P. v. Osuna

 

 

 

Filed 1/28/14  P. v. Osuna
CA2/5

 

 

>NOT TO BE PUBLISHED IN THE
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  This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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

 

SECOND APPELLATE DISTRICT

 

DIVISION FIVE

 

 
>

THE PEOPLE,               Plaintiff and Respondent,               v.   JUAN HILARIO OSUNA,               Defendant and Appellant.

B248186         (Los Angeles County       Super. Ct. No. GA086410)

 

            APPEAL
from a judgment of the Superior Court of
the County of Los Angeles, Jared D. Moses, Judge.  Affirmed.

            Randall
Conner, under appointment by the Court of
Appeal, for Defendant and Appellant.

            No
appearance for Plaintiff and Respondent.

 

 

 

 

 

INTRODUCTION

             Defendant and appellant Juan Hilario Osuna (defendant)
was convicted of first degree residential burglary.  (Pen. Code, § 459href="#_ftn1" name="_ftnref1" title="">[1]).  On appeal, appointed counsel for defendant filed
an opening brief in accordance with href="http://www.mcmillanlaw.us/">People v. Wende (1979) 25 Cal.3d 436
requesting that this court conduct an href="http://www.sandiegohealthdirectory.com/">independent review of the
record to determine if there are any issues which if resolved in defendant’s
favor would require reversal or modification of the judgment.  On September 12, 2013, we gave notice to defendant that his counsel had failed to find
any arguable issues and that defendant had 30 days within which to submit by
brief or letter any grounds of appeal, contentions, or arguments he wished this
court to consider.  Defendant filed a
letter brief in which he contends that there was insufficient evidence to
support his conviction.  We have reviewed
the record and affirm the judgment. 

 

FACTUAL BACKGROUND

 

A.        Prosecution Evidence

            Leo
Silva (Silva) testified that he lived in Duarte, with his
brother, and occasionally his parents.  In
the morning of December 30, 2010, Silva
departed his house to go to work.  Before
he left his home, he did not lock the sliding door that separated the backyard
to the kitchen (sliding door), but he locked the door that led from the kitchen
to the interior of the house (kitchen door).  Other than his brother and parents, he did not
give anyone permission to enter into the house while he was at work.  Silva did not know defendant, never saw him at
the house or a family
function before, and did not have any reason to believe defendant had
permission to enter Silva’s house.

            Silva
testified that when he returned home from work, he saw that the unlocked
sliding glass door and the locked kitchen door was open, and a portion of the glass
panel in the kitchen door had been “split open” such that he could “reach a
hand inside the door.”  He also saw that
the drawers and closets in the home had been opened;  and a television, a computer, the contents of
his mother’s jewelry box, and an expensive watch were missing.

            Los
Angeles County Sheriff’s Department Deputy John Michael Jansen, Jr. testified
that he arrived at Silva’s residence at about 6:00 p.m. on December 30, 2010.  He saw that the window
frame on the kitchen door had been “pushed in,” the window was broken off the
frame, and “a lot of drawers and dressers and
things . . . were pulled open and disheveled as if someone
was going through all the different dressers and drawers throughout the house.”
 Deputy Jansen requested that the Sheriff’s
Department dispatch a fingerprint investigator to the home.

            Los
Angeles County Sheriff’s Department Technician Rebeka Carr testified that on January 4, 2011, she arrived at Silva’s residence and observed that the kitchen door
had been removed from its frame and placed inside the house.  She found two palm prints on the kitchen door,
and preserved each print on its own card.

            Los
Angeles County Sheriff’s Department Detective Roger McNichols testified that Los
Angeles County Sheriff’s Department employee Marisela Rowles submitted the palm
prints that Carr had taken from Silva’s residence to the Automated Fingerprint
Identification System (AFIS) database. 
The AFIS database identified defendant as a suspect based on the
similarity of one of the prints to an exemplar of defendant’s palm prints
stored in the database.  Detective
McNichols examined the prints Carr had taken from Silva’s residence and concluded
that one of the palm prints matched the exemplar of defendant’s palm prints
stored in the AFIS database.

            Los
Angeles County Sheriff’s Department
employee John Chun verified Detective McNichols’ conclusion that the palm print
Carr had taken from Silva’s residence matched the exemplar of defendant’s palm
prints stored in the AFIS database.  Los
Angeles County Sheriff’s Department Deputy Steve Woolum testified that he also verified
Detective McNichols’ conclusion.

            Detective
McNichols took defendant’s palm print during trial, examined it, and concluded that
it matched both the exemplar of defendant’s palm prints stored in the AFIS
database and the palm print that Carr had taken from Silva’s residence.  

 

            B.        Defendant’s Evidence

            Defendant
did not testify at trial.

 

DISCUSSION

 

A.        Substantial
Evidence

            Defendant
contends that there was insufficient evidence “To Prove The Case.”  We disagree.

