P. v. Guillen

Filed 3/24/06 P. v. Guillen CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Laura P. Hammes, Judge. Affirmed.

Miguel A. Guillen was found guilty of two counts of residential burglary and was sentenced to prison for five years, four months. Guillen appeals, arguing the trial court misinstructed the jury concerning the use of evidence as to one count and abused its discretion in refusing to excuse a juror.

FACTS

A. Prosecution Case

1. Greco Burglary

On August 1, 2004, Matthew Greco and his friends Ryan Hughes, Kevin Lucius, Mark Toth and Timothy Zachrich were asleep at Greco's apartment at 3766 Southview Drive in the Clairmont area of San Diego. At approximately 4:30 a.m., Hughes awoke and saw a man he later identified as appellant rifling through the linen closet. Hughes asked appellant, who appeared to be under the influence, what he was doing. Appellant responded the men did not "keep a very tight lock on [the] place." Appellant stated he had been there 30 or 45 minutes.

At this time Lucius awoke and noticed Hughes talking to appellant. Lucius and Hughes discovered their wallets were missing. When Hughes mentioned this to appellant, he stated: "Yeah. I found a Barretta on top of the fridge. I'm looking for ammo for it." Hughes and Lucius went to Greco's bedroom and woke him. When the men returned to the living room, appellant was gone.

Hughes called the police. He described the burglar as an Hispanic male, with a moustache, shaved head, white tank top and baggy pants. Missing from the apartment was Hughes's and Toth's wallets and cell phones; Lucius's wallet; Greco's digital camera, wallet, keys and cell phone and Zachrich's wallet and black case containing batteries and a memory card.

2. Thomas Burglary

On August 1, 2004, Kevin Thomas, his wife and two-year-old daughter were asleep in their home at 3525 Monair Drive in the Clairmont area of San Diego, a location not far from the Greco residence. At approximately 4:00 a.m., Thomas heard a noise downstairs and got up to investigate it. When Thomas turned on a light, a man he later identified as appellant turned to him and told him to go upstairs, that he did not want to hurt him. Thomas told appellant to leave his house. Appellant went out the back door and jumped over a fence. Thomas's wallet was missing as was Thomas's wife's wallet and keys. Thomas called the police and reported the burglary.

3. Arrest

At approximately 4:20 a.m., a police officer who heard a dispatch concerning the Greco burglary saw appellant, who matched the description given of the burglar, emerging from bushes at the intersection of Moraga and Balboa Avenues. The intersection is approximately a quarter-mile from the Greco residence and approximately a block from the Thomas residence. As appellant staggered across the street, he was stopped by the officer. A curbside line-up was conducted and Hughes and Thomas both identified appellant as the person who burglarized their residences. At trial Hughes, Lucius and Thomas identified appellant as the burglar.

When told he was under arrest, appellant interrupted the officer and stated: "Intoxicated, breaking and entering, huh?"

In appellant's pockets the officer found the property taken from the Greco residence and Thomas's wife's wallet. The next day Thomas found his wallet and his wife's keys outside the fence which appellant jumped over.

B. Defense Case

Appellant offered no evidence. His attorney argued the prosecution failed to prove appellant's guilt beyond a reasonable doubt. He stated it was possible appellant found the property on the street, given discrepancies in the victims' descriptions of the burglar appellant may have entered one but not the other apartment, and it was possible that because of his intoxication appellant was unable to form the requisite intent.

DISCUSSION

A. Intercount Admissibility of Evidence

Appellant argues the trial court denied him due process when it instructed the jury that it could consider evidence concerning one charged burglary in determining the issues of motive and intent as to the other charged burglary.

Even under the standard of prejudice applicable to federal constitutional error defined in Chapman v. California (1967) 386 U.S. 18, 24, i.e, which states any error must be harmless beyond a reasonable doubt, appellant was not prejudiced.

First, the evidence of guilt was exceptionally strong. Two of the victims in the Greco burglary and one of the victims in the Thomas burglary identified appellant at trial as the perpetrator. One of the victims in the Greco burglary and one of the victims in the Thomas burglary, both of whom had excellent opportunities to observe the burglar, identified appellant in a curbside line-up shortly after the crimes. Appellant was seen shortly after and near the scene of the burglaries emerging from bushes. Most of the property taken in the two crimes was found on appellant's person. The remaining property was found just outside the Thomases's fence over which the burglar fled. When an officer started to tell appellant the reason for his arrest, appellant interrupted and stated: "Intoxicated, breaking and entering, huh?"

Second, the instructions about which appellant complains were essentially meaningless in this case. The crimes were committed within minutes of each other. The evidence as to each was remarkably similar and as to some of the evidence it was exactly the same. The instructions informed the jury that in considering each count, it could consider evidence pertaining to the other count. It was not to conclude based on that evidence that appellant was of bad character or had a disposition to commit crimes. It could use the evidence insofar as it showed the intent with which the crimes were committed or to show a motive for the crimes.

