P.
v. Perez

 

 

 

Filed
9/13/13  P. v. Perez CA5

 

 

 

 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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

FIFTH APPELLATE DISTRICT

 
>

THE PEOPLE,   Plaintiff and Respondent,                           v.   MARTIN ARMANDO PEREZ,   Defendant and Appellant.

F065063   (Super. Ct. No. SF016440A)     >OPINION

 

THE COURThref="#_ftn1"
name="_ftnref1" title="">^*

            APPEAL from
a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Kern County.  Judith K. Dulcich, Judge.

            Conness A.
Thompson, under appointment by the Court of Appeal, for Defendant and Appellant.

            Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and William
K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

INTRODUCTION

            Appellant
Martin Armando Perez was convicted after jury trial of href="http://www.mcmillanlaw.com/">first degree burglary and sentenced to
four years’ imprisonment. (Pen. Code, § 460, subd. (a).)href="#_ftn2" name="_ftnref2" title="">^[1]  Appellant challenges the sufficiency of the
evidence supporting the guilty verdict and argues that he is entitled to
additional custody credits.  Neither contention is persuasive.  The judgment will be affirmed.

FACTS

            During the
evening of January 16, 2010, Hilario Tellez, Sr. and his wife, Beatrice Chavez,
ran some errands.  While they were away,
their house was burglarized and a flat screen television and a computer were
stolen.  The burglar or burglars entered
the house by forcing open a bedroom window. 
Chavez and Tellez found two cigarette butts lying on the garage floor
next to Tellez’s truck. 

            In August
2011, police took a buccal swab from appellant. 
His DNA profile matched DNA that was found on one of the cigarette
butts.href="#_ftn3" name="_ftnref3" title="">^[2]  Chavez and Tellez do not know appellant and
never invited him into their home. 

            Appellant
told a police officer that he smoked.  He
denied committing the burglary, saying “I’ll be honest.  I steal cars. 
I didn’t do that, though.”

            Appellant’s
younger brother, Juan Carlos Perez, testified that “at some point,
approximately two years ago, thereabouts” appellant drove him to the house that
was burglarized.  Appellant stopped the
car in front of the driveway.  Juan
knocked on the front door, which was opened by the residents’ son.  Appellant did not pull his car into the
driveway or get out of the car.  Juan did
not recall if the garage door was open or closed.  Juan testified that appellant is a heavy
smoker who typically flicks his cigarette butts out the car window.  Juan did not see appellant flick any
cigarette butts out of the car window while the car was stopped in front of the
driveway.   

            The
burglarized house is located in Shafter, California.  The wind speeds in Shafter on January 16,
2010, were between 3.57 and 9.90 miles per hour.

DISCUSSION

>I.          The
Conviction Is Supported By Substantial Evidence.

            Appellant
challenges the sufficiency of the evidence supporting the burglary
conviction.  His arguments are not
convincing.  As will be explained, the
guilty verdict is supported by the required modicum of evidence.

            “When a
defendant challenges the sufficiency of the evidence, ‘“[t]he court must review
the whole record in the light most favorable to the judgment below to determine
whether it discloses substantial evidence—that is, evidence which is
reasonable, credible, and of solid value—such that a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt.”  [Citation.]’ 
[Citations.]”  (>People v. Clark (2011) 52 Cal.4th 856,
942-943 (Clark).)  “In applying this test, we review the
evidence in the light most favorable to the prosecution and presume in support
of the judgment the existence of every fact the jury could reasonably have
deduced from the evidence.”  (>People v. Zamudio (2008) 43 Cal.4th 327,
357 (Zamudio).)  “Even when there is a significant amount of
countervailing evidence, the testimony of a single witness that satisfies the
standard is sufficient to uphold the [disputed] finding.”  (People
v. Barnwell (2007) 41 Cal.4th 1038, 1052.) 
“‘Conflicts and even testimony [that] is subject to justifiable
suspicion do not justify the reversal of a judgment, for it is the exclusive province
of the trial judge or jury to determine the credibility of a witness and the
truth or falsity of the facts upon which a determination depends.  [Citation.] 
We resolve neither credibility issues nor evidentiary conflicts; we look
for substantial evidence.  [Citation.]’ 
[Citation.]  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.]”  (Zamudio,
supra, 43 Cal.4th at p. 357.)

