Opinion
2d Crim. No. B186980
1-2-2008
THE PEOPLE, Plaintiff and Respondent, v. ELIJAH ISAIAS GARCIA et al., Defendants and Appellants.
Jerry D. Whatley, under appointment by the Court of Appeal, for Defendant and Appellant Garcia. Larry S. Dushkes, under appointment by the Court of Appeal, for Defendant and Appellant Ramirez. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels, Supervising Deputy Attorney General, Stephanie C. Brenan, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Elijah Isaias Garcia appeals his conviction, by jury, on five counts of second degree commercial burglary (Pen. Code, §§ 459, 460); and one count each of unlawfully driving or taking a vehicle (Veh. Code, § 10851, subd. (a)); receiving stolen property (§ 496, subd. (a)); and being under the influence of a controlled substance, a misdemeanor (Health & Saf. Code, § 11550, subd. (a)). In a bifurcated proceeding, the trial court found true the allegations that Garcia committed two of the burglaries while released from custody on bail or on his own recognizance for another felony offense (§ 12022.1, subd. (b)). He was sentenced to a total state prison term of six years.
Further statutory references are to the Penal Code, unless otherwise noted.
Garcias codefendant Dee Dee Ramirez appeals her conviction, by the same jury, of second degree burglary and unlawfully taking or driving a vehicle. The imposition of her sentence was suspended, and she was granted probation for five years including 60 days to be served in the county jail.
Garcia contends the evidence is insufficient to support two of his burglary convictions, and that the true finding on the section 12022.1, subdivision (b) allegation as to count 9 must be reversed because he did not personally and expressly waive his right to a jury trial on those allegations. Ramirezs attorney filed an opening brief raising no issues and requesting this court to independently examine the record pursuant to People v. Wende (1979) 25 Cal.3d 436. We reject Garcias contentions, and conclude that Ramirezs attorney has fully complied with his responsibilities and that there are no arguable issues on Ramirezs appeal. Accordingly, we affirm the judgments.
FACTS AND PROCEDURAL HISTORY
Garcias Burglary of Sissys Uptown Café and Bicycles Unlimited
At around 7:00 a.m. on September 27, 2004, an employee of Sissys Uptown Café in Lompoc arrived at work and saw that the front window had been broken out. About 15 minutes later, the owner arrived and discovered that a cash register containing $150 was missing, as were several bottles of wine and five decorative plates. Window panels of the front and side doors were also broken out, and a large rock was found inside near the front door.
At about 8:00 a.m. that same morning, the owner of a surf shop on North H Street in Lompoc reported to the police that the front window of a neighboring store, Bicycles Unlimited had been shattered. The police arrived approximately 15 minutes later to discover that the front window of the business had been "smashed out" and that four bicycles that had been hanging near the front window were missing. A concrete utility meter lid was found on the sidewalk in front of the shattered window.
Garcias Burglary of the Civic Auditorium
At about 5:00 or 6:00 p.m. on October 1, 2004, two individuals arrived at the Civic Auditorium in Lompoc to set the stage for the rehearsal of a play being produced by the Lompoc Civic Theater. Both of the auditoriums side doors were open. A rug, lamp, and clock from the set were missing, and a painting had been replaced with a different one. Four of the decorative plates stolen from Sissys Uptown Café were sitting on the sets mantle, and two of the bicycles stolen from Bicycles Unlimited were found on either side of the stage. It was subsequently discovered that a feathered robe the theater company had borrowed from the Pacific Conservatory of Performing Arts was also missing.
Appellants Burglary of C.O.D. Motorsports and Unlawful Taking of a Motorcycle
At about 1:30 a.m. on October 7, 2004, someone broke the front window of C.O.D. Motorsports in Buellton and stole a 1999 K.T.M. Pro 5 Senior motorcycle that had been displayed in the window. Approximately 10 minutes after receiving a radio call regarding the stolen motorcycle, a Santa Barbara sheriffs deputy observed a truck with an unlit rear license plate traveling westbound on Highway 15, approximately 15 miles from C.O.D. Motorsports. After the deputy conducted a traffic stop, he saw a partially covered motorcycle in the bed of the truck that matched the description of the stolen motorcycle. Ramirez was driving the truck, and Garcia was her passenger. It was subsequently determined the motorcycle in the bed of the truck was the one stolen from C.O.D. Motorsports. There were also small glass fragments in the trucks bed, and an aluminum baseball bat with "fresh gouge marks" was found behind the passengers seat.
