Appellant admitted that she had participated in that burglary by knocking on the door and looking in the window to see if anyone was home. Additional evidence was presented to show that in 2002, Contreras had burglarized houses on Snowy Plover Lane and 12th Street in Guadalupe. Appellant was not implicated in these burglaries.

DISCUSSION

The trial court admitted evidence that appellant had participated in the 2003 Surfbird Lane burglary because it tended to show that she intended to assist Contreras in the burglary of Kuhlman's house and that the charged offense was part of a common scheme or plan. (Evid. Code, § 1101, subd. (b).) Appellant does not challenge this ruling, but argues that she was prejudiced by evidence that Contreras committed additional burglaries in the area. She claims the jury most likely convicted her on the basis of her association with Contreras, a "serial burglar," rather than on the basis of the admissible evidence against her, and that this violated her right to due process. We disagree.

As the Attorney General points out, appellant has waived this issue by failing to raise it in the trial court. Though she objected to the evidence of the prior burglary she committed with Contreras, she voiced no concern about the burglaries in which she was not implicated. "'"[Q]uestions relating to the admissibility of evidence [are] not reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal."'" (People v. Alvarez (1996) 14 Cal.4th 155, 186.)

Appellant's argument also fails on the merits. The prosecutor specifically stated during closing argument that the Surfbird Lane burglary was the only prior offense that could be considered against appellant. The jury was instructed with CALJIC No. 2.07, which stated, "Evidence has been admitted against one [or more] of the defendants, and not admitted against the other[s]. Do not consider this evidence against the other defendant." CALJIC No. 2.50, which advised the jury about the limited purpose for which it could consider prior criminal acts, stated, "Evidence has been introduced for the purpose of showing that the defendant committed prior acts other than that for which he is on trial. This evidence, if believed, may not be considered by you to prove that defendant is a person of bad character or that he has a disposition to commit crimes. . . ." (Italics added.) The jury would have understood that Contreras's other burglaries were relevant to his case only and could not be considered when assessing appellant's guilt.

Appellant was seen at the door of Kuhlman's house on the day it was burglarized. Contreras's palm print was found on a window of the house. Appellant had previously assisted Contreras in a similar burglary by knocking on the door to see whether anyone was home. The record does not support her claim that the jury based its verdict on Contreras's prior conduct rather than this strong circumstantial evidence of her guilt. Contreras's commission of similar crimes on other occasions was not inflammatory or likely to prejudice the jury against appellant, and she was not deprived of due process. (See People v. Burns (1969) 270 Cal.App.2d 238, 250-253 [where limiting instruction given, evidence of other offense by co-defendant was not unduly prejudicial].)

The judgment is affirmed.

NOT TO BE PUBLISHED.

COFFEE, J.

We concur:

GILBERT, P.J.

PERREN, J.

James F. Rigali, Judge

Superior Court County of Santa Barbara

______________________________

Larry S. Dushkes, 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, Senior Assistant Attorney General, Ana R. Duarte, Supervising Deputy Attorney General, Catherine Okawa Kohm, Deputy Attorney General, for Plaintiff and Respondent.

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