Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 5-051425-7
STEIN, J.
Counsel for defendant Raul Arturo Valle-Gallego has filed an opening brief in which he raises no issues and asks this court for an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436. Counsel represents defendant has been deported and counsel has no forwarding address for him. Counsel has, however, sent defendant a letter in care of defendant’s trial attorney, apprising defendant of his right to file a supplemental brief. Defendant has not filed a brief. We have conducted the review requested by counsel, and finding no arguable issues, affirm the judgment.
Discussion
Defendant was charged by information with two counts of first degree residential burglary (Pen. Code, §§ 459; 460, subd. (a)), two counts of receiving stolen property (§ 496, subd. (a)) and one count of unlawfully entering and remaining in a noncommercial dwelling house, a misdemeanor (§ 602.5). The case was tried to a jury, which returned a verdict of guilty on all counts.
All further statutory references are to the Penal Code unless otherwise noted.
Evidence
Olga Solorio testified she resided in apartment 11 at 3910 Pacheco Boulevard in Martinez. On June 25, 2005, at approximately 6:00 o’clock in the evening, Ms. Solorio left the apartment, locking the door behind her. When she returned, she saw a window had been broken and the apartment was a mess. A number of items of personal property were missing, including coins, her son’s necklace from baptism, some other pieces of jewelry and a plate of shrimp and rice. Ms. Solorio called the police. Sheriff’s Deputy Patric O’Brian responded. Ms. Solorio indicated she thought the person who had broken into the house might be in apartment 12. The doors to that apartment were locked and there was no sign anyone was inside. They called the owner of the building, who asked them not to break down the door, and to wait for him so he could open the door with his keys. Deputy O’Brian left, asking the owner to call when he arrived.
The owner called about an hour later. Deputy O’Brian returned to apartment 11 with another officer, where they were met by the owner of the building. They were able to unlock the lock, but unable to open the door, which appeared to be latched from the inside. The owner reported no one should be in the apartment and door should not have been latched from the inside. The police then broke in, finding garbage all over the place as if someone had been living there. Defendant was hiding in a closet. The police also found the items Ms. Solorio told them had been taken from her apartment, including the plate with shrimp and rice.
At that point, the police were approached by some other people, one of whom identified himself as Jesus Lopez. Mr. Lopez told them some things had been stolen from his home, and identified several additional items the police found in apartment 12 as belonging to him. Mr. Lopez testified at trial, explaining he lived nearby. He had returned home three or four days earlier, where he found someone had broken into his apartment through a window and had taken various items of personal property. Mr. Lopez knew defendant, who had visited a few days before the break-in. He suspected defendant had stolen his property, but had not reported the burglary to the police because he did not want anything bad to happen to defendant and did not want to get involved with police. He just wanted his property back.
The police took defendant to the station, where he was questioned by Deputy Adalberto Garibay, who is certified as being proficient in Spanish. After Deputy Garibay explained defendant’s Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436), defendant stated he understood, and agreed to talk to the detectives. Defendant admitted to breaking into apartment 12. He also admitted to breaking into apartment 11 and to taking items belonging to Mr. Lopez from Mr. Lopez’s residence without Mr. Lopez’s permission.
The evidence supports the jury’s verdict.
Denial of Challenge for Cause
The court denied defense requests that two jurors be excused for cause. One juror had made statements that if the defense did not put on any evidence, he would simply believe the prosecution. The other stated his profession brought him into contact with law enforcement officers, also stating he would assume a witness, including a police officer, was telling the truth until proven otherwise. As to the first juror, the trial court explained the juror had been trying all along to get off the jury and the court did not believe his answers actually reflected a basis for challenging him for cause. As to the second, the court explained it did not view his answers as rising to the level of cause. The defense exercised peremptory challenges against each juror, later exhausting all of its peremptory challenges. (Code Civ. Proc., § 231, subd. (a).)
“Generally, a trial court’s rulings on motions to exclude for cause are afforded deference on appeal, for ‘appellate courts recognize that a trial judge who observes and speaks with a prospective juror and hears that person’s responses (noting, among other things, the person’s tone of voice, apparent level of confidence, and demeanor), gleans valuable information that simply does not appear on the record. [Citation.]” (People v. Avila (2006) 38 Cal.4th 491, 529, citing People v. Stewart (2004) 33 Cal.4th 425, 451.) This rule applies here. In addition, assuming for purposes of argument the trial court erred by failing to dismiss the prospective jurors for cause, the error was harmless because neither prospective juror actually served on the jury. That defendant may have lost peremptory challenges is not grounds for reversal. (People v. Avila, at p. 540; People v. Boyette (2002) 29 Cal.4th 381, 419.)