            “The same
standard governs in cases where the prosecution relies primarily on href="http://www.fearnotlaw.com/">circumstantial evidence.  [Citation.]” 
(Zamudio, supra, 43 Cal.4th at
p. 357.)  “‘Substantial evidence includes
circumstantial evidence and any reasonable inferences drawn from that
evidence.  [Citation.]’  [Citation.]” 
(Clark, supra, 52 Cal.4th at
p. 943.)  “We ‘must accept logical
inferences that the jury might have drawn from the circumstantial
evidence.  [Citation.]’  [Citation.]” 
(Zamudio, supra, at p.
357.)  When the circumstances reasonably
justify the trier of fact’s findings, the appellate court’s conclusion that the
circumstances might also reasonably be reconciled with a contrary finding does
not warrant reversal of the judgment.  (>Id. at p. 358.)  

            Appellant
argues “[t]he prosecution failed to present evidence sufficient for the jury to
reasonably infer that [he] dropped the cigarette butt in the garage at the time
of the burglary and not in or near the garage at an earlier time.”  We disagree. 
Chavez and Tellez testified that they searched the garage after they
realized their home had been burglarized and found two cigarette butts lying on
the floor.  Chavez testified that the
cigarette butts were not on the garage floor when she and Tellez left to run
errands prior to the burglary.  Tellez
and Chavez testified that no one who lives in the home smokes and they do not
know appellant and never gave him permission to be in their home. Appellant’s
DNA profile matched DNA found on one of the cigarette butts.  Juan testified that appellant is a heavy
smoker.  From this testimony a jury could
reasonably infer that appellant dropped the cigarette butts on the garage floor
during the burglary. 

            Appellant
contends that he could not have entered the garage because the interior door
between the kitchen and garage was locked when Chavez and Tellez returned home
from their errands.  This argument fails
because there was no evidence that this interior door did not have the common
type of locking mechanism that allows one to lock and unlock it from one side
of the door without a key.  There was no
testimony that a key was required to lock and unlock this door.  The jury could have found that appellant
entered the house through the bedroom window, unlocked the interior door
between the kitchen and garage, walked through this door into the garage and
then returned into the house through this door.     

            Finally,
appellant argues there was testimony legitimately placing him at the location
of the burglarized house and, therefore, his DNA at the crime scene is
insufficient to support the verdict.  We
are not convinced.  Chavez testified that
the cigarette butts were not on the garage floor when she and Tellez left to
run errands and were lying on the floor when they returned home.  Therefore, appellant’s act of dropping his
brother off in front of the house is relevant only if it occurred while Chavez
and Tellez were running errands on the evening of the burglary.  Appellant did not produce such evidence.  Juan testified that appellant dropped him off
in front of the burglarized house “at some point, approximately two years ago,
thereabouts.”  There was no evidence that
this event occurred on the same evening as the burglary.

            Several
cases are analogous to this situation. 
In People v. Tuggle (2012) 203
Cal.App.4th 1071, 1075-1077, a burglary conviction was upheld where the defendant’s
fingerprints were found on a vase in a burglarized home and the defendant said
that he had not been in the home for the previous two years.  In People
v. Preciado (1991) 233 Cal.App.3d 1244, 1246-1247, a claim of insufficiency
of the evidence was rejected where the defendant’s fingerprints were found on a
wristwatch box inside a burglarized condominium and the victim did not know the
defendant.  In People v. Ramirez (1931) 113 Cal.App. 204, 205-207, the defendant’s
fingerprint on a suitcase that was found inside a burglarized store was
sufficient to uphold a burglary conviction. 


