P. v. Gutierrez

Filed 8/26/08 P. v. Gutierrez CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

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, Richard M. King, Judge. Affirmed.

Dennis L. Cava, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Janelle Marie Boustany, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

There were three commercial burglaries -- essentially, two women shoplifting small but high priced items like diet pills, Prilosec and baby formula -- at three different stores in Orange County on the afternoon of June 18, 2007. The two women, Veronica Martinez and Fanny Fuentes, shoplifted goods from a CVS pharmacy in Huntington Beach around 12:30 p.m., and from an Albertsons supermarket in Garden Grove around a quarter to 2 p.m. The third burglary, also of an Albertsons, took place about 5:30 p.m. in Newport Beach.

The Newport Beach heist, however, was unsuccessful.[1] An alert manager noticed Martinez and Fuentes looking suspicious (looking around to make sure no one was watching). When a store clerk asked the women if they needed help, they quickly went to different registers and purchased some token small items (water and some chapstick).

Then they got into a silver minivan. Just as the minivan was pulling out of the parking lot, store employees identified the van containing the women to a Newport Beach police officer, who quickly pulled the vehicle over. The officer found two large trash bags of medications and baby formula, which came from the shoplifts earlier that afternoon. The occupants of the car were arrested.

This appeal is not directly about Martinez and Fuentes, but the driver of the silver minivan, Eugenio Gutierrez. But even though this appeal is not directly about them, Martinez and Fuentes play a major role as to why there was sufficient evidence linking Gutierrez to the first two commercial burglaries committed that day.

Let us explain. Upon his arrest, Gutierrez told police the following story: Around 3 p.m. he was in Los Angeles. A guy named Don Tonio came up to him, said, hey, Ill give you $100 to drive to Newport Beach, pick up some -- these bags for me, and then bring them back. Gutierrez also said that he left from Los Angeles with Martinez. He further said that he drove to an area in Westminster, where they picked up Fuentes. And from there they went straight to Newport Beach, where he was to pick up the bags from a guy named Cheeky at the Albertsons (meaning the Albertsons where they had been arrested). We note: pick up bags, not drop them off.

The significance of that story becomes apparent when one realizes its implications when laid beside the evidence which the jury heard concerning the earlier two burglaries. (See Bruce v. Ullery (1962) 58 Cal. 2d 702, 711 [jury properly may reject part of the testimony of a witness, though not directly contradicted, and combine the accepted portions with bits of testimony or inferences from the testimony of other witnesses thus weaving a cloth of truth out of selected available material].) One must bear in mind that much of the trial testimony was taken up with evidence describing the movements of Martinez and Fuentes as regards the first two burglaries.

Essentially, Gutierrez story had Martinez and Fuentes acting in a highly improbable manner as regards their own persons and the loot that the jury knew they had already collected.

First, as to their personal movements, Gutierrez story had Martinez and Fuentes splitting up in the narrow window of time between about 2 p.m. and 3 p.m., and then reuniting sometime after 3 p.m., but for no apparent purpose. The jury knew that Martinez and Fuentes had clearly been working closely together in the early afternoon on the first two burglaries, the last one close to 2 p.m. But Gutierrez had them, in a mere hour and a quarter, splitting up, during which Fuentes somehow reached a residence in Westminster while Martinez got all the way to Los Angeles. And then he had Martinez, at around 3 p.m., change directions and head back to Orange County, this time with her own private driver, where she reunited with Fuentes. So how did Martinez get to Los Angeles at 3 p.m. when she was in Garden Grove at about 1:45 p.m., if she didnt already have her own car, and why should she need a chauffer after 3 p.m. to rendezvous with her compatriot and then be taken to Newport Beach?

Second, as regards the loot, Gutierrez story implies almost comical peregrinations. The jury knew that the two bags found in thesilver minivan about 5:30 p.m. contained items taken from the 12:30 p.m. burglary in Huntington Beach and the 1:45 p.m. burglary in Garden Grove. If one were to take Gutierrez story seriously, then, it means that Martinez had supposedly hauled the loot up to Los Angeles in some form of transport, and then, instead of disposing of it in Los Angeles, schlepped it backwith her to Orange County, so as to be conveniently sitting in the car for the police to find when she and Fuentes were eventually arrested. Either that, or -- even more improbably -- if Fuentes took the loot with her into wherever she was staying in Garden Grove from 1:45 p.m. to sometime after 3 p.m. when she was picked up again, it meant that Fuentes decided the haul the fruits of the 12:30 p.m. and 1:45 p.m. shoplifts back with her when she got into the van upon being picked up by Martinez, now being driven by Gutierrez.

In other words, Gutierrez had Martinez, Fuentes, or both, hauling around two trash bags of shoplifted gifts all afternoon for no apparent reason.

Gutierrez story was not quite the equivalent of Alices Queen, who made it a practice to believe six impossible things before breakfast. But its close. The two high improbabilities we have just identified easily allowed a reasonable jury to conclude that Gutierrez was, indeed, lying.

And having concluded that he was lying, the remaining loose ends quickly tie themselves up. The lie showed consciousness of guilt. (See People v. Snow (2003) 30 Cal.4th 43, 96 [upholding jury instruction that if defendant makes a willfully false or misleading statement, such statement tends to prove a consciousness of guilt].) That guilt, in turn, supports a reasonable inference that Gutierrez knew that two bags in the minivan contained stolen property, which would be sufficient by itself to implicate him in the prior burglaries. (See People v. Cooper (1991) 53 Cal.3d 1158, 1170 [intent to aid in carrying away sufficient to make getaway driver aider and abettor of prior theft].)[2]

But even if Gutierrez knowledge of his asportation of stolen goods was not sufficient to sustain the conviction (it is), the fact and nature of the lie plus the contents of the bags supports a reasonable inference that Gutierrez was the getaway driver all along.

Had Gutierrez been innocent of the two earlier burglaries, he would have had no reason to lie upon his arrest after the third, unsuccessful, burglary, or to concoct an alibi that rather too obviously exonerated him from the earlier shoplifts. After all, a reasonable jury could readily conclude that, in Gutierrez universe, the police wouldnt have had a thing on him from the aborted Newport Beach mission. He was merely the driver of a van in which two women had just gone into a store and stolen nothing. We note: The idea that a burglary can be committed simply by entering a store with intent to steal is not so readily intuitive that a getaway driver like Gutierrez would perceive a legal exposure for what Martinez and Fuentes had just done at the Newport Beach store. So he obviously knew he had more to worry about than what had just happened in Newport Beach.

Gutierrez story would only have made sense -- particularly that silliness about his being in Los Angeles at 3 p.m. -- if he already knew about the prior thefts earlier in the afternoon and wanted an alibi for them. That is, he knew about the prior thefts, and in particular knew they didnt happen after 3 p.m. And a reasonable inference from the fact of that knowledge was that he was the getaway driver, since Martinez and Fuentes would have had no reason to tell him of their earlier exploits so he wouldnt have known about them.

The judgment is affirmed.

SILLS, P. J.

WE CONCUR:

BEDSWORTH, J.

MOORE, J.

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[1] Having intent to steal when they entered the store, Martinez and Fuentes were guilty of burglary even though they got away with nothing from the Newport store. (E.g., People v. Gill (2008) 159 Cal.App.4th 149, 160 [One who enters a room or building with the intent to commit a felony is guilty of burglary even though permission to enter has been extended to him personally or as a member of the public.].)

[2] Thus, as it turned out, then, the prosecution did not even need to introduce prior crimes evidence showing that in January 2007 Gutierrez had been the lookout for a robbery in Torrance.