            “‘When
considering a challenge to the sufficiency of the evidence to support a
conviction, we review the entire record in the light most favorable to the
judgment to determine whether it contains substantial evidence—that is,
evidence that is reasonable,  credible,
and of solid value—from which a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.’ 
[Citation.]”  (>People v. >Avila (2009) 46 Cal.4th 680, 701.) 
“We must presume in support of the judgment the existence of every fact
that the trier of fact could reasonably deduce from the evidence.  [Citation.]” 
(People v. >Medina (2009) 46 Cal.4th 913, 919.) 
“A reversal for insufficient evidence ‘is unwarranted unless it appears
“that upon no hypothesis whatever is there sufficient substantial evidence to
support”’ the jury’s verdict. 
[Citation.]”  (>People v. Zamudio (2008) 43 Cal.4th 327,
357.)  “In deciding the sufficiency of
the evidence, a reviewing court resolves neither credibility issues nor
evidentiary conflicts.  [Citation.]  Resolution of conflicts and inconsistencies in
the testimony is the exclusive province of the trier of fact.”  (People
v. Young (2005) 34 Cal.4th 1149, 1181.) 
“Substantial evidence includes circumstantial evidence and the reasonable
inferences flowing therefrom.”  (>People v. Ugalino (2009) 174 Cal.App.4th
1060, 1064.)  â€œWe ‘must accept logical
inferences that the jury might have drawn from the circumstantial evidence.  [Citation.]’ 
[Citation].”  (>People v. Zamudio, supra, 43 Cal.4th at pp. 357-358.)

            Defendant
was convicted of first degree residential burglary in violation of section
459.  Section 459 provides, “Every person
who enters any house . . . with intent to commit grand or petit
larceny or any felony is guilty of burglary.” 
The trial court instructed the jury with a modified version of CALJIC
No. 14.50, defining burglary, stating, “Defendant is accused in Count one of
having committed the crime of burglary, a violation of section 459 of the Penal
Code.  [¶]  Every person who enters any building with the
specific intent to steal, take, and carry away the personal property of another
of any value and with the further specific intent to deprive the owner
permanently of that property is guilty of the crime of burglary in violation of
Penal Code section 459.  [¶]  It does not matter whether
the intent with which the entry was made was thereafter carried
out.  [¶]  In order to prove this crime, each of the
following elements must be proved:  [¶]  1. A person
entered a building and  [¶]  2. At the time of the entry,
that person had the specific intent to steal and take away someone else’s
property, and intended to deprive the owner permanently of that property.”

            Defendant
contends that Deputy Jansen testified that he did not take photographs of the
point of entry into the home, but Silva, the homeowner, testified that Detective
Jansen had taken photographs of that location.  In addition, he argues that the jury should
not have found Detective McNichols credible.  But, as noted above, “In deciding the
sufficiency of the evidence, a reviewing court resolves neither credibility
issues nor evidentiary conflicts. 
[Citation.]  Resolution of
conflicts and inconsistencies in the testimony is the exclusive province of the
trier of fact.”  (People v. Young, supra,
34 Cal.4th at p. 1181.) 

            Defendant
contends that because no photographs of the crime scene were introduced as
evidence during trial, there was no “proof” that the home “was broken into.”  There was, however, substantial evidence that
Silva’s home “was broken into.”  Silva
testified that he saw that the sliding glass door and the locked kitchen door
had been opened, a glass panel in the kitchen door had been broken, drawers and
closets in the home had been opened, and items in the house were missing.  Deputy Jansen testified that he saw the broken
kitchen door, and several drawers had been pulled open “as if someone was going
through all the different dresser and drawers throughout the house.”

            Defendant
also contends that because the kitchen door had been removed and replaced by an
exact replica, there is no “Proof That There Was In Fact A Print.”  There was substantial evidence that there was
defendant’s palm print on the removed door. 
Carr testified that upon arriving at Silva’s residence, she observed
that the kitchen door had been removed from its frame and placed inside the
house, and she found two palm prints on the door.  Detective McNichols testified that the AFIS
database identified one of the palm prints Carr had taken from Silva’s
residence as defendant’s palm print. 
Detective McNichols examined that palm print and also concluded that it
matched the exemplar of defendant’s palm prints stored in the AFIS database.  Detective McNichols’ conclusion was verified
by Chun and Deputy Woolum.  Detective
McNichols also took defendant’s palm print during trial and concluded that it
matched both the exemplar of defendant’s palm prints stored in the AFIS
database and the palm print that Carr had taken from Silva’s residence. 

            Defendant
argues that there was no evidence that when Silva or a member of his family
removed the door that he or she was wearing gloves, and asks “Was The Door
Tampered With . . . Thus Contaminating The Only Evidence[?]”  Because there is no evidence in the record
that the door was “contaminated” with palm prints of whoever removed the kitchen
door, defendant’s contention is speculative. 


            Even
if the door had been “contaminated” with the palm prints of whoever removed the
kitchen door, it is of no consequence.  As
noted above, there is substantial evidence that a palm print Carr had taken
from Silva’s residence was defendant’s palm print. 

            In
addition, defendant contends that his lawyer said that there was no evidence
that when Silva or a member of his family removed the door that he or she was
wearing gloves, but the jury “over looked” [sic]
it “Like It Was Not Important.”  Defendant’s
counsel argued during closing argument that there is no evidence that whoever
handled the door when it was removed from its hinges wore gloves or took extra
precautions not to touch the glass part of the door.  There is no evidence that the jury “over
looked” [sic] the argument by
defendant’s counsel in the sense of not recognizing that the argument was
made.  Instead, it may be reasonably
inferred that the jury rejected the argument.

 

            >B.        Review

            In
addition to reviewing and addressing the matters raised in defendant’s letter
brief, we have made an independent examination of the entire record to
determine if there are any other arguable issues on appeal.  Based on that review, we have determined that
there are no other arguable issues on appeal. 
We are therefore satisfied that defendant’s counsel has fully complied
with counsel’s responsibilities under People
v. Wende, supra, 25 Cal.3d 436.

 

DISPOSITION

            The
judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

 

 

                                                                                    MOSK,
J.

 

 

We concur:

 

 

 

                        TURNER, P. J.

 

 

 

                        MINK, J.href="#_ftn2" name="_ftnref2" title="">*