Wheeler/Batson (People v. Wheeler (1978) 22 Cal.3d 258)(Batson v. Kentucky (1986) 476 U.S. 79)
The Sixth Amendment to the federal Constitution and article I, section 16 of the California Constitution guarantee a defendant a jury drawn from a representative cross-section of the community. It follows that the state and federal Constitutions are violated when a party uses peremptory challenges to remove prospective jurors solely for a presumed bias based on membership in an identifiable group. (People v. Wheeler, supra, 22 Cal.3d at pp. 276-277; Batson v. Kentucky, supra, 476 U.S. at p. 89.) “Under Wheeler and Batson ‘ “[if] a party believes his opponent is using his peremptory challenges to strike jurors on the ground of group bias alone, he must raise the point in timely fashion and make a prima facie case of such discrimination to the satisfaction of the court.” ’ ” (People v. Box (2000) 23 Cal.4th 1153, 1187.) The defendant makes a prima facie showing by producing evidence sufficient to permit a trial judge to draw an inference that discrimination has occurred. (Johnson v. California (2005) 545 U.S. 162, 168; People v. Gray (2005) 37 Cal.4th 168, 186.) In reviewing the trial court’s denial of a Wheeler motion, the appellate court should consider the entire record of voir dire of the challenged jurors. (People v. Gray, at p. 186.)
Here, after the prosecutor exercised a peremptory challenge against an African American juror, defense counsel made a Wheeler/Batson motion, which the court denied, finding no prima facie case had been made. The record discloses that the juror in question had been arrested but had not been convicted. The juror’s experience with the law suggested he might not harbor a favorable opinion of the police, or he might have had an experience where an arrest occurred despite the arrestee’s innocence. In addition, although the only other prospective jurors who might have been African American were excused, they were excused by the court on the basis of hardship, not as the result of peremptory challenges by the prosecutor. A challenge to a single juror of a cognizable group does not make out a case of discrimination, particularly when there appears to be a valid, nondiscriminatory reason for the challenge.
Other Matters
Defendant was represented by counsel who cross-examined the prosecution’s witnesses, made all appropriate objections to the prosecutor’s evidence and developed the defense that the prosecution had not proved beyond a reasonable doubt defendant burglarized Mr. Lopez’s apartment. Counsel claimed no physical evidence linked defendant to the Lopez burglary. She pointed out the only evidence Mr. Lopez’s home in fact had been burglarized were the statements of Mr. Lopez, contrasting that evidence with the undeniably strong evidence defendant had broken into Ms. Solorio’s apartment. Counsel also called Officer Jason Barnes, who had directed the questioning of defendant through Deputy Garibay. Counsel’s questions were directed towards showing the police had not made a complete investigation of Mr. Lopez’s claim that he had been burglarized. Counsel elicited the testimony defendant stated he had taken items from the home of Alogario Lopez (not Jesus Lopez), that Officer Barnes had been unable to find anyone named Alogario Lopez, and the police had not made contact with Jesus Lopez after taking defendant’s statement. Defendant was given the effective assistance of counsel.
The jury was given all proper and necessary instructions, including instructions on the elements of the crimes with which defendant was charged and how the jury should view the evidence. They were properly instructed as to the burden of proof. The verdict was unanimous.
Defendant was eligible for probation only if the court found it to be an unusual case. (§ 462.) Defense counsel argued to the court that it was an unusual case, pointing out the burglaries were committed during the day when defendant knew the occupants were away, noting further that defendant had no prior record. Counsel also asserted defendant had become addicted to methamphetamine, arguing the crimes resulted from the effects of defendant’s addiction. (See Rules of Court, rule 4.413.) In addition, counsel urged the court to treat the offenses as a single offense because they occurred within a relatively short period of time and were motivated by defendant’s loss of a job, hunger and homelessness.
The court, which originally had intended to sentence defendant to the midterm for residential burglary, sentenced him instead to the mitigated term of two years (§ 461), explaining it had been persuaded by defense counsel’s arguments. It then imposed one-third the midterm (one year four months) for the second burglary and the midterm on the receiving stolen property counts, but properly stayed the sentence on those counts pursuant to section 654. It gave defendant credit for time served against the charge of unlawful entry of a noncommercial building. The court properly ordered defendant to pay $850 actual restitution to the owner of the apartment building. It properly imposed a $900 restitution fine, a $900 parole revocation fine (suspended) and a $100 court security fee. (§§ 1202.4, subd. (b)(1); 1202.45; 1465.8, subd. (a)(1).) The court properly ordered defendant to provide samples and specimens pursuant to section 296, subd. (a). Defendant was given all the credits to which he was entitled.
Conclusion
In sum, we have thoroughly reviewed the record and find no arguable issues. While we have selected certain matters for discussion, we have scrutinized the record in its entirety. There are no issues requiring further briefing.
The judgment is affirmed.
We concur: MARCHIANO, P. J., MARGULIES, J.