            For all of
these reasons, we hold that the record contains adequate evidence from which a
jury could find beyond a reasonable doubt that appellant left a cigarette
containing his DNA on the floor of the garage during the commission of the
burglary and not at some other prior time. 
Since the guilty verdict is supported by substantial evidence, it did
not infringe appellant’s federal constitutional href="http://www.mcmillanlaw.com/">due process rights. 

II.        Appellant’s Custody Credit
Award Did Not Violate His Equal Protection Guarantee.   

            Under
section 2900.5, a person sentenced to state prison for criminal conduct is
entitled to presentence custody credits for all days spent in custody before
sentencing.  (§ 2900.5, subd.
(a).)  In addition, section 4019 provides
for what are commonly called conduct credits. 
Section 4019 has undergone numerous amendments in the past few years.  Under the version in effect prior to January
25, 2010, six days would be deemed to have been served for every four days
spent in actual custody.  (Former
§ 4019, subd. (f), as amended by Stats. 1982, ch. 1234, § 7, pp.
4553-4554.)  Section 4019 was amended
during 2011 to increase this ratio to one-for-one credits.  (§ 4019, subds. (b), (c), as amended by
Stats. 2011, ch. 15, § 482.)   The
legislation expressly provided that this change “shall apply prospectively ...
for a crime committed on or after October 1, 2011.  Any days earned by a prisoner prior to
October 1, 2011, shall be calculated at the rate required by the prior law.”  (§ 4019, subd. (h), as added by Stats.
2011, ch. 15, § 482 and amended by Stats. 2011, ch. 39, § 53.)

            Appellant
was awarded a total of 285 custody credits,
which were calculated at the “two for four” rate.  He argues that the federal constitutional
equal protection guarantee entitles him to a one-for-one credit award.  We are not persuaded. 

            >People v. Rajanayagam (2012) 211
Cal.App.4th 42, held that the amendment to section 4019 awarding less conduct
credits to those defendants who committed their offenses between September 28,
2010 and September 30, 2011, than those defendants who committed their offenses
on or after October 1, 2011, bears a rational relationship to the Legislature’s
legitimate state purpose of reducing costs. 
The Rajanayagam court
explained that in choosing October 1, 2011, as the effective date of the
amended statute, “the Legislature took a measured approach and balanced the
goal of cost savings against public safety.” 
(Rajanayagam, supra, at p.
55.)  It continued, “Under the very
deferential rational relationship test, we will not second-guess the
Legislature and conclude its stated purpose is better served by increasing the
group of defendants who are entitled to enhanced conduct credits when the
Legislature has determined the fiscal crisis is best ameliorated by awarding
enhanced conduct credit to only those defendants who committed their offenses
on or after October 1, 2011.”  (>Id. at p. 56.) 

            There is a
second rational basis for the classification at issue.  In People
v. Kennedy (2012) 209 Cal.App.4th 385, the appellate court determined that
the Legislature rationally could have believed that by making the application
of the amendments to section 4019 dependent on the date of the crime, the
deterrent effect of the criminal law as to crimes committed before that date
was being preserved.  (>Id. at pp. 398-399.)  The Kennedy
court explained:  “To reward appellant
with the enhanced credits of the [October] 2011 amendment to section 4019, even
for time he spent in custody after October 1, 2011, weakens the deterrent
effect of the law as it stood when appellant committed his crimes.  We see nothing irrational or implausible in a
legislative conclusion that individuals should be punished in accordance with
the sanctions and given the rewards (conduct credits) in effect at the time an
offense was committed.”  (>Id. at p. 399.) 

            We find >Rajanayagam and Kennedy to be well-reasoned and persuasive.  Following and applying these decisions, we
reject appellant’s equal protection challenge. 


DISPOSITION

            The
judgment is affirmed.