Garcias Possession of the Robe Stolen From the Civic Auditorium
At about 4:00 a.m. on October 21, 2004, a Lompoc Police Department officer was patrolling Lompocs downtown commercial area when he saw Garcia walking in an alley with a large chunk of concrete in his hand. The officer pulled up to Garcia, who said he was carrying the concrete "for protection."
On October 22, 2004, Garcias residence was searched pursuant to a warrant. The feathered robe stolen from the Civic Auditorium was found in a pile of clothing inside the residence, and a large piece of cement was found outside near the front door. Although a credit card bearing Ramirezs name was found in the kitchen, there was nothing else suggesting that she lived there.
Garcias Burglary of Gracian Feed and Being Under the Influence of Methamphetamine
At approximately 4:30 a.m. on March 2, 2005, Lompoc Police Detective Allen Chisholm responded to a burglary at Gracian Feed in Lompoc. Numerous items were missing from the store, including a computer and approximately 15 pairs of mens work boots, and a 4-by-4 piece of wood was found near the broken front window.
Shortly after 5:00 a.m., Garcia approached Detective Chisholm at the scene of the burglary and was detained. Following a drug abuse recognition examination, Garcia was arrested for being under the influence of methamphetamine or cocaine. At the time of his arrest, Garcia had a room key to the Lompoc Motel. Officers went to the room at about 7:30 a.m. and contacted Melissa Pritchard, who told them that Garcia sometimes stayed there with her and had his own room key. When one of the officers entered the room, he saw about 10 boxes of the boots stolen from Gracian Feed stacked against the wall. Pritchard told the police Garcia brought the boxes into the room at about 2:00 or 2:30 a.m. that morning and asked her if he could store them there.
In his defense, Garcia presented evidence indicating that there are over 300 commercial burglaries every year in Lompoc, and that he was out of town when four uncharged burglaries involving smashed windows were committed in late 2004 and early 2005.
DISCUSSION
I.
Garcias Appeal
A.
Sufficiency of the Evidence
Garcia contends his convictions for the burglary of Sissys Uptown Café and Bicycles Unlimited must be reversed because the evidence is insufficient to establish his identity as the perpetrator of those offenses. We disagree.
In assessing the sufficiency of evidence to support a conviction, we review the evidence and draw all reasonable inferences therefrom to determine if reasonable and credible evidence supports the decision of the trier of fact. (People v. Snow (2003) 30 Cal.4th 43, 66.) In performing this task, we view the evidence most favorably to the judgment. (Ibid.) This standard of review applies to direct evidence and circumstantial evidence alike. (Ibid.)
The crime of burglary and the identification of the perpetrator are often established entirely by circumstantial evidence. (People v. Bradford (1997) 15 Cal.4th 1229, 1329; People v. Naughton (1969) 270 Cal.App.2d 1, 7-8.) Viewing the evidence in the light most favorable to the judgment, the evidence is sufficient to support the jurys finding that Garcia perpetrated the burglaries of Sissys Uptown Café and Bicycles Unlimited. Garcia does not challenge the sufficiency of the evidence supporting his conviction for burglarizing the Civic Auditorium, and the perpetrator of that crime left items stolen from Sissys Uptown Café and Bicycles Unlimited four days earlier. Contrary to Garcias claim, it was not "too much of a stretch" for the jury to infer from this evidence that he committed all three burglaries. Moreover, four of the five burglaries for which Garcia was convicted all involved the same method of operation: all were so-called "smash and grab" burglaries perpetrated by throwing a rock or other heavy object through a stores front window and stealing items that were displayed in or near the window. Shortly after a motorcycle was stolen from C.O.D. Motorsports by this method, Garcia was apprehended with the motorcycle in his possession. The Gracian Feed burglary was committed by the same method. Shortly thereafter, Garcia showed up at a motel room where he often stayed with items stolen during that burglary. Then, he returned to the scene at 5:00 in the morning and approached a police officer who was investigating the crime. Hours later, he was directly connected to items stolen during that burglary. This circumstantial evidence plainly supports the jurys finding that Garcia was the person who committed all five of the burglaries for which he was convicted.
