P. v. Garcia
Following a jury trial, appellants Adam Ortiz, Cesar Garcia and Michael Montelongo were found guilty of first degree residential burglary (Pen. Code, § 459)[1] and attempted first degree residential burglary (§§ 459, 664). The jury also found the offenses were committed for the benefit of, or in association with, a criminal street gang (§ 186.22, subd. (b)(1)). Garcia admitted having a prior conviction within the meaning of section 667.5, subdivision (b). Montelongo admitted having a prior conviction within the meaning of sections 1170.12, subdivisions (a) through (d), 667, subdivision (a)(1) and 667.5, subdivision (b). A state prison sentence was imposed for all three men as follows: Garcia—13 years, 4 months; Ortiz—14 years, 4 months; and Montelongo—21 years.
Appellants contend there was insufficient evidence to support the verdicts of attempted first degree burglary and the finding that the crimes were gang related. They also argue the trial court incorrectly instructed the jury on the elements of attempted burglary. We find the evidence of attempted burglary sufficient and, although the trial court misinstructed on an element of attempted burglary, the error was harmless beyond a reasonable doubt. These contentions are, therefore, rejected.
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