P.
v. Rodriguez

 

 

 

 

 

 

 

Filed 9/13/12  P. v.
Rodriguez CA2/8

 

 

 

 

 

NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS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  This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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

 

 
>

THE PEOPLE,             Plaintiff and Respondent,             v. JORGE L. RODRIGUEZ,             Defendant and Appellant.

B238801       (Los Angeles County       Super. Ct. No. BA387528)

 

            APPEAL from a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, Anne H. Egerton, Judge.  Affirmed.

 

            Comar Law and D. Inder Comar, under appointment by the
Court of Appeal, for the Defendant and Appellant.

 

            Kamala D. Harris, Attorney General, Dane R. Gillette,
Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney
General, Mary Sanchez and Jonathan M. Krauss, Deputy Attorneys General, for
Plaintiff and Respondent.

 

* * * * * * * * * *

            Defendant Jorge L. Rodriguez was convicted by jury of one
count of first degree burglary (Pen.
Code, § 459).  On appeal, defendant
argues there was insufficient evidence that he had the specific intent to
commit a felony when he entered the victims’ home. Because there was
substantial evidence that defendant entered through a crawlspace and ransacked
the home before he was interrupted by neighbors and police, we affirm.

FACTS

>            At 1:00
p.m.
on August 8, 2011, sisters Elba and Elena Olivero left
their Los Angeles home to buy car
insurance.  Their 70-year-old brother,
Americo Olivero, remained at home.  At 4:00
p.m.,
neighbor Antonieta Tunchez noticed defendant “wandering” inside the patio of
the Oliveros’ house.  He was very dirty
and bleeding from his forehead.  Tunchez
lost sight of him and went into her house to call the Olivero sisters to let
them know someone was inside their house. 
Elba and Elena headed home when they received her call. 

Tunchez called
another neighbor, Johnnie Underwood, and told her someone was inside the
Olivero house.  Underwood called her
grandson, Raymond Wells, for help.  When
Wells arrived at the Olivero house, he saw defendant walking out the patio
door.  Wells asked defendant, “What are
you doing in that yard?  I know you don’t
live there.”  Defendant went back inside
the patio and closed the door.  Wells
then saw defendant go behind the garage and enter the crawlspace beneath the
house.  Wells called police after he was
unable to coax defendant out of the crawlspace. 


            At 4:37 p.m., Los Angeles Police
Officers Ramon Melendez and Ronald Sanchez responded to a report of a burglary
in progress.  When they arrived at the
Oliveros’ home, other officers were already looking for the intruder.  The laundry room and storage room that were
attached to the house appeared to be “ransacked.”  The storage room was in “disarray” with
“stuff turned over.”  One of the washing
machines was pushed away from the wall, revealing an open access to the
crawlspace, and dirt and debris on the floor. 
Officer Sanchez opined that defendant entered the house through the
crawlspace. 

            Officer Melendez saw defendant in the crawlspace.  He identified himself as a police officer and
ordered defendant to come out.  Defendant
lay still and did not comply.  After five
minutes, defendant crawled out and was detained in the laundry room.  He was uncooperative and agitated.  It was unclear to the officers whether he was
under the influence of drugs or alcohol. 
Officers patted him down but did not find any contraband. 

            After defendant was detained, Officer Sanchez walked Elba and Elena through the house
(their brother Americo was not home). 
They noticed the washing machine had been moved, and the crawlspace
access behind the machine was open.  In
the adjacent storage room, “[e]verything was strewn about and the refrigerator
had been moved away from the wall.” 
Blankets and clothes were on the floor, yogurt had been removed from the
refrigerator, a leaf blower was moved, and a shelf attached to an outside wall,
beneath Elba’s bedroom window, was broken.  A storage cabinet had been taken from the
laundry room and placed outside, turned on its side, and emptied of its
contents.  The laundry and storage rooms
were not in the same condition as when the sisters left home earlier that day.  Nothing appeared to be missing. 