The complained of instructions neither assisted the prosecution nor harmed the defense. Even assuming that giving the instructions was error, that error was harmless beyond a reasonable doubt.

B. Failure to Excuse Juror

Appellant argues the trial court erred when it denied his motion to excuse Juror No. 10.

1. Background

a. Voir Dire

The trial court began voir dire by reading to the panel the charges as stated in the information. The information did not list the address of the crime scenes or state the area of the city in which the crimes occurred.

Each prospective juror was asked to answer a set of general questions. Who do you live with and what do they do? Do you have children and what do they do? Have you served on a jury in the past? Did you reach a verdict? Do you have friends or relatives involved in the criminal justice system? Have you or a relative ever been charged with a crime? Can you be fair?

In response, Juror No. 10 stated he was an engineer who was retired from the Navy, he lived with his wife who was an executive assistant. He stated he had two grown children, a son who was a musician and a daughter who was an office manager. In the Navy he had served on a number of general court-martials. He had a niece in the customs service. He had never been charged with a crime. Juror No. 10 also stated that both his children had been victims of hit and run accidents and that his son and daughter had their cars stolen and his car had been broken into. A motorcycle was stolen from his house. Juror No. 10 stated he could be fair.

Counsel asked a limited number of questions, none dealing with the location of the crimes and none that would have required Juror No. 10 provide additional information concerning the crimes committed against him or his family.

b. Juror No. 10's Note and Examination

Before the taking of evidence, the court admonished the jurors not to attempt to view any scene or location mentioned during trial.

After the prosecution's opening statement in which he revealed the address of the crime scenes, Juror No. 10 sent a note to the judge stating the incident occurred less than one-half mile from his residence.

A hearing was held. Juror No. 10 stated he was familiar with the area where the Greco burglary occurred. He did not know Mr. Greco and did not know the Thomas family. Juror No. 10 stated there was nothing about the location of the crimes that would affect his ability to be fair. In response to questions from counsel, Juror No. 10 stated he lived within two-tenths of a mile from the Greco residence but usually did not drive by it. He occasionally walked by it. He would be going to the area of the crimes on his way home from court. He had lived in the area since 1970. When asked if he had been the victim of a burglary while living in the area, Juror No. 10 stated that about 15 years ago his son's motor scooter was taken from next to their house and his son's car was taken from in front of the house. Juror No. 10 was not involved in Neighborhood Watch or any other victims' organization.

Juror No. 10 stated he was not unduly concerned with crime in his neighborhood. He noted that approximately 10 years ago his next-door neighbor's home had been burglarized at least twice. Juror No. 10 stated there was nothing about the charged crimes that resulted in an emotional reaction. He noted there were transients in his neighborhood probably because of its proximity to Mission Bay.

The court admonished Juror No. 10 not to make any special attempts to go by the scene of the crimes or to look at them closely. He was told not to share any information about the area with other jurors. During deliberations he was to give no information to jurors about the area. If anything occurred during trial that led him to believe his knowledge of the area might influence his decision, he was to so inform the court. Juror No. 10 stated he would follow the court's instructions.

c. Argument and Decision

Defense counsel asked Juror No. 10 be excused. Counsel first stated that had he known where Juror No. 10 lived he would have used a peremptory challenge to remove him. Counsel also argued that it was unfair to leave Juror No. 10 on the jury because he lived in the area and thefts had occurred at his house and burglaries at his neighbor's house.

The trial court denied the motion to excuse Juror No. 10. The court noted Juror No. 10 was older, seemed responsible and not emotionally affected by the crimes that occurred at or near his home. The court did not believe that the location of the crimes was a significant issue in the case.

2. Discussion

Appellant argues the trial court erred in refusing to excuse Juror No. 10.

Penal Code section 1089 allows the trial court upon good cause to excuse a juror if as a demonstrable reality it is shown that the juror is unable to perform his or her duty. The decision whether or not to excuse a juror is within the discretion of the trial court. A decision in that regard will not be disturbed on appeal absent a showing that discretion was abused. (People v. Holloway (2004) 33 Cal.4th 96, 124-125.)

There was no error in refusing to excuse Juror No. 10. The court and parties during voir dire had no interest in where the prospective jurors lived. This was clearly because where they lived was of no moment. There was nothing about the crimes in this case or the defendant or the locations that would cause a juror to be more or less biased based on the proximity of his or her residence to that of the crimes. There was nothing about Juror No. 10, either on the record or in his demeanor as perceived by the trial judge to indicate the location of the crimes had any affect on him. It was true that he would go generally by the crime scenes to and from court, but there was nothing about the locations of the crimes or the layout of the residences that were issues in the case. Juror No. 10, a mature, experienced and clearly honest person, stated he would follow the court's admonishment concerning not investigating the crime scene and not relating facts about the location to other jurors. There is no reason to believe he was insincere in saying so or that he failed to follow those admonitions.

The judgment is affirmed.

BENKE, J.

WE CONCUR:

McCONNELL, P. J.

NARES, J.

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