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People v. Avalos

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Jan 9, 2012
F061784 (Cal. Ct. App. Jan. 9, 2012)

Opinion

F061784 Super. Ct. No. 1413409

01-09-2012

THE PEOPLE, Plaintiff and Respondent, v. BLANCA PATRICIA AVALOS, Defendant and Appellant.

Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION


THE COURT

Before Levy, Acting P.J., Cornell, J., and Kane, J.

APPEAL from a judgment of the Superior Court of Stanislaus County. Linda McFadden, Judge.

Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant.

Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.

STATEMENT OF THE CASE

Appellant, Blanca Patricia Avalos, was charged in an information filed February 11, 2010, with two counts of first degree robbery (Pen. Code, § 212.5, subd. (a), counts one & two) and one count of first degree burglary (§ 459, count three). The information further alleged gun use enhancements for all three counts (§ 12022.53, subd. (b), § 12022.5, subd. (a), & § 12022, subd. (a)(1)). A jury trial commenced on April 6, 2010. The prosecutor filed a first amended information including all of the original allegations and adding an allegation that the burglary was a violent felony within the meaning of section 667.5, subd. (c)(21).

Unless otherwise designated, all statutory references are to the Penal Code.

At the conclusion of the trial on April 9, 2010, the jury convicted appellant of all three counts and all of the special allegations. On January 7, 2011, the trial court sentenced appellant to prison for the upper term of six years on count one plus ten years for the gun use enhancement. On count two, the court sentenced appellant to prison for one year four months. The court added a consecutive term of three years four months for the personal use of a gun in the commission of count two. Appellant's sentence on count three was stayed pursuant to section 654. Appellant's total sentence is 20 years 8 months. Appellant was awarded actual custody credits of 361 days and conduct credits of 54 days, for total custody credits of 415 days.

Appellant filed a timely notice of appeal. Appellant's counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). We affirm the judgment.

FACTS

In January 2010, Rafael Vicente was living with his wife, Nerida Sanchez, and their daughter in the back of the home of Vicente's in-laws, Luis and Rosa Sanchez. Luis and Rosa Sanchez had a gold jewelry business and sold their merchandise at a flea market. Trusted customers sometimes bought items at the Sanchez' home. While Vicente was cleaning his truck, a neighbor stopped by with $100 to make a payment on a ring he had purchased. The neighbor wanted $10 back in change.

Vicente went into the house to get the $10. The neighbor followed Vicente into the home. Vicente called his wife and asked her to bring change when she came home. Vicente and the neighbor sat down to wait for Nerida, who said she would be home in about three minutes. A green truck parked in front of the house. Vicente could see the front door of the home through a monitor attached to a security camera.

A person exited the truck and came up to the front door asking for Luis Sanchez. Vicente identified appellant as the person who came up to the door. Vicente knew appellant was a woman, but she was dressed like a man. Vicente had seen her in the house about three months earlier engaging in a business deal with Luis Sanchez. Sanchez realized that while he was talking to appellant, a ring in the kitchen where he had been talking to appellant was missing. Luis Sanchez chased appellant out of the house.

A video depicting appellant walking up to the house was played for the jury. Appellant said to Vicente that she wanted to see, "Luis, the man who sells gold." Vicente was sure the woman was the woman Luis Sanchez called Marimacha. Vicente told appellant that Luis Sanchez was not home but at the flea market. In response to this information, appellant pulled out a gun and pushed Vicente away from the door.

Marimacha is an ambiguous word that can mean a tomboy or a woman whose behavior is masculine. Locally, the word is used to refer to a lesbian. The defense did not object to the translator's translation of this word.

Vicente had been trying to close the door when he saw the gun.
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Four people then walked from around appellant's truck. Appellant came into the house and told Vicente to get down on the floor or she would break him. Vicente understood this to mean that appellant would kill him and the neighbor if Vicente did not comply with her commands. Appellant was pointing the gun at Vicente and the neighbor's heads, telling them not to get up. The gun was a semi-automatic, like a .45 caliber or a 9-millimeter. Appellant had the gun ready to fire.

The four people came into the house and banged on doors to the rooms. The assailants covered Vicente's and the neighbor's heads. Vicente's wife, Nerida, and their daughter entered the house during the burglary, someone hit Nerida and threw her down on the floor next to Vicente. Vicente told the burglars to steal whatever they wanted and to leave quickly because Nerida suffered from an illness and fainted. Vicente asked the burglars to call an ambulance. The burglars threw Vicente's daughter into an armchair and covered her with a white shirt.

Vicente heard the burglars pushing a smaller safe that belonged to his mother-in-law. Vicente saw the burglars place the safe into the truck as the truck was pulling away. They also took a shotgun. Appellant took Vicente's and Nerida's cell phones and keys before leaving. Appellant said she was coming back to get the other safe and televisions in the home. Vicente estimated that the safe that was stolen contained gold, jewelry, and currency worth $230,000.

Stanislaus County Sheriff's Deputy Billie Redding responded to the 911 call from the house around noon. Vicente told Redding that a man dressed in a grey sweatshirt, dark glasses, and wearing a baseball cap came to the door of the house. The man asked for the man who sold gold. Vicente was very upset. He was shaking and crying. Vicente explained that other armed assailants entered the house. Talking to Vicente, Redding learned there was possible video footage of the assailants. Redding viewed the video which accurately depicted the version of events related by Vicente.

Neither Vicente nor Nerida said they knew or recognized the robber who came to the door. As Redding, Vicente, Nerida, and Luis and Rosa Sanchez were watching the video, Luis and Rosa Sanchez yelled out that the main assailant was "Patricia." At trial, Nerida was sure that appellant was one of the assailants because she had seen her in a shoe store three weeks or a month before.

After appellant's arrest, her brother was murdered. Nerida's brother and sister were charged with the murder. Appellant stood up. Her approximate height and weight were given to the jury. The court granted defense counsel's motion to have appellant say to the jury: "My name is Patricia Avalos.... Is the man here, the one who sells the gold?"

APPELLATE COURT REVIEW

Appellant's appointed appellate counsel has filed an opening brief that summarizes the pertinent facts, raises no issues, and requests this court to review the record independently. (Wende, supra, 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel indicating that appellant was advised she could file her own brief with this court. By letter on August 1, 2011, we invited appellant to submit additional briefing. To date, she has not done so.

After independent review of the record, we have concluded there are no reasonably arguable legal or factual issues.

DISPOSITION

The judgment is affirmed.


Summaries of

People v. Avalos

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Jan 9, 2012
F061784 (Cal. Ct. App. Jan. 9, 2012)
Case details for

People v. Avalos

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. BLANCA PATRICIA AVALOS, Defendant…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

Date published: Jan 9, 2012

Citations

F061784 (Cal. Ct. App. Jan. 9, 2012)