B.
Section 12022.1, Subdivision (b)
The second amended information alleged that Garcia committed the Gracian Feed burglary while released from custody on bail or on his own recognizance for the burglary of C.O.D. Motorsports, as contemplated by section 12022.1, subdivision (b). Prior to jury selection, the parties stipulated to a bifurcated court trial on this allegation. After the jury found Garcia guilty on both burglary counts, a court trial was held in which the court found, based on court records, that Garcia was released from custody on bail or on his own recognizance for the C.O.D. Motorsports burglary when he committed the burglary of Gracian Feed. Accordingly, Garcias sentence included a consecutive two-year penalty enhancement. (§ 12022.1, subd. (b).)
Section 12022.1, subdivision (b) provides: "Any person arrested for a secondary offense which was alleged to have been committed while that person was released from custody on a primary offense shall be subject to a penalty enhancement of an additional two years in state prison which shall be served consecutive to any other term imposed by the court." A "primary offense" is defined in pertinent part as "a felony offense for which a person has been released from custody on bail or on his or her own recognizance . . . for which release on bail or his or her own recognizance has been revoked." (Id., subd. (a)(1).) A "secondary offense" is defined as "a felony offense alleged to have been committed while the person is released from custody for a primary offense." (Id., subd. (a)(2).)
The court also found true the section 12022.1, subdivision (b) enhancement alleged as to count 8 (receiving stolen property), but struck the enhancement in the interests of justice at sentencing.
Garcia contends the section 12022.1, subdivision (b) enhancement must be reversed because the trial court failed to obtain a personal and express waiver of his right to a jury trial, as required by article I, section 16 of the California Constitution. We disagree.
Article I, section 16 of the California Constitution provides in pertinent part: "A jury may be waived in a criminal cause by the consent of both parties expressed in open court by the defendant and the defendants counsel."
The state constitutional guarantee of a jury trial applies only to the determination of a defendants guilt of the substantive crimes with which he or she is charged, and not bifurcated sentence enhancement allegations. (People v. Wiley (1995) 9 Cal.4th 580, 585-590; see also People v. Vera (1997) 15 Cal.4th 269, 277 [recognizing that "the failure to obtain an express, personal waiver of the right to jury trial of prior conviction allegations does not constitute a violation of the state constitutional mandate" conferred by article I, section 16]; People v. Epps (2001) 25 Cal.4th 19, 23.) Moreover, the facts relevant to the determination whether Garcia was out on bail or on his own recognizance when he committed the burglary of Gracian Feed were "readily ascertainable upon an examination of court documents. This is the type of inquiry traditionally performed by judges as part of the sentencing function." (Wiley, at p. 590; Epps, at p. 26.) Because Garcia had no right under the state Constitution to have a jury decide the truth of the bifurcated sentence enhancement allegation, no personal or express jury waiver was necessary.
Because Garcia asserts only a state constitutional right to a jury trial on the section 12022.1, subdivision (b) allegation, we need not address the Peoples argument that no such right was conferred by statute or the federal Constitution.
II.
Ramirezs Appeal
We appointed counsel to represent appellant Ramirez on this appeal. After examining the record, counsel filed an opening brief in which no issues were raised.
On March 21, 2007, we advised Ramirez that she had 30 days in which to submit a written brief or letter raising any contentions or arguments she wished us to consider. She did not respond.
We have examined the entire record, and are satisfied that Ramirezs attorney has fully complied with his responsibilities and that no arguable issues exist. (People v. Wende, supra, 25 Cal.3d at p. 441.)
DISPOSITION
The judgments are affirmed.
We concur:
GILBERT, P.J.
YEGAN, J.