            Defendant presented evidence that he was
intoxicated.  Defendant’s employer,
Walter Arias, testified that when he arrived at the jobsite at 1:00
p.m.
on August 8, 2011, defendant and several
other employees were pouring concrete for a driveway.  Defendant was clumsy and smelled of
alcohol.  He saw defendant drink three
Heineken beers.  He told defendant to sit
down and “sober up.”  Defendant tried to
work but had difficulty, knocking over a cement mixer.  Around 3:30 p.m., defendant left the
jobsite. 

DISCUSSION

            In reviewing a claim of insufficient evidence, our role
is a limited one.  (People v. Smith (2005) 37 Cal.4th 733, 738.)  The test is whether, on the entire record,
there is substantial evidence from which a rational trier of fact could find
defendant guilty beyond a reasonable doubt. 
“‘“On appeal, we must view the evidence in the light most favorable to
the [prevailing party] and must presume in support of the judgment the
existence of every fact the trier could reasonably deduce from the
evidence.  [Citation.]”’  [Citations.]” 
(Id. at p. 739.)  Substantial evidence is that which is
reasonable, credible and of solid value. 
(People v. Bradford (1997) 15
Cal.4th 1229, 1329.)  We do not reweigh
the evidence.  Questions of credibility
and the weight to be given to the evidence are matters for the jury.  (People
v. Ochoa (1993) 6 Cal.4th 1199, 1206; People
v. Ceja (1993) 4 Cal.4th 1134, 1139.)

            Burglary involves the act of unlawful entry accompanied
by the specific “intent to commit grand or petit larceny or any felony.”  (Pen. Code, § 459; People v. Montoya (1994) 7 Cal.4th 1027, 1041.)  “One may [be] liable for burglary upon entry
with the requisite intent . . . , regardless of whether the
felony or theft [actually] committed is different from that [originally]
contemplated . . . , or whether any felony or theft actually is
committed.”  (Montoya, at pp. 1041-1042.) 
In order to constitute a burglary, the defendant must intend to commit
the theft or felony at the time of entry. 
(People v. Holt (1997) 15
Cal.4th 619, 669.)  The existence of the
requisite intent is rarely shown by direct proof, but may be inferred from the
circumstances.  (Ibid.) 

            Defendant contends there was no evidence of his intent
when he entered the house because he did not take anything, and did not possess
burglary tools.  Relying on >In re Leanna W. (2004)
120 Cal.App.4th 735, defendant posits that the notion he had the intent to
steal upon entry is pure speculation. 
Defendant’s reliance on Leanna W.
is misplaced.  In >Leanna W., a minor entered her
grandmother’s home without permission and threw a party where alcohol was
consumed, pay-per-view movies were watched, property was damaged, and items
were stolen.  Because there was no
evidence of what the minor did at the party (as opposed to what her guests
did), the Court of Appeal concluded there was insufficient evidence the minor
committed burglary or theft.  (>Id. at pp. 741-742.)

In contrast,
there was substantial evidence of defendant’s activities in the Oliveros’
home.  No one else was seen near the
house at the time defendant entered, and the laundry and storage rooms were
ransacked, which leads to the reasonable inference that defendant was looking for
something of value to steal before he was interrupted by neighbors and the
police.  Defendant did not immediately
comply with orders to exit the crawlspace, evidencing a consciousness of
guilt.  (People v.
Cramer (1967)
67 Cal.2d 126, 130-131 [resisting arrest may demonstrate a consciousness of
guilt].)  This evidence plainly
supports a reasonable inference that defendant intended to steal when he
entered the home.  Given our standard of
review, it is irrelevant that other conclusions from the evidence are possible.


DISPOSITION

            The judgment is affirmed.

NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS

 

 

 

 

                                                                                    GRIMES,
J.

 

WE CONCUR:

 

 

 

                        BIGELOW, P. J.                   

 

 

 

                        RUBIN, J.